Advanced Copyright Issues on the Internet - Fenwick & West LLP

information location tool to which the safe harbor applies. Thus, although framing isaccomplished by linking, it is unclear whether framing would fall within the safe harbor. 1996The Service Provider can become aware of infringing activity either by notice from thecopyright holder (or its authorized agent) or by virtue of other facts or circumstances of which itbecomes aware. The same issues of knowledge that were discussed above with respect to thesafe harbor of Section 512(c) apply also to the safe harbor of Section 512(d). Specifically,absent direct notice from the copyright holder or its agent, the standard of awareness ofinfringing activity appears by its terms to require more knowledge on the part of the ServiceProvider than a “should have known” (or reason to know) standard – it requires that the ServiceProvider have actual awareness of facts from which infringing activity is apparent. As noted inthe discussion of Section 512(c) above, the legislative history describes the standard ofawareness as a “red flag” test.a. The Napster Case. The first case to adjudicate thesafe harbor under Section 512(d) was the Napster case, discussed extensively in SectionIII.C.2(c)(1) above. In that case, Napster asserted that the index it maintained on its servers ofMP3 files available on the hard drives of its users constituted an information location tool, andthat to the extent the plaintiffs’ infringement claims were based on the operation of that index,Napster was entitled to the safe harbor of Section 512(d). The district court, with only a veryterse analysis contained entirely in a footnote, ruled that Napster was not entitled to the safeharbor because (I) it had constructive knowledge of infringing activity on its system (thereby(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which theservice provider has the right and ability to control such activity; and(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously toremove, or disable access to, the material that is claimed to be infringing or to be the subject of infringingactivity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shallbe identification of the reference or link, to material or activity claimed to be infringing, that is to be removedor access to which is to be disabled, and information reasonably sufficient to permit the service provider tolocate that reference or link.”1996 Ballon & Kupferschmid, supra note 1682, at 8.- 432 -