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The online music system Napster does not meet the copyright infringement liability exceptions of Section 512 (a) of the Digital Millennium Copyright Act because it does not transmit, route, or provide connections for allegedly infringing material through its system, the U.S. District Court for the Northern District of California held May 5 in denying Napster’s motion for summary judgment ( A&M Records Inc. v. Napster Inc., N.D. Calif., No. C99-05183 MHP, 5/5/00). Napster Inc. is a small Internet startup based in San Mateo, Calif. It makes its proprietary MusicShare software freely available for Internet users to download and share MP3 music files with others logged on to the Napster system. Napster allows users to exchange MP3 files stored on their own hard drives directly and without payment. After downloading MusicShare software from the Napster website, a user can access the Napster system from his or her computer. The MusicShare software interacts with Napster’s server-side software when the user logs on, automatically connecting him or her to one of the 150 servers Napster operates. A user who wants to locate a song enters the name of the artist on the MusicShare search page, then downloads it from the list of files generated by the Napster software. A& M Records Inc., Arista Records Inc., Mowtown Record Company LP, Capitol Records Inc., Sony Music Entertainment Inc., Warner Bros. Records Inc. and 10 other record companies sued Napster in the U.S. District Court for the Northern District of California for contributory and vicarious copyright infringement. Napster filed a motion for summary judgment, claiming that it was protected under Section 512(a) of the 1998 Digital Millennium Copyright Act. This “safe harbor provision” exempts qualifying online service and Internet access providers, if five conditions are satisfied, “for infringement of copyright by reason of the [service] provider’s transmitting, routing, or providing connections for material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections.” NAPSTER SAID IT IS A �SERVICE PROVIDER’ Citing the “definitions” subsection of the statute, Napster argued that it qualified as a “service provider” for the purposes of the Section 512(a) safe harbor because it (1) offers the “transmission, routing, or providing of connections for digital online communications” by enabling the connection of users’ hard drives and the transmission of MP3 files “directly from the host hard drive and Napster browser through the Internet to the user’s Napster browser and hard drive”; (2) users choose the online communications points and MP3 files to be transmitted with no direction from Napster; and (3) Napster does not modify the content of the transferred files. Napster claimed it complied with the five conditions required by the statute because (1) Napster users and not Napster initiate the transmission of MP3 files; (2) the transmission occurs through an automatic, technical process without any input from Napster; (3) Napster does not choose the recipients of the MP3 files; (4) Napster does not make a copy of the material during transmission; and (5) the content of the material is not modified during transmission. The plaintiffs disagreed, quoting Subsection 512(n) of the statute: Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection and shall not affect the determination of whether that service provider qualifies for the limitation on liability under any other subsections. This subsection, the plaintiffs argued, requires the court to analyze each of Napster’s functions independently. Napster, the plaintiffs contended, provides location tools, such as a search engine, directory, index, and links, that are covered by the more stringent eligibility requirements of Subsection 512(d), which applies to service providers that refer or link users to an online location containing infringing materials or activities by “using information location tools, including a directory, index, reference, pointer, or hyperlink text.” The plaintiffs also argued that Napster does not perform the function that the Section 512(a) safe harbor protects because the infringing material is not transmitted or routed through the Napster system. Napster answered that the information location tools it provides are incidental to its core function of automatically transmitting, routing, or providing connections for the MP3 files users select. TRANSMISSION DOES NOT GO �THROUGH’ Judge Marilyn Hall Patel, writing the opinion of the court, stated that because the parties disputed material issues regarding the operation of Napster’s index, directory, or search engine, the court declined to hold that these functions are peripheral to the alleged infringement or that they should be analyzed separately under subsection 512(d). The court noted that statements by Napster that users can locate millions of songs with ease without “wading through page after page of unknown artists” are “tantamount to an admission that its search and indexing functions are essential to its marketability.” The court added, however, that the the potential applicability of subsection 512(d) did not completely foreclose use of the 512(a) safe harbor as an affirmative defense. However, the court agreed with the plaintiff that Subsection 512(a) did not apply because Napster did not perform the “passive conduit” function required for protection under that subsection. The court acknowledged Napster’s contention that the phrase “passive conduit” is not in the statute and appears only in the legislative history and DMCA summaries. In looking at the language of the statute, the court noted that the safe harbor of subsection 512(a) was applicable only to service providers “transmitting, routing, or providing connections for material through a system or network controlled or operated by or for the service provider.” Napster argued that its system included the browser on each user’s computer, but the court responded that even if this were true the MP3 files are not transmitted through the system within the meaning of subsection 512(a). “[E]ven if each user’s Napster browser is part of the system, the transmission goes from one part of the system to another or between parts of the system, but not �through’ the system,” the court wrote. Even if Napster had met the criteria outlined in subsection 512(a), subsection 512(i) imposes as an additional requirement on eligibility for any DMCA safe harbor that the service provider has reasonably implemented a policy for terminating repeat infringers. The plaintiffs, the court noted, claimed that Napster willfully turned a “blind eye” to the identity of its users because their anonymity allowed Napster to disclaim responsibility for copyright infringement. This, the court stated, raised genuine issues of material fact with regard to Napster’s compliance with subsection 512(i). The court concluded that Napster did not meet the requirements of subsection 512(a) and that summary adjudication was inappropriate due to the existence of genuine issues of material fact about Napster’s compliance with subsection 512(i). Consequently, the court denied Napster’s motion for summary adjudication.

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