engaged in through a technological process initiated by another through the facilities of an OSP
could constitute direct infringement on the part of the OSP.^2266
Specifically, under Section 512(a), a Service Provider is not liable for monetary relief,
and is subject only to limited injunctive relief, for “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, if:
(1) the transmission of the material was initiated by or at the direction of a person other
than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through
an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an
automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such
intermediate or transient storage is maintained on the system or network in a manner ordinarily
accessible to anyone other than anticipated recipients, and no such copy is maintained on the
system or network in a manner ordinarily accessible to such anticipated recipients for a longer
period than is reasonably necessary for the transmission, routing, or provision of connections;
and
(5) the material is transmitted through the system or network without modification of its
content.”
This safe harbor will not be available to a Service Provider that initiates, selects, or
modifies the content of a transmission, or stores it on a system in a way that its content becomes
generally accessible to third parties.
The safe harbor of Section 512(a) has been tested in the following cases to date:a. The Napster CaseIn the Napster case, discussed extensively in Section III.C.2.(c)(1) above, Napster moved
for summary judgment that it was immune from the plaintiffs’ claims by virtue of the Section
512(a) safe harbor. Napster argued that it fell within the subject matter of the safe harbor
because its “core function” was to offer 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
(^2266) H.R. Rep. No. 105-551 Part 1, at 11 (1998); ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622
(4th Cir. 2001). “Subsections (a)(1) through (5) limit the range of activities that qualify under this subsection to
ones in which a service provider plays the role of a ‘conduit’ for the communications of others.” H.R. Rep. No.
105-551 Part 2, at 51 (1998).