Internet to the user’s Napster browser and hard drive.”^2267 Napster argued that it satisfied the
preceding five specific conditions for the safe harbor because “(1) a Napster user, and never
Napster itself, initiates the transmission of MP3 files; (2) the transmission occurs through an
automatic, technical process without any editorial 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.”^2268
The court rejected the applicability of the Section 512(a) safe harbor to Napster for
several reasons. First, the court held that the safe harbor could not provide a complete defense to
Napster’s entire system because the system performed more than just the functions of
transmission, routing, and providing of connections. Specifically, the court noted that Section
512(n) of the DMCA provides that the four safe harbors “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 a determination of whether that service provider qualifies for the limitations
on liability under any other such subsections.”^2269 The court ruled that the Napster system,
through its index of user files and its “hot list” feature that each functioned as an “information
location tool,” undisputedly performed some information location functions which, if those
functions were to be immunized, must satisfy the separate provisions of the safe harbor set forth
in Section 512(d) (discussed in subsection (iv) below).^2270
Napster argued that, even if its system functioned in part as an information location tool,
that function should be considered incidental to the system’s core function of transmitting MP3
music files, and the safe harbor of Section 512(a) should therefore provide a complete defense to
its system. The court rejected this argument, holding that because the parties disputed material
issues regarding the operation of Napster’s index, directory and search engine, the court could
not hold for purposes of summary judgment that the information location tool aspects of the
Napster system were peripheral to the alleged infringement, or that they should not be analyzed
separately under Section 512(d).^2271
The court then rejected the applicability of Section 512(a) to Napster for two principal
reasons. First, the court noted that the preamble of Section 512(a) makes the safe harbor
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” (emphasis
added). The court found it undisputed that MP3 files do not pass “through” Napster’s servers,
but rather “through” the Internet, and ruled that the Internet could not be considered “a system or
network controlled or operated by or for the service provider.”^2272 The court rejected Napster’s
(^2267) A&M Records Inc. v. Napster, Inc., 54 U.S.P.Q.2d 1746, 1749 (N.D. Cal. 2000).
(^2268) Id.
(^2269) 17 U.S.C. § 512(n).
(^2270) Napster, 54 U.S.P.Q.2d at 1750.
(^2271) Id. at 1750.
(^2272) Id. at 1751.