information location tool to which the safe harbor applies. Thus, although framing is
accomplished by linking, it is unclear whether framing would fall within the safe harbor.^2851
The Service Provider can become aware of infringing activity either by notice from the
copyright holder (or its authorized agent) or by virtue of other facts or circumstances of which it
becomes aware. The same issues of knowledge that were discussed above with respect to the
safe 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 of
infringing activity appears by its terms to require more knowledge on the part of the Service
Provider than a “should have known” (or reason to know) standard – it requires that the Service
Provider have actual awareness of facts from which infringing activity is apparent. As noted in
the discussion of Section 512(c) above, the legislative history describes the standard of
awareness as a “red flag” test.
a. The Napster CaseThe first case to adjudicate the safe harbor under Section 512(d) was the Napster case,
discussed extensively in Section III.C.2(c)(1) above. In that case, Napster asserted that the index
it maintained on its servers of MP3 files available on the hard drives of its users constituted an
information location tool, and that 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 very terse analysis contained entirely in a footnote, ruled that Napster
was not entitled to the safe harbor because (I) it had constructive knowledge of infringing
activity on its system (thereby failing to satisfy the requirement of Section 512(d)(1)(B))^2852 and
(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the
material;
(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the
service 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 to
remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing
activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall
be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or
access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate
that reference or link.”
(^2851) Ballon & Kupferschmid, supra note 2263, at 8.
(^2852) The district court appears to have misapplied Section 512(d)(1)(B). Because Napster had constructive
knowledge of infringing activity, and because Section 512(d)(1)(B) requires that the Service Provider be “not
aware of facts or circumstances from which infringing activity is apparent,” the district court reasoned that
Napster could not qualify for the safe harbor of Section 512(d). However, Section 512(d)(1) contains three
prongs, which are stated in the disjunctive, not the conjunctive. Specifically, Section 512(d)(1) requires that the
Service Provider have no actual knowledge of infringing material or activity (clause (A)), no awareness of facts
or circumstances from which infringing activity is apparent (clause (B)), or “upon obtaining such knowledge or
awareness, acts expeditiously to remove, or disable access to, the material” (clause (C)). Thus, even if a Service
Provider has actual or constructive knowledge of infringing activity, so long as the Service Provider acts
expeditiously to remove or disable access to the allegedly infringing material upon obtaining such knowledge,
the safe harbor is still available. Napster asserted that in every instance in which it had obtained knowledge of