argument that its system should be deemed to include the Napster browser on its users’
computers and that the MP3 files were transmitted “through” that browser: “[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 finds that
subsection 512(a) does not protect the transmission of MP3 files.”^2273
Second, the court called into question whether Napster had complied with the prefatory
conditions of Section 512(i) of the DMCA (discussed further in subsection (2) below), which
imposes additional requirements on eligibility for any DMCA safe harbor. Section 512(i)
requires that the Service Provider adopt and reasonably implement, and inform subscribers and
account holders of the Service Provider’s system or network of, a policy that provides for the
termination in appropriate circumstances of subscribers and account holders of the Service
Provider’s system or network who are repeat infringers.
The court found questions about Napster’s compliance with Section 512(i) on two
grounds. The first ground was that, although Napster claimed to have had an oral policy from
the earliest days of its existence, Napster had not adopted a written policy for termination of
repeat infringers until after the litigation was filed. The court noted that, even were the written
policy ultimately adopted an adequate one, the late adoption of a formal written policy would not
necessarily moot the plaintiffs’ claims to monetary relief for past harms.^2274 The second ground
was that the court believed Napster had not established that it reasonably implemented a policy
for terminating repeat infringers. Specifically, the court noted that Napster blocked users about
whom it received notices of infringement by blocking that user’s password, but not the Internet
Protocol (IP) address of the user. (The parties sharply disputed whether it would be feasible or
effective to block IP addresses.) The court further noted the plaintiffs’ argument that, because
Napster did not maintain the actual identity of its users (their real names and physical addresses),
blocked users could readily reapply for a new account on the Napster system and continue their
infringing activity. The court therefore concluded that the plaintiffs had raised genuine issues of
material fact about whether Napster had reasonably implemented a policy of terminating repeat
infringers, and therefore denied Napster’s motion for summary judgment based on a Section
512(a) defense.^2275
b. Ellison v. Robertson(^2273) Id. (emphasis in original). The court similarly found that the Napster system did not provide connections
“through” its system. “Although the Napster server conveys address information to establish a connection
between the requesting and host users, the connection itself occurs through the Internet. ... Drawing inferences
in the light most favorable to the non-moving party, this court cannot say that Napster serves as a conduit for
the connection itself, as opposed to the address information that makes the connection possible. Napster
enables or facilitates the initiation of connections, but these connections do not pass through the system within
the meaning of subsection 512(a).” Id. at 1752.
(^2274) Id. at 1753.
(^2275) Id.