A & M RECORDS, INC., a corporation, GEFFEN RECORDS, INC., a
corporation; INTERSCOPE RECORDS, a general partnership; SONY
MUSIC ENTERTAINMENT INC., a corporation; MCA RECORDS, a
corporation; ATLANTIC RECORDING CORPORATION, a corporation;
ISLAND RECORDS, INC., a corporation; MOTOWN RECORD COMPANY
L.P., a limited partnership; CAPITOL RECORDS INC., a
corporation; LA FACE RECORDS, a joint venture; BMG MUSIC
d/b/a THE RCA RECORDS LABEL, a general partnership;
UNIVERSAL RECORDS INC., a corporation; ELEKTRAENTERTAINMENT
GROUP INC., a corporation; ARISTA RECORDS, INC., a
corporation; SIRE RECORDS GROUP INC., a corporation; VIRGIN
RECORDS AMERICA INC., a corporation; and WARNER BROS.
RECORDS INC., a corporation, Plaintiff(s), v. NAPSTER, INC.,
Defendant(s).
No. C 99-05183 MHP
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA
2000 U.S. Dist. LEXIS 6243; 54 U.S.P.Q.2D (BNA) 1746;
Copy. L. Rep. (CCH) P28,072
May 5, 2000, Decided
May 5, 2000, Filed
OPINION
On December 6, 1999, plaintiff record companies filed suit alleging
contributory and vicarious federal copyright infringement and related state law
violations by defendant Napster, Inc. ("Napster"). Now [*2] before this court
is defendant's motion for summary adjudication of the applicability of a safe
harbor provision of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C.
section 512(a), to its business activities. Defendant argues that the entire
Napster system falls within the safe harbor and, hence, that plaintiffs may not
obtain monetary damages or injunctive relief; except as narrowly specified by
subparagraph 512(j)(1)(B). In the alternative, Napster asks the court to find
subsection 512(a) applicable to its role in downloading MP3 music files, n1 as
opposed to searching for or indexing such files. Having considered the parties'
arguments and for the reasons set forth below, the court enters the following
memorandum and order.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The Motion Picture Experts Group first created MP3 in the early 1980s as
the audio layer 3 of the MPEG-1 audiovisual format. MP3 technology allows for
the fast and efficient conversion of compact disc recordings into computer files
that may be downloaded over the Internet. See generally Recording Industry Ass'n
of America v. Diamond Multimedia Systems Inc., 180 F.3d 1072, 1073-74 (9th Cir.
1999) (discussing MP3 technology).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*3]
BACKGROUND
Napster--a small internet start-up based in San Mateo, California--makes its
proprietary MusicShare software freely available for Internet users to download.
Users who obtain Napster's software can then share MP3 music files with others
logged-on to the Napster system. MP3 files, which reproduce nearly CD-quality
sound in a compressed format, are available on a variety of websites either for
a fee or free-of-charge. Napster allows users to exchange MP3 files stored on
their own computer hard-drives directly, without payment, and boasts that it
"takes the frustration out of locating servers with MP3 files." Def. Br. at 4.
Although the parties dispute the precise nature of the service Napster
provides, they agree that using Napster typically involves the following basic
steps: After downloading MusicShare software from the Napster website, a user
can access the Napster system from her computer. The MusicShare software
interacts with Napster's server-side software when the user logs on,
automatically connecting her to one of some 150 servers that Napster operates.
The MusicShare software reads a list of names of MP3 files that the user has
elected to make available. [*4] This list is then added to a directory and
index, on the Napster server, of MP3 files that users who are logged-on wish to
share. If the user wants to locate a song, she enters its name or the name of
the recording artist on the search page of the MusicShare program and clicks the
"Find It" button. The Napster software then searches the current directory and
generates a list of files responsive to the search request. To download a
desired file, the user highlights it on the list and clicks the "Get Selected
Songs" button. The user may also view a list of files that exist on another user
's hard drive and select a file from that list. When the requesting user clicks
on the name of a file, the Napster server communicates with the requesting user
's and host user's n2 MusicShare browser software to facilitate a connection
between the two users and initiate the downloading of the file without any
further action on either user's part.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Napster uses the term "host user" to refer to the user who makes the
desired MP3 file available for downloading.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*5]
According to Napster, when the requesting user clicks on the name of the
desired MP3 file, the Napster server routes this request to the host user's
browser. The host user's browser responds that it either can or cannot supply
the file. If the host user can supply the file, the Napster server communicates
the host's address and routing information to the requesting user's browser,
allowing the requesting user to make a connection with the host and receive the
desired MP3 file. See Declaration of Edward Kessler ("Kessler Dec."), Exh. B;
Reply Declaration of Edward Kessler ("Kessler Reply Dec.") P 22. The parties
disagree about whether this process involves a hypertext link that the Napster
server-side software provides. Compare Pl. Br. at 9 with Def. Reply Br. at 10
n12. However, plaintiffs admit that the Napster server gets the necessary IP
address information from the host user, enabling the requesting user to connect
to the host. See Declaration of Daniel Farmer ("Farmer Dec.") P 17; Declaration
of Russell J. Frackman ("Frackman Dec."), Exh. 1 (Kessler Dep.) at 103-05. The
MP3 file is actually transmitted over the Internet, see, e.g., Def. Reply Br. at
3, but [*6] the steps necessary to make that connection could not take place
without the Napster server.
The Napster system has other functions besides allowing users to search for,
request, and download MP3 files. For example, a requesting user can play a
downloaded song using the MusicShare software. Napster also hosts a chat room.
Napster has developed a policy that makes compliance with all copyright laws
one of the "terms of use" of its service and warns users that:
Napster will terminate the accounts of users who are repeat infringers
of the copyrights, or other intellectual property rights, of others.
In addition, Napster reserves the right to terminate the account of a
user upon any single infringement of the rights of others in
conjunction with use of the Napster service.
Kessler Dec. P 19. However, the parties disagree over when this policy was
instituted and how effectively it bars infringers from using the Napster
service. Napster claims that it had a copyright compliance policy as early as
October 1999, but admits that it did not document or notify users of the
existence of this policy until February 7, 2000.
LEGAL STANDARD
The court may grant summary [*7] adjudication of a particular claim or
defense under the same standards used to consider a summary judgment motion. See
Fed. R. Civ. P. 56(a), (b); Pacific Fruit Express Co. v. Akron, Canton &
Youngstown R.R. Co., 524 F.2d 1025, 1029-30 (9th Cir. 1975). Summary judgment
shall be granted when there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. See Fed. R. Civ. 56(c).
The moving party bears the initial burden of identifying those portions of
the record that demonstrate the absence of a genuine issue of material fact. The
burden then shifts to the nonmoving party to "go beyond the pleadings, and by
[its] own affidavits, or by the 'depositions, answers to interrogatories, or
admissions on file,' designate 'specific facts showing that there is a genuine
issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d
265, 106 S. Ct. 2548 (1986) (citations omitted). A dispute about a material fact
is genuine "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). [*8] The moving party discharges
its burden by showing that the nonmoving party has not disclosed the existence
of any "significant probative evidence tending to support the complaint." First
Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 20 L. Ed. 2d 569, 88 S. Ct.
1575 (1968). The court does not make credibility determinations in considering a
motion for summary judgment. See Anderson, 477 U.S. at 249. Rather, it views the
inferences drawn from the facts in the light most favorable to the party
opposing the motion. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass
'n, 809 F.2d 626, 631 (9th Cir. 1987).
DISCUSSION
Section 512 of the DMCA addresses the liability of online service and
Internet access providers for copyright infringements occurring online.
Subsection 512(a) exempts qualifying service providers from monetary liability
for direct, vicarious, and contributory infringement and limits injunctive
relief to the degree specified in subparagraph 512(j)(1)(B). Interpretation of
subsection 512(a), or indeed any of the section 512 safe harbors, appears to be
an issue of first impression. n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 In Universal City Studios, Inc. v. Reimerdes,82 F. Supp. 2d 211, 217 &
n.17 (S.D.N.Y. 2000), one defendant sought protection under subsection 512(c).
Although the court noted in passing that the defendant offered no evidence that
he was a service provider under subsection 512(c), it held that he could not
invoke the safe harbor because plaintiffs claimed violations of 17 U.S.C.
section 1201(a), which applies to circumvention products and technologies,
rather than copy right infringement.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*9]
Napster claims that its business activities fall within the safe harbor
provided by subsection 512(a). This subsection limits liability "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," if five conditions are
satisfied:
(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 the
anticipated [*10] 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.
17 U.S.C. § 512(a).
Citing the "definitions" subsection of the statute, Napster argues that it is
a "service provider" for the purposes of the 512(a) safe harbor. See 17 U.S.C. §
512(k)(1)(A). n4 First, it claims 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 Internet to the user's
Napster browser and hard drive." Def. Reply Br. at 3. Second, Napster states
that users choose the online communication points and the MP3 files to be
transmitted with no direction from Napster. Finally, the Napster system does not
modify the content of the transferred files. Defendant contends that, because
[*11] it meets the definition of "service provider," n5 it need only satisfy
the five remaining requirements of the safe harbor to prevail in its motion for
summary adjudication.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Subparagraph 512(k)(1)(A provides:
As used in subsection (a), the term "service provider" means as entity
offering the transmission, routing, or providing of connections for
digital online communications, between or among points specified by a
user, of material of the user's choosing, without modification to the
content of the material sent or received.
Subparagraph 512(k)(1)(B) states:
As used in this section, other than subsection (a), the term "service
provider" means a provider of online services or network access, or
the operator of facilities therefor, and includes an entity described
in subparagraph (A).
n5 It is not entirely clear to the court that Napster qualifies under the
narrower subparagraph 512(k)(1)(A). However, plaintiffs appear to concede that
Napster is a "service provider" within the meaning of subparagraph 512(k)(1)(A),
arguing instead that Napster does not satisfy the additional limitations that
the prefatory language of subsection 512(a) imposes. The court assumes, but does
not hold, that Napster is a "service provider" under subparagraph 512(k)(1)(A).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*12]
Defendant then seeks to show compliance with these requirements by arguing:
(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. Napster maintains that the 512(a) safe harbor thus protects its
core function--"transmitting, routing and providing connections for sharing of
the files its users choose." Def. Reply Br. at 2.
Plaintiffs disagree. They first argue that subsection 512(n) requires the
court to analyze each of Napster's functions independently and that not all of
these functions fall under the 512(a) safe harbor. In their view, Napster
provides information location tools--such as a search engine, directory, index,
and links--that are covered by the more stringent eligibility requirements of
subsection 512(d), rather than subsection 512(a).
Plaintiffs also contend that Napster does not perform the function which the
512(a) safe harbor [*13] protects because the infringing material is not
transmitted or routed through the Napster system, as required by subsection
512(a). They correctly note that the definition of "service provider" under
subparagraph 512(k)(1)(A) is not identical to the prefatory language of
subsection 512(a). The latter imposes the additional requirement that
transmitting, routing, or providing connections must occur "through the system
or network." Plaintiffs argue in the alternative that, if users' computers are
part of the Napster system, copies of MP3 files are stored on the system longer
than reasonably necessary for transmission, and thus subparagraph 512(a)(4) is
not satisfied.
Finally, plaintiffs note that, under the general eligibility requirements
established in subsection 512(i), a service provider must have adopted,
reasonably implemented, and informed its users of a policy for terminating
repeat infringers. Plaintiffs contend that Napster only adopted its copyright
compliance policy after the onset of this litigation and even now does not
discipline infringers in any meaningful way. Therefore, in plaintiffs' view,
Napster fails to satisfy the DMCA's threshold eligibility requirements [*14] or
show that the 512(a) safe harbor covers any of its functions.
I. Independent Analysis of Functions
Subsection 512(n) of the DMCA stares:
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 a determination of whether that service provider
qualifies for the limitations on liability under any other such
subsections.
Citing subsection 512(n), plaintiffs argue that the 512(a) safe harbor does not
offer blanket protection to Napster's entire system. Plaintiffs consider the
focus of the litigation to be Napster's function as an information location
tool--eligible for protection, if at all, under the more rigorous subsection
512(d). They contend that the system does not operate as a passive conduit
within the meaning subsection 512(a). In this view, Napster's only possible safe
harbor is subsection 512(d), which applies to service providers "referring or
linking users to an online location containing infringing material [*15] or
infringing activity, by using information location tools, including a directory,
index, reference, pointer, or hypertext link. . . ." Subsection 512(d) imposes
more demanding eligibility requirements because it covers active assistance to
users.
Defendant responds in two ways. First, it argues that subsection 512(a),
rather than 512(d), applies because 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. In the alternative,
defendant maintains that, even if the court decides to analyze the information
location functions under 512(d), it should hold that the 512(a) safe harbor
protects other aspects of the Napster service.
Napster undisputedly performs some information location functions. The
Napster server stores a transient list of the files that each user currently
logged-on to that server wants to share See, e.g., Kessler Dec. P 12. This data
is maintained until the user logs off but the structure of the index itself
continues to exist. See Frackman Dec., Exh. 1 (Kessler Dep.), at 71:3-4, 16-21;
77:8. If a user wants to find a particular song or [*16] recording artist, she
enters a search, and Napster looks for the search terms in the index. See id. at
76:17-25, 77:1-2. Edward Kessler, Napster's Vice President of Engineering,
admitted in his deposition that, at least in this context, Napster functions as
a free information location tool. See id. at 21:12-19; cf. Farmer Dec. P 16
(stating that "Napster operates exactly like a search engine or information
location tool to the user"). Napster software also has a "hot list" function
that allows users to search for other users' log-in names and receive
notification when users with whom they might want to communicate have connected
to the service. See Frackman Dec., Exh. 1 (Kessler Dep.), at 59:16-18. In short,
the parties agree on the existence of a searchable directory and index, and
Napster representatives have used the phrase "information location tool," which
appears in the heading for subsection 512(d), to characterize some Napster
functions.
There the agreement ends. According to Napster, the information location
tools upon which plaintiffs base their argument are incidental to the system's
core function of transmitting MP3 music files, and for this reason, the [*17]
court should apply subsection 512(a). Napster also disputes the contention that
it organizes files or provides links to other Internet sites in the same manner
as a search engine like Yahoo!. See Kessler Reply Dec. PP 16-20 (discussing
differences between Napster and other search engines). Consequently, it deems
subsection 512(d) inapplicable to its activities. Cf. H.R. Rep. No. 105-551
(II), 105th Cong., 2d Sess. (1998), 1998 WL 414916, at *147 (using Yahoo! as an
example of an information location tool covered by 512(d)). Napster contrasts
its operations, which proceed automatically after initial stimuli from users,
with search engines like Yahoo! that depend upon the "human judgment and
editorial discretion" of the service provider's staff. Id.
Napster's final and most compelling argument regarding subsection 512(d) is
that the DMCA safe harbors are not mutually exclusive. According to subsection
512(n), a service provider could enjoy the 512(a) safe harbor even if its
information location tools were also protected by (or failed to satisfy)
subsection 512(d). See 17 U.S.C. § 512(n) ("Whether a service provider qualifies
for the [*18] limitation on liability in any one of those subsections . . .
shall, not affect a determination of whether that service provider qualifies for
the limitations on liability under any other such subsections.") Similarly,
finding some aspects of the system outside the scope of subsection 512(a) would
not preclude a ruling that other aspects do meet 512(a) criteria.
Because the parties dispute material issues regarding the operation of
Napster's index, directory, and search engine, the court declines to hold that
these functions are peripheral to the alleged infringement, or that they should
not be analyzed separately under subsection 512(d). n6 Indeed, despite its
contention that its search engine and indexing functions are incidental to the
provision of connections and transmission of MP3 files, Napster has advertised
the ease with which its users can locate "millions of songs" online without
"wading through page after page of unknown artists." Frackman Dec., Exh. 5, 4.
Such statements by Napster to promote its service are tantamount to an admission
that its search and indexing functions are essential to its marketability. Some
of these essential functions--including but [*19] not limited to the search
engine and index--should be analyzed under subsection 512(d).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 The court need not rule on the applicability of subsection 512(d) to the
functions plaintiffs characterize as information location tools because
defendant does not rely on subsection 512(d) as grounds for its motion for
summary adjudication.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
However, the potential applicability of subsection 512(d) does not completely
foreclose use of the 512(a) safe harbor as affirmative defense. See 17 U.S.C. §
512(n). The court will now turn to Napster's eligibility for protection under
subsection 512(a). It notes at the outset, though, that a ruling that subsection
512(a) applies to a given function would not mean that the DMCA affords the
service provider blanket protection.
II. Subsection 512(a)
Plaintiffs' principal argument against application of the 512(a) safe harbor
is that Napster does not perform the passive conduit function eligible for
protection under this subsection. As defendant [*20] correctly notes, the words
"conduit" or "passive conduit" appear nowhere in 512(a), but are found only in
the legislative history and summaries of the DMCA. The court must look first to
the plain language of the statute, "construing the provisions of the entire law,
including its object and policy, to ascertain the intent of Congress." United
States v. Hockings, 129 F.3d 1069, 1071 (9th Cir. 1997) (quoting Northwest
Forest Resource Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)) (internal
quotation marks omitted). If the statute is unclear, however, the court may rely
on the legislative history. See Hockings, 129 F.3d at 1071. The language of
subsection 512(a) makes the safe harbor applicable, as a threshold matter, to
service providers "transmitting, routing or providing connections for, material
through a system or network controlled or operated by or for the service
provider. . . ." 17 U.S.C. § 512(a) (emphasis added). According to plaintiffs,
the use of the word "conduit" in the legislative history explains the meaning of
"through a system."
Napster has expressly denied that the transmission [*21] of MP3 files ever
passes through its servers. See Kessler Dec. P 14. Indeed, Kessler declared that
"files reside on the computers of Napster users, and are transmitted directly
between those computers." Id. MP3 files are transmitted "from the Host user's
hard drive and Napster browser, through the Internet to the recipient's Napster
browser and hard drive." Def. Reply Br. at 3 (citing Kessler Dec. P 12-13)
(emphasis added). The internet cannot be considered "a system or network
controlled or operated by or for the service provider," however. 17 U.S.C. §
512(a). To get around this problem, Napster avers (and plaintiffs seem willing
to concede) that "Napster's servers and Napster's MusicShare browsers on its
users' computers are all part of Napster's overall system." Def. Reply Br. at 5.
Defendant narrowly defines its system to include the browsers on users'
computers. See Kessler Dec. P 13. In contrast, plaintiffs argue that either (1)
the system does not include the browsers, or (2) it includes not only the
browsers, but also the users' computers themselves, See Farmer Dec. P 17.
Even assuming that the system includes the browser on each [*22] user's
computer, the MP3 files are not transmitted "through" the system within the
meaning of subsection 512(a). Napster emphasizes the passivity of its
role--stating that "all files transfer directly from the computer of one Napster
user through the Internet to the computer of the requesting user." Def. Br. at 5
(emphasis added); see also id. at 12 (citing Kessler Dec. P 13-15). It admits
that the transmission bypasses the Napster server. See Kessler Dec. P 14; Def.
Reply Br. at 6. This means that, even 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.
The prefatory language of subsection 512(a) is disjunctive, however. The
subsection applies to "infringement of copyright by reason of the provider's
transmitting, routing, or providing connections through a system or network
controlled or operated by or for the service provider." 17 U.S.C. § 512(a)
(emphasis added). The court's finding that transmission does not occur [*23]
"through" the system or network does not foreclose the possibility that
subsection 512(a) applies to "routing" or "providing connections." Rather, each
of these functions must be analyzed independently.
Napster contends that providing connections between users' addresses
"constitutes the value of the system to the users and the public." Def. Br. at
15. This connection cannot be established without the provision of the host's
address to the Napster browser software installed on the requesting user's
computer. See Kessler Dec. P 10-13. The central Napster server delivers the host
's address. See id. While plaintiffs contend that the infringing material is not
transmitted through the Napster system, they provide no evidence to rebut the
assertion that Napster supplies the requesting user's computer with information
necessary to facilitate a connection with the host.
Nevertheless, the court finds that Napster does 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. The legislative history of section 512
demonstrates [*24] that Congress intended the 512(a) safe harbor to apply only
to activities "in which a service provider plays the role of a 'conduit' for the
communications of others." H.R. Rep. No. 105-551(II), 105th Cong., 2d Sess.
(1998), 1998 WL 414916, at *130. 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).
Neither party has adequately briefed the meaning of "routing" in subsection
512(a), nor does the legislative history shed light on this issue. Defendant
tries to make "routing" and "providing connections" appear synonymous--stating,
for example, that "the central Napster server routes the transmission by
providing the Host's address to the Napster browser that is installed on and in
use by User's computer." Def. Br. at 16. However, the court doubts that Congress
would have used the terms "routing" and "providing connections" disjunctively if
[*25] they had the same meaning. n7 It is clear from both parties' submissions
that the route of the allegedly infringing material goes through the Internet
from the host to the requesting user, not through the Napster server. See, e.g.,
Def. Br. at 13 ("Indeed, the content of the MP3 files are routed without even
passing through Napster's Servers."). The court holds that routing does not
occur through the Napster system.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Napster sometimes appears to recognize a distinction between the two
terms. For example, it states that "the system provides remote users with
connection to each other and allows them to transmit and route the information
as they choose." Def. Reply Br. at 2.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Because Napster does not transmit, route, or provide connections through its
system, it has failed to demonstrate that it qualifies for the 512(a) safe
harbor, The court thus declines to grant summary adjudication in its favor.
III. Copyright Compliance Policy
Even if the court had determined that Napster meets the criteria [*26]
outlined in subsection 512(a), subsection 512(i) imposes additional requirements
on eligibility for any DMCA safe harbor. This provision states:
The limitations established by this section shall apply to a service
provider only if the service provider--
(A) has adopted and reasonably implemented, and informs
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; and
(B) accommodates and does not interfere with standard
technical measures.
17 U.S.C. § 512(i).
Plaintiffs challenge Napster's compliance with these threshold eligibility
requirements on two grounds. First, they point to evidence from Kessler's
deposition that Napster did not adopt a written policy of which its users had
notice until on or around February 7, 2000--two months after the filing of this
lawsuit. See Frackman Dec., Exh. 1 (Kessler Dep.) at 189:17-25, 190:1-25,
191:1-12. Kessler testified that, although Napster had a copyright compliance
policy as early [*27] as October 1999, he is not aware that this policy was
reflected in any document see id at 191:22-24, 192:9-11, or communicated to any
user. See id. at 192:15-16. Congress did not intend to require a service
provider to "investigate possible infringements, monitor its service or make
difficult judgments as to whether conduct is or is not infringing," but the
notice requirement is designed to insure that flagrant or repeat infringers
"know that there is a realistic threat of losing [their] access." H.R. Rep.
105-551(II), 1998 WL 414916, at *154.
Napster attempts to refute plaintiffs' argument by noting that subsection
512(i) does not specify when the copyright compliance policy must be in place.
Although this characterization of subsection 512(i) is facially accurate, it
defies the logic of making formal notification to users or subscribers a
prerequisite to exemption from monetary liability. The fact that Napster
developed and notified its users of a formal policy after the onset of this
action should not moot plaintiffs' claim to monetary relief for past harms.
Without further documentation, defendant's argument that it has satisfied
subsection 512(i) is [*28] merely conclusory and does not support summary
adjudication in its favor.
Summary adjudication is also inappropriate because Napster has not shown that
it reasonably implemented a policy for terminating repeat infringers. See 17
U.S.C. § 512(i)(A) (requiring "reasonable" implementation of such a policy). If
Napster is formally notified of infringing activity, it blocks the infringer's
password so she cannot log on to the Napster service using that password. See
Kessler Dec. P 23. Napster does not block the IP addresses of infringing users,
however, and the parties dispute whether it would, be feasible or effective to
do so. See Frackman Dec., Exh. 1 (Kessler Dep.), at 205:4-7.
Plaintiffs aver that Napster wilfully turns a blind eye to the identity of
its users -- that is, their real names and physical addresses -- because their
anonymity allows Napster to disclaim responsibility for copyright infringement.
Hence, plaintiffs contend, "infringers may readily reapply to the Napster system
to recommence their infringing downloading and uploading of MP3 music files."
Pl. Br. at 24. Plaintiffs' expert, computer security researcher Daniel Farmer,
[*29] declared that he conducted tests in which he easily deleted all traces of
his former Napster identity, convincing Napster that "it had never seen me or my
computer before." Farmer Dec. P 29. Farmer also cast doubt on Napster's
contention that blocking IP addresses is not a reasonable means of terminating
infringers. He noted that Napster bans the IP addresses of users who runs "bots"
n8 on the service. See id. P 27.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 Farmer informed that court that "A bot' is a robot, or program, that
performs actions continuously, in a sort of manic or robotic fashion." Farmer
Dec. P 27.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Hence, plaintiffs raise genuine issues of material fact about whether Napster
has reasonably implemented a policy of terminating repeat infringers. They have
produced evidence that Napster's copyright compliance policy is neither timely
nor reasonable within the meaning of subparagraph 512(i)(A).
CONCLUSION
This court has determined above that Napster does not meet the requirements
of subsection 512(a) because it does not [*30] transmit, route, or provide
connections for allegedly infringing material through its system. The court also
finds summary adjudication inappropriate due to the existence of genuine issues
of material fact about Napster's compliance with subparagraph 512(i)(A), which a
service provider must satisfy to enjoy the protection of any section 512 safe
harbor. Defendant's motion for summary adjudication is DENIED.
IT IS SO ORDERED.
Dated: May 5, 2000
MARILYN HALL PATEL
Chief Judge
United States District Court
Northern District of California