Date: March 27, 2000
Time: 2:00 p.m.
Dept.: 15
Judge Hon. Marilyn H. Patel

INTRODUCTION 1

ARGUMENT 3

I. NAPSTER MEETS THE REQUIREMENTS OF TRANSMITTING, ROUTING, OR PROVIDING CONNECTIONS FOR, MATERIAL THROUGH A SYSTEM OR NETWORK OPERATED BY NAPSTER.
    A. Transmissions, Routing And Providing Connections Are Accomplished Through A System Operated By Napster. 4
    B. The Retention Of A Copy Of The Transmission By A Napster User Does Not Preclude Application Of Section 512(a) 6

II. PLAINTIFFS CONTENTION THAT THE NAPSTER SYSTEM ALSO SERVES AS AN INFORMATION LOCATION TOOL DOES NOT PRECLUDE SUMMARY ADJUDICATION.
    A. The DMCA Safe Harbors Are Not Mutually Exclusive.
    B. Napsters Challenged Information Location Functions Are Not Content Based, But Rather Are Integral To The Process Of Transmission,
         Routing And Providing Connections.

III. NAPSTERS POLICIES MEET THE SECTION 512(I) CONDITIONS FOR ELIGIBILITY AND COMPLY WITH THE DMCA
IN ALL RESPECTS. 12
    A. Napsters Policy Provides For Termination Of The Accounts Of Users Alleged To Be Repeat Infringers. 13
    B. The Timing Of Napster's Adoption Of Its Current, Formal Policy Does Not Preclude Eligibility For The Section 512(a) Safe Harbor. 14

CONCLUSION

Plaintiffs Opposition to Napsters motion for summary adjudication misunderstands the Digital Millennium Copyright Act and the operation of
Napsters system.   The Opposition defies the DMCA's objectives of insulating service providers from copyright claims and facilitating new uses
of the Internet.  It ignores the allocation of responsibility to Internet users to comply with the copyright laws, and to copyright holders to notify service providers of alleged infringement.  And, although it does not dispute that Napster terminates accounts of any user identified as an alleged infringer,
it simply assumes that all users are always infringing (e.g., Opp. 4 n.4; 14:19-23) ö even though Plaintiffs admit that the MP3 format is not unlawful,
and that freely distributable MP3 files exist on the Napster system and elsewhere.

Plaintiffs Opposition rests primarily on the assertion that not all of the functions of the Napster system fall within the section 512(a) safe harbor,
arguing that the DMCA requires a function-by-function analysis (Opp. at 15) and that certain of Napster's functions should be analyzed under
section 512(d) instead.

But the Opposition gives barely a nod to the applicability of section 512(a)'s core statutory terms to Napster's functions at issue here ö the actual transmission, routing and providing of connections for online communications.  As Napster's opening papers established, when one Napster user clicks on the name of an MP3 file she wishes to obtain from another, there begins an automated process by which the Napster server communicates with both users browser software to establish a connection, thereby allowing the file to be transmitted through the Napster system to the requesting user.  It is this transmission that is the alleged ãcopyingä in violation of the Copyright Act.  Yet Plaintiffs barely attempt to dispute that these connections and transmissions fall within section 512(a) ö apart from feeble mischaracterizations of the Napster system that are at odds with Plaintiffs' own experts declaration.

Thus, even by Plaintiffs rigidly ãfunctionalä interpretation, Napster is entitled to summary adjudication that the DMCA limits Napsters liability for its involvement in transmissions, routing and providing connections ö i.e., for its involvement in the downloading of allegedly copyrighted materials.   See Part I, infra.  What remains, then, is for the Court to determine whether Napsters related activities ö which Plaintiffs describe as a ãfully integrated online serviceä (Opp. at 7) ö also come within the section 512(a) safe harbor.  As explained in Part II, the answer is yes.

The Napster system, like many other ãDistributed File Systems,ä is simply a structure for users to share information.  At present, Napster is limited to the MP3 format; in its next release it will include support for the Microsoft Windows Audio file format, and eventually other formats as well.  Reply Declaration of Edward Kessler, dated March 13, 2000 (ãKessler Reply Decl.ä),  28 n. 5.  The system provides remote users with connections to each other and allows them to transmit and route information as they choose.

While the Napster system allows users to perform a basic search of a list of file names, it is completely neutral as to the content of materials, does not search or map the Internet for materials, and does not digest or categorize them.  The maintenance of a list of files, and inclusion of a simple search software to browse the list, are rightly treated as integral to the transmission, routing and connection process that the Napster System provides.

Plaintiffs Opposition misconstrues Napsters position.  Napster does not argue that all of an Internet service providers functions inevitably fall under section 512(a)'s protection merely because that providers services touch the functions of transmitting, routing and providing connections.  Rather, all of Napsters challenged functions qualify for section 512(a) protection precisely because, based on the processes at issue here, they are integral and/or incidental to Napsters core function of transmitting, routing and providing connections for sharing of the files its users choose.  To quote Plaintiffs, ã[i]t could be no other way.ä  Opp. at 17:2.  If the existence of certain integrated functions, incidental to the core function of transmitting, routing and providing connections for online communications, can remove a service provider from the protections of section 512(a), then those protections are illusory.  The DMCA does not require that each function be stripped from its context; section 512(n) by its very terms provides for eligibility under multiple safe harbors.  Accordingly, the entire Napster system should be found within the section 512(a) safe harbor.

I. NAPSTER MEETS THE REQUIREMENTS OF 'TRANSMITTING, ROUTING, OR PROVIDING CONNECTIONS FOR, MATERIAL THROUGH A SYSTEM OR NETWORK' OPERATED BY NAPSTER.

Section 512(a) begins with certain requirements that precede the specific provisions set forth in subsections 512(a)(1)-(5).  To be eligible for section 512(a)'s protections, a service provider must transmit, rout[e], or provid[e] connections for, material through a system or network controlled or operated by or for the service provider . . . .ä  As explained in Napsters opening papers, the Napster system meets these requirements:  If a Napster user finds an MP3 file he or she wishes to obtain from another user logged on at that time, he or she simply clicks on that file and the Napster server automatically routes the transmission by providing the requested and necessary instructions to both users Napster browsers, thereby enabling the connection and transmission of the file from the Host users hard drive and Napster browser, through the Internet to the recipients Napster browser and hard drive.  Kessler Decl.,  12-13.

Plaintiffs do not factually dispute this description of how the Napster system operates.  In fact, neither Plaintiffs nor their expert ever dispute that the Napster system provides ãtransmissions, routing or connectionsä ÷ the actual language used in the statute.  (See, e.g., Farmer Decl.  17 (acknowledging that Napster users are ãconnectedä and ãtransferä files)).  Rather, Plaintiffs argue that Napsters system cannot qualify for the section 512(a) safe harbor because the MP3 files do not pass through Napsters servers.  Opp. at 20.  Alternatively, Plaintiffs argue that Napster is ineligible for the section 512(a) safe harbor because MP3 files are stored on the hard drives of users computers for a period longer than is reasonably necessary for the transmission, routing, or provision of connections.  Plaintiffs arguments fail, and the declaration of Plaintiffs own expert explains why.

A. Transmissions, Routing And Providing Connections Are Accomplished Through A System Operated By Napster.

Despite Plaintiffs admission that the Court need not look beyond the plain language of the DMCA to decide this motion (Opp. at 4:12-13), Plaintiffs use secondary sources in an attempt to import into the statute a term it does not contain.  The word conduit appears in Plaintiffs Opposition some thirty times, usually preceded by adjectives such as mere or passive  Plaintiffs even supply the Court a lay definition of conduit (Opp. at 20 n.13), and their expert purports to analyze the term.  Farmer Decl.,  20.  But the term conduit, much less mere conduit or passive conduit, appears nowhere in section 512(a), nor, indeed, in the DMCA.  Rather, section 512(a) uses the words transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider.  Rather than analyze those terms, Plaintiffs proceed to troll all manner of secondary sources to find support for their use of passive conduit as their preferred standard.  Opp. at 5:15 - 6:28.  Plaintiffs even truncate the quote from the legislative history of the definition of a service provider in section 512(k)(1)(A), leaving out the part that explains the modification of the DMCA definition from that found in the Communications Act of 1934.   Plaintiffs other citations to various student notes and law review articles are equally unavailing.

Tracking the actual words of the statute, the Napster system plainly satisfies sections 512(a) and 512(k).  Indeed, even if resort to the legislative history were necessary, it makes clear that Section 512(a) includes an automatic technical process of responding to a command or request, such as one from a user, an Internet location tool, or another network. House Report at 51.  Section 512(a) also encompasses a service providers actions in responding to requests by a user or other networks, such as requests to forward e-mail traffic or to route messages to a mailing list agent (such as listserv) or other discussion group. Id.  Accordingly, whatever the term conduit means, the more specific history shows that Section 512(a) plainly includes automated responses to instructions by users, including initiation of transmission of information in response to such instructions, and not merely the passive delivery of electrons through a cable or server.

While not disputing that the Napster System routes, transmits, or provides connections, Plaintiffs do dispute whether it does so through a system or network controlled or operated by or for [Napster].  However, it is undisputed that the Napster system, like all computer networks, consists of
interlinked computer hardware, software and transmission facilities.  As defined by Plaintiffs own expert:

Napsters system is comprised of five principal components:  a bank of central servers to which Napsters users connect  proprietary Music Share software that Napster provides to users and which users install on their computers; proprietary software that Napster runs on its own servers
(server-side software) which controls and manages the entire process; and a web site and load balancer.

Farmer Decl.,  20, 6:267:2 (emphasis added).  By Plaintiffs admission, Napsters servers and Napsters MusicShare browser on its users computers
are all part of Napsters overall system.  As Plaintiffs do not dispute, it is the combination of communications between the Napster server and each
of the two users browsers that effectuates the connections and allows the transmission over the route established over the Internet.  Kessler Decl.,  13; Kessler Reply Decl.,  22.  These routes, which vary depending on the instructions given by Napsters servers, are ãoperated or controlled by Napster
as a private network it operates on top of the Internet.  Kessler Reply. Decl.  22.  Indeed, Mr. Farmer admits that this system is operated by Napster, defining it as Napsters own private system.  Farmer Decl.,  20, 6:24.  It is only by means of the instructions and addresses provided by the Napster system that the two users can establish direct communications, and it is only while they are connected to the Napster system that the connection can be made.

Plaintiffs expert apparently understands this point, making no argument that these connections and transmissions are not made through Napsters
system or network.  But Plaintiffs apparently do not.  Plaintiffs argue that, because the MP3 files transmitted between Napster users do not pass
through the Napster servers, they do not qualify.  But the servers are only one component of Napsters system, which includes the entire set of connections between Napster servers and users browsers, and between users browsers as then transmitting files.  MP3 files do pass through the
Napster system because they pass through the Napster MusicShare browser as well as through the Internet connections and routes established
under the operation and control of the Napster system.

Thus, Napsters involvement in the MP3 file transfer process clearly involves transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for Napster.   At least as to this core function of the Napster system, the protections of 512(a)
apply and summary adjudication thereof is appropriate.

B. The Retention Of A Copy Of The Transmission By A Napster User Does Not Preclude Application Of Section 512(a)

Plaintiffs alternative argument also fails in light of both Plaintiffs experts definition of the Napster system and common sense.  While the Napster MusicShare browser software operating on a Napster users computer is within the system operated by Napster, the users entire computer (including the hard drive on which MP3 files are stored) is not Napsters.  As Mr. Farmer admits, the boundaries of Napsters system stop at the Napster MusicShare browser installed on users computers.  Farmer Decl.,  20, 6:27-28.  The Napster system thus does not store MP3 files for any length of time.  The fact that a copy of an MP3 file, after being transmitted through the Napster system and browsers, is then saved on the hard drive of the user receiving the transmission does not make that copy one maintained by Napster on the Napster system.  What users have or do not have on their own computer hard drives is their own business.  Indeed, it would make no sense to construe section 512(a)(4) as plaintiffs suggest here.

Any Internet connection such as America On-Line provides a good illustration.  An AOL user has AOL software installed on his or her computer,
which includes a web browser.  While connected to AOL, the user can visit various web sites and select various materials to download through the
AOL connection and the AOL browser.  It would make no sense to deprive AOL of its DMCA exemption for transmissions and connections,
merely because the AOL user, after using the AOL software to obtain allegedly infringing materials, saves a copy on his hard drive.  The same
is true for Napster here.

II. PLAINTIFFS CONTENTION THAT THE NAPSTER SYSTEM ALSO SERVES AS AN INFORMATION LOCATION TOOL DOES NOT PRECLUDE SUMMARY ADJUDICATION.

From the Complaint, one would conclude that Plaintiffs challenge to Napsters activities centers around the ability of Napster users to connect to
each other and transmit copies of files.  See, e.g., Complaint,  57 (infringements occur whenever a Napster user, without authorization of the
copyright owner, downloads an MP3 music file from another users computer).

In an apparent effort to avoid application of section 512(a), however, Plaintiffs now seek not only to label Napster as a fully integrated system, but at the same time to segregate the Napster systems functions.  They argue that the downloading functions Napster performs under section 512(a) are not the functions that form the basis of plaintiffs action against Napster (Opp. at 1:24 (emphasis in original)) and, instead, that ãit is Napsters activities as an information location tool and not any [section 512(a)] functions ö that form the basis of this action.ä  (Opp. at 19:20-21.)  Plaintiffs now identify t
hree purported ãinformation location toolsä as the ãcore functionsä to which they object: directory and index, search engine, and links.
(Opp. at 18:14 - 19:5.)  Plaintiffs rearticulation of its position has two consequences.

First, as just explained, this approach renders summary adjudication entirely appropriate at least as to the issues of Napsters involvement in the downloading process by which connections are made and files transmitted.  If Plaintiffs request for injunction  proceeds, it must at most be limited
to efforts to enjoin the alleged information location tool functions Plaintiffs contend fall exclusively within the section 512(d) safe harbor.

Second, Plaintiffs approach requires this Court to determine which, if any, of Napsters challenged functions fall outside of section 512(a).
Napster submits that, on proper analysis, none of those functions do.

A. The DMCA Safe Harbors Are Not Mutually Exclusive.

Napster does not dispute that certain of its functions may also be viewed as information location tools as those words are used in common English.   However, Plaintiffs misread section 512(n) to suggest that it forecloses functions from qualifying for more than one safe harbor and elevate this misconception to the linchpin of their argument.  (See, e.g., Opp. at 1:19-22; 15:14-17.)  Section 512(n) says no such thing.  Section 512(n) merely stands for the proposition that if a service provider does not meet the requirements of one DMCA safe harbor, it may meet the requirements for one or more of the others:  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 subsection. Qualification for one safe harbor does not affect determination of another safe harbor; a fortiori, qualification for one does not preclude qualification for another.

To cleave each nominal function from those to which it relates, regardless of context, would reduce the statute to a formalistic and impracticable
scheme.  Under Plaintiffs view, each court faced with a ãfully integrated service will have to ignore whether such basic ancillary functions as queing
of transmissions, validation of file types, checksumming for verification of accuracy, or adaptation to user configurations are incidental to the primary operation of the system.  See Kessler Reply Decl.,  24, 26, 28.  This approach will only become more stultifying as Internet systems grow and add enhancements.  This is particularly true because, in the world of the Internet and computer networking, particular terms may, in one context, refer to basic functions of the network, and in other contexts, to complex and elaborate tools.  Directory, search, index, and link the terms Plaintiffs use to try to move Napster outside of section 512(a) are examples.  See Kessler Reply Decl.,  18-22 and Exhs.

Every computer in some manner deposits its files into directories. These provide a map, or set of addresses, by which files can be located and a request, such as a transmission, accomplished.  Id. at 16.  Although section 512(d) includes directories and indices as potentially qualifying as information location tools when they refer or link to materials, that is not a directory only purpose.  Indeed, some of the fundamental and seminal applications of the Internet, Distributed File Systems, are common directory and indexing programs.  A DFS  permits users at remote locations to share data and locate files in various computers attached to a network.  See Eliezer Levy and Abraham Silberschatz, Distributed File Systems:  Concepts and Examples, ACM Computing Surveys, Vol. 22, No. 4 (December 1990) (Levy) at 321-322.   A DFS can utilize the various remote computers of various users as separate Hosts of information.  Id. at 322.  The Napster system is a DFS.  DFS's (such as the popular Sun Microsystems NFS system) have an integral feature that indexes the file names in the directories attached to them and permits the user to perform a lookup or search on the index.  Id. at 358 and 354.
Napster is in essence a large directory of files which is indexed for lookup and transfer.  Kessler Reply Decl.,  20.  Such a function is necessary for
the use of any DFS, including the Napster system.  Id.

Alternatively, the terms index, directory, and search engine are often used to describe the major search engines (Farmer Decl. 20) ools for locating information on the Internet.  Infoseek as a search engine, and Yahoo as a directory. See Kessler Reply Decl., Exhs. I and K.  These tools are far more sophisticated than simple text string searches of file names.  They involve either or both (a) human editorial intervention and organization into topics, and/or (b) algorithms that permit searches of content and that organize search results by relevance based on content analysis.  Kessler  Reply Decl.,  18-20. Plaintiffs reliance on talismanic use of the terms index, directory, a link  and search engine to argue that Napster must be solely governed
by section 512(d) ignores the true functionality being provided.

Plaintiffs attempt to lump all gradations of meaning together to obscure the fact that a search in one context may operate as an essential part of transmission and routing, and in another context as a more sophisticated information location tool.  If the existence of an index or directory labeled function necessarily removes the entire system from the ambit of section 512(a), then section 512(a) in fact provides no protection at all because an indices and directories are integral to every aspect of internet communications.  The statute cannot be read to mean that any system with an index or directory function must be defined as an ãinformation location toolä outside section 512(a).  To do so would undermine the legislative intent in creating
a safe harbor for certain Internet service providers.  Elliot Coal Min. v. Dir., Office of Wkrs. Comp, 17 F.3d 616 (3d Cir. 1994) (statutory term must
be defined in a manner that makes the statute consistent with the defect the statute was intended to cure).

The basic distinction between sections 512(a) and 512(d) lies in the nature of the operation of the system at issue:  the former involves merely
automated, content-neutral responses to user requests; the latter involves content-based editorial judgments.  By its express terms, section 512(a)
covers an automatic technical process without selection of the material by the service provider. Selection of material, as used in section 512(a)
refers to the editorial function of determining what material to send . . . rather than Îan automatic technical process of responding to a command
or request.  S. Rep. No. 190, 105th Cong., 2nd Sess. at 42 (1998) (ãSenate Reportä).  See also House Report at 51.

In comparison, Congress defined the paradigm information location tool,ä as having editorial functions, as including a directory or index of on-line sites or material, such as a search engine that identifies pages by specified criteria; a reference to other on-line material, such as a list of recommended sites . . Senate Report at 47-48 (emphasis added); House Report at 56-57.  Such tools have value because of the human judgment and editorial discretion exercised by [their cataloguers] and their ability to filter[ out irrelevant and offensive material.  Senate Report at 49.  See also Kessler Reply Decl.,  19.

B. Napster Challenged Information Location Functions Are Not Content Based, But Rather Are Integral To The Process
Of Transmission, Routing And Providing Connections.

The Napster DFS, like various Distributed File Systems, allows the sharing of files across a network, and provides a file name search as an integral feature.  Unlike Yahoo, Infoseek or other paradigm information location tools,ä the Napster system does not search the Internet for MP3 files, does not compile a permanent index of information, and does not decide which files to find or make available; it merely mechanically maintains an ever-changing list of what currently connected Napster users have chosen to make available.  Kessler Decl.,  12, 16; Kessler Reply Decl.,  20.  The Napster system does not digest or conceptually sort content; it simply creates lists on which Napster users may lookup MP3 files on the system having a particular text string or strings in the file name.  Id. at  16; see also Kessler Reply Decl.,  16, 20.  The Napster system is content-neutral: it does not rank files by content like some web sites, and does not recommend one file over another based on content.  Id.  The results produced by any search are entirely dependent upon the name given the file by the Napster user who made it available (and any other variables the searcher specifies sets), not on any assessment by the Napster system of the files content.

Thus, Napsters index and look up functions which operate merely as a non-discriminatory and automatic response to a user request  are entirely integrated with Napsters core function of transmitting, routing and providing connections for online communications.  This stands in contrast to the
more typical content and recommendation based search engines and indexes, such as Yahoo!, that fall within Section 512(d) because they identif[y] pages by specified criteria, [or] refer to other online material such as a list of recommended sites . . . .Senate Report at 47.  Under the DMCA, each system must be analyzed based on its own processes and functionality.  In this context, it is entirely appropriate to deem all of Napsters functions integral to Napsters core section 512(a) function of automatic and technical process of transmitting, routing and providing connections for online communications.

III. NAPSTERS POLICIES MEET THE SECTION 512(I) CONDITIONS FOR ELIGIBILITY AND COMPLY
WITH THE DMCA IN ALL RESPECTS.

To be eligible for the protections of section 512(a), Napster must show that it has adopted and reasonably implemented, and informs subscribers and account holders of . . ., a policy that provides for the termination in appropriate circumstances of subscribers and account holders . . . who are repeat infringers.  17 U.S.C. § 512(i)(1)(A).  As explained in detail in Napsters opening papers, Napster has complied in all respects with this provision.  Napster has an extensive internal company policy for responding to notices of alleged infringement that provides for the termination in appropriate circumstances, and informs its users of this policy while reminding them it is their responsibility to comply with all copyright laws as part of the Terms of Use of the Napster service.  Kessler Decl.,  22,  18, Exh. J and Exh. E.  Plaintiffs challenge Napster's policy with two arguments, each of which fails.

A. Napster's Policy Provides For Termination Of The Accounts Of Users Alleged To Be Repeat Infringers.

First, Plaintiffs argue that Napster cannot effectively terminate users because, although Napster knows their user name or handles, it does not know their formal names.  This argument is a straw man.  Napsters knowledge of the formal names of its users is entirely irrelevant to Napster's ability to terminate their access to the Napster system by user name.   In truth, Napster can and has effectively terminated the accounts of users identified as infringers.  Kessler Decl.,  23; Kessler Reply Decl.,  5-6.

Napster has, in addition to terminating all of the Napster users identified by the RIAA in November 1999, responded to other allegations of infringement and terminated additional user accounts based on such allegations.  Id.  6, Exh. E.  Napster is able to do this by blocking all access to an account associated with a specific user name.  Id. at 7.  While Plaintiffs argue that this method of termination is somehow insufficient or ineffective because their expert in Internet security was able to circumvent it, they present no evidence of actual, ordinary consumer experience to support this position.  In fact, ordinary users have not, to Napsters knowledge, successfully circumvented termination.  Instead, they have complained that such terminations were effective.  Kessler Reply Decl.,  12 and Exh. G.

The other approach suggested by Plaintiffs blocking IP addresses would be both a massively overbroad reaction to a claim of infringement by a single user, as well as ineffective to block that single user.  As explained by Mr. Kessler in his deposition (and confirmed by Mr. Farmer in his expert declaration), IP addresses are not necessarily unique to specific individuals blocking a single IP address could block access for hundreds or even thousands of individual users.   Kessler Depo. at 205:9-12; Farmer Decl.,  26, 8:25 9:2.  Moreover, because numerous users obtain new addresses each time they log on, merely blocking a dynamic IP address will not block re-entry.  Kessler Reply Decl.,  8.

No reasonable interpretation of the DMCA could require Napster to torpedo thousands of user accounts to address, ineffectively, a claim of
infringement by a single individual.  And there is no evidence that blocking IP addresses would be any more effective than blocking user names
and passwords.  Users could circumvent such a policy by signing up for a new IP address from a new Internet Service Provider.  Id.,  11.  Indeed,
it is now widely publicized that numerous well known providers offer free Internet service that would provide new IP addresses.  Id., Exh. F.

In the end, the DMCA merely requires that Napster adopt and reasonably implement a policy that provides for the termination, in appropriate circumstances, of the accounts of users who are repeat infringers.  Napster has done exactly that.

B. The Timing Of Napsters Adoption Of Its Current, Formal Policy Does Not Preclude Eligibility
For The Section 512(a) Safe Harbor.

Plaintiffs also contend that Napsters formalization of its policy after the commencement of this action precludes application of the DMCA.
(Opp. at 24:1-7.)  Even if correct, the timing of Napsters adoption of its current formal policy is irrelevant to the question of whether Napster
is now in compliance with the DMCA.  But more importantly, section 512(i)(1)(A) does not require that a policy be reduced to writing, much
less that this occur in any particular time frame.

While it is undisputed that Napster's current policy is more specific and more formal than Napster's prior policy regarding responses to notices of infringement, it is also undisputed that a prior policy did, in fact, exist, and was implemented.  Kessler Depo. at 191:13-21.  Kessler Reply Decl.,  5.  And, in Napster's case a small company still in its beta phase the lack of a writing is not unreasonable, particularly in light of the DMCAâs recent
passage and dearth of interpreting case law.  Napster's policy was (and still is) that, if notified of infringers, Napster will block their access.  Id.
Indeed, it is undisputed that in November 1999, Napster responded to even noncomplying notices of infringement by the RIAA by terminating such users.  Kessler Decl.  23.  Plaintiffs own submissions confirm that the prior policy existed.  See Frackman Decl., Exh. 5, p. 92 and Exh. 2, p. 81.

If integrated and incidental functions provided by service providers like Napster can remove that service provider from the protection of the section 512(a) safe harbor, then that harbor provides little safety.  This cannot be what Congress intended.  Napster respectfully requests that its motion for summary adjudication as to the application of section 512(a) to its activities be granted in its entirety.  Alternatively, and at a minimum, summary adjudication is appropriate that section 512(a) applies to Napsters involvement in downloading (as opposed to searching for or indexing) files.

By: Laurence F. Pulgram
FENWICK & WEST LLP (March 2000)
Attorneys for Defendant NAPSTER, INC.

CASES
Elliot Coal Min. v. Dir., Office of Wkrs. Comp,
17 F.3d 616 (3d Cir. 1994) 11
Montana Power Co. v. Environmental Protection Agcy.,
608 F.2d 334 (9th Cir. 1979) 4

STATUTES
17 U.S.C. § 512(a) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15
17 U.S.C. § 512(a)(1)-(5) 3
17 U.S.C. § 512(b) 9
17 U.S.C. § 512(d) 1, 8, 9, 10, 11, 12
17 U.S.C. § 512(i)(1)(A) 13, 15
17 U.S.C. § 512(k)(1)(A) 4
17 U.S.C. § 512(n) 3, 8, 9

OTHER AUTHORITIES
Eliezer Levy and Abraham Silberschatz, Distributed File Systems:
Concepts and Examples, ACM Computing Surveys, Vol. 22,
No. 4 (December 1990) 9 H.R. Rep. No. 551, pt. 2,
105th Cong.,2nd Sess. (1998) 4, 9, 11 S. Rep. No. 190, 1
05th Cong.,2nd Sess. (1998) 11, 12