ly 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 a...
