ctivities. 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 func...
