iding 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 1...
