es 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 m...
