ts [*14] or show that the 512(a) safe harbor covers any of its functions. I. Independent Analysis of Functions Subsection 512(n) of the DMCA stares: Subsections (a), (b,), (c), and (d) describe separate and distinct functions for purposes of applying this section. 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 subsections. Citing subsection 512(n), plaintiffs argue that the 512(a) safe harbor does not offer blanket protection to Napster's entire system. Plaintiffs consider the focus of the litigation to be Napster's function as an information location tool--eligible for protection, if at all, under the more rigorous subsection 512(d). They contend that the system does not operate as a passive conduit within the meaning subsection 512(a). In this view, Napster's only possible safe harbor is subsection 512(d), which applies to service providers "referring or linking users to an online location containing infringing material [*15] or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link. . . ." Subsection 512(d) imposes more demanding eligibility requirements because it covers active assistance to users. Defendant responds in two ways. First, it argues that subsection 512(a), rather than 512(d), applies because the information location tools it provides are incidental to its core function of automatically transmitting, routing, or providing connections for the MP3 files users select. In the alternative, defendant maintains that, even if the court decides to analyze the information location functions under 512(d), it should hold that the 512(a) safe harbor protects other aspects of the Napster service. Napster undisputed...
