ter does not transmit, route, or provide connections through its system, it has failed to demonstrate that it qualifies for the 512(a) safe harbor, The court thus declines to grant summary adjudication in its favor. III. Copyright Compliance Policy Even if the court had determined that Napster meets the criteria [*26] outlined in subsection 512(a), subsection 512(i) imposes additional requirements on eligibility for any DMCA safe harbor. This provision states: The limitations established by this section shall apply to a service provider only if the service provider-- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and (B) accommodates and does not interfere with standard technical measures. 17 U.S.C. 512(i). Plaintiffs challenge Napster's compliance with these threshold eligibility requirements on two grounds. First, they point to evidence from Kessler's deposition that Napster did not adopt a written policy of which its users had notice until on or around February 7, 2000--two months after the filing of this lawsuit. See Frackman Dec., Exh. 1 (Kessler Dep.) at 189:17-25, 190:1-25, 191:1-12. Kessler testified that, although Napster had a copyright compliance policy as early [*27] as October 1999, he is not aware that this policy was reflected in any document see id at 191:22-24, 192:9-11, or communicated to any user. See id. at 192:15-16. Congress did not intend to require a service provider to "investigate possible infringements, monitor its service or make difficult judgments as to whether conduct is or is not infringing," but the notice requirement is designed to insure that flagrant or repeat infringers "know that there is a realistic threat of losing [their] ...
