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service providers that merely routed offending material, as long as that transmission was part of “an automatic technical process without selection of the material”; that the service provider didn’t select the recipients of the material “except as an automatic response to the request of another person”; and that no copy of the material was maintained on the system in a way that left it available to anyone other than the intended recipient.

Another “safe harbor” was given to Internet service providers that listed hypertext links or otherwise indexed offending material. In order to qualify for that protection, the service provider had to be unaware that the material was infringing a copyright. The company couldn’t have “actual knowledge,” or be aware “of facts or circumstances from which infringing activity is apparent.” Once it became aware, it would have to act to disable access to the material. In addition, the company couldn’t benefit financially from infringing activity if it controlled that activity.

Two other cases came up in Grosfeld’s research. One was the 1984 U.S. Supreme Court ruling that narrowly allowed videocassette recorders to enter the market after an eight-year legal struggle between Sony and Universal City Studios. A bare 5-4 majority of the court held that even though Sony’s VCRs could be used to copy protected television programs and that those copies could be sold, unfairly diluting the profits of the program’s owner, a “substantial” use of the machines would be for an innocent purpose: taping a program now for viewing later, with the ability to temporarily halt viewing while answering the door for the pizza delivery boy. “There is no precedent for imposing vicarious liability on the theory that petitioners sold [VCRs] with constructive knowledge that their customers might use the equipment to make unauthorized copies of copyrighted material,” the court had written. “The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or indeed is merely capable of substantial noninfringing uses.”

Napster could, and would, argue that it was providing a similar technology, with substantial noninfringing use. But Grosfeld saw that it would be a harder argument than it was for VCR-maker Sony, judging by the way people were already using the Napster service. In theory, some people could use Napster to transmit their own home-studio recordings.

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