An additional feature of the Digital Millennium Copyright Act related to those who provide services on the Internet. [116] As long as certain requirements are met, this provision protects on-line service providers [117] from damages and most injunctive relief in respect of claims for copyright infringement that arise as a result of the activities of users of the service. For such a service provider to be protected, its involvement in any copyright infringement must be limited to transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, [118] and –

Service providers may also be protected against copyright infringement in certain situations relating to system caching where the material is sent by someone other than the service provider and is transmitted through the system or network and the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted through the system to someone other than the sender, request access to the material from the sender as long as the service provider takes no steps to involve itself with the content of the material in question. [120] Somewhat similar provisions protect service providers from damages and most injunctive relief for any copyright infringement for which they might otherwise be liable resulting from storage of information on their systems or networks where such storage is at the direction of users of the system or network. [121]

Additionally, protection is also provided where the service provider who refers or links users to information location tools (e.g. search engines). [122] In this case, however, protection is subject to a number of conditions including the service provider’s lack of knowledge that the material or activity in question is infringing or awareness of facts or circumstances from which infringement is apparent and does not receive any financial benefit directly attributable to the infringing activity. Furthermore on becoming aware of infringement or facts or circumstances from which infringement is apparent, the service provider must “respond expeditiously to remove or disable access to” the infringing material.

On the other hand, a service provider is required to respond to subpoenas requesting details of actual infringers who are using its system. [123] Furthermore, the protection is only given if , inter alia, the service provider 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. [124]

The meaning of the provisions relating to transitory network communications and information location tools came before the courts in A&M Records v. Napster Inc. [125] Napster operated an Internet browser that its subscribers could use to find music stored on other computers that were linked to the browser and to down load such music to play on their own computers. It was claimed that insofar as music that was covered by copyright was concerned, such action amounted to contributory infringement of the copyright in such music. Napster claimed that it was protected by the “safe harbors” noted above for service providers and sought summary adjudication on this issue. The District Court disagreed. So far as Napster’s claim under the “transitory network communications” safe harbor is concerned, the court found that Napster had not established that its role was that of transmitting, routing or providing connections through “its” system (as opposed to the Internet) and so failed to establish its right to claim protection at all. So far as the protection for search engine providers is concerned, the judge found insufficient evidence that Napster had adopted a copyright compliance policy that was timely or reasonable as required by the statute. The judge noted in particular that Napster had only adopted a formal copyright policy after the suit had been started and that Napster was alleged to have taken less rigorous methods than might be possible to prevent repeated infringement by the same user. This being the case, there were factual issues to be resolved so that summary adjudication was not appropriate.