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Links: Aimster Loses!
Posted by James Grimmelmann on Monday, June 30 @ 15:06:08 EDT Copyright
Surprising few, the Seventh Circuit today ruled against Aimster in In re Aimster Copyright Litigation, finding that it was probably a contributory infinger and should be enjoined out of business while the case goes to trial. Basically, court upheld Aimster's death sentence.

The opinion, though, by the redoubtable Judge Posner, is striking in that it provides almost a series of instructions to future Aimsters on how to argue their cases better. After laying out the usual Sony test for "substantial noninfringing uses," the opinion lists no fewer than five different uses Aimster could quite plausibly have shown, before noting that, alas, Aimster didn't bother to show any of them. So on the one hand, the opinion provides a cookbook for filesharing services on how to beat the Sony test. And it specifically disapproves of the Ninth's Circuit's standard in Napster that knowledge of infringement is sufficient to establish contributory infringement for service providers.

On the other, though, in the Aimster case itself, Posner comes down quite hard on Aimster's encryption-abetted lack of knowledge about how its users were using its software, finding that Aimster willfully blinded itself to the infringement going on. And then there's this sentence:

Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses.
"Disproportionately costly," eh?
 
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Re: Aimster Loses! ... But Gnutella Wins!! (Score: 0)
by Anonymous on Monday, June 30 @ 16:02:47 EDT
Not to mention the biggest "win" in In re Aimster--the fact that Posner expressly disagrees with the Ninth Circuit Napster standard for contributory copyright infringement.

Whereas the Ninth Circuit applies an "imputed knowledge" standard, Posner applies an actual aiding and abetting standard--and uses Aimster's numerous functions (such as instructions showing how to download copyrighted music, and for fee services that perimt additional downloading of expressly copyrighted music) as examples of this aiding and abetting functionality.

Posner has adopted the same reasoning under the Grokster case reading of Sony, at least for the most part. Under this model, "vanilla gnutella" (rhyme unintentional) is not contributorily liable for the uses by its users since it in no way aids and abets copyright infringement, and because there are loads of non-infringing uses going on every second of every day. But Napster or Aimster would infringe.

Compare that to the Napster standard, under which Napster, Aimster, Gnutella, IM, and even good ole' FTP server writers are subject to potential liability if they write their code with imputed knowledge that it will be used for copyright infringement.

Posner gets it, and in the end, I certainly hope his view defeats the Ninth Circuit model.


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