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?