Thoughts on Aimster

This case gets trickier every time I think about it.  As I consider the case, I want to emphasize something that might already be obvious to you: the narrow point of Aimster’s liability is far less important than the overall reasoning the Court uses.

In Grokster, the judge would have had a hard time getting the reasoning right while ruling against Grokster and Morpheus.  Reading Sony with Napster protects those companies from contributory and vicarious infringement liability.  They had no relationship with their users, they did not control their systems, they provided no “site and facilities” for infringement, and they had no way to block particular users or files.  The big question (I thought) was whether the judge would look at the program’s architecture as it is rather than examining how the software could be reengineered.  Surely, Morpheus could be reengineered to inhibit infringement, but that would be a completely different program.  Such a ruling would sweep far too broadly. Luckily, Judge Wilson focused on the actual architecture of Morpheus and Grokster.

In Aimster, the court will hopefully correct the District Court’s errors regarding the Betamax standard.  The EFF has done a wonderful job on these points.  The 7th Circuit will also have to reconsider the lower court’s reasoning that, if the encryption is in the way of monitoring infringement, Aimster should simply turn the encryption off.  Looking through the injunction order, it is surprising how different the District Court’s reasoning is from Judge Wilson’s Grokster.  They’re applying completely different standards.  It seems much of Judge Aspen’s reasoning evolves from a distrust for Johnny Deep, considering the encryption part of a mischievous willful ignorance.

But, even if the Court of Appeals corrects the lower court’s errors, Aimster might still lose. As I read the briefs, I felt like I was hearing about two completely different services.  One has a central index of files and knows who is logging onto the service, one doesn’t. If an injunction is served, one service can be shut down, one can’t.  I can’t tell you whether this system is more like Napster or Gnutella.  I wish the judges luck in figuring it out.

One thing to consider, then, is that Aimster losing might have little impact on future P2P development.  That is, if the court’s “factual” findings show that Aimster has a central index and can block infringing material, then that doesn’t mean that future uses of encryption are banned in P2P.  It just means that services operating like Napster are still liable.

This is not to say that the facts are irrelevant.  But, they’ll be more important as they’re fit into the court’s reasoning.  For instance, the way the court treats Club Aimster and Deep’s boasts that Aimster is the next Napster will be significant.  If the court sees these actions as inducing and contributing to infringement, it must carefully describe what triggers that contribution on a general level.  That is, it won’t be enough to know that P2P developers shouldn’t pursue the exact same actions as Aimster.  Instead, the court must lay down some sort of rule that will apply to far different circumstances. 

The problem then becomes, how can such a rule be clear? It will likely be too vague to apply to other P2P developers.  Thus, from muddled facts we will get a muddled ruling with muddled general reasoning, left to be reinterpreted anew, predictably out of context in future cases. 

Similarly, a vague standard might evolve if the court focuses on Aimster’s primary, advertised use, rather than it’s substantial non-infringing uses. If the court determines that the Aimster is liable because it is primarily used and marketed as a piracy tool, the facts will then become much more significant.  Again, what makes a use primary?  What direction will this provide for future developers?

Another important issue is whether Aimster has sufficient knowledge of infringement.  Aimster (and the EFF) argue that generalized knowledge of infringement is not enough for liabliity.  More specifically, Aimster argues that it has no specific knowledge of infringement and that it cannot identify specific infringers.  Even if the court accepts specific knowledge as the standard, what constitutes specific knowledge?  Given that simply uploading the song title to the index could constitute infringement, I figure Aimster has specific knowledge that infringement is occurring.  Even though encryption hides the actual file transfer, it does not cover the song on the index.  Then the question is: does Aimster contribute to and can it control this infringement?  Again, from the facts, I’m not sure if Aimster can.

I wish I had something more conclusive to say about this case.  Really, the most important thing the 7th Circuit can do is correct the lower court’s reasoning.  The 7th Circuit should affirm what was said in Sony, Napster, and Grokster.  What it does past that, well, I can’t really say if it’s good or bad, right or wrong, because I can’t figure out the facts of the case.

…This in some ways calls for a discussion of Napster, which, to tell you the truth, I still can’t get myself to completely disagree with.  The ruling leaves a lot open-ended, and, hopefully, cases like Grokster will provide the necessary clarifications.  But, I can’t say that Napster was incorrect about Napster itself.  I’d like to read some articles debating this – if you know of any, send them along.

Brief Notes

I will have a longer post later on Aimster, but for now, dial-up is holding me to this:

1.  Mikael Pawlo has put up a petition for the Eric Eldred Act. Update: Actually, he didn’t put it up. Professor Lessig and did.  I got confused because Mikael sent a link and description to the pho list, and I misread the message.

2.  Non-commercial webcasters finally have a deal; Kurt Hanson gives it the thumbs up.