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In re Aimster Copyright Litigation, 334 F.3d 643, 67 U.S.P.Q.2d (BNA) 1233 (7th Cir. 2003) (full-text), cert. denied, Deep v. Recording Indus. Ass'n of America, 540 U.S. 1107 (2004).

Factual Background[]

In the wake of the Napster decision, other peer-to-peer Internet services have designed their systems in ways that attempt to avoid liability for contributory and vicarious copyright infringement. One of these others is a service that was originally called “Aimster” (and now is called “Madster”).

The “Aim” in Aimster is an acronym for “AOL Instant Messenger.” The service was so-named, because it enabled file-swapping by those using instant messaging services. In fact, music files were transmitted as attachments to instant messages; Aimster’s own server never hosted or transmitted music files. Instead, in response to users’ search requests, Aimster’s server searched the computers of other Aimster users then online; and when it found requested files, it “instruct[ed]” those computers to transmit them to the users who had requested them.

In addition to confining its availability to instant messenger users (a narrower group that that serviced by Napster), Aimster had one more feature that it hoped would save it from liability. Its software encrypted search requests, so Aimster did not know what files its users were looking for or receiving. It was therefore able to argue — though without success — that it couldn’t prevent its users from infringing, or for that matter, even know for sure that they were.

Aimster, however, met the same legal fate as Napster: a preliminary injunction was issued against it, and that injunction has been affirmed on appeal.

Appellate Court Proceedings[]

Writing for the Seventh Circuit Court of Appeals, Judge Richard Posner concluded that the evidence supported the conclusion that Aimster is likely to be found to be a contributory infringer — though Judge Posner’s reasoning did not track that used by the Ninth Circuit Court of Appeals in the Napster case.

Judge Posner rejected Aimster’s argument that mere constructive knowledge of its users’ infringing activities was not enough to hold it liable for contributory infringement. He held that “a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used.”

More significantly, Judge Posner also rejected Aimster’s argument that it could escape liability merely by showing it “could be used in noninfringing uses.” “That would be an extreme result,” the judge responded, “and one not envisaged by the [Supreme Court in its] Sony (Betamax decision).”

Instead, Judge Posner reasoned that “when a supplier is offering a product or service that has noninfringing as well as infringing uses, some estimate of the respective magnitudes of these uses is necessary for a finding of contributory infringement.”

Judge Posner offered this analogy: “A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some of his customers are prostitutes. . . . But the owner of a massage parlor who employs women who are capable of giving massages, but in fact as he knows sell only sex and never massages to their customers, is an aider and abettor of prostitution (as well as being guilty of pimping or operating a brothel).”

In copyright cases, “The slinky-dress case corresponds to [a conclusion that contributory infringement has not occurred], and [that result] is not inconsistent with imposing liability on the seller of a product or service that, as in the massage-parlor case, is capable of noninfringing uses but in fact is used only to infringe.”

In other words, Judge Posner rejected the record industry’s argument that “a single known infringer brands the facilitator as a contributory infringer.” And he rejected Aimster’s argument that “a single noninfringing use provides complete immunity from liability.”

Aimster was closer to the massage-parlor, because in addition to facilitating the transmission of copyrighted files among its users, it did two more things. It provided an online “tutorial [that] gives as its only examples of file sharing the sharing of copyrighted music, including copyrighted music that the recording industry had notified Aimster was being infringed by Aimster’s users.” And Aimster sold memberships in a “club,” for $4.95 a month, that enabled members “to download with a single click the music most often shared by Aimster users, which turns out to be music [[copyright]ed by the [record companies that filed the lawsuit].”

These two things did “not exclude the possibility of substantial noninfringing uses of the Aimster system,” Judge Posner added, but they were “sufficient . . . to shift the burden . . . to Aimster to demonstrate that its service has substantial noninfringing uses.” Aimster failed to meet this burden. Indeed, it “provided no evidence whatsoever . . . that Aimster is actually used for any . . . noninfringing purposes.”

Moreover, and of great significance, Judge Posner ruled that “Even when there are noninfringing uses of an Internet file-sharing service, . . . 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.” Aimster failed to make that showing, too.

Aimster argued that it was protected from liability by the “safe harbor” provisions of the Digital Millennium Copyright Act. But the argument was not persuasive. Judge Posner explained that the safe harbor provisions do not abolish liability for contributory infringement, because in order to take advantage of them, service providers must take reasonable steps to prevent the use of their services by repeat infringers.

Instead of doing that, Aimster invited its users to infringe by showing them how to do it, and by showing them how to encrypt their requests.