November 19, 2003
My Reply to John Deep of Aimster
Aimster’s creator Johnny Deep, via his daughter Aimee, submitted this plea for help to Politech today. Following up on my previous comments, I have sent in the following response to the list, urging people to NOT support the filing for cert.
Dear Declan and Aimee,
My name is Derek Slater - I’m a blogger and an affiliate at Harvard’s Berkman Center for Internet and Society. I’d like to argue that people should NOT back Aimster’s writ, unless you have a death wish for the Sony doctrine and P2P - Declan, feel free to repost on Politech. I write the following with no offense intended to John or Aimee, but rather to evaluate the case.
The Aimster case’s facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses. At worst, Aimster actively encouraged infringement on its fully centralized P2P service. Its tutorial’s screenshots showed how to download copyright holder’s content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster. The record industry alleges that John Deep has boasted that Aimster is “Napster squared.”
As my description suggests, Aimster’s exact functioning and conduct has been in dispute. However, we do know enough to say that Aimster probably has some level of centralization and thus control; both the District and Appeals Courts agreed on this much. In turn, the Supreme Court is likely to treat Aimster more like Napster than Sony’s Betamax.
With that in mind, why give the Court a chance to write an overbroad opinion? We’d be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony. The Court doesn’t like protecting shady characters and, if the Court adopts my “worst case” interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.
Indeed, this is how both the lower courts viewed Aimster, generating colossally harmful rulings. The District Court ridiculed Deep’s defenses and crafted, in direct conflict with Sony’s, a rule based on “principal” and intended uses. The Appeals Court treated Aimster’s encryption as “willful blindness,” and, in an opinion rife with dicta, Judge Posner implicitly tried to rewrite Sony. He argued that infringing and non-infringing uses must be balanced on a case-by-case basis and closed by stating: “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.” In effect, Posner created a technological redesign rule that could force Morpheus to accommodate filtering tools and would likely have forced Sony to impair copying using Betamaxes. (Posner’s rule is not unlike a negligence standard, which I have critiqued elsewhere).
Having these opinions on the books is bad enough. Let’s not put Sony on the line here by bringing Aimster’s case before the Supreme Court. To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court. If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.
Sincerely,
Derek Slater
Filed by Derek Slater at 6:07 pm under Big Ideas
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