Sheltered judges keep Aimster down

Using P2P is soo immature

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A Chicago court has called on file-trading service Aimster to provide some proof that its users do more than trade copyrighted files before it can come back online.

The federal appeals court has put the screws on Aimster - now known as Madster - despite an earlier ruling that gave Grokster and StreamCast the all clear to keep trading. The music label backed RIAA (Recording Industry Association of America) has won this round by keeping Aimster's service grounded until trial, as the Chicago court upheld previous injunction rulings.

It should come as no surprise that the court came to this decision given its utter lack of knowledge about P2P networks and the way people use them.

"Teenagers and young adults who have access to the Internet like to swap computer files containing popular music," the court wrote. "If the music is copyrighted, such swapping, which involves making and transmitting a digital copy of the music, infringes copyright."

Succinct as it is for legal speak, this simplifies file trading to an inane degree. Are we to understand that only young, innocent children are swapping files? And what exactly is "popular music"? Some of the most ambitious traders around have cracked right through being middle-aged and offer up various types of music and all kinds of files.

In case no one has noticed, companies such as Sun Microsystems, Intel and Microsoft take peer-to-peer technology quite seriously. It's still seen as one the next major waves in computing by many. Characterizing the technology as some kind of adolescent diversion is unacceptable.

The language used in the rest of the court's decision is not much better. The judges seem to be making their initial encounter with computers.

Users, we are told, need not list all of their files one at a time. There are "folders" that can store files all together.

It's understandable that the court wants to list the points at hand clearly, but in a long line of P2P decisions, this one hits rock bottom.

Aimster owner John Deep claims that his encryption system makes it impossible to tell what files users are trading. He has no way to say whether or not copyright infringement was occurring. Not so fast, the court said. If Deep suspects copyright violations are happening, it's up to him to curb the problem.

The court then used various analogies, including references to pimps, hookers and slinky dresses, to try and sort out how much infringing use is okay and how much non-infringing use is going on.

It's similar to the battle Sony faced in trying to prove VCRs (Betamax) have more substantial non-infringing uses than infringing. Guess what? Sony won and a giant movie rental industry was born.

In this case, the court has asked Aimster to come back with proof that "young adults" are trading all kinds of files and not just popular music.

"Aimster has failed to produce any evidence that its service has ever been used for a non-infringing use, let alone evidence concerning the frequency of such uses," the court wrote.

Clearly these judges are not Grateful Dead fans. The Dead along with Phish, Dave Mattews and a host of other bands let fans record concerts for free and trade CDs of the shows at will. Anyone who has done a P2P search for Dead shows, Phish shows, or Dave Matthews shows would know that thousands upon thousands of non-infringing songs are trading hands every day. It so happens that this practice has helped all three bands become some of the biggest grossing acts around.

Give Aimster some time. It's clear they can come up with something. ®

Related Link

Decision in PDF courtesy of FindLaw.com

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