Aimster calls for Supreme Court showdown

Deep goes to Washington

Aimster and its leading man John Deep have their sights set on the US Supreme Court.

On Oct. 28, Deep, chief of Aimster/ Madster, filed a petition to have the Supreme Court hear his case against the Recording Industry Association of America (RIAA). Deep's file-swapping network was shut down last year by court and then held closed by an appeals court in a June decision. Deep wants to put the P2P service back on the map before heading to trial with the RIAA and sees the Supreme Court as one possible way to do so.

"Right now there is some skepticism about whether or not the Supreme Court will take this case, which I do not share," Deep said. "I am asking that it be expedited because of the nature of the injunctions against the service."

Deep has been doing a large amount of his own legal work despite lacking a law degree but hopes that a hearing before the Supreme Court will drum up some litigation aid.

"It shouldn't be too hard to find an attorney to take the case," he said.

Deep pored through legal texts and used a lot of software to prepare his petition for writ of certiorari. The document looks to make use of an opening the appeals court discussed comparing Aimster to Sony's Betamax and also to convince the Supreme Court the importance of hearing the case.

In the past, Deep has argued that Aimster/Madster is merely a service and that he, as owner, does not know what the users actually trade with the technology. The appeals court said Deep needed to prove that, like Sony's Betamax, there are substantial used of the Aimster technology that do no violate copyrights. In his petition, Deep lists fives such examples.

  • Not all popular music is copyrighted. Apart from music on which the copyright has expired, startup bands and performers may waive copyright in the hope that it will create a following that they can convert to customers of their subsequent works.
  • A music file-swapping service might increase the value of a recording by enabling it to be used in the music-sharing community.
  • Users of Aimster's software might form select "buddy" groups to exchange non-copyrighted information about popular music, or for that matter to exchange ideas and opinions about wholly unrelated matters as the buddies became friendlier. Some of the chat-room messages that accompany the listing of music files offered or requested contain information or opinions concerning the music; to that extent, though unremarked by the parties, some noninfringing use is made of Aimster's service.
  • Aimster's users might appreciate the encryption feature because as their friendship deepened they might decide that they wanted to exchange forms of expression that people like to keep private, rather than just copyrighted music.
  • Someone might own a popular-music CD that he was particularly fond of, but he had not downloaded it into his computer and now he finds himself out of town but with his laptop and he wants to listen to the CD, so he uses Aimster's service to download a copy. This might be a fair use rather than a copyright infringement, by analogy to the time shifting approved as fair use in the Sony case.

Deep goes on to highlight the need for a resolution in these types of cases, citing the appeals court's opinion "that the issue of contributory infringement for Internet service (as opposed to a traditional copying device) is of national importance both for the law and the market."

Given that users of Aimster were both messaging and copying files, Deep argues that the lower courts' injunctions against the service were far too broad. Aimster offers both consumers and businesses a way to send encrypted files anonymously, which could be used to protect privacy and for trading things such as corporate documents. These non-infringing uses bring the service on par with Sony's recording technology, he argues.

In closing, Deep asks the court to hear this case at a crucial time in the development of peer-to-peer technology. Should the music labels have the right to intrude on a service provider and new form of technology before it's even clear exactly what the usefulness of the service might be?

We'll see.

The court is expected to say by Dec. 3 whether or not it will take the case. ®

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