Original URL: http://www.theregister.co.uk/2003/12/16/friends_of_aimster_back_supreme/

Friends of Aimster back Supreme Court bid

Set P-to-P free

By Ashlee Vance

Posted in Media, 16th December 2003 17:23 GMT

Aimster has formed a new buddy list ahead of a potential showdown with the U.S. Supreme Court with three advocates of the peer-to-peer service handing in "friends of the court" briefs.

The American Association of Physicians and Surgeons (AAPS), Privacy Innovations Inc., and online author and librarian Eric Flint have all voiced their support for the Aimster/Madster peer-to-peer service, which is currently in limbo after a lower court shut it down. John Deep, Aimster's creator, is awaiting word from the Supreme Court as to whether or not it will hear the case and examine whether the injunction should be repealed. In their letters to the court, the Aimster backers argue that shutting down an encrypted peer-to-peer file swapping service impedes free speech rights and damages the potential of a new technology before it has time to play out.

The Register has obtained all three briefs and the documents raise compelling points. The Aimster fans argue that the technology provides a new means for transferring information securely and a potential boost to the tech industry. Shutting down this form of communication because of a few rogue music file-traders is a rash decision, they argue.

Deep made similar points in his plea to the Supreme Court to hear the case. The court will decide whether the case is up to snuff on Jan. 9.

It isn't all that likely that the Supreme Court will pick up the Aimster versus the RIAA (Recording Industry Association of America) case, but there are some that think the judges may be tempted. One of the most often cited cases in the music copyright wars is the 1984 Sony v. Universal City Studios decision in which the Supreme Court allowed Sony to keep selling Betamax recorders. Justice John Paul Stevens handed down the opinion in a tight 5-4 vote and could want to revisit the issue in its modern form.

"The Sony opinion is especially poignant because it was so forward looking - the court was faced with the same issue as it is now with file-sharing," said Amanda MacDonald, a law student at Northwestern University who is researching the Aimster case. "An old, established, well connected and politically charged organization (the Motion Picture Association of America) was threatened by a new and potentially costly technology, and Congress failed to take a serious stab at the problem, so the court was left with the job of blending VCR technology with copyright law.

"Justice Stevens' opinion was a strong reminder to the industry that copyright law is not meant to be a barrier to technology."

When the court gave Sony the go ahead to keep selling VCRs, a new movie rental industry was born. The Aimster advocates say a similar process could occur if only the RIAA will let peer-to-peer technology evolve without lawsuit shackles.

"This case is not simply about college students who believe that they should not have to pay for music when they can simply download it from the Internet," writes Eric Flint in his pro-Aimster brief. "Rather, at stake in this case is the fundamental issue of whether citizens can be denied valuable technological tools for sharing information and ideas simply because some may use those tools for improper purposes. Amicus urges this Court to recognize that the law must not be allowed unduly to impede the non-infringing, socially and commercially valuable uses of new powerful technologies."

The Association of American Physicians and Surgeons (AAPS), a non-profit group in a favor of limiting government interference in free markets, takes a slightly different tact.

"In particular, AAPS is concerned that the suppression of Web sites like Aimster merely for referring internet users to other information or other users is unjustified. The injunction by the court below, if upheld, will likely have a profound chilling effect on the dissemination of important therapeutic medical information to users over the Internet."

AAPS points to Aimster's ability to send encrypted messages between users as one of the key advantages of the technology. This allowed users to share private documents and funnel information without prying eyes peeking at the files.

In this case, AAPS argues that the injunction against Aimster infringes on First Amendment free speech rights.

"Political activists, dissidents, physicians, patients, lawyers and clients alike are injured by the wholesale removal of petitioner's system for encrypted communications. The potential of 100,000 encrypted messages per minute, made possible by petitioner's Aimster software and network, is enormously positive for the United States and particularly for foreign countries lacking in free speech."

Both Flint and AAPS are urging the court to look past the Napster explosion and decide whether it's best to encourage a technology that may serve the public good or to look out for the music labels' royalty concerns.

In addition, Charles Mudd, President of Privacy Innovations, notes that lower court decisions in the Aimster matter could have severe consequences on our precious IT industry. Weighing infringing uses of technology versus non-infringing uses is a tricky matter to be sure.

"This rule, if adopted nationwide, could cripple the IT industry," Mudd writes, not mincing words. "In order to avoid copyright liability, a company that marketed a product would have to constantly assess: 1) whether the infringing uses were substantial; and 2) if they were substantial, whether the infringements could be reduced or eliminated in a manner that would not be disproportionately costly. (The lower court) did not define how substantial the infringing uses would have to be, nor how disproportionate the costs of avoiding the infringement."

"Since virtually all IT products have some infringing uses, manufacturers and service providers would operate in a perpetual state of uncertainty and confront unending litigation as copyright owners and courts second guessed every engineering decision the manufacturers made."

Doesn't that sound encouraging? ®