The world’s biggest music companies successfully sued Napster in December 1999 on the basis that it was a haven for copyright piracy that would cost them billions of dollars in lost music sales.
The decision has forced Napster to block the availability of all copyrighted music by using filters. Napster’s demise has resulted in the emergence of rival companies finding alternative methods to provide free music online.
A US judge recently refused to throw out a case against the major record companies by file-swapping and instant messaging company Aimster.
Aimster is seeking a declaration that it does not violate copyright recording laws.
This Napster-like service promises privacy features that theoretically place it beyond the reach of copyright laws. Like Napster, Aimster allows individuals with computers connected to the internet to trade files that are stored on their hard drive. However, unlike other file-swapping companies, the service provided by Aimster is far harder to track and monitor, leaving the application of copyright law unclear.
Aimster’s software works by allowing people to create “buddy lists” by drawing contacts from instant messaging services and then allowing people to swap files within that group. Because the files are available to such a small group, the short-lived networks of buddies are hard to monitor. Aimster’s creation of small private networks also preserves people from outside scrutiny because breaking into these personal private networks to look for copyrighted files may itself be a violation of copyright law.
More recently, Aimster has offered a new service where people can open their hard drives to anyone. Aimster claims this service is solely for finding buddies with similar interests. However, effectively, the service is very similar to Napster, where people can search hundreds of thousands of computers simultaneously without a buddy list system.
In reaction to this service, the Record Industry Association of America has issued Aimster with a warning noting that its activities were similar enough to Napster’s that it was likely to be in violation of the law.
However, Aimster maintains that since it has encrypted transmissions on its network, attempts to monitor its members would be a violation of federal copyright law and user’s privacy.
Aimster attorney George Carpinello states: “Our position is that we comply with the safe harbour provisions of copyright law”, referring to legislation that protects internet service providers from liability for copyrighted content transferred through their networks.
“The RIAA is trying to impose on us a duty to patrol and censor what goes through a private network.”
However, a US anti-piracy company, Mediaforce, recently announced that it’s found a way to find copyrighted works by evading Aimster’s encrypted network.
Mediaforce is running searches on Aimster’s network using Aimster’s own software and taking down the results.
Aimster’s original buddy system will remain secure, but as soon as users reach into Aimster’s wider network they will open themselves up to monitoring.
The question is whether Mediaforce is doing anything wrong by taking the names of people down who swap copyrighted material.
“What’s been unique is that Aimster has billed itself as an encrypted private network but we haven’t broken their encryption or reverse engineered their software at all,” says Mediaforce chief executive Aaron Kessler.
Aimster claims that Mediaforce is using the software, which automatically decodes the networks transmissions, for unauthorised purposes and is therefore breaking copyright law.
Aimster spokesman Johnny Deep says “it’s as if they had hacked in and found the decryption key and were using it for unauthorised purposes”.
For now, Aimster’s privacy arguments remain untested, and file-swapping remains very much alive.
However, this record industry lawsuit will provide a high profile venue for testing this unconventional legal interpretation which could help set the rules and determine the fate of file-swapping for the future.
Averill Parkinson is a partner and Charlotte Walton a solicitor in Clendon Feeney’s technology law team. This article, together with further background comments and links to other web sites, can be downloaded from www.clendons.co.nz. Questions and comments are welcome to averill.parkinson@clendons.co.nz.