Noose tightens on Napster clones

NEWS

Operators of peer-to-peer networks cannot escape copyright infringement claims by giving their members the ability to mask the content that changes hands on their networks, a federal appeals court ruled on Monday. Calling the tactic a form of "wilful blindness," the Seventh US Circuit Court of Appeals in Chicago upheld a lower court's injunction against the Madster file-swapping network that had ordered the service shut down pending a trial. But, in a mixed decision, the court also bolstered a key defence argument invoking a comparison between file-swapping software and personal home-video recording. Before it was shut down, Madster had offered its users the ability to encrypt files traded over America Online's AOL Instant Messenger client. As a result, its operators had argued that they had no obligation to seek to block illegal files swapped on the network because they were unaware of specific copyright violations. In a decision that could dampen efforts to bring privacy to file-swapping networks, the court on Monday rejected that reasoning. "One who, knowingly or strongly suspecting that he is involved in shady dealings, takes steps to ensure that he does not acquire full or exact knowledge of the nature and extent of those dealings, is held to have criminal intent," the panel wrote in the 23-page decision. Privacy in file-swapping was put on the front burner last week when the Recording Industry Association of America said it would begin investigations aimed at bringing lawsuits against individuals who make large numbers of files available for uploading on peer-to-peer networks such as Kazaa, Morpheus and Grokster. Since 17 June, a file-swapping client promising improved privacy known as Blubster 2.5 has seen more than 3.3 million downloads, according to CNET Download.com, a division of CNET Networks. "I wouldn't say it's the end of the road for (Madster), but one of the things that makes it tough is that the (court) is highly critical of the wilful blindness approach to running these sorts of companies," said Tim Wu, an associate professor at the University of Virginia Law School. The opinion "suggests that deliberately creating something beyond your control is not going to get you out of copyright infringement." Madster, previously called Aimster, is one of several peer-to-peer, or P2P, online file-swapping services designed to facilitate the sharing of computer files, including audio tracks. Its more famous predecessor, Napster, has been credited with revolutionising the distribution of popular music, though lawsuits by the recording industry shut it down. The services are also used to swap digitised copies of films and TV programs. The Aimster case is not the only file-swapping case wending its way through the courts. In April, the courts handed a major defeat to the recording and movie industries with a decision holding that file-swapping networks Streamcast and Grokster were not liable for contributory infringement due to illegal activities of their users. In December, a federal court ordered Madster to shut down, after the service failed to comply with a preliminary injunction ordering it to put an end to copyright infringement. Monday's ruling upheld that decision. "We are pleased that the injunction against Aimster was upheld, effectively shutting it down until trial," Motion Picture Association of America President and chief executive Jack Valenti said in a statement. "This is another indication that so called 'file-sharing' businesses designed to benefit from the illegal use of copyrighted movies will not be tolerated." Madster operator Johnny Deep said Monday that although the court had failed to lift the injunction against him and his service, it had taken his side in approving a legal analogy between Madster and Sony's Betamax video recorder -- an analogy the recording industry is eager to discredit. "The court agreed with us on matters of law," said Deep in an interview. "It said Sony does apply. It disagreed completely with the record industry on that." In the 1984 Sony case -- Sony Corp. of America, Inc. v. Universal City Studios, Inc. -- the Supreme Court ruled that making a product that has "substantial non-infringing uses" is not itself a contributory infringement, even if that product is used to infringe. Therefore Sony couldn't be held responsible for the unlicensed copying on its Betamaxes of copyrighted works. In Monday's decision, the court rejected the recording industry's argument that because Aimster was capable of blocking infringing uses, it should necessarily be considered a contributory infringer. Instead, the court ruled, if detection and prevention of copyright infringement were "highly burdensome" to a service provider, that provider would escape an infringement claim. Deep pledged to appeal the injunction on the basis of its being too broad -- a contention the Seventh Circuit explicitly rejected. He also pledged that his determination to fight would sour the recording industry on its promise to sue individual file-swappers in large numbers. "This is a case against me personally," Deep said. "And I'm going to give them a little taste of what it's like to sue these thousands of people who are determined and who believe that they're doing the right thing."

See the MP3/P2P News Section for the latest on everything from MP3 players to file-swapping services. Let the editors know what you think in the Mailroom.

Post your comment

In order to post a comment you need to be registered and logged in.

You can also log in with Facebook. Log in or create your ZDNet UK account below

By signing up for this service, you indicate that you agree to our Terms and Conditions and have read and understood our Privacy Policy. Questions about membership? Find the answers in the Community FAQ

ZDNet UK Live

Make that 13 people now - I got refused today at Manchester airport. I thought I was up to date on this legislation - I knew of the EU ruling from...

2 hours ago by bootlegger on UK airport body scans will not be opt out

Don't forget to check out apps like GoodReader or SlideShark either, they're indispensible for people on the go in presentation situations. Best...

5 hours ago by tinycg on Four top iPad apps for people on the move

Well it seems there is something a number of us agree on. Why is the Ubuntu Unity launcher so ugly? I thought perhaps it was something to do with...

10 hours ago by TerryRK on A tale of two distros: Ubuntu and Linux Mint

Duplicate comments are not made intentionally. Its very good to know that now you are keeping check on this problem because sometimes a commenter...

19 hours ago by Freebies202 on Microsoft fixes blog comments, speeds up blogs with open source

"the very significant number of users" and "many (most) of us" - you have no evidence for these statements. It is a fact that most users are saying...

1 day ago by kevinmchapman on A tale of two distros: Ubuntu and Linux Mint

Another grammar faux pas is the improper use of "you". When sitting down down in a restaurant, for example, I get cringe when the waitress...

1 day ago by Marg Menzies Harrison via Facebook on 10 flagrant grammar mistakes that make you look stupid

And NOW, folks, for Canonical's next trick... Kubuntu is late. Here's a pencil. Draw your own conclusions. cf.:...

1 day ago by zdnetukuser on Linux Minterface

@kevinmchapman. The discussion here reflects the very significant number of users who really do like the traditional menu system and who wish to...

1 day ago by Moley on A tale of two distros: Ubuntu and Linux Mint

Er, no... It is an efficient means of finding the application/file/setting you need in one place. The icons are a simply a fallback for when you...

1 day ago by kevinmchapman on A tale of two distros: Ubuntu and Linux Mint

Isn't the provision of a text based search an admission by the developers that the mass of icons approach does not work? I don't need to use a...

1 day ago by TerryRK on A tale of two distros: Ubuntu and Linux Mint

"Unity and GNOME 3 both abandon the old text-based cascading menus in favour of a graphical icon-driven system." Point truly missed. Both use a...

1 day ago by kevinmchapman on A tale of two distros: Ubuntu and Linux Mint

whs001 - Thank you, I'm glad you liked the article. I absolutely agree with you on your first point. I should perhaps have made it clearer that...

1 day ago by TerryRK on A tale of two distros: Ubuntu and Linux Mint

If we allow corporate interest to dictate the way our government circumvents due process against foreign entities then we should accept the same...

1 day ago by Dennis Nilsson via Facebook on ACTA stumbles in Germany

I totally dislike pirating of works, I fear that artists will be deterred from creating works if they think that they are going to get ripped off....

2 days ago by GHar123 on ACTA stumbles in Germany

How dare film makers, artists or anybody that invests in creativity stop us pirating their works for free. I want to be able to walk into my local...

2 days ago by JCB33 on ACTA stumbles in Germany

@GrueMaster. I prefer horses for courses rather than one size fits all. I, and I suspect most other computer users, do not really wish to have...

2 days ago by Moley on A tale of two distros: Ubuntu and Linux Mint

The product that scares me every time I have to use it is the Office 2007 version of Excel. The first bug that I found was applying the median...

2 days ago by greycynic on Ten flawed products that derail productivity

Nice review and very informative. One thing I'd like to add (in reply to whs001's 1st question), the main reason to have the same interface from...

2 days ago by GrueMaster on A tale of two distros: Ubuntu and Linux Mint

I'be been using Mint 12 since the RC came out, and I am far more happy with the Cinnamon, the Mate, and, yes (with extensions), theGnome 3...

2 days ago by Frederick Wrigley via Facebook on A tale of two distros: Ubuntu and Linux Mint

Excellent article. One small correction, though--although a fresh installation of Linux Mint 12 will, indeed, provide the user with a version of...

2 days ago by bdantas on A tale of two distros: Ubuntu and Linux Mint

Featured white papers

Latest jobs

Noose tightens on Napster clones

Daily Newsletters

Topics

Related stories

RIAA: Madster flouting court order

Another file-swapping site to fall silent

File-swapping network told to unplug computers

Heart of England NHS begins massive digitisation plan

Hard-drive woes hit PC shipments in fourth quarter

Post your comment

ZDNet UK Live

Latest in IT Strategy

Heart of England NHS begins massive digitisation plan

Hard-drive woes hit PC shipments in fourth quarter

Featured white papers

Latest jobs

PHP Web Developer - html, css, javascript

Java Developer, Online Gaming, London

Quant Dev, Hedge Fund, FX, Excel VBA

Inside ZDNet UK

A tale of two distros: Ubuntu and Linux Mint

2012 Predictions: VCE FastPath, VI SAN Probe & Hadoop

BlackBerry Bold 9790

Make faster, smarter decisions using BI

Ten factors that make Ubuntu 11.10 a hit

Toshiba Portégé Z830-10P Review

BT's archive: Pictures from the vault

News & Analysis

Reviews

Blogs

Resources

About Us

Member Services

Special Features

Advertising Features

ZDNet UK / News and Analysis / Business of IT / IT Strategy

Noose tightens on Napster clones

Daily Newsletters

Topics

Related stories

Post your comment

Get ZDNet UK's daily newsletter

Enter your email address to sign up

ZDNet UK Live

Latest in IT Strategy

Featured white papers

Latest jobs

Inside ZDNet UK

Resources

About Us

Member Services

Special Features

Advertising Features