Advanced Copyright Issues on the Internet - Fenwick & West LLP

concluded that the safe harbors cannot shield against vicarious liability (see the discussion inSection III.C.5(b)(1)(iii).c below).The district court then turned to whether Aimster had satisfied the predicate conditions ofmeeting the definitions of “service provider” in Sections 512(k)(1)(A) & (B) and adopting anadequate policy of termination of repeat infringers under Section 512(i)(1)(A). The court foundthat Aimster qualified as a “service provider” because a “plain reading of both definitions revealsthat ‘service provider’ is defined so broadly that we have trouble imagining the existence of anonline service that would not fall under the definitions.” 1726The district court found, however, that Aimster had not adopted an adequate policy toterminate repeat infringers. Although Aimster’s copyright notice on its site informed users of aprocedures for notifying Aimster when infringing activity was taking place on the system andstated that users who were found to repeatedly violate copyright rights of other may have theiraccess to all services terminated, the court held that the policy was not reasonably implementedbecause it is fact could not be implemented. In particular, the encryption on Aimster rendered itimpossible to ascertain which users were transferring which files, nor did Section 512(i) obligatethe plaintiffs to provide the Internet protocol address of a particular copyright infringer on theAimster system to assist Aimster in implementing its termination policy. 1727 “Adopting a repeatinfringer policy and then purposely eviscerating any hope that such a policy could ever becarried out is not an ‘implementation’ as required by § 512(i).” 1728 Accordingly, Aimster’sfailure to comply with Section 512(i) rendered it ineligible for any of the safe harbors. 1729In addition, the court ruled that Aimster had not satisfied the particular conditions for theSection 512(a) safe harbor because, relying on one of the district court’s decisions in the Napstercase, the information transferred between individual Aimster users did not pass “through”Aimster’s system at all by virtue of its peer-to-peer architecture (Section 512(a) immunizesliability by virtue of a service provider’s transmitting, routing or providing connections for,“materials through a system or network controlled or operated by or for the serviceprovider”). 1730 The holdings of the Napster and Aimster courts on this point, if adopted by othercourts, will make it difficult for the Section 512(a) safe harbor ever to apply to a peer-to-peerarchitecture. The court rejected Aimster’s argument that “through” should be interpreted tomean “by means of” or “by the help or agency of.” 1731 Finally, the court noted that Aimster wasineligible for the Section 512(a) safe harbor because its encryption of the information transferredbetween users constituted a modification of that information, which Section 512(a) does notpermit. 17321726 Id. at 658 (emphasis in original).1727 Id. at 659.1728 Id.1729 Id.1730 Id. at 659-60.1731 Id. at 660.1732 Id. at 660 n.19.- 376 -