July 02, 2003

Aimster and Encryption

The Aimster decision, to keep an injunction against that file-sharing service, has generated a great deal of commentary (e.g. Derek Slater has much). I just have some observations regarding Aimster's use of encryption.

Ed Felten writes

The opinion assumes that Aimster did this because it wanted to remain ignorant of the infringing nature of the traffic. ...

But there is another good reason to use end-to-end encryption in such a service. Users might want to transfer sensitive but noninfringing materials. ... The opinion hints at all of this; but apparently Aimster did not offer arguments on this point.

I think the court recognized that reason straightforwardly, in this part:

4. Aimster's users might appreciate the encryption feature because as their friendship deepened they might decide that they wanted to exchange off-color, but not copyrighted, photographs, or dirty jokes, or other forms of expression that people like to keep private, rather than just copyrighted music.

This passage is in fact rather thoughtful on the encryption issue:

He did not escape liability by this maneuver; no more can Deep by using encryption software to prevent himself from learning what surely he strongly suspects to be the case: that the users of his service--maybe all the users of his service--are copyright infringers. This is not to say that the provider of an encrypted instant-messaging service or encryption software is ipso factor a contributory infringer should his buyers use the service to infringe copyright, merely because encryption, like secrecy generally, facilitates unlawful transactions. ("Encryption" comes from the Greek word for concealment.) Encryption fosters privacy, and privacy is a social benefit though also a source of social costs. "AOL has begun testing an encrypted version of AIM [AOL Instant Messaging]. Encryption is considered critical for widespread adoption of IM in some industries and federal agencies." Vise, supra. Our point is only that a service provider that would otherwise be a contributory infringer does not obtain immunity by using encryption to shield itself from actual knowledge of the unlawful purposes for which the service is being used.

Though there's a paradox lurking here, almost a kind of poetic justice or irony. Roughly:

Service: We've implemented encryption to protect our users' piracy, err, we meant privacy. So gosh-darn-golly, we can't know of any copyright infringement by our users, since the files shared are secret. We win!

Court: How interesting. You say you can't know what files your users are sharing? It's a secret? You absolutely, positively, don't know? Hmmm ... then you can't provide any evidence that there are actually any substantial noninfringing uses. You lose!

That's oversimplified, but the court does seem to have said something along those lines:

Aimster failed to make that showing too, by failing to present evidence that the provision of an encryption capability effective against the service provider itself added important value to the service or saved significant cost. Aimster blinded itself in the hope that by doing so it might come within the rule of the Sony decision. It complains about the district judge's refusal to hold an evidentiary hearing. ... [snip] ... Aimster hampered its search for evidence by providing encryption. It must take responsibility for that self-inflicted wound.

By Seth Finkelstein | posted in copyblight , legal | on July 02, 2003 04:46 AM (Infothought permalink) | Followups
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