As Napster attempts to cooperate with record labels to end a protracted court battle, at least one alternative file-swapping network is using the law to protect itself from a similar fate.
This week, Aimster unveiled a new terms of service agreement that attempts to shift the burden for trading copyrighted material from itself to individuals and tries to force the music industry to break the law if it wants to monitor file trading.
However, under the new terms, people must agree not to open or use any file that isn't theirs or they risk being kicked off the system--a requirement that could defeat the purpose of using the service for many people looking for free music and other content.
In addition, Aimster is attempting to shield itself behind the very law the entertainment industry has used to go after file-swapping company Napster. The Digital Millennium Copyright Act (DMCA), a controversial law backed by music companies and other large copyright holders, prohibits anyone from cracking code designed to protect copyrights. Aimster, which incorporated an encryption scheme into a new version released Wednesday, hopes that provision applies to it as well.
Aimster spokesman Johnny Deep said the new encryption plan was created to protect the service and its members from anyone who wants to monitor the network.
"The encryption technology makes it a federal crime to spam or monitor the network," Deep said, adding that it could affect record companies. "We didn't do it to shut them out, but I don't think there will be any way to distinguish between" spammers and record labels.
Creative ways around copyrights
Aimster's new agreement marks an escalation in the arms race between online music traders and the record labels, fueled by file-swapping services as they seek to develop increasingly creative ways to protect themselves from the infringement claims of copyright holders.
Aimster, whose system combines the properties of a file-swapping system with instant messaging, says that "data collectors and other potential spies, eavesdroppers or wiretappers" on its system risk up to $500,000 in fines and five years in jail if they attempt to crack the site's security to snoop on the service.
That could mean that record companies wanting to spy on individuals could break the law that's become their favorite weapon to crack down on fledgling technology companies.
Whether such claims will stand up to potential legal challenges is anyone's guess. The entertainment industry has aggressively--and for the most part, successfully--pursued many services that allow people to share copyrighted music, including Napster, Scour and MP3.com, regardless of their claims that they weren't responsible for their members' actions.
So far, judges have not agreed that Napster is protected from infringement claims by its terms of service agreement, which says that members are responsible for complying with federal law. At a court hearing Friday, Napster said it will voluntarily begin to police its network in an apparent bid to defuse potentially harsher remedies that could be applied in a pending injunction against it.
However, if the record companies were to ignore the DMCA and try to crack the Aimster system to nab pirates, they would be seen as hypocrites.
Traffic cop or infringement suspect?
Under the DMCA, any breaking of encryption-protection measures is against the law, regardless of whether the activity to be performed once the code is cracked is legal. For example, if someone wants to take an excerpt from a digital book and put it into a review--an action that's legal under fair use--but that person has to crack copyright-protection code to get at the book, the reviewer would be breaking the law.
In this case, the music industry, or whoever else is cracking the code, would be acting illegally by breaking into the Aimster system, even if the eventual goal was to catch music pirates.
At the same time, most of file-swapping services say it's virtually impossible for them to monitor their networks for illegal use because such scrutiny would be too expensive and labor intensive.
In this case, Aimster is adopting an encryption strategy that could outlaw record companies' attempts to monitor it; however, it is also saying it's not responsible for policing the system.
"I'm not sure it's up to us to enforce it," Deep said. "If you're expected to monitor everything that goes on on the service, that's absurd."