The facts of the Aimster/Madster lawsuits are set forth in Section III.C.2(c)(3) above. In
that case, Aimster asserted the Section 512(a) safe harbor (as well as the Section 512(c) safe
harbor, discussed in Section III.C.6(b)(1)(iii).e below). In ruling on Aimster’s assertions of the
safe harbors, the district court first noted that the DMCA safe harbors could potentially apply to
liability for direct, vicarious and contributory copyright infringement.^2305 Note that this holding
is consistent with the Ninth Circuit’s holding in Napster I, in which the court ruled that the safe
harbors could potentially shield against vicarious liability,^2306 but inconsistent with the CoStar
case, which concluded that the safe harbors cannot shield against vicarious liability (see the
discussion in Section III.C.6(b)(1)(iii).c below).
The district court then turned to whether Aimster had satisfied the predicate conditions of
meeting the definitions of “service provider” in Sections 512(k)(1)(A) & (B) and adopting an
adequate policy of termination of repeat infringers under Section 512(i)(1)(A). The court found
that Aimster qualified as a “service provider” because a “plain reading of both definitions reveals
that ‘service provider’ is defined so broadly that we have trouble imagining the existence of an
online service that would not fall under the definitions.”^2307
The district court found, however, that Aimster had not adopted an adequate policy to
terminate repeat infringers. Although Aimster’s copyright notice on its site informed users of a
procedures for notifying Aimster when infringing activity was taking place on the system and
stated that users who were found to repeatedly violate copyright rights of others may have their
access to all services terminated, the court held that the policy was not reasonably implemented
because it in fact could not be implemented. In particular, the encryption on Aimster rendered it
impossible to ascertain which users were transferring which files, nor did Section 512(i) obligate
the plaintiffs to provide the Internet protocol address of a particular copyright infringer on the
Aimster system to assist Aimster in implementing its termination policy.^2308 “Adopting a repeat
infringer policy and then purposely eviscerating any hope that such a policy could ever be
carried out is not an ‘implementation’ as required by § 512(i).”^2309 Accordingly, Aimster’s
failure to comply with Section 512(i) rendered it ineligible for any of the safe harbors.^2310
In addition, the court ruled that Aimster had not satisfied the particular conditions for the
Section 512(a) safe harbor because, relying on one of the district court’s decisions in the Napster
case, 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) immunizes
liability by virtue of a service provider’s transmitting, routing or providing connections for,
(^2305) In re Aimster Copyright Litigation, 252 F. Supp. 2d 634, 657 (N.D. Ill. 2002).
(^2306) The district court’s 2002 decision on the plaintiffs’ motion for summary judgment in the MP3Board case,
discussed in Section III.D.8 below, also at least implicitly recognized that the Section 512(d) safe harbor could
apply to a claim of vicarious liability.
(^2307) Id. at 658 (emphasis in original).
(^2308) Id. at 659.
(^2309) Id.
(^2310) Id.