immunity by using encryption to shield itself from actual knowledge of the unlawful purposes
for which the service is being used.”^1830
The court therefore concluded that it was likely Aimster would be found a contributory
infringer and affirmed the granting of the preliminary injunction.^1831
The court also rejected a challenge to the injunction’s breadth. The preliminary
injunction, which was very broad in sweep, required Aimster to “immediately disable and
prevent any and all access” to the plaintiffs’ copyrighted works on or through any web site,
server, or system owned or controlled by Aimster, “including, if necessary, preventing any and
all access to the Aimster System and Service in its entirety, until such time that Aimster
implements measures that prevent” unauthorized copying and downloading of the plaintiffs’
copyrighted works.^1832 After implementing “measures to ensure that the Aimster System and
Service prevents any and all copying, downloading, distributing, uploading, linking to, or
transmitting” of the plaintiffs’ copyrighted works, Aimster was permitted to provide public
access to its system, except that it continued to be enjoined from copying, downloading or
distributing the plaintiffs’ copyrighted works or facilitating the same.^1833
Aimster was also required to “affirmatively monitor and patrol for, and preclude access
to” the plaintiffs’ copyrighted works “by employing such technological tools and measures that
are reasonably available to carry out such obligations” without specifying what those might be or
what technical effectiveness criteria they would have to satisfy.^1834 Finally, in one of the most
onerous parts of the order, Aimster was required to “maintain a complete list of any and all
sound recordings and musical compositions made available on, over, through, or via its system,
and upon five (5) business days’ notice [to] make such lists available to Plaintiffs for inspection
and copying. Such lists shall include, without limitation, computer, website, and computer
server logs delineating User search requests, download requests and upload attempts for any and
all sound records and musical compositions.”^1835 The Seventh Circuit rejected Aimster’s
challenge to the breadth of the injunction on the ground that Aimster had failed to suggest
(^1830) Id. at 650-51.
(^1831) Id. at 656. For a case post-dating the Supreme Court’s Grokster decision that interprets and applies Judge
Posner’s tests for contributory infringement in a non-service provider context, see Monotype Imaging, Inc. v.
Bitstream Inc., 2005 U.S. Dist. LEXIS 7410 (N.D. Ill. Apr. 21, 2005) (opinion on motion for summary
judgment) and 2005 U.S. Dist. LEXIS 14278 (N.D. Ill. (July 12, 2005) (opinion after bench trial). The court in
Monotype applied the Aimster approach to contributory liability without considering at all the issue of whether
any of the rationale or holdings of the Aimster cases were called into question by the Supreme Court’s Grokster
decision.
(^1832) Preliminary Injunction Order, In re Aimster Copyright Litigation, No. 01 c 8933 (N.D. Ill. Oct. 30, 2002) at ¶ 2.
(^1833) Id. ¶ 3.
(^1834) Id. ¶4.
(^1835) Id. ¶ 6.