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In re Aimster Copyright Litig.

United States Court of Appeals for the Seventh Circuit

June 4, 2003, Argued ; June 30, 2003, Decided

No. 02-4125


 [***1235]  POSNER, Circuit Judge. Owners of copyrighted popular music filed a number of closely related suits, which were consolidated and transferred to the Northern District of Illinois by the Multi-district Litigation Panel, against John Deep and corporations that are controlled by him and need not be discussed separately. The numerous plaintiffs, who among them appear to own most subsisting copyrights on American popular music, claim that Deep's "Aimster" Internet service (recently renamed "Madster") is a contributory and vicarious infringer of these copyrights. The district judge entered a broad preliminary injunction, which had the effect of shutting down the Aimster service until the merits of the suit are finally resolved, from which Deep appeals. Aimster is one of a number of enterprises (the former Napster is the best known) that have been sued for facilitating the swapping of digital copies of popular music, most of it copyrighted, over the Internet. (For an illuminating [**2]  discussion, see Tim Wu, "When Code Isn't Law," 89 Va. L. Rev. 679 (2003), esp. 723-41; and with special reference to Aimster, see Alec Klein, "Going Napster One Better; Aimster Says Its File-Sharing Software Skirts Legal Quagmire," Wash. Post, Feb. 25, 2001, p. A1.) To simplify exposition, we refer to the appellant as "Aimster" and to the appellees (the plaintiffs) as the recording industry.

Teenagers and young adults who have access to the Internet like to swap computer files containing popular music. If the music is copyrighted, such swapping, which involves making and transmitting a digital copy of the music, infringes copyright. The swappers, who are ignorant or more commonly disdainful of copyright and in any event discount the likelihood of being sued or prosecuted for copyright infringement, are the direct infringers. But firms that facilitate their infringement, even if they are not themselves infringers because they are not making copies of the music that is shared, may be liable to the copyright owners as contributory infringers. ] Recognizing the impracticability or futility of a copyright owner's suing a multitude of individual infringers ("chasing individual [**3]  consumers is time consuming and is a teaspoon solution to an ocean problem," Randal C. Picker, "Copyright as Entry Policy: The Case of Digital Distribution," 47 Antitrust Bull. 423, 442 (2002)), the law allows a copyright holder to sue a contributor to the infringement instead, in  [*646]  effect as an aider and abettor. Another analogy is to the tort of intentional interference with contract, that is, inducing a breach of contract. See, e.g., Sufrin v. Hosier, 128 F.3d 594, 597 (7th Cir. 1997). If a breach of contract (and a copyright license is just a type of contract) can be prevented most effectively by actions taken by a third party, it makes sense to have a legal mechanism for placing liability for the consequences of the breach on him as well as on the party that broke the contract.

The district judge ruled that the recording industry had demonstrated a likelihood of prevailing on the merits should the case proceed to trial. He so ruled with respect to vicarious as well as contributory infringement; we begin with the latter, the more familiar charge.

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334 F.3d 643 *; 2003 U.S. App. LEXIS 13229 **; 67 U.S.P.Q.2D (BNA) 1233 ***; Copy. L. Rep. (CCH) P28,630


Subsequent History: US Supreme Court certiorari denied by Deep v. Recording Indus. Ass'n of Am., Inc., 540 U.S. 1107, 157 L. Ed. 2d 893, 124 S. Ct. 1069, 2004 U.S. LEXIS 91 (U.S., 2004)

Prior History:  [**1]  Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 C 8933. Marvin E. Aspen, Judge.

In re Aimster Copyright Litig., 252 F. Supp. 2d 634, 2002 U.S. Dist. LEXIS 17054 (N.D. Ill., 2002)

Disposition: Affirmed.


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Business & Corporate Compliance, Overview & Legal Concepts, Related Legal Issues, Copyright, Copyright Law, Copyright Infringement Actions, Civil Infringement Actions, General Overview, Torts, Commercial Interference, Contracts, Elements, Copying by Defendants, Secondary Liability, Contributory Infringement Actions, Presumptions, Defenses, Computer & Internet Law, Civil Infringement, Liability of Related Defendants, Contributory Infringement, Copyright Protection, Digital Millennium Copyright Act, Safe Harbor Provisions, Fair Use, Real Property Law, Torts, Trespass to Real Property, Duty On Premises, Trespassers, Remedies, Damages, Types of Damages, Statutory Damages, Injunctions, Trespass to Real Property, Costs & Attorney Fees, Trademark Law, Causes of Action Involving Trademarks, Infringement Actions, Copying by Defendants, Access, Criminal Offenses, Criminal Infringement, Criminal Law & Procedure, Acts & Mental States, Mens Rea, General Intent, Online Infringement, Determinations, Communications Law, Rules & Regulations, Regulated Entities, Internet Services, Civil Procedure, Judicial Officers, Judges, Injunctions, Preliminary & Temporary Injunctions, Business & Corporate Law, Agency Relationships, Types, Employees & Employers, Duties & Liabilities, Negligent Acts of Agents, Liability of Principals, Scope of Copyright Protection, Ownership Interests, Works Made for Hire, Vicarious Liability, Employers, Internet Business, Internet & Online Services, Service Providers, Service Types, Appeals, Reviewability of Lower Court Decisions, Preservation for Review, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Constitutional Copyright Protections, First Amendment Considerations