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The Digital Millennium Copyright Act, 17 U.S.C.S. § 512, does not abolish contributory infringement for purposes of copyright law. The common element of its safe harbors is that a service provider must do what it can reasonably be asked to do to prevent the use of its service by "repeat infringers." 17 U.S.C.S. § 512(i)(1)(A).
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 appealed.
Did the provider did not fall within the safe harbor of 17 U.S.C.S. § 512(i)(1)(A).
The appellate court concluded that the copyright owners were likely to prevail on their claim of contributory infringement. The provider's software that allowed for the sharing of music files, along with a tutorial on how to share files, was an invitation to infringement. Further, the fact that the service was capable noninfringing uses was not enough. The provider failed to produce any evidence that its service had ever been used for a noninfringing use. The provider also argued that it did not have actual knowledge of infringing uses because all of the files were encrypted. The appellate court noted that by eliminating the encryption feature and monitoring the use being made of its system, the provider could have limited the amount of infringement. Instead, it did nothing to discourage repeat infringers. As such, the provider did not fall within the safe harbor of 17 U.S.C.S. § 512(i)(1)(A). Finally, the copyright owners' harm was irreparable and outweighed any harm to the provider because their damages could not be reliably estimated and the provider was unlikely ever to have the resources to pay them while the provider was protected by an injunction bond.