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by
Anonymous Coward
on Wednesday June 04, @01:10PM (#724)
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I stepped away from work for 40 min. to watch the arguments. (I'm writing a law review article/promotional piece, and some of the reasoning depends on the lower court decision, so, to the extent that I'm biased, its because I'm hoping (out of laziness) that the lower court's decision stands.) Posner, Ripple and Williams sat in, with Posner asking most of the questions. Johnny and Aimee Deep was there, in the flesh (though she didn't show as much flesh as she does on the website.) Appellees bench had scads of attorneys that looked rather well-paid.
To sum the arguments: It did not look good for our Aimster, although we may get a better definition of the Sony defense.
Posner spent several grim moments grilling Aimster's counsel, Bill Montague, on the function of the BuddyList, the poor bastard. Montague conceded he was not prepared (although it was not a particularly relevant point.) More importantly, Posner seemed sharply critical of any claim that Aimster's encryption scheme prevented Aimster from exerting control over the system, and thus shielded Deep and Aimster from liability. When pressed on how the encryption prevented Aimster from identifying infringing files, Montague was forced to make the absurd argument that, although the Club Aimster Top 40 listed the titles of the most downloaded 40 files, those files were not necessarily the song denoted by the title, but could be any kind of spoof. Posner also seemed skeptical that the purpose of the encryption was for anything other than arguing Aimster couldn't know what files were traded. Aimster made its best point with the Sony defense, arguing that many other courts (and the UCC) had held software was an article not a service. Posner seemed satisfied, though, that if Aimster didn't fit into contributory infringement, then little else would.
Posner also had hard questions for the plaintiffs, although Russell Frackman whethered them better than Montague. Frackman ran into trouble with Sony, though. Posner didn't seem very interested divisions between services or articles of commerce, or very impressed with strictly limiting the Sony defense to the precise facts of the Sony case. Posner and Frackman seemed to agree that Sony is a narrow defense to the broad liability principles of contributory infringement. However, Posner didn't push Frackman too much further after Frackman started talking about the ongoing relationship between Aimster and its infringing users. Posner recognized that Aimster had some degree of control over its system.
Anyway, that's the way it looked from here.
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