Aimster Tries Fending Off Music-Industry Suits

By Steven Bonisteel

1-Jun-01

David Boies, the attorney who has made history by prosecuting Microsoft, then defending both ex-Vice President Al Gore and Napster -- all within the span of a year -- was expected to speak in court Wednesday for Aimster, another digital music firm under fire from the music industry.Lawyers for file-swapping network Aimster planned to ask a federal judge to put an end to a pair of copyright-infringement lawsuits filed by music-industry players late last week in Manhattan.George Carpinello, of the Albany office of the Boies, Schiller Law Firm, said Boies was expected to speak for Aimster at the session in federal district court in Albany, N.Y.Carpinello said that U.S. District Judge Lawrence Kahn would hear arguments over Aimster's bid to keep the copyright litigation focused on lawsuits the file-sharing service launched itself last month in pre-emptive strikes against media companies.The volley of lawsuits in the Aimster battle began April 30, when the company that hosts the Aimster network, AbovePeer LLC of Albany, turned to the federal court in its home town, seeking a declaration that could protect its peer-to-peer file-sharing technology from copyright infringement claims.That suit, which followed threats of legal action from the Recording Industry Association of America (RIIA), targeted that trade group and major record labels. The same day, a separate suit was filed against the RIAA by BuddyUSA Inc., the company name associated with the Aimster software and its Web site.The BuddyUSA suit was broadened May 7, with the major record companies and many of their labels joining the RIAA as defendants. On Tuesday, that suit was also transferred from another judge to Kahn.Last Thursday, record companies struck back, filing two lawsuits in Manhattan, seat of the Southern District for the New York federal court. In one suit, the RIAA -- acting on behalf of major record companies that included BMG, EMI, Universal, and Sony -- claimed that Aimster is party to copyright infringement by allowing subscribers to exchange MP3 copies of popular tunes.Also joining that suit were independent labels, including Zomba Recording and Caroline Records.The second suit was filed separately in Manhattan by AOL Time Warner in the name of such Warner Music labels as Atlantic, Elektra, London-Sire, Warner Bros. Records, as well as its music- distribution company WEA and two of its motion picture businesses, Time Warner Entertainment and New Line Cinema.In addition to operating the entertainment companies, AOL Time Warner's America Online provides the AOL Instant Messenger (AIM) software, whose ""buddy lists"" are used by Aimster subscribers to define file-sharing groups.However, on Friday, the two Southern District lawsuits were temporarily stayed by Judge Kahn in Albany after AbovePeer complained that the cases simply rehash the issues raised earlier in its actions in Kahn's court.On May 8, AbovePeer had expanded the scope of its RIAA lawsuit to include most of the major record companies and their many labels. And, on Friday, AbovePeer filed an additional music-company action to round up players in the Manhattan lawsuits it had not already named, including Zomba and Caroline Records.And yet another filing from AbovePeer Friday included companies such as music publisher Acuff-Rose Music.Carpinello said the purpose of the hearing before Kahn is to determine whether the stays on the Manhattan cases will be lifted.Also on Friday, Carpinello said, AbovePeer launched another pre-emptive lawsuit against the Motion Picture Association of America (MPAA). The suit alleges that the movie industry is poised to target Aimster's ability to transfer digital video files as well as MP3s and other data formats.In addition to the MPAA, that suit names such motion picture companies as Twentieth Century Fox, Universal Studios, Sony Pictures, Paramount Pictures, and Metro-Goldwyn-Mayer Studios.""We had understood that they had launched an action against us,"" Carpinello said. ""We filed our action because we believe all these cases raise the same issues and should be decided in front of Judge Kahn. We were since informed by the motion picture association's attorney's that they had not filed an action.""But they have not made a decision on whether they intend to file an action,"" he said. ""So we're arguing that, if they do file, it should be heard in Albany.""Johnny Deep, Aimster's founder and chief executive of AbovePeer, said that his company's service differs from Napster in that all data exchanged by users is encrypted, making it nearly impossible for Aimster to determine the content of subscribers' files.Deep said the recording companies sent AbovePeer a CD containing the titles of 500,000 copyrighted music tracks and demanded that the tunes be excluded from the Aimster network.Meanwhile, Aimster has until the end of this week to file legal action in a bid to prevent its Aimster.com Internet domain from being transferred to America Online, under a speedy dispute resolution procedure established by the Internet Corporation for Assigned Names and Numbers (ICANN).On May 18, the National Arbitration Forum (NAF), one of four organizations authorized to hear complaints under ICANN's Uniform Domain-name Dispute Resolution Policy (UDRP), said a panel of its arbitrators had sided with AOL in a ruling that effectively labeled Deep's company a cybersquatter.In a 2-1 decision, the arbitrators said the Aimster.com domain was chosen by Deep to remind users of AOL's AIM instant messenger software and lure users who might be confused by the association with the AOL product.Under the UDRP, Deep cannot appeal the decision directly, but he can seek a court's endorsement of his company's right to the addresses. However, losers of UDRP cases have just 10 working days to file a complaint in a court recognized by the dispute-resolution process.""We have to find an attorney down in Virginia in 10 days,"" Deep said. ""Do you know how hard that is?""

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