Aimster

The Rhetoric of Digital Tutorials

Imagine a person preparing a digital tutorial featuring screen captures that instruct users to do some simple act -- say upload a file to a CMS or other webspace. Suppose that the individual constructing the tutorial grabs images or a file from his/her hard drive and uses it in the tutorial as the image of the file being uploaded to the CMS. Suppose that this file happens to be copyrighted, and the person who owns the copyright stumbles upon the digital tutorial. Is this cause for concern? The answer is yes. Even when creating tutorials, composers must be aware that the rhetorical effect of their composition might be analyzed by a court to see whether there was intent to cause others to infringe. When courts make the kinds of determinations that they have in the P2P filesharing cases, they have increasingly looked at the rhetorical effect of "technical" documents such as digital tutorials -- documents that aren't necessarily constructed in order to provide high-level intellectual content meant to change the world. The Aimster ("In re Aimster," 2003) case illustrates this. 

Napster left a space for Aimster. The Aimster case happened because in Napster the court didn't need to decide what would happen if a fact pattern similar to Napster occurred, but without the presence of a centralized server. The Aimster service provided reproduction/distribution dual-use software that users downloaded free of charge. Users were then free to trade files with each other directly. This configuration is more along the lines of a true P2P filesharing system (Androutsellis-Theotokis & Spinellis, 2004). In addition to downloading free software, users could access digital tutorials that instructed them how to use it, and they could also (for a fee) belong to "Club Aimster"; membership allowed them to download additional music files. The court found it important that Aimster's digital tutorials showed not just how to use the software, but that they purposefully used a copyrighted file in their visual illustration via screen captures.

The Aimster court found it very compelling that when Aimster spent dollars, those dollars did not go to detecting copyright infringers, but instead went into providing encryption technologies so that Aimster would be blind to the files that were being exchanged. The court said, "'Encryption' comes from the Greek word for concealment . . . it fosters privacy . . . facilitates unlawful transactions." Making a direct connection between drug traffickers and Aimster's service, the court held Aimster's "ostrich-like refusal" to see infringement by using encryption as just another piece of evidence making Aimster contributorily liable for copyright infringement. Since Aimster (2-3 million users) provided no evidence of noninfringing uses, the court stated that the injunction against it, preventing Aimster from doing business, was justified.

Looking at it another way, this case sends the message that sharing might be OK as long as the authority that could know about the sharing doesn't purposefully do anything not to know about the sharing. In other words, if you want to share, not only must you do it in a decentralized, ad hoc fashion, but you must also hide this sharing without affirmative action on the part of any organizing or possibly central character (in this case, Aimster). Obviously, law influences culture. As technorhetoricians increasingly working in collaborative writing environments, we certainly should reflect on how, as the culture of composition increases its acceptance and reliance on collaboration, the "law" seems to resist collaboration by pushing "sharing" under the rug, so to speak. 

After Aimster, the question remained open: If neither a centralized server nor any special encryption technology of import was used, is sharing OK? This is what the Grokster case addressed.

See "In re Aimster Copyright Litigation (2003)" for more information.