Allofmp3.com Wins Court Case

remove writes "Gizmodo is running a story from a reader tip that claims that the russian site Allofmp3.com, popular with slashdotters for their user selectable format which had been reported as being under investigation recently has been let off the hook by the Russian DA, becuase of a loophole in russian law which allows users create copies of songs by request. Basically, even though the courts have found their site operator's behavior to be illegal- they can't prosecute because the user dynamically creates copies of songs to be downloaded themselves."

Comments

Text from Gizmodo:

[mikeage]

Since I don't read Russian and wouldn't know exactly where to look for up-the-minute Russian news, I can't really confirm this, but Kirill writes:

Since I saw a couple of features about Allofmp3 on Gizmodo, and used them myself a few times, I just wanted to update you on the Allofmp3.com legal voes - today, the DA for Moscow's South-West district, denied IPFI's request to open a criminal case against Allofmp3.com.

The DA's office determined that while Allofmp3's action are in fact theoretically illigal - they do not have the permission of all the artists they feature on the website to distribute their music - in the Russian copyright law there is no specific prohibition of digital distribution over the internet, thus the law couldn't be applied against them.

Basically the catch is in the definition of "distribution" under that law implies actual physical sale of pirated cassetes and disks, in case of downloads the DA office said that "Allofmp3 does not distribute copies of CD's, but creates conditions for its users to use the content themselves", and they don't have an article against that. I think its their online encoding feature that 'saved' them - with it, the user supposedly makes a copy of the song himself, and this is not something that was assumed under the anti-piracy law.

Eventually they will update the law I'm sure, but that will take a while (especially in Russia) so I figure we're ok to use Allofmp3 for a couple more years).

Re:Text from Gizmodo:

[akadruid]

Gizmodo have now added a link to a blog that details the result further:

http://moskalyuk.com/blog/allofmp3com-escapes-cr im inal-lawsuit-for-now/475

This implies that currently the only recourse of the RIAA/BPI/Big Four is to initiate a civil lawsuit against allomp3.com for failing to acquire a suitable license. It also says that this may be difficult, since they are probably covered by their license from ROMS.

Re:Text from Gizmodo:

[cpt kangarooski]

RIAA can sue downloaders in the US.

17 USC 501 says that infringement is the violation of any of the exclusive rights of the US copyright holder listed in 106. One of the 106 rights is reproduction; another is distribution.

Copies are defined in 101. They are material objects in which the intangible copyrighted works are fixed. For example, a novel is a kind of copyrightable work; each specific hardcover book with the story printed in it is a copy of that work. If you xeroxed the hardcover, you would be reproducing the work, even if the hardcover was destroyed in the process or something, because you are putting the work into a tangible object.

Files are not tangible objects. But RAM is a tangible object. Hard drives are tangible objects. Thus, when you download, you necessarily reproduce works. It's unavoidable, and happens all the time even if it is slightly behind the scenes. In fact, in the course of a download, many many reproductions may occur. Courts have settled this for a long time; I suggest reading MAI v. Peak (for the proposition that RAM can be a copy), Napster (which was found liable for the infringements of its users, including its downloaders), and Intellectual Reserve v. Utah Lighthouse Ministry (finding that people who look at web pages may, in the process, infringe by virtue of the copies that must be made in the course of the viewing process).

And the courts will look to the person who directed the reproduction to occur, regardless of who's computers were involved, when assigning liability. For downloading, this is the downloader; it's not as though the uploader is forcing stuff to come down the pipe. That would require malware or something, and is so unlikely, and the burden of proof is so low (only a 51% likelihood is required in civil copyright cases), that it's trivial to hold the downloader responsible for his own actions. For more on this, google for the Marobie-FL v. NAFED case.

While allofmp3 might have a right to reproduce or distribute in Russia, that does not have any affect on persons in the US. In particular, recall that they don't have a license per se, but a compulsory license. This isn't an agreement or contract; it's the Russian government saying that some actions are simply not infringing in Russia, provided that the persons engaging in them pay an amount set by the Russian government. As would be expected, it has no bearing outside of Russia since it's a law peculiar to them.

What's very important to bear in mind is that this is not a case of importation. Importation is a subset of distribution; therefore any exception in US law (the only law that matters for people in the US) regarding importation does not help in a case of reproduction. Furthermore, reproduction requires the moving across national borders of a tangible object. Mailing a CD from Russia to the US would be importation. Downloads are not importation. Providing them is distribution, and receiving them is reproduction, but importation is a red herring.

Plus, you're wrong in claiming that you can lawfully import anything you obtain legally according to the law of the place it was acquired. Surely you understand that, for example, you can't import marijuana into the US just because you legally bought it in Holland or something.

With copyright law, 602 prohibits importation in both subsections (a) and (b). People frequently look to the exception in 602(a)(2), but they are jumping the gun. That exception only applies to subsection (a). Subsection (b) still bans imports, unless the copies sought to be imported (i.e. tangible objects being brought into the country) were made in a way that was lawful had the laws of the US applied to the place they were made. Since allofmp3 can't operate lawfully under US law, even if they were providing imports, it'd still be illegal. Alternatively, 109 might apply, but then only to copies made in the US, exported, and reimported.

But again, importation is just a total wrong avenue. Nothing of the kind is going on here, and the real legal issues involve reproduction.

Sorry if it's confusing. You're expected to follow it anyway though. And you can be held liable for infringements even if you had no reason to think you were doing anything wrong.

Re:Text from Gizmodo:

[richie2000]

ou are still bound by US laws...and will get prosecuted for d/ling Brittney Spears.

Could you show me the exact text of US law that says it's illegal to download a Britney Spears MP3?

Hint: Copyright law only applies to making an copy and then distributing it. It does not cover buying or otherwise obtaining an infringing copy.

Re:Text from Gizmodo:

[makomk]

Yes, it does allow foreign users to exploit the price difference - but doing so is not illegal.

You want to bet on that? I think at least one website got stopped from selling cheaper foreign import CDs in the EU - CDWow.com?

Re:Text from Gizmodo:

[cpt kangarooski]

Could you show me the exact text of US law that says it's illegal to download a Britney Spears MP3?

Odd request, but okay.

17 USC 501(a):

Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A (a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.

17 USC 106:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize [the reproduction of] the copyrighted work in copies or phonorecords....

17 USC 101:

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Distribution is another one of the rights in 106, but reproducing a work into a copy is infringing regardless of whether or not you distribute it later.

You're right that it is not infringement to buy a copy (though some forms of obtaining a copy may be infringing), but that only covers buying. Reproduction that occurs in the process is still potentially infringing.

Re:Text from Gizmodo:

[cpt kangarooski]

Sure, the RIAA can sue. But that does not mean they would win.

I think they would win. Copyright cases are generally very clear cut in favor of the plaintiff. Certainly there's nothing about the typical downloader that's going to help him. The Napster cases are good to look at for this. Napster was sued basically for having helped its users infringe. Thus one of its defenses was to claim that the users didn't infringe. Napster tried every argument they could think of, and lost every time. Individual users are not going to have much of a chance, given that they'd just be retreading the same ground.

If a Russian person bought songs at AllOfMp3 and carried them into this country on a laptop - the next time they played those songs (thereby making a copy in RAM) they would be violating US copyright law.

Actually, just bringing them into the US would infringe copyright law. The customs service would be able to lawfully seize the laptop at the border and it might ultimately be destroyed.

So does that mean no one can bring any copyrighted works into the US unless they pay the US copyright holders?

There's a bit more detail to it than that, but basically, yes. The US does not want copyright holders to get undercut by foreign competitors that make copies of the same thing. Of course, where US and international rights are divvied up, it may be under an agreement whereby the requirements of 602(b) are satisfied, and therefore the 602(a) exception might be useful. Plus there's the 109 exception for reimports.

It's very difficult to say precisely which copies of which works can be imported and which can't, without being privy to a lot of details about them and the agreements under which they were made. It would be nice to have a simpler system.

Re:RIAA Dream Team Lawyers Fail?

[reifchen]

Whilst (like most /.'rs) I haven't done a full investigation, I don't think that the RIAA was directly behind this.

Instead, try the IIPA, (which the RIAA is a member of), which has requested that the US govt place trade restrictions on certain countries due to copyright infringement issues.

This is, unfortunately, one of those times where the sheer size of the US of A economy can, through the careful applications of trade sanctions, have dramatic effects on the economys of other countries.

Hence, it is not surprising that if trade sanctions are insinuated, countries may well roll over and go after entities that aren't abiding by US (copyright) law (but are abiding by that country's laws), or alter their (copyright) laws to be more closely conforming with US (copyright) law.

The real use of Allofmp3.com

[neoviky]

As the website has all the music imaginable, much more than the corporate stuff, I am using the site to sample entire albums in a low quality stream that they provide, which is pretty cool. There is always some music, that you want to check out, like for example an obscure Pearl Jam CD, but I'm lazy enough that I cannot really go thru the pain of downloading it, either from kazaa/bittorrent or if at all possible, legally thru itunes!(as if!). Latelly I was able to search and stream the really obscure but amazing albums of Candlebox, Chicane, and Dracula... in less than 10 seconds. I just started streaming in Winamp at 24kbps. I find all of my old worn out tapes suddenly so much accessible, like in the old days when we did listen to entire albums!! Vicki

If the glove doesn't fit, you must acquit!

[Dantelope]

"Basically, even though the courts have found their site operator's behavior to be illegal- they can't prosecute because the user dynamically creates copies of songs to be downloaded themselves."

I think what you mean is this:

Basically, even though the music industry wants the site operator's behavior to be illegal, it isn't because...

According to your statements, the loophole makes the behavior legal, which is why they can't prosecute.

Quite simply, if it's illegal and there is evidence, then the case can be prosecuted. In this case, it's not illegal (loophole), ergo, no prosecution.

RIAA has never sued downloaders

[jxyama]

...RIAA has only sued uploaders.

offering copies of copyrighted material for others when you don't have the distribution right is copyright infringement. downloading what's offered isn't. (yet?)

Re:RIAA has never sued downloaders

[cpt kangarooski]

This is not how it works in the US.

Per 17 USC 504, infringers may be sued for -- among other things -- the plaintiff's choice of either actual damages and profits or statutory damages.

Statutory damages are in the range of $750 - $30,000 per work. The ceiling can rise to $150,000 per work if the plaintiff can prove that the infringement was willful. The floor can drop to $200 per work if the defendant can prove that he was unaware of the infringement and had no reason to believe his acts were infringing.

Also federal courts have exclusive jurisdiction over copyright suits, so infringement actions can never take place in small claims court. The US District Court for the District of Wyoming sits in Cheyenne and Casper.

Given that 505 permits for the recovery of attorney's fees and costs by the prevailing party should the court allow it, it's not outside the realm of imagination for RIAA to hire some lawyers conveniently already located in Wyoming to sue the shit out of you. (If you're in Wyoming, natch)

Re:RIAA has never sued downloaders

[bbc]

"I should think that any reasonable person will tell you that downloading it is illegal.

Well, at least in the USA and probably almost anywhere else that has adopted the Berne convention"

I would be very much surprised if Germany, The Netherlands and Canada had not signed the Berne Convention, yet in these countries (and probably more) making copies for personal use is legal.

(The exceptions in the Netherlands to this rule are software, buildings and a third thing I forget.)

higher quality at same bitrate

[Anonymous Coward]

Yes there is - MP4 (AAC) is higher quality than MP3 at the same bitrate.

Re:If it's illegal...

[strider44]

Service. You get relatively high speeds, a broad selection of songs, choise of format, choise of quality, general anonymity from the bad guys, and a nice thank you for using their service. Don't you think it's worth US$10 for that?

Besides, it hasn't been proven by Russian law to be illegal. All they are saying is that they think that it might be illegal, but they can't do anything about it anyway.

Re:Service Cost

[macdude22]

.02 Per MB, dime a song on average.

Re:If it's illegal...

[XMyth]

Sound quality. If they were doing that then the artifacts would be pretty obvious. The only problems I've ever had with AllOfMp3 (I've gotten a lot of music from them) is some downloads chop off at the end.

Re:Loophole?

[AviLazar]

It's a loophole. The spirit of the law intended to protect this music - but the makers of the law didn't think about online distribution and it's wording...had they thought about it at the time they drafted the law - they would have included it. It is a loophole.

Re:If it's illegal...

[cpt kangarooski]

No, for civil copyright infringement, it doesn't matter what you know, or reasonably could have known. Doing an infringing act is sufficient for liability to stand. The best you can hope for is minimal damages. Copyright is a strict liability statute. You may want to look at 17 USC 501 and 504, in particular 504(c)(2). However, if willfulness can be shown, there could be higher damages.

BZZT!

[abb3w]

offering copies of copyrighted material for others when you don't have the distribution right is copyright infringement. downloading what's offered isn't.

Don't kid yourself; both the offering and downloading are copyright infringement under US law. (In Canada and other jurisdictions, of course, the law may permit the latter for personal use, but I wouldn't know. I am neither lawyer nor Canadian, ay?) The latter is mainly more difficult to track down and prosecute. So, even while allofmp3.com may be unprosecutable until the loophole gets plugged, US end users may still be prosecutable.

The reason the RIAA has been going after the uploaders first is partly that it's an easier way to kill the filesharing ecology with the present legal tools they have, and partly that suing your potential customers is a business model of last resort before bankruptcy.

Re:Virtual Bootlegs

[teksno]

what happens is Allofmp3 pays the Russian Organization for Multimedia & Digital Systems (roms the russian version of the US RIAA) for licenses of what ever music they sell. then through a legal loophole they can offer them for down load. what ROMS does with the money is after recovering any costs, they pay what ever is left to the original copyright holders. it doesnt seem like alot of money, keep in mind the exchange rate.....

Re:It's an easy choice..

[Overzeetop]

So.....your local FM station is also "skirting the laws," eh? You see, it's a similar provision which All of MP3 has gotten. They pay their fee (kind of like an ASCAP fee) and they're done. If the musicians want their money, they have to sign up. In Russia.

Let's sya you're a Russian Artist, and have never been to the States, or even want to go. Some young DJ finds your CD on his vacation to Minsk, and starts playing it in rotation on HotRock98 back in Bumfark, ID. Will you get a check for your part of the royalties mailed to you? HELL NO! Will you get to apply to (whoever does that stuff in he US...sorry, not an artist - only have friends who are) get your money by reading all the appropriate documentation in Russian, and get to speak to someone fluent in Russian to help you fill in the forms? HELL NO.

See, you have to play ball, and you have to play ball they way they play it "over there." If you don't like it, get a Russian Lawyer to apply for your share of he pie. If you don't like that, go buy key Russian politicians and ge the system changed. That's the way it's done - the labels just don't want to spend the money.

Don't think that's the way it is in he US? Why do you think it's a violation of copyright to rent music CDs and cassettes, but not DVDs and Videotapes? That's right - politics. It's a pay-to-play system.

Re:Sure...

[Mant]

You don't give you card to allofmp3 you give it to a 3rd party. I've never had any problems, I've never heard of anyone having any problems and I was worried so I researched it quite a bit.

Re:ID3 Tags?

[vorpal22]

The other poster is incorrect. I find that the ID3 tags on AllOfMp3.com are not entirely accurate; firstly, instead of using apostrophes in artist names, song titles, etc., they use backquotes. Secondly, song names, album names, etc. are truncated. Thirdly, while tracks may be numbered by filenames, they are not numbered in the ID3 tags. While I love AllOfMp3.com and highly recommend it, I'd point out that this is definitely one of the big annoyances of dealing with them.

Re:Britney Spears needs to eat too!

[danila]

BTW, John Lennon's music is public domain in Russia, as is every other work made before 1973. Does that mean John Lennon risks starving to death too?

Creative Commons is the answer !

[sla291]

Don't bother with semi-legal websites like allofmp3.com

Check out jamendo for Creative Commons music you can download via P2P without fearing to be caught by the RIAA.....