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]

I don't understand how it is possible for them to be 'theoretically illegal' AND 'the law can't be applied against them'. Surely if the law is not applicable, then they are legal (both theoretically and in practice)?

I will be interested to follow this case since I do not see any reason so far not to use this service from the UK. IANAL, but this does look legal so far, despite the apparent low cost. Is it possible that the RIAA and BPI (as representatives of The Big Four) have no power over this company?

Re:Text from Gizmodo:

[nametaken]

Wait, so that means the downloaders are breaking the law? Last I understood, it was legal to purchase your music from allofmp3.com because they had licenced the music, and you can lawfully import anything that you obtained legally. Well, if we didn't obtain it legally now (?), its not legal for import. Does this mean RIAA could sue downloaders here? This has gotten way too confusing.

Re:Text from Gizmodo:

[swv3752]

Simple, from the DA's point of view, they are violating the spirit of the law. As they have not violated the actual letter of the law, they are ok.

At least until a new law is made.

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:

[Have Blue]

This defense doesn't make any sense. There is always a copying process involved in a download, because the song data is being copied in RAM by the HTTP server in order to transmit it to you. The process of deriving the copy from the original media takes place on AllOfMp3's servers, so they could still be held responsible for it if it was illegal.

It just sounds like the article summary is incorrect- the loophole has more to do with the fact that the Russian law in question specifically enumerates the types of media it applies to, and "mp3" is not on the list.

Re:Text from Gizmodo:

[Tony Hoyle]

It trounces all over the spirit, but, it abides by the letter of the law.

Ahh, so the russians have learnt western-style capitlism then :)

It's not 'theoretically illegal'. It's legal, until they change the law.

Re:Text from Gizmodo:

[JeffTL]

On the other hand it could also be viewed as requesting a copy and having it sent to you by the sharer -- which is what happens at a technical level (GET, not cp, so it's someone else's program on someone else's computer making the copy). But on the other hand, I use Amazon and iTunes. Musicians who deserve to be listened to also generally deserve their nickel. Same goes for audio engineers, producers, and anyone else involved....yes, including the executives at the record company. They have a mortgage to pay and food to buy. Record companies lose a lot of money on flops; they owe it to their investors to break even.

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:

[jkabbe]

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

Your analysis seems to result in this conclusion:

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.

Here's the problem: often the company that has the right to distribute something in the US is not the company that has the right to distribute that work overseas. So does that mean no one can bring any copyrighted works into the US unless they pay the US copyright holders? Or do they only need to have a "valid" copyright from overseas? If so, WHO decides whether that overseas copyright is valid? If the other government decides whether it is valid, then why am I breaking the law if I pay for a license overseas but don't pay the US license-holder.

Now, of course, this probably won't apply to AllOfMp3.com because you're not actually purchasing a license under Russian law. It's worth thinking about, though.

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:

[grahamm]

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?

This is one area of IP law which I think is in urgent need of revision. IMHO Once a copyright owner has authorised the creation of a (physical) copy (eg a CD or DVD) and it has been shipped to a retailer, then the copyright owner should have no further control of the disposition of that physical copy. If it is cheaper for a consumer (in whatever country) to pay the retail price in another country plus pay the international shipping charges and any customs duty/taxes than to buy it from a local retailer then this should be a hint to the local distribution chain that it should lower its charges. Corporations outsource their manufacture and (increasingly now also) their support to countries with cheaper labour costs, so why should the consumer not be also allowed to minimise costs by buying from cheaper sources?

Re:Text from Gizmodo:

[cpt kangarooski]

What if person A owns the copyright in country A, and person B owns the copyright in country B? Still okay for B to undercut A?

What if the copyright expires or otherwise doesn't apply for our purposes in country C, and ordinary person C starts making copies there, lawfully. Okay for him to undercut A and B?

If you're treating them differently, why? Remember that in each case, only person A can lawfully make copies in A, only person B can lawfully make copies in B, and anyone can make copies in C.

It's certainly an issue worth considering carefully, but I don't think the answer is necessarily as clear cut as you'd like.

Re:Text from Gizmodo:

[Yartrebo]

Big difference there.

If real child porn could be made without harming kids, then it would have to be legal because of the first amendment.

There's no way virtual child porn can hurt kids, so it's legal.

Wise decision if you ask me, since a lot of Anime could easily be considered child porn by US standards.

RIAA Dream Team Lawyers Fail?

[tabkey12]

Is this only the second time an international foray by the RIAA/MPAA groups has failed (the first being the failed prosecution of DVD Jon)?

Still, very real questions about the legality of this service have to remain...

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.

Next week on Slashdot:

[Soat]

KDE team develops their own music service, called KMart. Martha Stewart sues, but goes back to jail when a background check reveals she's been pirating music for years.

If it's illegal...

[shamilton]

Then why are people paying to download songs? You can get high quality album rips off ed2k for free, and it's just as legit.

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.

The process

[FirienFirien]

Fwict, a clarification of the legality is that 'if you make a copy, it's ok'. ie if you take the original (ie download the file) and DON'T leave a copy behind on the server (!), it's illegal. If you leave the copy on the server, it's legal. Which crazy drunk wrote that law?

Re:The process

[Skye16]

I donno, but I'd like to buy him another beer.

good publicity...

[dhbiker]

thank god for the loophole!

But I'm even more grateful for the publicity that Allofmp3 has got, perhaps RIAA and other online music stores will sit up and take note that it is popular because of the freedom it offers and the fair price - its time to give the consumer their freedom back and realise the way to takle the piracy problem is to offer a good service at a resonable cost (and NO $0.99 IS NOT REASONABLE COST, that is the same per track as a CD!)

Re:good publicity...

[Jeff DeMaagd]

The anti-iTunes site I've seen says that "artists" get about twelve to fifteen cents a track from each sale on iTunes. That's actually pretty good if you compare it with how much of the final sale price a build-to-order manufacturer gets for electronics and auto parts.

Re:good publicity...

[jkabbe]

The thing is though, that you could DOUBLE the price paid on AllOfMp3.com and give the rest to the artist. That would result in the artist getting paid about as much as they do now and the price would still be a tiny fraction of what you pay for the song on any US service.

Re:Question

[Arbin]

No. *insert RIAA stomping foot sound here*

Re:This is only round one...

[GigsVT]

Come on, you all can't be that naive. Allofmp3 just paid off the right people. If, someday in the future, they no longer pay off the right people, then it will become illegal and able to be prosecuted.

This is the normal way russian law works.

Re:Payment methods

[doofusclam]

I've bought loads of albums from allofmp3 without a problem. Don't think they're dodgy just because English isn't their mother tongue.

And as stated before, if only the *other* legal services had their level of service - they allow you to download unencrypted files in any format/bitrate you like, from mp3 to mpc. That makes them worth using in my opinion.

And this is good because?

[turnstyle]

And this is good beacuse a Russian business is making money by selling copies of US (and Euro, etc.) musicians' work, but paying them nothing in return? Is that about right?

Re:And this is good because?

[cflorio]

No, it's good because the downloads cost $0.02 per Mb...

Re:And this is good because?

[anonicon]

"And this is good beacuse a Russian business is making money by selling copies of US (and Euro, etc.) musicians' work, but paying them nothing in return? Is that about right?"

Yep, they're operating a lot like the American and European record labels have done for years.

Re:And this is good because?

[Overzeetop]

No, you pay for good, clean rips in the format of your choice, from an easily searchable catalog on servers with a fat pipe. FWIW, a .wav may cost you as much as the original CD in many cases.

As I understand it, they are required to pay a fee to the artist/label for each download, but most (labels/artists) are too lazy/stubburn/poor to register with the Russians. (Hint: when dealing with Russia, hire a Russian lawyer).

Re:And this is good because?

[Overzeetop]

Yes, the artist is too lazy. I mean that in a businss sense, not a personal one. The last time AllofMP3 came up here, someone from a small label posted about how difficult is was to get registered with the Russian law firm which distributed the payments for the songs. Their complaint was that over half the documents were in Russian, and their US phone calls were not returned.

Why didn't they retain a Russian lawyer? Calling them stuipid seems a bit harsh, so I'll settle for lazy.

See my other posts (grossly incorrect about US organizations and pay schemes, as I'm not inthe business) for my thoughts on why this is no different that the US system, save ease-of-use for natives.

As for your question...let's make it closer to the topic: If I start broadcasting your songs on my new FM station and pay my ASCAP (or whoever) fees, and you don't sign up to receive your share - or you don't pick up your check or provide a current address, I'd say you were too lazy to get paid.

Oh the irony

[Anita Coney]

Citizens in Russia have more rights than we do!

Re:Oh the irony

[LetterJ]

What's hilarious is that, if you go back 150 years or so, the United States were the ones flaunting the world's copyright laws. Sheet music was being flagrantly copied in the US and British and other European countries were outraged that this upstart country was regarding the theft of sheet music as some sort of 'right'.

An awful lot of the financial build-up of the US was based on disregarding intellectual property law (from the rest of the world) early on.

Re:Oh the irony

[LetterJ]

Sorry, I forgot I was on Slashdot. I'll explain more slowly. Sheet music is 1, as in a singular, example of early American disregard of international standards of intellectual property laws. That 1 example sits inside a trend that took place of things like turning a blind eye toward patent infringement (if the patent was elsewhere), etc.

I used sheet music as my example, because (get this), it was actually relevant to the discussion at hand. Before the advent of recorded music, sheet music and player piano rolls were BIG business and the businesses involved were the RIAA of their time. There was a great uproar about the US just flaunting the rules.

Today (I'm drawing a parallel and wanted to warn you), countries like China, Russia and others that aren't recognizing US and other major IP holding countries' patents, trademarks and copyright are growing very quickly, unfettered by the legal constraints that those systems put in place, *much like the US did*. History is repeating.

At some point, it's likely that, in those countries, the protections will start showing up as one Russian wants protection from another Russian "stealing" his work. Then, eventually, some other countries will step into the "abuser" role.

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.

Britney Spears needs to eat too!

[yutt]

Britney Spears is starving to death because of these damned immoral Russians!

I can't believe Slashdotters support this. How many amazing talents (Michael Jackson, John Lennon, Eminem; to name a few) do we have to lose to malnutrition before Americans wake up and realize piracy is not right, and it hurts real people?

Ahem...

[neo]

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.

[cough]Bribes.[/cough]

These guys are just lucky they made enough money to convince the courts that their "users cynamically create" their copies.

"Wins" Court Case?

[TheDawgLives]

It seems to me that allofmp3.com didn't win anything. The district attorney simply decided not to prosecute because he didn't think the law covered digital copies. Now at any time a new district attorney could interpret the law differently and decide to prosecute. So until allofmp3.com actually does win a court case, they aren't really safe.

Re:Is this considered "Fair Use" ?

[squiggleslash]

Well, I don't think that's what the article says. In any case, it would be fair turnabout if that were the case - most downloaders have NEVER allowed the fact it's illegal to stop them from downloading... ;-)

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:ID3 Tags?

[Horrortaxi]

Yes, the tags are complete and accurate. No artwork, but that's not such a hassle. Why would you have to "drop" $30 to find out if they have tags? You can pre-pay any amount you want and they even give you 20 cents credit when you sign up. Don't laugh--at 2 cents per MB 20 cents actually goes pretty far.

Re:It's an easy choice..

[poptones]

Sure the RIAA sucks and Apple is maximizing their profit. Buying tunes from an overseas source that isn't authorized to sell them doesn't help solve anything.

Neither does handing over money to the parasites who will use that money to lobby washington to erode the liberties of the citizens of this country.

You are allowing unethical laws to define your expectations of morality. That sure as hell isn't going to "help solve the problem."

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:RIAA has never sued downloaders

[anethema]

Downloading is definately legal in canada. Without a doubt. So is copying your friends cds for personal use.

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.