You are not making a copy, you are downloading a copy someone else made
No, no, no, no.
A copy is defined in the law, at 17 USC 101, as a TANGIBLE OBJECT.
A CD is a copy, because I can hold it in my hand. I cannot hold an mp3 file in my hand, when it is ALL BY ITSELF. Ergo, it is NOT a copy. Only the medium which the work is within is a copy.
Read MAI v. Peak. Read the Intellectual Reserve v. Utah Lighthouse Ministry case. They are all AMAZINGLY CLEAR: when some creative work is loaded into RAM, a new copy has been reproduced, and this is illegal unless it's authorized or falls into a specific exemption in the law.
Maybe it is dumb. But the courts have uniformly said this for a decade, if not longer. You cannot win if you argue against it. They have settled the issue!
When I play Sims, I have a copy in memory and on my harddrive
And if you look in the EULA for the game, you will find that they specifically permit you to do so. Otherwise, you could not. MAI v. Peak was about this: someone ran some software and was sued and lost because running it was illegal. The 117 exception doesn't often apply, because it requires ownership of the copy, but sometimes it does, and then it's an applicable exemption.
when I play my iTunes songs, I have a copy in memory
Dollars to donuts, this is in the iTMS EULA.
Why do you keep claiming that as PROOF it is illegal in the US?
Because off the top of my head I can think of a number of cases that say it is. And these cases are widely followed. And if I bothered to look it up, I bet I could easily find a dozen cases, each one saying the same damn thing.
Loading works in RAM can be illegal.
This is the law. You don't have to like it. But it's a good thing for you to know what the law is, so that a) you can avoid breaking it, and b) you know just how fucked up it is, so you can make cogent arguments to fix it.
This is why I keep railing on about allofmp3.
I couldn't care less that people d/l from it. But they should not be fooled into thinking that it is legal. They should know the truth, and then they can proceed to do things armed with that knowledge.
Do you need specific case cites, or can you google for them by the party names. Seriously: read the damn cases. Do a find for 'RAM' if you must skip over some of it, to find the relevant bits, but please read the cases and educate yourself.
So let me get this straight: it's wrong for me to buy music from Russia where I can get it more cheaply, because I'd be undercutting the honest American business man?
Yeah.
I mean, what would the point of having a US copyright be, what value would it have, what incentive would it bear, if we let copies into the country that couldn't have been made here legally to begin with?
It does make sense if you want US copyrights to be meaningful. Otherwise it only takes one country to abolish copyright law and be a pirate, or to have super-weak copyright law (e.g. 1 day terms or something), and the actual authors and US publishers get screwed.
This is actually why the US has been very aggressive in trade discussions with countries that do this: Taiwan, China, Ukraine, etc. In fact, we are insanely pissed off at Ukraine for allowing piracy of American-authored works, since those copies get into markets around the world. We're cutting them off from other US trade, and imposing high tariffs so that they're uncomfortable enough to stop. This often works: Imagine how fucked Taiwan would be if we didn't let their goods into the US. Of course they caved in. The US is kind of a trade bully. Because that's where the money is.
It is my understanding that allofmp3 IS authorized by the Russian equal to the RIAA to distibute the copyrighted works.
So you're saying that Russian A can permit Russian B to do things in the US that are normally illegal in the US, and because Russian A said so, it's okay?
Please.
Only where AMERICAN A was permitting Russian B (perhaps via Russian A) to do those things would it be okay. And I'll bet cash money that the Russians don't have permission from the US copyright holders to do stuff in the US, and therefore cannot pass that permission along to the US-located downloaders.
The American music stores, OTOH, do have that permission and are permitted to pass it along. And amazingly, they don't claim that this gives them permission to operate in countries where they don't have permission from the local copyright holder in each country, so that ought to jolly well clue you in.
I belive allofmp3 would be the target of the law more then an individual using the service as the penalty for illegal distibution is far greater then the penalty for illegally purchasing.
No, they're the same. What matters is basically intent, and there distributors tend to have it worse than downloaders. But not necessarily. And regardless, $30,000 per work is a fuck of a lot for a downloader even if it wasn't willful.
I can buy an audio cd from a country outside the US and bring it into the US legally provided it was an authorized copy
No, you generally can't, actually. 602(a) and (b) cover this.
But again, downloading is NOT and NEVER WILL BE the same as importation.
but I believe it is much more involved then what you referenced.
Which copyright holders? Holders of, say, only the Russian copyright (and likewise Russian licensing agencies) have no rights in the US. Only the person who holds the US copyright (and US licensing agencies) have power in the US to permit that which would otherwise infringe.
Me, I keep hearing that they operate under a compulsory license that permits reproduction of sound recordings. And worse, I've also heard that they don't pay their bills to the pertinent agency, so maybe they're even illegal in Russia.
But seriously: do you really think that damn near every single composer and performer of note have given permission to allofmp3 to sell to American customers, given how little they charge? When none of the more above-board stores in the US have particularly thorough catalogs?
That just doesn't pass the smell test, man. You have to admit it.
Generally, I'd tend to think since free goods can serve as a substitute on the market for costly goods, they have an economic effect.
If I give you a car for free, it's just as much of an economic transaction as if I charged a penny for it, and that's not half as much of a transaction as if I charged two pennies. The car has a basic economic value regardless of whether I charge that much.
I know that that's how the IRS would approach this (in that you receive income when you get things for free) and I suspect that that's how this would shake down as well.
Well, I'm hoping to start work as a copyright lawyer next year, so if it hasn't happened yet, maybe I'll give it a go.
However, given that the criminal prosecution arms of the government is more interested in cracking down on child porn and gambling than they are on copyright infringement, I suspect that that's why. It might be more difficult in a civil suit, than a criminal one.
(The FBI and DoJ do have some interest in going after pirates. But kiddy porn crackdowns seem to be a higher priority, which is okay with me)
I keep hearing that they're licensed by ROMS which is some sort of compulsory licensing agency, similar to ASCAP, BMI, or SESAC, in the United States.
The law says that they can -- regardless of the wishes of the author -- collect money at a state-set rate in compensation for acts that otherwise would be infringing.
In the US, it's what lets cover bands play other people's songs for a small fee (generally paid by the venue) without permission. In Russia, I hear that full-fledged copies can be made, under a similar regime.
Copies are defined in section 101 as being TANGIBLE.
Are you saying that they sent you a tangible thing? How? Air mail? FedEx?
I know you're not going to say via the Internet, because you can't get tangible stuff over the Internet, unfortunately.
Or maybe, since your computer's RAM is a tangible thing, and it contains the work, then IT is a copy. As in fact is the case. And that means it is a NEW copy, and reproducing the work into copies is infringing.
I have the right to import for personal use reproductions from Russia.
No, you do not. You would be violating 17 USC 602(b), which applies even when 602(a) does not.
Also importation is, again, limited only to when tangible things are moved across borders. Downloading isn't importation.
Intellectual Reserve v. Utah Lighthouse Ministry deals with publication, not downloading,
Okay, see, you're just stupid. I OBVIOUSLY read the case or I wouldn't be citing it. You OBVIOUSLY didn't read the case, because you didn't read the part where the court said:
When a person browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. n5 See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.
I'd give you a nickel so you could get yourself educated, but the tangible coin doesn't fit into my internet connection, you moron.
Doesn't the US copyright holder give his permission when he allows his product to be distributed in Russia?
No. The permission that is important is permission to do things WITHIN THE UNITED STATES, AS GOVERNED BY UNITED STATES LAW.
So if Russian law says that permission is given, that doesn't matter for us, here in the US, under US law. We say permission to do things in the US is NOT given. And guess what court Americans get dragged to when they violate US copyright laws in the US. Hint: not a Russian one.
And also, if such rights are, in fact, restricted locally (Russia), isn't it their responsibility to limit what countries can access their service, a la iTunes?
Depends, ironically, on Russian law. If it says they have to do so, or they have a contract that says so, then yes. But I haven't once talked about whether allofmp3 is breaking Russian law. Only whether US downloaders are.
Russian copyright law is as worthless as Moon-Man law within the borders of the US. Copyright law is national. Which is why they can have whatever they have within their borders.
Since I'm talking about US-located downloaders breaking the law, Russian copyright law is not a part of this discussion.
so if allofmp3.com is operating legally within Russia, they already have the copyright holders' consents.
No, they have either a) compulsory licenses so that they can reproduce legally without consent, or b) consent of the RUSSIAN copyright holder. Who very well might not be the same person as the US copyright holder.
And from what I hear, it's the former. Even they seem to admit it.
I dunno why you point out the Berne Convention. It doesn't play into this.
by your definition, ripping a CD is illegal, which I seriously doubt.
It very nearly is, actually.
It is clearly an infringement of the reproduction right per 106(1). So we need authorization or an exception. Here, exceptions tend to work for us.
1008 -- in the rare cases it's applicable (the definitions in 1001 are pretty limiting) is tailor made for this.
But mostly CD ripping has to rely on 17 USC 107 -- fair use. And it nearly fails that, if we simply run through the four factor test. It only wins on having no appreciable economic impact. Apparently, that's been fine for the courts; the Diamond cases have put forth a theory (which AFAIK hasn't been tested anywhere, not even there, technically) that space shifting is a fair use.
If it isn't generally, based on the circumstances involved (which is likely already the case if you, say, don't own the copy you're ripping from) then it would indeed be illegal.
Why does this surprise you? It took the Supreme Court until '84 to decide that VCRs were legal because they could time shift, which was a pretty revolutionary legal theory. Otherwise they might not have made it. And it was a 5-4 decision even then!
Copyright law as it stands in the US sucks horribly. It often defies common sense and common practice.
Regarding peer to peer (and other internet) case law, has anyone been successfully procescuted for downloading music? I've heard of RIAA suing people for sharing (i.e. distributing) but not for downloading.
Duh. It's impractical. Think about it: it costs a certain amount of money to sue someone.
If you get rid of a server, you get one infringer. And you discourage other server operators. And you make files harder for downloaders to get.
If you get rid of a leech, you get him, and that's it.
So it's not practical to go after downloaders. It'd be like going after the ass end of the snake.
Same reason why they went after Napster first -- that screwed ALL the users of Napster. If it had successfully detered other P2P services from starting up, we'd all be comparatively high and dry. An ideal, and efficient solution for RIAA!
Besides which, the flag is arguably not a commerce power exercise; it's copyright-like. The decision handed down the other day in SDNY (lessig.org's blog has a copy of the decision) looks like a better line of argument to me.
So that CD I imported from europe because the US publishers were taking too long was illegal? Interesting.
Depends on the specific circumstances, but there's a good chance of it, yes.
You can legally acquire music from anyone who has a legitimate right to distribute it.
No. First, downloading is necessarily reproduction. So this isn't the same as buying a CD, it is like burning a new CD. You only have the right to reproduce a copyrighted work into a new copy (RAM, hard drives, etc. are all copies, since a copy is a tangible object as defined in the law; ignore the vernacular) if: you're the copyright holder in the place you reproduce it at; you have authority from the LOCAL copyright holder; an exemption in the law applies.
Here, no exemption applies, you're not the copyright holder, and the US copyright holder hasn't given permission. It doesn't matter if everyone else in the world does, including foreign rights holders. They have no rights in the US to permit you to make the copy.
The case says, very clearly, that when you download something from the internet, it is necessarily reproduced in your computer's memory. Reproduction is illegal, per 17 USC 106(1) unless authorized by the copyright holder, or an exemption applies, and none do.
I would suggest that you read the actual law, and the actual cases that interpret the law. Thus, I've cited them. Those other guys -- they don't know shit. They don't know what's actually going on, they avoid the question (as in the 2d link), and they never properly address the issue of US legality, which is critical for people in the US using the service.
Come back again once you've read the laws in question.
(b) In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
That means that unless the copies made would have been legal had US law applied at the place where they were made -- and therefore, since only the US copyright holder has power under US law, he would have had to consent; Russian organizations have no blanket power under US law -- they are NOT importable.
And since the exception in (a)(2) only applies to (a), and not (b), you're fucked.
Also 602 doesn't apply. Downloading is reproduction, not importation. Check it out: Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999).
but generally it's legal to import something if it has a legal license in the country of origin, to my knowledge.
That's generally untrue. And it makes sense:
Imagine if there was a country, Strongbadia, which had very liberal copyright laws, and permitted anyone to make copies of recorded music for a nominal fee. Imagine further that they tended to obtain copies of music from the US, reproduce them en masse for a miniscule sum, and then send the copies they made back to the US, flooding the US market.
The US copyright holder would be totally undercut, since he gets no meaningful profits from the Strongbadian copies, which are made against his will by third parties, and are cheaper than US-made and authorized copies.
So imports are generally prohibited so as to make a US copyright worth something. The pertinent statute is 17 USC 602. It has two independent subsections, (a), and (b). There are some exceptions to the ban in (a) that do NOT apply to the ban in (b). This is important.
If you are in the US, it is illegal to download from them. OTOH, if you are willing to send CC numbers to shady Russians, you may find that you're not likely to get caught. But not getting caught doesn't make it legal.
First, if you have to put importing in quotes, you should know better. Tangible things are imported. Intangible things are not.
Plus importation of copyrighted works is generally illegal per 17 USC 602(a) AND (b).
But this is downloading, which is reproduction, not importation, which is distribution. (we're talking about what the downloader is doing, not allofmp3, which is comparatively safe from RIAA by being in Russia; downloaders are in the US, and are subject to US law, even if Russians say they aren't)
Unauthorized reproduction is illegal, unless there's an applicable exemption. There isn't.
17 USC 106(1), given the definitions of a phonorecord in 17 USC 101, and numerous cases such as Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999).
I have seen nothing to suggest that downloading music from allofMP3.com is illegal.
Well, now you have!
Presumably if it was illegal to download from allofMP3 then RIAA would get an injunction (or some such legal device) against the credit card companies so that VISA and Mastercard would not let US customers do business with AllofMP3.
I admit, I'm surprised that RIAA hasn't done anything. I suspect that it's due to concern that it would only serve to publicize them. But there really is no doubt that it's illegal for a person in the US to download from them.
Yeah, but it's illegal* to use (at least for Americans). So it's not noticably better than free, illegal alternatives.
*Yes, it's illegal to download from them. This is because downloading is reproduction, not importation (which is also generally illegal anyway)
Before disputing this, please read 17 USC 106; pertinent definitions in 17 USC 101 (in particular 'phonorecord'); Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999); A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001); and 17 USC 602(b) (which is totally independent from 602(a) and any exceptions in that subsection).
A copy is defined in the law as being a TANGIBLE OBJECT. Check it out -- 17 USC 101.
Did allofmp3 send you a tangible object? How'd they do that? Air mail? FedEx? UPS? DHL?
The Internet is incapable of transferring tangible objects, so it had better not have been that. (And besides which, it would be illegal anyway, per 17 USC 602(b))
What actually happens, when you download something, is that there is at least one copy at the server end. That copy is the server's RAM.
Then, the work is fixed into a different tangible object at the client end. That forms a new copy, per 17 USC 101 and 106, which is the client's RAM.
Additional copies might also crop up, e.g. in hard drives.
The fact that the copy doesn't last long is totally irrelevant. The law doesn't say that it's okay to reproduce the work into a copy for just a little while. It says that you cannot reproduce the work into a copy AT ALL.
See, your problem is, you're stupid. You didn't bother to read the actual law. You just made up what you think the law is. That is a losing strategy, and it brands you as a loser. Come back when you actually learn what the real deal is, buddy.
Slashdot Mirror
Yes, gifts aside (it's been too long since I took Tax) but you get my point.
But like I said, check out that other case. It's VERY sweet. Hopefully it'll even withstand review.
You are not making a copy, you are downloading a copy someone else made
No, no, no, no.
A copy is defined in the law, at 17 USC 101, as a TANGIBLE OBJECT.
A CD is a copy, because I can hold it in my hand. I cannot hold an mp3 file in my hand, when it is ALL BY ITSELF. Ergo, it is NOT a copy. Only the medium which the work is within is a copy.
Read MAI v. Peak. Read the Intellectual Reserve v. Utah Lighthouse Ministry case. They are all AMAZINGLY CLEAR: when some creative work is loaded into RAM, a new copy has been reproduced, and this is illegal unless it's authorized or falls into a specific exemption in the law.
Maybe it is dumb. But the courts have uniformly said this for a decade, if not longer. You cannot win if you argue against it. They have settled the issue!
When I play Sims, I have a copy in memory and on my harddrive
And if you look in the EULA for the game, you will find that they specifically permit you to do so. Otherwise, you could not. MAI v. Peak was about this: someone ran some software and was sued and lost because running it was illegal. The 117 exception doesn't often apply, because it requires ownership of the copy, but sometimes it does, and then it's an applicable exemption.
when I play my iTunes songs, I have a copy in memory
Dollars to donuts, this is in the iTMS EULA.
Why do you keep claiming that as PROOF it is illegal in the US?
Because off the top of my head I can think of a number of cases that say it is. And these cases are widely followed. And if I bothered to look it up, I bet I could easily find a dozen cases, each one saying the same damn thing.
Loading works in RAM can be illegal.
This is the law. You don't have to like it. But it's a good thing for you to know what the law is, so that a) you can avoid breaking it, and b) you know just how fucked up it is, so you can make cogent arguments to fix it.
This is why I keep railing on about allofmp3.
I couldn't care less that people d/l from it. But they should not be fooled into thinking that it is legal. They should know the truth, and then they can proceed to do things armed with that knowledge.
Do you need specific case cites, or can you google for them by the party names. Seriously: read the damn cases. Do a find for 'RAM' if you must skip over some of it, to find the relevant bits, but please read the cases and educate yourself.
So let me get this straight: it's wrong for me to buy music from Russia where I can get it more cheaply, because I'd be undercutting the honest American business man?
Yeah.
I mean, what would the point of having a US copyright be, what value would it have, what incentive would it bear, if we let copies into the country that couldn't have been made here legally to begin with?
It does make sense if you want US copyrights to be meaningful. Otherwise it only takes one country to abolish copyright law and be a pirate, or to have super-weak copyright law (e.g. 1 day terms or something), and the actual authors and US publishers get screwed.
This is actually why the US has been very aggressive in trade discussions with countries that do this: Taiwan, China, Ukraine, etc. In fact, we are insanely pissed off at Ukraine for allowing piracy of American-authored works, since those copies get into markets around the world. We're cutting them off from other US trade, and imposing high tariffs so that they're uncomfortable enough to stop. This often works: Imagine how fucked Taiwan would be if we didn't let their goods into the US. Of course they caved in. The US is kind of a trade bully. Because that's where the money is.
It is my understanding that allofmp3 IS authorized by the Russian equal to the RIAA to distibute the copyrighted works.
So you're saying that Russian A can permit Russian B to do things in the US that are normally illegal in the US, and because Russian A said so, it's okay?
Please.
Only where AMERICAN A was permitting Russian B (perhaps via Russian A) to do those things would it be okay. And I'll bet cash money that the Russians don't have permission from the US copyright holders to do stuff in the US, and therefore cannot pass that permission along to the US-located downloaders.
The American music stores, OTOH, do have that permission and are permitted to pass it along. And amazingly, they don't claim that this gives them permission to operate in countries where they don't have permission from the local copyright holder in each country, so that ought to jolly well clue you in.
I belive allofmp3 would be the target of the law more then an individual using the service as the penalty for illegal distibution is far greater then the penalty for illegally purchasing.
No, they're the same. What matters is basically intent, and there distributors tend to have it worse than downloaders. But not necessarily. And regardless, $30,000 per work is a fuck of a lot for a downloader even if it wasn't willful.
I can buy an audio cd from a country outside the US and bring it into the US legally provided it was an authorized copy
No, you generally can't, actually. 602(a) and (b) cover this.
But again, downloading is NOT and NEVER WILL BE the same as importation.
but I believe it is much more involved then what you referenced.
I bet it's not.
they have the copyright holders' permissions
Which copyright holders? Holders of, say, only the Russian copyright (and likewise Russian licensing agencies) have no rights in the US. Only the person who holds the US copyright (and US licensing agencies) have power in the US to permit that which would otherwise infringe.
Me, I keep hearing that they operate under a compulsory license that permits reproduction of sound recordings. And worse, I've also heard that they don't pay their bills to the pertinent agency, so maybe they're even illegal in Russia.
But seriously: do you really think that damn near every single composer and performer of note have given permission to allofmp3 to sell to American customers, given how little they charge? When none of the more above-board stores in the US have particularly thorough catalogs?
That just doesn't pass the smell test, man. You have to admit it.
Generally, I'd tend to think since free goods can serve as a substitute on the market for costly goods, they have an economic effect.
If I give you a car for free, it's just as much of an economic transaction as if I charged a penny for it, and that's not half as much of a transaction as if I charged two pennies. The car has a basic economic value regardless of whether I charge that much.
I know that that's how the IRS would approach this (in that you receive income when you get things for free) and I suspect that that's how this would shake down as well.
Well, I'm hoping to start work as a copyright lawyer next year, so if it hasn't happened yet, maybe I'll give it a go.
However, given that the criminal prosecution arms of the government is more interested in cracking down on child porn and gambling than they are on copyright infringement, I suspect that that's why. It might be more difficult in a civil suit, than a criminal one.
(The FBI and DoJ do have some interest in going after pirates. But kiddy porn crackdowns seem to be a higher priority, which is okay with me)
I keep hearing that they're licensed by ROMS which is some sort of compulsory licensing agency, similar to ASCAP, BMI, or SESAC, in the United States.
The law says that they can -- regardless of the wishes of the author -- collect money at a state-set rate in compensation for acts that otherwise would be infringing.
In the US, it's what lets cover bands play other people's songs for a small fee (generally paid by the venue) without permission. In Russia, I hear that full-fledged copies can be made, under a similar regime.
Copies are defined in section 101 as being TANGIBLE.
Are you saying that they sent you a tangible thing? How? Air mail? FedEx?
I know you're not going to say via the Internet, because you can't get tangible stuff over the Internet, unfortunately.
Or maybe, since your computer's RAM is a tangible thing, and it contains the work, then IT is a copy. As in fact is the case. And that means it is a NEW copy, and reproducing the work into copies is infringing.
I have the right to import for personal use reproductions from Russia.
No, you do not. You would be violating 17 USC 602(b), which applies even when 602(a) does not.
Also importation is, again, limited only to when tangible things are moved across borders. Downloading isn't importation.
Intellectual Reserve v. Utah Lighthouse Ministry deals with publication, not downloading,
Okay, see, you're just stupid. I OBVIOUSLY read the case or I wouldn't be citing it. You OBVIOUSLY didn't read the case, because you didn't read the part where the court said:
I'd give you a nickel so you could get yourself educated, but the tangible coin doesn't fit into my internet connection, you moron.
Doesn't the US copyright holder give his permission when he allows his product to be distributed in Russia?
No. The permission that is important is permission to do things WITHIN THE UNITED STATES, AS GOVERNED BY UNITED STATES LAW.
So if Russian law says that permission is given, that doesn't matter for us, here in the US, under US law. We say permission to do things in the US is NOT given. And guess what court Americans get dragged to when they violate US copyright laws in the US. Hint: not a Russian one.
And also, if such rights are, in fact, restricted locally (Russia), isn't it their responsibility to limit what countries can access their service, a la iTunes?
Depends, ironically, on Russian law. If it says they have to do so, or they have a contract that says so, then yes. But I haven't once talked about whether allofmp3 is breaking Russian law. Only whether US downloaders are.
And it's not a grey area; it's very clear cut.
NO. 602(a)(2) says that the ban in 602(a) has an exemption. But the ban in 602(b) still applies.
Try again. And this time, refer to a site that actually knows what laws apply.
No importation is occuring at all. It is a red herring. This is a matter of reproduction.
No... no... I don't even remember typing those question marks. WTF? (that one I deliberately typed)
Russian copyright law is as worthless as Moon-Man law within the borders of the US. Copyright law is national. Which is why they can have whatever they have within their borders.
Since I'm talking about US-located downloaders breaking the law, Russian copyright law is not a part of this discussion.
so if allofmp3.com is operating legally within Russia, they already have the copyright holders' consents.
No, they have either a) compulsory licenses so that they can reproduce legally without consent, or b) consent of the RUSSIAN copyright holder. Who very well might not be the same person as the US copyright holder.
And from what I hear, it's the former. Even they seem to admit it.
I dunno why you point out the Berne Convention. It doesn't play into this.
by your definition, ripping a CD is illegal, which I seriously doubt.
It very nearly is, actually.
It is clearly an infringement of the reproduction right per 106(1). So we need authorization or an exception. Here, exceptions tend to work for us.
1008 -- in the rare cases it's applicable (the definitions in 1001 are pretty limiting) is tailor made for this.
But mostly CD ripping has to rely on 17 USC 107 -- fair use. And it nearly fails that, if we simply run through the four factor test. It only wins on having no appreciable economic impact. Apparently, that's been fine for the courts; the Diamond cases have put forth a theory (which AFAIK hasn't been tested anywhere, not even there, technically) that space shifting is a fair use.
If it isn't generally, based on the circumstances involved (which is likely already the case if you, say, don't own the copy you're ripping from) then it would indeed be illegal.
Why does this surprise you? It took the Supreme Court until '84 to decide that VCRs were legal because they could time shift, which was a pretty revolutionary legal theory. Otherwise they might not have made it. And it was a 5-4 decision even then!
Copyright law as it stands in the US sucks horribly. It often defies common sense and common practice.
Regarding peer to peer (and other internet) case law, has anyone been successfully procescuted for downloading music? I've heard of RIAA suing people for sharing (i.e. distributing) but not for downloading.
Duh. It's impractical. Think about it: it costs a certain amount of money to sue someone.
If you get rid of a server, you get one infringer. And you discourage other server operators. And you make files harder for downloaders to get.
If you get rid of a leech, you get him, and that's it.
So it's not practical to go after downloaders. It'd be like going after the ass end of the snake.
Same reason why they went after Napster first -- that screwed ALL the users of Napster. If it had successfully detered other P2P services from starting up, we'd all be comparatively high and dry. An ideal, and efficient solution for RIAA!
IIRC, free != noneconomic.
Besides which, the flag is arguably not a commerce power exercise; it's copyright-like. The decision handed down the other day in SDNY (lessig.org's blog has a copy of the decision) looks like a better line of argument to me.
So that CD I imported from europe because the US publishers were taking too long was illegal? Interesting.
Depends on the specific circumstances, but there's a good chance of it, yes.
You can legally acquire music from anyone who has a legitimate right to distribute it.
No. First, downloading is necessarily reproduction. So this isn't the same as buying a CD, it is like burning a new CD. You only have the right to reproduce a copyrighted work into a new copy (RAM, hard drives, etc. are all copies, since a copy is a tangible object as defined in the law; ignore the vernacular) if: you're the copyright holder in the place you reproduce it at; you have authority from the LOCAL copyright holder; an exemption in the law applies.
Here, no exemption applies, you're not the copyright holder, and the US copyright holder hasn't given permission. It doesn't matter if everyone else in the world does, including foreign rights holders. They have no rights in the US to permit you to make the copy.
I fail to see how that case you cite relates.
The case says, very clearly, that when you download something from the internet, it is necessarily reproduced in your computer's memory. Reproduction is illegal, per 17 USC 106(1) unless authorized by the copyright holder, or an exemption applies, and none do.
I would suggest that you read the actual law, and the actual cases that interpret the law. Thus, I've cited them. Those other guys -- they don't know shit. They don't know what's actually going on, they avoid the question (as in the 2d link), and they never properly address the issue of US legality, which is critical for people in the US using the service.
Come back again once you've read the laws in question.
What, can't you read?
(b) In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.
That means that unless the copies made would have been legal had US law applied at the place where they were made -- and therefore, since only the US copyright holder has power under US law, he would have had to consent; Russian organizations have no blanket power under US law -- they are NOT importable.
And since the exception in (a)(2) only applies to (a), and not (b), you're fucked.
Also 602 doesn't apply. Downloading is reproduction, not importation. Check it out: Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999).
but generally it's legal to import something if it has a legal license in the country of origin, to my knowledge.
That's generally untrue. And it makes sense:
Imagine if there was a country, Strongbadia, which had very liberal copyright laws, and permitted anyone to make copies of recorded music for a nominal fee. Imagine further that they tended to obtain copies of music from the US, reproduce them en masse for a miniscule sum, and then send the copies they made back to the US, flooding the US market.
The US copyright holder would be totally undercut, since he gets no meaningful profits from the Strongbadian copies, which are made against his will by third parties, and are cheaper than US-made and authorized copies.
So imports are generally prohibited so as to make a US copyright worth something. The pertinent statute is 17 USC 602. It has two independent subsections, (a), and (b). There are some exceptions to the ban in (a) that do NOT apply to the ban in (b). This is important.
But a flac contains exactly the same data as the raw sound data, yet is smaller? You can transcode it into a wav if you want to, with no quality loss?
Why would you want to waste bandwidth/time for no improvement in quality?
If you are in the US, it is illegal to download from them. OTOH, if you are willing to send CC numbers to shady Russians, you may find that you're not likely to get caught. But not getting caught doesn't make it legal.
First, if you have to put importing in quotes, you should know better. Tangible things are imported. Intangible things are not.
Plus importation of copyrighted works is generally illegal per 17 USC 602(a) AND (b).
But this is downloading, which is reproduction, not importation, which is distribution. (we're talking about what the downloader is doing, not allofmp3, which is comparatively safe from RIAA by being in Russia; downloaders are in the US, and are subject to US law, even if Russians say they aren't)
Unauthorized reproduction is illegal, unless there's an applicable exemption. There isn't.
And what do you base this statement on?
17 USC 106(1), given the definitions of a phonorecord in 17 USC 101, and numerous cases such as Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999).
I have seen nothing to suggest that downloading music from allofMP3.com is illegal.
Well, now you have!
Presumably if it was illegal to download from allofMP3 then RIAA would get an injunction (or some such legal device) against the credit card companies so that VISA and Mastercard would not let US customers do business with AllofMP3.
I admit, I'm surprised that RIAA hasn't done anything. I suspect that it's due to concern that it would only serve to publicize them. But there really is no doubt that it's illegal for a person in the US to download from them.
Yeah, but it's illegal* to use (at least for Americans). So it's not noticably better than free, illegal alternatives.
*Yes, it's illegal to download from them. This is because downloading is reproduction, not importation (which is also generally illegal anyway)
Before disputing this, please read 17 USC 106; pertinent definitions in 17 USC 101 (in particular 'phonorecord'); Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp 2d 1290, 1294 (D. Utah 1999); A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001); and 17 USC 602(b) (which is totally independent from 602(a) and any exceptions in that subsection).
A copy is defined in the law as being a TANGIBLE OBJECT. Check it out -- 17 USC 101.
Did allofmp3 send you a tangible object? How'd they do that? Air mail? FedEx? UPS? DHL?
The Internet is incapable of transferring tangible objects, so it had better not have been that. (And besides which, it would be illegal anyway, per 17 USC 602(b))
What actually happens, when you download something, is that there is at least one copy at the server end. That copy is the server's RAM.
Then, the work is fixed into a different tangible object at the client end. That forms a new copy, per 17 USC 101 and 106, which is the client's RAM.
Additional copies might also crop up, e.g. in hard drives.
The fact that the copy doesn't last long is totally irrelevant. The law doesn't say that it's okay to reproduce the work into a copy for just a little while. It says that you cannot reproduce the work into a copy AT ALL.
See, your problem is, you're stupid. You didn't bother to read the actual law. You just made up what you think the law is. That is a losing strategy, and it brands you as a loser. Come back when you actually learn what the real deal is, buddy.