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Allofmp3.com Wins Court Case 437
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."
Text from Gizmodo: (Score:5, Informative)
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: (Score:5, Insightful)
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: (Score:5, Insightful)
At least until a new law is made.
Re:Text from Gizmodo: (Score:4, Interesting)
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.
Re:Text from Gizmodo: (Score:3, Insightful)
It trounces all over the spirit, but, it abides by the letter of the law.
Re:Text from Gizmodo: (Score:5, Insightful)
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: (Score:2, Interesting)
The "apparent" low cost is low because prices are in general much lower in Russia than they are in Europe or US (but so are the salaries). You can legally buy an audio CD for about $5. If you consider that, the "cheap" price might no longer seem that cheap. Yes, it does allow foreign users to exploit the price difference - but doing so is not illegal.
Re:Text from Gizmodo: (Score:4, Insightful)
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: (Score:4, Interesting)
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.
And this is good because? (Score:3, Interesting)
Re:And this is good because? (Score:5, Funny)
Re:And this is good because? (Score:5, Insightful)
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? (Score:5, Interesting)
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.
Re:And this is good because? (Score:3, Insightful)
Replace selling software with playing music and you have just described how radio works.
Re:And this is good because? (Score:5, Funny)
Yep, they're operating a lot like the American and European record labels have done for years.
Re:And this is good because? Hogwash! (Score:3, Insightful)
Totally off-whack. The Russian site is not paying the musicians. How is a licensed service that *also* pays musicians a reasonable amount supposed provide a similar service at a similar cost? Hint: 1 + 1 <> 3
"I personally think we should boycott all movie and music purchases until they real
Re:Text from Gizmodo: (Score:5, Interesting)
Re:Text from Gizmodo: (Score:2)
Re:Text from Gizmodo: (Score:4, Insightful)
Re:Text from Gizmodo: (Score:3)
RIAA has never sued downloaders (Score:3, Informative)
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?)
BZZT! (Score:4, Informative)
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:RIAA has never sued downloaders (Score:3, Interesting)
IANAL, but I think you can only be sued for "actual damages" which means if you only download, you can only be sued for the total retail price of the albums you download.
So unless you've got some kind of compulsive album download behavior, you can only be sued for what you'd normally have purchased at the record store anyway. So what, like they'll sue you for $450? They're going to fly lawyers to Podunk, Wyoming to litigate in small-claims court for your $450?
Re:RIAA has never sued downloaders (Score:3, Informative)
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.
A
Re:RIAA has never sued downloaders (Score:4, Interesting)
Re:Text from Gizmodo: (Score:5, Informative)
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: (Score:4, Interesting)
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: (Score:3, Informative)
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
Re:Text from Gizmodo: (Score:4, Informative)
http://moskalyuk.com/blog/allofmp3com-escapes-c
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: (Score:5, Interesting)
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: (Score:2)
Re:Text from Gizmodo: (Score:3, Informative)
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 [cornell.edu]. It does not cover buying or otherwise obtaining an infringing copy.
Re:Text from Gizmodo: (Score:5, Informative)
Odd request, but okay.
17 USC 501(a):
17 USC 106:
17 USC 101:
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: (Score:3, Insightful)
First, importation is a red herring. Importation refers to the moving across national boundaries of copies, where copies are defined as tangible objects.
If allofmp3 sent you a CD via FedEx, that would fall under the import regulations. But downloading would not. And downloading absolutely touches upon reproduction, which 602 has no bearing on (since importation is a subset of distribution, not reproduction).
Second, even if it did apply, you have -- like so many others that fail to
RIAA Dream Team Lawyers Fail? (Score:4, Interesting)
Still, very real questions about the legality of this service have to remain...
Re:RIAA Dream Team Lawyers Fail? (Score:5, Informative)
Instead, try the IIPA [iipa.com], (which the RIAA is a member of), which has requested that the US govt place trade restrictions on certain countries [iipa.com] 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: (Score:4, Funny)
If it's illegal... (Score:5, Interesting)
Re:If it's illegal... (Score:2, Interesting)
Because the RIAA cannot easily monitor who is downloading what from AllofMP3, whereas ed2k is much easier to monitor & pollute
Because not everyone wants FLAC or MP3 - It is handy to be able to download songs in AAC for instance for iPods but without the annoying Apple DRM
Re:If it's illegal... (Score:2, Insightful)
Re:If it's illegal... (Score:2)
Re:If it's illegal... (Score:3, Informative)
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:If it's illegal... (Score:2)
Re:If it's illegal... (Score:4, Informative)
Re:If it's illegal... (Score:3, Informative)
This is only round one... (Score:3, Insightful)
Re:This is only round one... (Score:5, Interesting)
This is the normal way russian law works.
Re:This is only round one... (Score:2)
The process (Score:4, Interesting)
Re:The process (Score:5, Funny)
Re:The process (Score:2)
I'm gonna go out on a limb here and say that the law was written well before the innerweb existed -- back in the days when content was distributed only via physical media...
good publicity... (Score:4, Interesting)
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... (Score:2, Interesting)
Re:good publicity... (Score:2)
Slight correction... you're stealing from the record companies. The artist only sees a tiny percentage of that 99 cent iTunes download while the record company gets the vast majority of it to pocket for taking such a risk on publishing and promoting the artist.
Re:good publicity... (Score:4, Interesting)
Re:good publicity... (Score:2, Insightful)
We walked down that "stealing from the artist" path before, haven't we? Hear this:
You definitely can record songs off the radio or TV (whether to a cassette or any other medium) for your personal use. This was settled aages ago by a legal case that defined such personal use of broadcast material as being ok under (U.S.) copyright law. This is not considered stealing. Furthermore, this is, as far as I can tell, the famous "loophole".
As far as I know, Internet is a broadcast medium. The q
Re:good publicity... (Score:4, Insightful)
Oh the irony (Score:4, Interesting)
Re:Oh the irony (Score:2)
Re:Oh the irony (Score:3)
> control of the digital distribution of their
> music.
How do you know? Have they just said they have? Do they have the right to sell their song, for money, off their own homepage without the involvement of the label?
> All of the artists I listen to regularly have
> changed labels at least once to receive better
> rights.
Irrelevant: if having the rights is dependant on the label giving them to you, you're not free. (For instance, citizens of
Re:Oh the irony (Score:2)
Re:Oh the irony (Score:3, Interesting)
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 (Score:3, Insightful)
Yep, the mighty economic machnine that is now the US was built on a bedrock of... sheet music.
(rolls eyes)
Re:Oh the irony (Score:3, Interesting)
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
hmm (Score:3, Interesting)
Sure... (Score:3, Insightful)
Is ANY song worth that?!
Re:Sure... (Score:3, Informative)
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:Sure... (Score:3, Insightful)
www.paypalsucks.com
Re:Sure... (Score:2)
Re:Sure... (Score:2)
But with paypal, they can take your money and do whatever they want with it. Your only recourse is to sue them in civil court. It'd cost several thousands of dollars just to get a lawyer on board. That's why Paypal gets away with so much. There is no system in place to keep it in check.
I'm sure eventually p
Re:Sure... (Score:2)
The real use of Allofmp3.com (Score:3, Informative)
Re:The real use of Allofmp3.com (Score:2)
If "all the music imaginable" means a small sampling of currently over-played pop music, why, then yes!
There is no obscure Pearl Jam CD, they're all available at your local Walmart.
Re:The real use of Allofmp3.com (Score:2)
If the glove doesn't fit, you must acquit! (Score:3, Informative)
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.
Mmm, Justice in Action (Score:2, Insightful)
I wonder (Score:2, Interesting)
Britney Spears needs to eat too! (Score:5, Funny)
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?
Re:Britney Spears needs to eat too! (Score:3, Informative)
Ahem... (Score:4, Funny)
[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? (Score:3, Insightful)
Re:Question (Score:4, Funny)
Re:Payment methods (Score:5, Insightful)
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.
Re:Payment methods (Score:3, Interesting)
Re:Payment methods (Score:2)
It is not that popular in the US anymore, but if you have never heard of it, then you need to get out more.
JSB is probably a reference to JSB UniversalBank.
Re:Payment methods (Score:2)
Are you sure he doesn't mean JCB (a popular credit card in Asia)?
JCB cards are also accepted in Europe (and maybe even the US, I didn't pay attention for the logo when I was last out there) for the benefit of tourists (though no European bank that I know of actually issues them).
Re:Payment methods (Score:2)
Re:Payment methods (Score:2)
P.S. Dinners Club is a charge card. Not a credit card (google if you don't know the difference).
Re:Payment methods (Score:2)
Re:Not Ilegal != Ethical (Score:2)
People buy used CDs all the time, even though that's not ethical. It's accepted practice. Yet downloading samples of music to see if you like it, so you can then go out and buy new music is illegal, yet way more ethical.
Re:It's an easy choice.. (Score:2)
* Depending on your location. Do not apply in the USA. It is legal to download copyrighted material in most european countries & Canada.
Re:It's an easy choice.. (Score:4, Insightful)
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.. (Score:5, Informative)
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:woohoo! (Score:2)
They'll probably never reach iTunes levels.
Re:Service Cost (Score:2, Informative)
Re:Loophole? (Score:3, Informative)
Re: (Score:3, Interesting)
Re:Virtual Bootlegs (Score:3, Informative)
Re:ID3 Tags? (Score:3, Insightful)
Re:ID3 Tags? (Score:5, Informative)