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Allofmp3.com Wins Court Case 437

Posted by Hemos from the at-least-some-things-are-going-right dept.
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."
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Allofmp3.com Wins Court Case More

Allofmp3.com Wins Court Case

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  • Text from Gizmodo: (Score:5, Informative)

    by mikeage ( 119105 ) <slashdot@NOspam.mikeage.net> on Monday March 07, 2005 @08:37AM (#11864587) Homepage
    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: (Score:5, Insightful)

      by akadruid ( 606405 ) <slashdot&thedruid,co,uk> on Monday March 07, 2005 @08:52AM (#11864702) Homepage
      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: (Score:5, Insightful)

        by swv3752 ( 187722 ) <swv3752@NOsPAM.hotmail.com> on Monday March 07, 2005 @08:58AM (#11864746) Homepage Journal
        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: (Score:3, Insightful)

        by Drakin ( 415182 )
        It's a spiritual vs letter of the law issue.

        It trounces all over the spirit, but, it abides by the letter of the law.
      • I will repeat that again and again:

        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.

    • 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? (Score:5, Funny)

        by cflorio ( 604840 ) on Monday March 07, 2005 @09:05AM (#11864798) Homepage
        No, it's good because the downloads cost $0.02 per Mb...

      • Re:And this is good because? (Score:5, Funny)

        by anonicon ( 215837 ) on Monday March 07, 2005 @09:35AM (#11865100)
        "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:Text from Gizmodo: (Score:5, Interesting)

      by nametaken ( 610866 ) on Monday March 07, 2005 @08:57AM (#11864738)
      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.
      • The import laws are irrelevant. When you download a MP3 from the site you are making a copy of the MP3 on your computer in the States. This is a breach of US copyright law - only the copyright holder has the right to make copies and licence the making of copies. There is no grey area - it's clearly illegal.

        • Re:Text from Gizmodo: (Score:4, Insightful)

          by JeffTL ( 667728 ) on Monday March 07, 2005 @09:28AM (#11865032)
          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.
        • In the US, yes. In Canada, no. =)
      • ...RIAA has only sued uploaders.

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

        • BZZT! (Score:4, Informative)

          by abb3w ( 696381 ) on Monday March 07, 2005 @09:49AM (#11865239) Journal
          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.

        • Might this be because it's not cost effective?

          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?
          • This is not how it works in the US.

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

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

            A

      • Re:Text from Gizmodo: (Score:5, Informative)

        by cpt kangarooski ( 3773 ) on Monday March 07, 2005 @09:36AM (#11865121) Homepage
        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: (Score:4, Interesting)

          by jkabbe ( 631234 ) on Monday March 07, 2005 @10:31AM (#11865725)
          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.

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

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

    • Re:Text from Gizmodo: (Score:4, Informative)

      by akadruid ( 606405 ) <slashdot&thedruid,co,uk> on Monday March 07, 2005 @08:58AM (#11864751) Homepage
      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: (Score:5, Interesting)

      by Have Blue ( 616 ) on Monday March 07, 2005 @09:01AM (#11864774) Homepage
      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.
    • Hmm when you say "I figure we're ok to use Allofmp3 for a couple more years" you do mean people who live in Russia? Because from my understanding, if you are here on the US side and you somehow get caught d/l'ing Brittney Spears from a Russian server, you are still bound by US laws...and will get prosecuted for d/ling Brittney Spears.
      • ou are still bound by US laws...and will get prosecuted for d/ling Brittney Spears.

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

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

        • Re:Text from Gizmodo: (Score:5, Informative)

          by cpt kangarooski ( 3773 ) on Monday March 07, 2005 @10:40AM (#11865823) Homepage
          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.

  • RIAA Dream Team Lawyers Fail? (Score:4, Interesting)

    by tabkey12 ( 851759 ) on Monday March 07, 2005 @08:38AM (#11864604) Homepage
    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? (Score:5, Informative)

      by reifchen ( 653375 ) on Monday March 07, 2005 @08:59AM (#11864754) Journal
      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 [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)

    by Soat ( 863792 ) on Monday March 07, 2005 @08:41AM (#11864619)
    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... (Score:5, Interesting)

    by shamilton ( 619422 ) on Monday March 07, 2005 @08:41AM (#11864620)
    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... (Score:2, Interesting)

      by tabkey12 ( 851759 )
      2 reasons:
      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
    • Service. You get relatively high speeds, a broad selection of songs, choise of format, choise of quality, general anonymity from the bad guys, and a nice thank you for using their service. Don't you think it's worth US$10 for that?

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

  • This is only round one... (Score:3, Insightful)

    by WIAKywbfatw ( 307557 ) on Monday March 07, 2005 @08:42AM (#11864627) Journal
    Expect a round two after that particular loophole in Russian copyright law has been closed. I don't see Allofmp3.com winning after that's happened, do you?

  • The process (Score:4, Interesting)

    by FirienFirien ( 857374 ) on Monday March 07, 2005 @08:43AM (#11864640) Homepage
    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?

  • good publicity... (Score:4, Interesting)

    by dhbiker ( 863466 ) on Monday March 07, 2005 @08:44AM (#11864647) Homepage
    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!)
    • Allofmp3's prices might seem fair to the users, but I'm pretty sure that the artists don't agree on that. I don't know how many royalties pay (my understanding is that they do pay some royalties), but it seems obvious to me that their pricing scheme is solely based on their bandwith cost. My guess is that they just buy one original cd and then makes any number of copies of that cd. Apple has said that at 99 cent per song they don't make any money on selling music, so I don't really see how you can lower tha
      • Do not consider music from Allofmp3 as legal! You're stealing from the artist.

        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.

      • Dear Mr. Flamebait,
        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)

        by jkabbe ( 631234 ) on Monday March 07, 2005 @10:38AM (#11865802)
        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.

  • Oh the irony (Score:4, Interesting)

    by Anita Coney ( 648748 ) on Monday March 07, 2005 @08:58AM (#11864750) Homepage
    Citizens in Russia have more rights than we do!

    • Unless you mean the right to control the distribution of our creative output, so we can make a living without making something physical.
    • In Soviet Russia, Citizens have RIGHTS!!

  • hmm (Score:3, Interesting)

    by ywwg ( 20925 ) on Monday March 07, 2005 @08:59AM (#11864757) Homepage
    sounds like someone did their research before putting up this service.

  • Sure... (Score:3, Insightful)

    by Anita Coney ( 648748 ) on Monday March 07, 2005 @09:05AM (#11864805) Homepage
    You get to download great music in lossless formats at low prices... BUT... you also have to give your credit information to someone in Russia.

    Is ANY song worth that?!

    • Re:Sure... (Score:3, Informative)

      by Mant ( 578427 )

      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.

  • The real use of Allofmp3.com (Score:3, Informative)

    by neoviky ( 847643 ) on Monday March 07, 2005 @09:05AM (#11864806) Homepage
    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! (Score:3, Informative)

    by Dantelope ( 144810 ) on Monday March 07, 2005 @09:06AM (#11864815)
    "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.

  • Mmm, Justice in Action (Score:2, Insightful)

    by jandrese ( 485 ) *
    It sounds to me like the site operators of Allofmp3 did a pretty good job of bribing whoever they needed to get the case thrown out of court.

  • I wonder (Score:2, Interesting)

    by guru42101 ( 851700 )
    If this is basically the same loophole in a sense that makes it more or less legal to borrow a CD and burn a copy, but illegal to recieve a burned copy from the same source.

  • Britney Spears needs to eat too! (Score:5, Funny)

    by yutt ( 699680 ) on Monday March 07, 2005 @09:27AM (#11865023)
    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... (Score:4, Funny)

    by neo ( 4625 ) on Monday March 07, 2005 @09:32AM (#11865069)
    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? (Score:3, Insightful)

    by TheDawgLives ( 546565 ) <http://www.suckitdown.org> on Monday March 07, 2005 @09:32AM (#11865072) Homepage Journal
    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.

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