Arguments for the legality of using allofmp3
I bought it, I paid for it, it's mine. Much of the furor concerning music downloads has centered on P2P and other file sharing in which no payment is made. For some, it seems logical that if the problem is downloading without paying, then the problem is solved by using a service for which payment, however small it may be, is required. This ignores a couple of further problems. First, payment does not make an illegal transaction legal. Simple examples are paying for drugs from your neighborhood dealer or buying those pricey wheel covers from Midnight Auto Supply. Of course, possessing illegal drugs or stolen property is a no-no in any situation, so the analogy has some problems. The issue here is to whom payment is made and the circumstances of the transaction. When a purchase is made from allofmp3, no U.S. copyright holder receives any royalty payment, license fee, or similar payment to which they are entitled. In the case of the stolen wheel covers, you will still be liable to the true owner to either return or pay (again) for them, and if you reasonably should have known they were stolen, you may go to jail.
If allofmp3 is a legal service in Russia, it has to be legal for me to use it. This argument is the reason many website authors spend so much effort to establish the legality of allofmp3 according to Russian law. It is true that no one who uses allofmp3 is violating Russian law, but users in the United States are subject to U.S. law and the question is whether their activity violates U.S. law. In any transaction, parties may be acting legally with respect to some laws, but not to others. Similarly, the transaction may be legal for one party, but not the other. These considerations take on added importance when the transaction crosses international borders. I will say more on the problems associated with having to deal with the laws of different countries. The important thing here is that the legality of activity that occurs in the United States is determined by U.S. law regardless of how many or what kind of international steps are taken.
RIAA has admitted that allofmp3 is legal. This argument goes something like this: “RIAA has sued providers of P2P software and many individuals because of downloading music. They have not sued either allofmp3 or any of its users. Failing to do so is an admission by RIAA that using allofmp3 is legal.” Fadmine.com claims this is “definitive proof” that using allofmp3 is legal. The argument is fortified by the fact that RIAA sued a Spanish company that was engaged in the resale of music from allofmp3. This argument is little more than nonsense. Failing to take action is not an admission that the activity is legal and there are any number of possible reasons that RIAA has not gone after allofmp3 and its users. In an earlier article on P2P sharing, I used an analogy to speeding violations. The same reference is relevant here. Most of the time the police ignore people who exceed the speed limit by only a small margin. By doing so, they are not admitting that doing 67 in a 60 mph zone is legal. They are simply focusing their time and resources on more egregious violators.
Similarly, the decision to decline action against allofmp3 and its users thus far may be due to number considerations. Although the numbers may change with the changing legal landscape of P2P file sharing, until now the numbers of people using P2P has drastically exceeded the number of people using allofmp3 and similar services and the volume of downloads from allofmp3 has been tiny compared to that via P2P. Considering the fact that even successful litigation is costly, it could be nothing more than economic realities that have led RIAA to go after the big volume targets. Additionally, the often ill-advised lawsuits against individuals are not designed to recoup claimed losses nearly as much as they are designed to frighten future users.
Perhaps, however, the most important roadblock to litigation in the eyes of RIAA is that it would be futile. A lawsuit in Russia would be doomed to failure, because under Russian law, which would apply, allofmp3 is operating legally. What about a lawsuit in the United States where U.S. law would apply? Given the Supreme Court decision in the P2P cases, RIAA would have a reasonable chance of succeeding in such a lawsuit, but it would be a truly hollow victory. Unless allofmp3 has substantial assets physically located in the U.S., no one would be able to collect any damages that a U.S. court might order.
Fadmine.com's argument that the RIAA acknowledged the legality of allofmp3 when it sued the Spanish website, Puretunes.com, is equally ludicrous. It ignores the reality of the situation. Although Puretunes was a Spanish company, its owner did business in Washington, D.C. and the site was maintained through a U.S. based server. Thus, two critical facts set Puretunes apart from allofmp3. The site had assets in the United States and it was distributing copyrighted material from the United States. The owner's claim that Puretunes was a Spanish site operating in accordance with Spanish law was therefore irrelevant even if it had been true. Additionally, even if the website itself had been operating legally, as discussed above and expanded on below, the “legality” of a website does not mean that U.S. downloaders are operating legally.
Moreover, RIAA's activity with respect to allofmp3 indicates the opposite conclusion, i.e., that RIAA believes that U.S. users are in fact violating copyright law. RIAA and its British counterpart, among others, have lobbied in Russia for stricter compliance with the laws of other nations. It has also lobbied Congress, which recently enacted a bill threatening economic sanctions if Russia did not act to prevent Russian companies from acting in ways that permitted infringement of copyright laws of other countries. Given other international political circumstances, whether that action by Congress will have any effect is highly questionable.
MP3s are legal and nothing makes it illegal to import them. This is perhaps the most popular argument for the legality of downloading from allofmp3 and it has the most surface appeal. It is necessary to go only slightly below the surface to see the flaw.
In its most basic form, the argument is simply that mp3s are legal in the United States, so it cannot be illegal to import them. Many have gone beyond this simplistic argument and engaged in a supposedly detailed analysis of laws regarding importation of copyrighted material to conclude downloading from allofmp3 is legal in the U.S.
The law of the United States concerning copyrights is contained in Title 17 of the U.S. Code. That Title consists of 13 chapters and 125 specific sections. Of these, proponents of the argument have picked 2 or 3 sections, concluded that none of them apply, and further concluded that nothing in the law relating to importing mp3s makes such downloading illegal. The argument ignores the truly relevant sections of copyright law.
The argument starts with section 602(a) which states that “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501.” The section goes on to say that this does not apply to “importation, for the private use of the importer and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time.”
Some proponents of the argument stop here and say if the downloads are “copies or phonorecords,” the law permits the importation. Others look to section section 101 of Title 17, which defines “phonorecords.” “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.” “Copies” are defined in the same way, i.e., physical objects “other than phonorecords.” Because what is being downloaded is not a material object, the conclusion is that no import laws apply to downloading from allofmp3 and it is therefore perfectly legal.
This type of argument, which focuses on only a very small portion of applicable law while ignoring the rest, is known in legal and other parlance as setting up a straw man. It is essentially nothing more than a magician's sleight of hand which diverts the audience's attention toward meaningless activity and away from what is really going on. What is really going on in downloading from allofmp3 is, as we will see in the next section, a violation of U.S. copyright laws.
