AllOfMP3.com legality

For more information about AllOfMP3.com, please visit the site's main entry

AllOfMP3.com legality is deputed and legal precedent depends on the country in which the user is from.

Legality in Russia

The following claim is made in the AllOfMp3 FAQ: The availability over the Internet of the ALLOFMP3.com materials is authorized by the license # LS-3М-05-03 of the Russian Multimedia and Internet Society (ROMS) and license # 006/3M-05 of the Rightholders Federation for Collective Copyright Management of Works Used Interactively (FAIR). In accordance to the licenses' terms MediaServices pays license fees for all materials downloaded from the site subject to the Law of the Russian Federation "On Copyright and Related Rights."

Russian law states that organizations such as ROMS need the permission of the rights holders to manage their rights, though ROMS maintains that this is not the case. Paragraph 2 of Article 45 (Organizations for the Collective Administration of Economic Rights) of that law reads as follows, in pertinent part: "The mandate for the collective administration of economic rights shall be entrusted either direct, by the owners of copyright or neighboring rights in written contracts, or under appropriate contracts with foreign organizations that administer equivalent rights." Paragraph 3 of the same article reads as follows, in pertinent part: "By virtue of the mandate received under paragraph 2 of this Article, the organization for the collective administration of economic rights shall grant users licenses for the use of the relevant works and subject matter of neighboring rights by appropriate means." And, according to Paragraph 2 of Article 47 (Obligations of Organizations for the Collective Administration of Economic Rights), "Owners of copyright or neighboring rights who have not mandated the organization to collect the remuneration provided for in Article 46(4) [...] shall be entitled to demand [...] that it exclude their works or subject matter of neighboring rights from the licenses that it grants users." However, ROMS interprets the law as follows: Licenses given by ROMS "are given on behalf of all owners of copyright and related rights, including those who have not given their authority to the organization."

In March 2005, the Moscow City Prosecutor's office ruled that Russian copyright laws do not cover online distribution of creative works. This loophole expired on September 1, 2006 when amendments to the Russian law that explicitly refer to the online distribution of creative works go into effect and ROM has acknowledged this in a statement on its website. AllOfMp3 too has taken cognizance of these amendments in a statement posted on its website on June 6, 2006 which says that "The aim of AllofMP3.com is to agree with all rightholders on the prices and royalties amounts by September 1, 2006."

In May 2006, the Moscow City Prosecutor's office changed its position and launched a criminal case [1][2] against AllOfMP3 owner Denis Kvasov.

In October 2006, Visa and Mastercard stopped accepting credit card transations for MP3. "The action Visa has taken is in line with legislation passed in Russia and with basic international copyright and intellectual property norms," a Visa spokesman said. A Mastercard spokesman added the firm "did not tolerate the use of its network for illegal activity."

Legality in the US

Template:Wikify-date In the United States, at least some supporters of AllOfMP3 have pointed to exceptions in US copyright law, most notably 17 U.S.C. § 602(a)(2), which provides a personal use exception to the rule that importation of copyrighted items constitutes infringement. This exception allows only one copy at any one time. Id. A corresponding exception does not exist in § 602(b), however, which governs whether "importation" is prohibited. Under § 603, where importation is prohibited, the federal government may seize or forfeit prohibited items "in the same manner as property imported in violation of the customs revenue laws."

Whether downloading can be construed as importation may be an issue. Importation is defined as a form of distribution of copies and phonorecords (17 U.S.C. § 602(a)). It is questionable whether AllOfMP3.com falls into any of the 602(a) exceptions. See 17 U.S.C. § 602(a)(1)-(3). However, § 602(b), first sentence, makes clear that importation is prohibited where a copy or phonorecord was unlawfully made. In this case, unlawfully made may be seen as violating the right of reproduction (17 U.S.C. § 106(1)) or the right of distribution (17 U.S.C. § 106(3)) by creating a copy in a machine on an AllOfMP3.com network or in the downloader's computer. Whether it was unlawfully made under 602(b) may depend on the enforcability of the AllOfMP3.com contract which serves as a basis for alleging that rights are obtained from artists for uploaded works at the time of upload. Such contract could fail in light of strong U.S. policy to protect artists from contributory infringers. See MGM Studios, Inc. v. Grokster, Ltd. (04-0480), 545 U.S., 125 S. Ct. 2764 (2005) (noting the significance of underlying unpaid downloads which were infringing). Proponents argue that a statutory construction approach reveals that copies and phonorecords are merely tangible objects, and since downloads are not tangible they are not within 602. However, opponents may counter that this ignores the central rights of the copyright holder under 17 U.S.C. § 106, providing statutory rights to the copyright holder to reproduce and distribute the work.

Thus, even if not "importation" under 602, it will likely still infringe a right set forth in 17 U.S.C. § 106.

Note that the composition itself, which is embodied in the copy or phonorecord, is distinguishable from the copy or phonorecord, defined in part as "material objects." See 17 U.S.C. § 101 (defining phonorecords and copies). This "duality" between composition and sound recording of the composition is recognized in typical music business practice, where a licensee often needs to "clear" a popular song by not only clearing the composition, but the sound recording as well. Often, a compulsory mechanical license is drawn for the sound recording which embodies the composition. See 17 U.S.C. § 115. If this basis is recognized, a court may reject proponents' argument that 602(a) shields downloaders from infringement because importation is defined on the basis of copies or phonorecords, but not their respective underlying works, such as compositions.

Accordingly, viewing 17 U.S.C. § 602 in light of 17 U.S.C. § 106, if a digital file embodying copyrighted work is downloaded from AllOfMP3.com without authorization from the copyright holder, it would constitute infringement by the downloader of the exclusive rights of reproduction and/or distribution. Proponents of AllofMP3.com point out that there have been no rulings in U.S. courts to date regarding the specific legality of "purchasing" music from AllofMP3.com. However, in light of the above, opponents will likely point out that the lack of specific ruling as to whether AllOfMP3.com is safe, is unavailing as a basis to claim non-infringement.

Further, if infringement is found, certain statutory remedies may be appropriate. 17 U.S.C. § 501(a) provides, "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." The DMCA also provides notice and takedown provisions, which may be applicable to service providers. 17 U.S.C. § 512. Possible monetary damages may invoked: anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each infringement. 17 U.S.C. § 504(c)(1). If willful infringement is found, up to $150,000. 17 U.S.C. § 504(c)(2). An injunction may be another appropriate remedy. See 17 U.S.C. § 502.

Legality in Canada

Section 45 of the Canadian Copyright Act [3] permits importation of up to two copies of a copyrighted work, for personal use, provided that the copyrighted work was made with the consent of the owner of the copyright in the country where it was made. Before the fall of the Liberal government on January 23, 2006, Bill C-60 [4], was before the House to amend the Canadian Copyright Act.

Legality in the UK

In June 2006, the British Phonographic Industry (BPI) announced they believed that British users of the site broke UK copyright laws, as revealed by the BBC.

However, according to the Copyright, Designs and Patents Act 1988 (c. 48) - section 22:

"The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the United Kingdom, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work."

The use of the phrase "otherwise than for his private and domestic use" implicitly appears to absolve consumers from copyright infringement if they are buying from allofmp3.com for their own use as opposed to reselling copies. However, this specific legal point pertaining to the allofmp3 service has yet to be tested in UK courts.

Roz Groome, General Counsel for the BPI, stated to the Commons Select Committee that they do not intend to seek to sue UK consumers of the allofmp3 service. Despite media speculation that the BPI would move to take action against users of the website, Groome said, "We are going to seek a judgment not against the users of the site, but against the site itself."

On July 3, 2006, it was announced by the British Phonographic Industry that they had gained permission from the High Court to sue AllOfMP3 for illegal distribution.[5]

Legality in Germany

According to the German Copyright Statute (Urheberrechtsgesetz § 53 Abs. 1 UrhG), a user who copies a media file has to make sure that the download is not from a clearly illegal source. Whether the download from AllOfMP3 is "clearly illegal" is in dispute.

Legality in Norway

According to Bengt Hermansen of the Norwegian Department of Culture, use of AllOfMP3.com is legal as long as the service does not break Russian law. [6]

Legality in Denmark

There has been much discussion about whether or not it is legal for a Danish resident to buy copyrighted material from AllOfMp3.com. The music industry associated Antipiratgruppen (anti piracy group) claims that it is illegal on the grounds that Danish artists are not getting paid when their songs are bought from the service, but have not pointed to specific legislation demonstrating that it is illegal. This has caused citizens to ask authorities for an opinion. The Danish Ministry of Culture has stated that the legal status is unclear but that in any case a citizen can not be punished for buying songs from the service as long as he or she has done so in good faith. It further states that the fact that Antipiratgruppen claims that using the site is illegal doesn't imply that one isn't using it in good faith since the matter is complex and has not been tested by the courts. For a period of time the ministry removed its link to Antipiratgruppens website due it making unproven claims about AllOfMp3.com on its website. The link has since been re-established. In July 2006 Antipiratgruppen took an unusual step in an attempt to stop the use of the service. It asked all Danish Internet Service Providers to shut down access to AllOfMp3.com and threatened to sue the ISPs that didn't comply with this request. All ISPs refused to comply and on July 13 Antipiratgruppen announced that it sue Tele2, one of the major providers of Internet access in Denmark, to get an injunction forcing the company to block access to AllOfMp3.com. The deadline for submission of legal memoranda expired on August 21 2006.[7]. On October 25th the court ruled in favor of Antipiratgruppen with a ruling forcing Tele2 to deny its customers access to the site, however this ruling has been appealed by Tele2[8].

As of November 23 2006, the Danish IPS's TDC and CyberCity also blocked access to Allofmp3.com.

Update about the Danish ISP Tele2

The court in Copenhagen (Fogedretten) has now delivered its verdict October 25 2006.

This court verdict (21 pages PDF in Danish) is quite surprising, not that it forces Tele2 to block access to Allofmp3.com, but rather how the verdict does it. Among other things the court says (translated to English below):

The court finds .... that also the temporary fixation of the work in the form of electronic impulses, that goes on in the routers while transmitting the data packets over the internet, is covered by the §2 in copyright law.

This means that the court ruling finds that Tele2 are unlawfully making copies while routing their customers communication. So they are not directly forced to block information from Allofmp3.com, they are found to be making "pirate copies" when doing their job of directing communication on the internet, that is what a router does, and internet cannot function without it. This basically means that this court has forbidden the internet in Denmark. This goes also for modern mobile communication too, since a mobile phone also can be used to unlawfully communicate otherwise already published and not stamped with secrecy information. It is a lot like if the old telephone company had been held responsible for what its customers said on the phone. Tele2 has applied for retrial in higher court.

Legality in Australia

According to Australian import law, songs bought from another country are legal in Australia. There used to be "parallel importation" laws around CDs and music files, but they were repealed a few years ago, to allow cheap alternative imports to come in. It is uncertain whether the legality in Russia affects this status.

Legality in The Netherlands

Under Dutch law it's legal to make a private copy from an illegal source. The legality of this website is in dispute. Payment services are under pressure of the local anti piracy group to stop transferring money to allofmp3. No lawsuits have been filed so far because companies usually cease their operations.