What is the legal significance of that distinction? Under US law, only the copyright owner has the right to reproduce the copyrighted work or to distribute copies to the public. The receiving end of that distribution takes place in the United States, which gives the United States courts jurisdiction. Whether allofmp3.com creates a copy on the server at their end first and then ships it to you is legally irrelevant: your receipt of it HERE IN THIS COUNTRY violates 17 USC § 106, since the data streams to you and is COPIED to your hard disk after it is received.
Rather than continue to defend myself, I’ll leave it to intelligent readers to reread the responses above of Cliffy, Q.E.D. and Bricker. If you don’t understand them, then all is lost.
I understood this all by reading the sites/cites before I closed the thread. Perhaps I should have explained it better. But I’m on vacation, trying to post on a crap dial-up connection, on a computer that hates me.
I don’t know how many times we have to rehash this topic on these boards. As someone else said, take it to another board. We appreciate your patronage, but on this issue, you’re probably better served by discussing it on anther board. (although the legal discussion here has been helpful to me–thanks guys).
Settled law. See US v. Cross, 816 F.2d 297, 303 n. 2 (7th Cir. 1987); see also US v. Wise, 550 F.2d 1180, 1186 (9th Cir.), cert. denied, 434 U.S. 929 (1977).
The US Attorney’s Manual, Title 9, Criminal Resource Manual, offers the following analysis:
I was speaking to the fact that downloading something from the internet constitutes copying. I haven’t been able to find those cases so if they speak to that issue if you could link to the cases that would be great.
Allofmp3 doesn’t follow US law…they follow Russian law and even if the IFPI want’s to construe a valid interpretation of the law as a loophole, it doesn’t mean it’s not legal.
The way I see it, the situation is as follows. You enter an agreement with Allofmp3. You give them money, and they grant you ownership of an electronic album. At this point you own but have not obtained a digital copy of the album, which resides on Allofmp3’s servers, in Russia.
At this point the situation can be read in a couple of ways, but either way, you are legally within your rights.
Allofmp3 makes the copy, and at a time of your choosing sends it to your computer. They have to be the ones who make the copy, after all, they own the hardware which is doing the low-level read operation and sending you the output.
You are making the copy by asking for it. As it is an automated process the read operation effectively happens at your computer. But this is fine. You already own the “original” which resides in Russia, as per your agreement with Allofmp3, and fair use doctrine grants you the right to make a non-distributable personal copy of a work which you have legally obtained.
My only point in posting here was to contest this point brought up by Cliffy:
And that has not been answered. I’m not saying Cliffy is not smart, nor knowledgeable, but that this statement does not seem factual. No one has provided evidence that allofmp3.com is operating illegally under the laws they are subject to, nor that US Copyright Law applies to a site operating in Russia.Maybe it isn’t legally operating, but I can find no evidence of that. In fact, all I find are reports that the RIAA tried many times to shut it down but were prevented from doing so.
No. YOU are making the copy, by downloading it onto your hard drive. The purported fact that allofmp3.com makes a copy for you to subsequently copy is irrelevant.
No, you do not own anything here. You have not been granted a license by the copyright holder, and nor has allofmp3.com. In the absense of a license, either expressed or implied, there is no ownership and any copying of the work falls outside of Fair Use and constitutes an infringement of the copyright.
Part of the problem is that Russa evidently has different rules concerning public domain than the US does. An early Beatles song like “Love Me Do” can be reproduced in Russia with no problem but here it’s still under copyright.
I don’t deign to speak for Cliffy, but I read his statement to mean that using that site is illegal from within the US, not that the existence of the site was illegal under the laws of its home country. I could be mistaken, however. It just doesn’t seem to me that he would make a definitive statement concerning a country whose laws he was unfamiliar with.
Allofmp3 may make eighteen copies at your behest. Who knows, and who cares. The only copy that matters is the copy YOU make on your hard drive by downloading the file.
Interesting take on it. But no court has ever held the fair use doctrine to work in that fashion.
While it’s true that you have a right to copy music from a CD, that’s not a written law from which there can be no variance. It’s the RESULT of weighing the fair use factors:
[ul]
[li]The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes [/li][li]The nature of the copyrighted work [/li][li]The amount and substantiality of the portion used in relation to the copyrighted work as a whole [/li][li]The effect of the use upon the potential market for or value of the copyrighted work[/li][/ul]
Now, when a court considered the effects of a legitimate user copying a CD he owns, once, and applied those factors, the result was the decision that it was fair use. But in these circumstances, where the application of this process would effectively viscerate the copyright owner’s rights to control copies, I have no doubt that it would be found NOT to be fair use.
That’s kind of a “grabbing at straws” objection, treis. And no, those cases are too old to address the specific issue of whether downloading a file constitutes “copying”.
However, see generally A&M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001), which clearly characterizes the act of downloading mp3 files to a computer as “copying.”
Grabbing at straws? You are telling me that by downloading something I am making a copy. I object to that contention mainly on the basis that it is impossible for me to copy something that I do not possess. By downloading a song I go from having 0 copies to 1. That is acquiring a song not making a copy. On the other hand the person I am downloading from, in this case allofmp3.com, has 1 copy of the music, makes another copy and sends it to me. It is them making the copy of the song not me. That is not merely grabbing at straws it is the heart of the issue.
Downloading from Napster generally constitutes downloading a song from someone illegally making copies. That is a different scenario than this case and I read through the case but I didn’t see anything that said that downloading a mp3 constitutes making a copy. Can you poiiint it out for me?
It very clearly says that Napster users were infringing on the copyright holders’ rights of reproduction. If that’s not “making a copy”, would you care to tell me what exactly it is?
First of all, we do not know that the copies being supplied by allofmp3.com ARE legally produced. We have only the word of allofmp3.com, at this point. I am not conversant in Russian law, so I cannot address this issue. Nevertheless, it is immaterial whether the files supplied are legally-produced or not. The fact remains that you are making a copy of them, and you have no license from the copyright holder to do so.