Barely legal.

Barely legal.

Barely legal.

The law, lawyers, and the court.
March 28 2005 3:35 PM

Barely Legal

The hottest trend in file sharing.

It's the dilemma of downloading: The guy in the next cubicle is using office bandwidth to download the new J.Lo album using Grokster. But then your mother sends you newspaper clippings of all of those nice-looking people getting arrested for file sharing. You want to have the records without having a record. So, there you are—caught between your greed and a guilt complex.

Until you find the silver bullet—the legal way to download music for free. Or at least almost for free. And almost legal: It's called, and it's the trendy, angst-free way to download copyrighted music. As the Supreme Court prepares to hear arguments tomorrow about the legality of Grokster, Aimster, and other file-sharing services, downloaders have been looking hopefully to as their only legitimate way to get 50 Cent for less than face value.

Advertisement is Russian, and its self-proclaimed quasi-legality stems from its claimed ownership of Russian music distribution rights. As their Web site puts it: "All the materials in the MediaServicesprojects are available for distribution through Internet according to license # LS-3М-05-03 of the Russian Multimedia and Internet Society. …'s Administration does not keep up with the laws of different countries and is not responsible the actions of non-Russian users." This site isn't free, but at about 5 cents a song, it sure beats iTunes.

Could a scheme like be legal? Probably. Is it legal, in fact? Probably not. Will you get sued for using it? Not likely, or at least, far less likely than you would be for using Grokster or any of the other peer-to-peer networks. But let's take it one question at a time.

1. Could a site claiming to hold foreign distribution rights be a legal way to download copyrighted music?

Sure. Music licensing agreements vary from distributor to distributor and from country to country. If has legitimately acquired Russian distribution rights, it would be legal to download from them the same way that copyright holders have licensed iTunes and Napster in the United States, according to James Gibson, who teaches law at the University of Richmond and wrote a brief supporting the music industry in the MGM v. Grokster case.


But get out your balaclava, pop the caviar, and activate those frequent-flyer miles: Because in order to download legally from a Russian rights-holder, you'd likely have to actually go to Russia. Foreign-rights-holders usually only control the copyright within the country itself, and that includes Internet distribution. (For those of you who prefer traveling to warmer climates, there's a similar—and similarly dubious—Spanish service called

There is one other argument that might save Allofmp3, albeit an admittedly far-fetched one: That theory holds that all music downloading is legal under "fair use" doctrine, as long as it's only for personal use. In other words, your officemate is violating only the bounds of taste, and not the bounds of copyright law, by scoring that free J.Lo song.

"If you're writing notes from a book in a library, or making a mix tape, or a clip of music to give to your friends, the law was never meant to apply to you," says Raymond Ku, a law professor at Case Western Reserve University and signatory to a Grokster brief to the same effect. Ku recognizes that American courts have not found his theory particularly convincing thus far, but courts in France and Canada have ruled that downloading copyrighted songs for mere personal use is legal. Then again, wouldn't you encourage the importation of foreign music if your national musical hero was Charles Aznavour or Celine Dion?

2. Is actually legal?


Probably not. The discussion above about what is allowed to do with international distribution rights assumes the site actually owns those rights. It doesn't—at least not according to the recording industry. The International Federation of the Phonographic Industry is the worldwide organization of recording companies, and it claims that has not been licensed to distribute its members' "repertoire" in Russia or anywhere else. While claims it owns distribution rights from the Russian Multimedia and Internet Society, the record companies say, "Nyet."

Bruce Boyden, a copyright lawyer at Proskauer Rose, which represents the international copyright holders in Grokster,concedes that there's some dispute as to whether has in fact obtained the Russian distribution rights. But he has his suspicions: " doesn't sound Russian to me, and it doesn't sound like they're aiming at a Russian audience." Moreover, even if it does hold some Russian distribution rights, it certainly doesn't own worldwide Internet distribution rights.

But there's the law, and then there's enforcement of the law. And you probably shouldn't expect the Russian authorities to crack down on the company anytime soon. According to unverified reports from Russia (and are there any other kind?), authorities there have decided not to prosecute, despite a recommendation from Moscow police that they do so. The remaining question—of whether the company could eventually be sued in American courts—turns, at least to some extent, on the results of the Grokster case.

3. Will American users of get sued?

Not likely. The Recording Industry Association of America has been bringing about 700 suits per month, but they're against uploaders—people who make music available for copying—and not downloaders. According to Justin Hughes, an associate professor at Cardozo Law School, this distinction is for obvious evidentiary reasons: The only way to catch a downloader is to actually get onto her hard drive and find the files, or spy on the transmission from the uploader to the downloader In KaZaA, Grokster, and Bittorrent, every user is both an uploader and a downloader—my price for downloading "Papa Don't Preach" from you is to let your roommate download "Like a Prayer" from me. But is different; users download music but they don't upload it. None of the RIAA's 8,000 lawsuits has involved such a scenario.

Then again, the RIAA could always change its ways and decide to start going after downloaders as well, if that's where the money is. Just because it's ultimately more difficult to prove doesn't mean they won't try, and the music industry has shown it's not averse to scare tactics. The Material Girl herself explained this phenomenon best: "Experience has made me rich and now they're after me."

The Grokster argument tomorrow should address at least some of these questions, including whether copyright violations should be enforceable against file-sharing services and whether downloading music could ever be considered fair use, along with the greater mystery of whether Sandra Day O'Connor can pronounce Gnutella or knows what an ISP is. Camp out early for good seats, and be wary of anyone trying to sell you pirated CDs outside the courthouse.