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?



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