Wall Street Journal today discusses the legal standing of MP3Search.ru and AllofMP3.com, popular online music destinations located in Russia and selling songs for extremely low prices such as 10-15c for a song, while comparable Wal-Mart download price would be at fixed 88c. Wall Street Journal’s verdict is that the sites are not legal to sell their goods in the US, although the offering does sound enticing:
What’s more, the sites feature online music not available for sale in the U.S. Though copyright holders have prevented the sale of tunes from the Beatles online, the Russian sites offer most of the Beatles catalog — “Abbey Road” sells for $1.60 on MP3search.ru.
Why Russian sites are legal in Russia
It’s worth pointing out, however, as I did before, that the services are perfectly legal in Russia. The legislature there enforces compulsory licenses, which means that anyone can get the license to distribute and sell the music as long as they pay for it. In the United States if you plan to sell a certain CD, you have to negotiate with the labels, and that’s why the original Napster got shut down by the courts – they violated the law by not obtaining the licenses from the RIAA mob.
In Russia if you prove that (a) you keep track of what you’re distributing (log number of downloads) and (b) you pay to the collection agency, you’re legal to distribute any music you want. The collection agency (ROMS, quoted in the Wall Street Journal article) will then re-distribute the money to the copyright holders.
Why Russian sites are not exactly legal in the US
However, the legislature is Russian and thus applies only on Russian territory. Which means that the sites are not exactly legal to distribute the music anywhere outside of Russia. For any 15c allocated to the Russian music site some money goes to ROMS, which then distributes the payback to Universal Music Russia, BMG Russia, or whoever. Apparently the original Universal Music or BMG would not be too happy about it, even though they do get paid somewhere in the process.
So buying music out of Russia over the Internet is illegal if you’re in the United States, as buying marijuana from Netherlands would also be illegal, if you were in the US. Might be legal if you were physically in the Netherlands, but as far as the law enforcement in the US is concerned, you cannot go to one of those Amsterdam e-commerce shops and order a nice package with international shipping pre-paid.
Certain things to consider
An astute reader would probably say right now: “Wait a minute. Your analogy is all messed up. Importing marijuana from the Netherlands would be illegal, because marijuana itself is illegal in the US. You won’t be prosecuted for unauthorized buy from the Netherlands, you would be prosecuted for possession, since that’s the actual crime”. Here’s where a legal conundrum (for me, at least) comes in. Suppose you have a penpal in Russia who has one of those nice furry hats that keep your ears warm during the winter. Suppose you live somewhere in Northern United States close to Canadian border, so that winters get pretty tough. Basically, you ask your friend for a hat, which he’s happy to oblige, and pretty soon a FedEx package (he naturally doesn’t trust Russian pochta to deliver the package) arrives at your doors.
Anything illegal? Of course not. It’s a gift, and what we saw was the transfer of ownership of that hat. Then suppose MP3Search or AllOfMp3 are taking your money for MP3 downloads. But since it’s not legal for you to buy MP3s at those sites, AllOfMP3 and MP3Search won’t let you download. Instead they will send the files to your Russian friend (totally legal under Russian laws), which he will e-mail to you, and promptly delete the files off his hard drive (he doesn’t care much for your gangsta rap affection). An obvious transfer of ownership (legal). An obvious sale within Russian laws (totally legal).
Take the analogy closer to reality and let’s say that your virtual friend is really a Perl script that resides on the same server as MP3Search or AllofMP3, and that they make you register for a 1 GB Gmail account before you sign up for their service. After the purchase is completed (the MP3s are sold to your friend, the Perl script), they arrive at your Gmail box (transfer of ownership). This is another case of copyright law failing to oversee the nuances that can happen in international transactions. I don’t know whether e-mailing the MP3s would be legal or not. I guess, depends on who you ask.