Purchasing Music Online
By: Igor Margulyan
The question of whether American users are in violation of domestic copyright law when purchasing music from foreign websites may not be as murky as it seems. All one has to do is go back to the statutory language. Indeed, some US patrons of the Russian-based online music store, allofmp3.com, have invoked the language of the Copyright Act to ascertain the legality of their actions. Specifically, they rely on one exception in section 602(a) of the Copyright Act that permits individuals to bring copies of copyrighted works into the US without the copyright holder’s authorization as long as the importer brings no more than one copy of each work and intends to use it privately rather than for distribution. Otherwise, the person would be in violation of the copyright holder’s exclusive right of importation.
Evidently, some have explained that purchasing a song from a site, like allofmp3, is analogous to purchasing a CD from legitimate retailer abroad and bringing it into the US, whereby neither action violates the copyright law, because, presumably, both sources are operating legally within their home states. One response to this argument rests on a definitional technicality. It notes that the exception applies only to copies and phonorecords which are statutorily defined as material objects. However, online music, which comes in a form of an electronic signal, cannot be regarded as “matter” in a conventional sense. Thus, downloaded tracks fall outside the ambit of this exception.
Although seemingly sensible, this response may be superfluous if viewed in conjunction with the language of section 602(b) of the Copyright Act. This section essentially tempers the allowances of section (a) by stating that, “[i]n a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.” The legislative notes on 602(b) explain that it operates to exclude “copies or phonorecords which, although made lawfully under the domestic law of that country, would have been unlawful if the U.S. copyright law could have been applied.” For allofmp3 users this restriction raises the question of whether the operations of the Russian website would have been legal if transferred to the US. In all likelihood, the answer would be “no.”
Allofmp3 derives its inventory primarily though a series of agreements with groups, such as Russian Multimedia and Internet Society (ROMS), which manage copyright holder’s rights. Russian copyright law permits these management organizations to issue compulsory licenses to various parties such as broadcasters even if the copyright holder has given no consent. The unilateral nature of this licensing regime marks the area where Russian copyright law deviates from its American counterpart. Pursuant to section 115 of the Copyright Act, compulsory licenses may not be obtained without the copyright holder’s authorization. Thus, at least to the extent that allofmp3 obtained its music content from licenses that do not bear the owner’s approval, the site’s operation within the US would be deemed in violation of the copyright law. This means that American users who purchase this content fall outside the importation exception simply because allofmp3’s operations would be illegal under the US law.