Is iTunes illegal?
p2pnet.net News View:- Is iTunes illegal? Maybe not, but other ‘Legal’ online music stores might be.
There are several legal aspects centering on the distribution of music online. Everybody who ever tried to license music for use knows how difficult the process can be. Collecting agencies might help but even their basis for negotiating a deal might not even be legal.
e-Commerce on an borderless Net
In a highly controversial ruling this week, the Dutch Supreme Court deemed the Ladbrokes gambling site illegal in Holland. What the Court ruling essentially did was set a geographical border on the Internet, making the Dutch websphere a virtual intranet.
This isn’t uncommon. Most famously, the Yahoo memorabilia case which Yahoo is currently appealing shows judges can conveniently give themselves authority over whichever service pops up online.
Even Canada’s Icravetv.com had to settle with the US while it was legal in Canada.
This means that every e-commerce site should reckon to have to take into account about 277 or more national laws across the globe when starting an online venture.
While some online stores compensate this effect by IP mapping (Movielink.com) or cross-referencing credit card numbers (iTunes), those measures aren’t airtight. It still leaves services vulnerable to foreign (quirky) judges and laws.
However, there’s such a thing as collective agencies.
What are collective agencies?
Collective management organizations license use of works and other subject matter that are protected by copyright and related rights whenever it is impractical for right owners to act individually.
Collective agencies can negotiate terms within their respective national market on behalf of music publishers.
One-stop license myth
In Europe, the EU collective agencies made a deal called the Santiago Agreement in which they worked out the one-stop licenses. In essence, when seeking permission to distribute online, one need go no further than their local collective management organization to get a “one-stop” license.
However, the Santiago Agreement is under scrutiny by EU authorities because it effectively creates monopolies, which is contradictory to EU fair-competition policies.
Secondly, it’s still unclear if music publishers ever signed over rights to collective agencies for online distribution. Music publishers are notoriously reluctant to sign over internet rights, opting instead for the more lucrative and pratical self-exploitation and betting on DRM.
Legal online music store vs P2P
In a recent Dutch legal study [nld] about online music stores vs P2P this was concluded:
Translation: “For the (ed. Dutch) user of an online music service, it’s irrelevant if the service has the appropriate license or not, as long as the user downloads music for purely personal use. The user can, on the basis of the “personal use” exception, download music, if it’s not done as a task by someone else* and/or the user has no direct or indirect commercial objective.”
This stems from the fact that downloading is legal whenever it’s from a legal or illegal source. According to Dutch law and, if memory serves me right, Canadian law, the source doesn’t matter.
Bottom-line: taking the above into consideration, the Dutch and Canadians don’t have to pay for downloads.
However, what makes this interesting is that making music available online is deemed illegal if done without a proper license. But those licenses might not even exist.
For example, CNET reported yesterday that the Russian Allofmp3.com is “illegal”. Although it had a license from the Russian collective agency, the agency isn’t yet recognized internationally and is struggling to meet those standards. Same goes for the Spanish Weblisten.com, as the report states.
The fact is: because the online music stores generally operate in a centralized way a la the original Napster, they clearly need those licenses. Whereas common P2P software works decentralized, licenses insofar aren’t required.
Summary:
1) e-Commerce hasn’t fully trickled down to all national levels thus making online stores still vulnerable for litigation and suits from wherever.
2) A (EU) collective agency license isn’t a guarantee things are legitimate because they still can’t deliver a “global one-stop” music license especially when music publishers want to do it themselves.
3) In some countries, it’s legal to download, regardless of the source so paying for downloads isn’t necessary.
As for iTunes, if they where operating with EU collective agency license, they should check those licenses again.
* Dutch copyright law doesn’t allow that a user gives an order to someone else to make the user a personal copy. It’s unclear if by “given an order” the law means given to a person or as an technical procedure.
Raymond Blijd – fk2w
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