Is it really illegal to use a music downloader? According to the law, sometimes yes, sometimes no.
Last week, we touched upon the question of whether YouTube to MP3 downloaders are legal to use. Now, there’s a massive lawsuit against the biggest ‘Youtube to MP3’ site, YouTube MP3 (at youtube-mp3.org). And there are still YouTube converter clones popping up everywhere.
But YouTube MP3 itself still standing. And, converting YouTube clips, serving ads, and getting hundreds of millions of pageviews. So what’s going on?
Well, it turns out that youtube-mp3.org is innocent until proven guilty. They can operate freely, unless a federal judge determines that they are guilty of mass copyright infringement.
But what about music downloaders in general? Will you face a lawsuit for using one? Is operating one illegal? Again, it depends. So please read carefully!
First: what is a music downloader?
In this context, a music downloader is a site that lets you create downloads (like mp3s) from places like YouTube, SoundCloud, or other streaming platforms. This also includes video downloads like MP4s, and other downloaders.
Here are the biggest YouTube-to-mp3 downloaders, for example.
- YouTube MP3 (youtube-mp3.org)
- YouTube in MP3
- Listen to YouTube
And, here’s a similar list of top SoundCloud to MP3 players.
- SoundCloud to MP3 Downloader
- SoundCloud Downloader
- Download My Sound
- SoundCloud to MP3 Converter
Keep in mind, there are many, many others, including those that are always, 100% legal. That includes places like Jamendo, iTunes (free tracks and albums), Soundowl, Facebook, and Amazon, among others.
These are just a few you might be familiar with, for a few of the top sites. Now, onto the legal aspects of using these services.
Write this down! A music downloader is only illegal if you are using it to download copyrighted music.
‘Copyrighted’ covers most commercially popular music you care about. But non-copyrighted works are fair game for downloading. And copyrights only protect a percentage of the music in this world. Copyrights do not apply to anything in the public domain, for example, which includes a substantial number of older recordings. It also includes material created under Creative Commons licensing, or ‘royalty-free’ music, which often allows free use.
Likewise, some spontaneous garage band recording uploaded to YouTube is fair game, as long as the songs (and noises) are original.
But why is it illegal to use a music downloader to acquire copyrighted music? For this, we refer to US Copyright Law. Title 17 of the U.S. Code Chapter 1 (Section 106) deals specifically with illegal music reproduction. Thus, the owners of copyrighted music have the following rights under U.S. law:
“(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”
Going further, a Webster University article states that “distributing a copyrighted media file, whether via electronic or non-electronic methods, without the express permission of the copyright holder is also illegal.”
Basically, what this means is that the person that created a copyrighted work owns the copyright. And therefore, they have the exclusive right to distribute it.
Therefore, acquiring it as a download through a music downloader is technically illegal.
Why are there so many music downloaders available online, then?
The simple answer is that there are many legal uses for a music downloader. You can use a knife to chop onions, but you can also use it to kill someone. Should we ban the knife, simply because it sometimes used to murder someone?
Right now, US courts are deciding whether or not to ban certain downloaders. But importantly, they’re not currently illegal. And, they could be completely legal in the future. There may be some new rules places upon them, however, including having to prevent downloaders of copyright works.
Will they ban music downloaders in the future?
Maybe, but probably not. We’ll probably know a lot in the next 6 months.
The music industry, which is suing youtube-mp3.org, thinks there are substantial violations happening. According to the RIAA, a music downloader fits right into the picture of copyright infringement. It’s a service that enables users to illegally download and thus share music they like.
The RIAA cites the Digital Millennium Copyright Act (DMCA), which has willing infringers facing the following consequences:
- Up to five years in jail
- Fines and charges of up to $150,000 per file
- In addition to any other charges, the copyright holder can file a lawsuit again you. That can result in legal fees and obligations to pay legal damages.
Basically, the RIAA offers this advice:
“When you’re on the internet, digital information can seem to be as free as air. US copyright law does in fact provide full protection of sound recordings, whether they exist in the form of physical CDs or digital files. The same principle applies, regardless of the format. The copying and distribution of music sound recordings is illegal without the permission of the owner.”
Can you give me an example of an illegal music downloading activity?
Let’s say you use a SoundCloud to MP3 music downloader site to “rip” a popular song that has a copyright. You are liable for a fine or spend time in jail.
Take a look at the RIAA’s example of online copyright infringement:
- You download an app on your smartphone that allows you to ‘strip’ the audio from any YouTube music video and permanently keep that audio in your music collection.
- You make an MP3 copy of a song because the CD you bought expressly permits you to do so. But then you put your MP3 copy on the Internet, using a file-sharing network, so that millions of other people can download it.
- Even if you don’t illegally offer recordings to others, you join a file-sharing network and download unauthorized copies of all the copyrighted music you want for free from the computers of other network members.
- You join an unauthorized file-sharing network that distributes or make copies of copyrighted music. Once logged in, you download unauthorized copies of the music you want. Sometimes, you pay a fee for access.
- You transfer copyrighted music using an instant messaging service.
- You have a computer with a CD burner, which you use to burn copies of music you have downloaded onto writable CDs for all of your friends.
- Someone you don’t know e-mails you a copy of a copyrighted song, which you forward to your friends.
Have you done any of the above? If so, congratulations! The RIAA says that you are now liable for a $150,000 fine for each infringement.
Will the music industry sue me for this?
So far, not that we’ve heard of. Back in the early 2000s, the music industry was suing a lot of people for downloading from apps like Napster and Kazaa. But the backlash was huge. So, the RIAA (and other music industry organizations) have shifted to suing the companies themselves.
Courts have found music downloaders liable, the RIAA claims. But, the organization didn’t cite any specific cases. The RIAA merely says:
“A long series of court rulings has made it very clear that uploading and downloading copyrighted music without permission on P2P networks constitutes infringement and could be a crime.”
So, which ones? This will be the question that the RIAA will face in their lawsuit against YouTube to MP3.
Are there places I can download music and be 100% legally safe?
Yes, there are. iTunes, for example, routinely offers free tracks that you can download and enjoy. Here’s a quick video that runs through a bunch of other legal download sites.
Is it illegal to operate a music downloader app or site?
The answer to that question will probably arrive in a few months. That’s because a major lawsuit is currently underway between YouTube MP3 and the music industry. YouTube Mp3 says that they’re totally legal, especially since they don’t know what they’re converting.
The RIAA says they are aware, and are also violating the Digital Millennium Copyright Act (DMCA). That law specifically prevents working around technologies designed to protect copyrighted works. Take a look:
“Section 1201 divides technological measures into two categories: measures that prevent unauthorized access to a copyrighted work and measures that prevent unauthorized copying of a copyright work. The circumvention of either category of technological measure by making or selling devices or services is prohibited…”
A footnote states that a technological measure that prevents unauthorized distribution or public performance of a work would fall under the second category.
So, what about a music downloader? Is it illegal? Apparently so.
“By contrast, the fair use doctrine is not a defense to the act of gaining unauthorized access to a work. Therefore, it is illegal to circumvent a technological measure in order to gain access.”
A music downloader can be counted as circumventing technological measures in place by services like Spotify, SoundCloud, Deezer, etc. However, the most complex part of the DMCA comes in the interpretation of the Safe Harbor clause. It’s known as the Online Copyright Infringement Liability Limitation Act, or OCILLA. This Act shields online service providers from acts of direct copyright infringement.
Specifically, with system caches. This could be a critical clause that protects music downloaders:
“The safe harbor applies when a service provider is providing “intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider” and:
(a) the material is made available online by a person other than the service provider;
(b) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and
(c) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (b), request access to the material from the person described in subparagraph (a), if the conditions set forth in paragraph (2) are met.”
The RIAA says that music downloaders are hiding behind this clause. The music downloader can state that it’s merely providing a service using cached links, which is a major part of the YouTube MP3 defense.
That said, YouTube MP3 is also defending itself as a mere copyright tool. They’re just like a tape recorder or double-deck VHS recorder of old. That puts the responsibility back onto the user, not the machine.
Which means that users may get sued, at least after a certain period of time. But right now, that isn’t happening. At least that we’re aware of.
Stay tuned as this body of law evolves!