[Table of Contents]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: [ARSCLIST] Copyright (was: Virgin Sacrifice)

One non-lawyer's idea for a partial solution to get more material in the PD:

What if there were a mechanism where a record company could audit its vaults, figure out what is obviously of no commercial value due to either being out of print for decades or having been in print only a short time, and donate that into the public domain via the Smithsonian's commercial operations or an LOC-maintained convert-and-stream website or something similar? The record company should get some kind of blanket legal release, in case some ancient contract turns up which indicates someone else needed to sign off on the transaction, and I would suggest the record company should get a tax break for any material they turn over with a high-quality digital transfer, which can then be immediately available for download. I'd also recommend that the RIAA or some other association of record companies be given the opportunity to set up a tax-advantaged non-profit to build and maintain this uber-download server for all the newly-public-domain material, thus removing this burden from any US government agencies and the taxpayers.

This may be naive, but I think this plan could work because there is a sizable percentage of material in the vaults that has not enough potential commercial value to ever be in print again, but which has some niche following or collector value out there. The calculation on the record companies' part would be, the best use of this material is set it free and get a tax writeoff. Done over a period of years, it could be more lucrative than any commercial attempts at a very-long-tail download-only reissue program, so therefore it makes business sense to set the material free.

For what's left after that, material of obvious commercial value and material "in reserve" with potential commercial value, I think copyright laws should be changed where there is very iron-clad protection, and I don't really care how long-term, but only if the material is in print in a modern, widely-used consumer format. If it's out of print for more than XX years (I'd recommend 5 or 10), then the copyright should expire.

Given the entrenched interests involved, I am writing a pipe dream here, but a non-lawyer can still dream.

-- Tom Fine

----- Original Message ----- From: "Sam Brylawski" <goodlistening@xxxxxxxxx>
To: <ARSCLIST@xxxxxxxxxxxxxxxx>
Sent: Thursday, June 18, 2009 2:54 PM
Subject: Re: [ARSCLIST] Copyright (was: Virgin Sacrifice)

I have a lot to say about Mike's post, and then I promise I'll take a break.

First, the FBI does enforce copyright, or at least blatant piracy for
profit.  I think that there are many "federal offensives" in the
various copyright laws.

Second, it was LC's National Recording Preservation Board (NRPB), not
ARSC, which commissioned the study of out-of-print recordings. As I
wrote earlier, it's free for the taking at
http://www.clir.org/pubs/reports/pub133/pub133.pdf. (Yet I point out,
in all fairness, the study was carried out by two ARSC members, Tim
and Steve Smolian.)

ARSC does not have a lobbyist now officially. We don't have the
financial resources.

Regarding Mike's comment: "I turned to Tim Brooks who happened to be
standing right
behind me, and whispered a question "This is to buy us off and stop our
complaints, isn't it?" and he gave a knowing nod." Tim is entitled to his opinion and he and I have discussed this a lot, but I think that it's too cynical to think that this limited license to stream-only pre-1925 materials will convince Congress to maintain no public-domain laws, and also dismissive of the influence of ARSC's efforts thus far (led by Tim!) to inform Congress of the sound recording anomaly. The license is only to stream materials which, if in any other format, would already be public domain. It is my expectation that the streaming site will build a demand for FULL access to the recordings and could actually promote changes in the law. The NRPB study of the state of audio preservation, written by Rob Bamberger, will be published this summer. It includes a full chapter (25% of the study) on how copyright laws impedes preservation and access. This study was commissioned by Congress.

That said, this is an uphill battle. I encourage all readers to see if their congressional representatives are on the Judiciary Committee, and to write to them to tell them how you feel about these issues.

Finally, it is a new website, one only partially managed by ARSC,
which spells out these issues in full. It was created by the new
Historical Recording Coalition for Access and Preservation:


Sam Brylawski
Editor and Project Manager
Encyclopedic Discography of Victor Recordings
University of California, Santa Barbara

On Thu, Jun 18, 2009 at 2:28 PM, Michael Biel<mbiel@xxxxxxxxx> wrote:
From: "Schooley, John" <John.Schooley@xxxxxxxxxxxxxxx>
I fear that copyright laws will exist in the future on paper only,
and be rarely enforced.

There is a basic misunderstanding here about WHO enforces the law. The police, FBI, prosecutors, and other "arms-of-the-law" do not enforce the law. The courts do. The copyright holders do. The copyright law does not give any enforcement powers to legal authorities, only the right of those who have had their rights violated to take the case to court.

Except, of course, by libraries, archives, universities, and
other institutions whom we might hope would attempt to
preserve some of the material. Due to legal fears, they will stick to
the letter of the law long after the public has abandoned it, and any
efforts to preserve recordings will be severely hampered as a result.
I can't find the link right now, but I read an article recently that
looked at what happens when laws are not repealed or changed, but simply
no longer enforced. The example they used was...pornography. There are
still obscenity laws on the books across the country, but the police
aren't breaking down the doors of people who view porn online.

You are comparing apples and oranges. The obscenity laws are COMPLETLY DIFFERENT TYPES OF LAWS from copyright laws. The POLICE NEVER enforced copyright laws. This argument is completely misleading.

Communities didn't pass laws that said pornography was no longer
prohibited, changes in the culture (and technology) led to the point
where law enforcement just doesn't concern itself with it anymore. The
same thing has already happened as far as copyright law is concerned.
The RIAA lawsuits, though well-publicized, are few in number,

The RIAA on its own initiative stopped initiating the mass suits over a year ago, that's why you aren't hearing about them. But I think the figure of the number of suits they "settled out of court" was around 35,000. Only 3 or 4 were ever taken to court.

and totally ineffective compared to the vast amount of file-sharing
going on.

Oh really. Have you noticed that all the major file sharing sites are either closed or charging?

But copyright laws aren't going to be overturned or repealed through
any sort of legal process, people will simply continue to ignore them,
and law enforcement will decide it has more important things to worry about.

Law enforcement doesn't decide. It is not an episode of Cops where they are the ones who initiate the investigations and arrests. The industry does. As long as there are willing starlets in Hollywood and congressional staffs willing to sleep with them, the MPAA and by extension the RIAA will have control over our copyright laws. I am being sarcastic here, but as was discussed at the copyright committee session at ARSC, the industry spends MILLIONS OF DOLLARS lobbying Congress.

But we ARE fighting back. ARSC now has a lobbyist. The laws won't just go away, we have to WORK at it -- pay attention to the ARSC Copyright Committee web page, I mean it, PAY ATTENTIION TO THAT PAGE -- and back up what is being accomplished. Everyone who has been commenting on this should have been at the meeting. When the audio of that meeting goes on line, LISTEN TO IT.

Unfortunately, most museums, libraries, and archives will remain
hamstrung by their legal departments and prohibited from making
their collections available online, for example.

This IS changing. One thing that was not discussed at that meeting but was revealed the day before during the tour of the National AV Center at Culpepper, is that the record industry has another trick up its sleeve. They are about to silence most of our bitching by goosing up the statistics of the percentages of ancient recordings available from the rights holders.

Roger Kulp wrote:
A sizeable chunk of,if not most rock,jazz,R&B,country,and
78 era classical has been issued on CD somewhere at one point
in time in the past 25 years or so.Most of it on small vanity
labels,in limited distribution and quantity.

ARSC did a study of the percentages on a decade-by-decade basis of what is available from the rights holders and what is available from the labels Roger describes. The numbers of both were low, but the numbers from the rights holders was almost invisible. The point iws not to be happy with that status quo but to show that the rights holders have not done right by their heritage, and that the work that has been STARTED by those other labels is important and must now be legalized in the U.S. But read on:

Sony has given permission -- and is sponsoring the effort -- to LC to
CONTROL, which includes Victor and Columbia. The transfers are about to
begin, the first thousand recordings have already been selected, and at
least these (if not the full ten thousand) will be on-line by the end of
the year. The transfers of the discs will be quickly done -- only a
minor amount of time will be spent selecting styli and adjusting speed
-- but the discs will still be there to be re-transferred if there is
real need. While our group was stammering open-mouthed at the
announcement, I turned to Tim Brooks who happened to be standing right
behind me, and whispered a question "This is to buy us off and stop our
complaints, isn't it?" and he gave a knowing nod.

It is becoming evident that Congress did not know that they had
restricted rights to the early recordings. This has been a surprise to
every legislator who has been told. They had no idea that there were
restrictions to pre-rock recordings because all they were told was about
rock records and Mickey Mouse. As they have been informed one-by-one of
problem by our lobbyist, there now IS a chance that the law will be
the links. Is that too much to ask?

Yes the situation reprinted below is the current situation, but it is
hopefully about to change if we help and support the movements that ARSC
and their allied organizations are working towards.

Mike Biel mbiel@xxxxxxxxx

So, we will end up with a situation like we have currently, but worse. When an interested party wants to hear a particular recording, if they can't afford to purchase it (if there are even copies available for purchase) they are better off breaking the law and downloading it online if they can, rather than using "legal" methods and trying to access a copy at a library or archive. If they try follow the law and avoid any illegal action, it just ends up being more trouble than it is worth. To hear the recording legally, they would have to visit the collection that holds it in person (perhaps having to fly in from another state), and then could only listen to it on site. In most cases they wouldn't even be allowed to make a copy for themselves. Or, they could just find it online somewhere for free. The public has already decided that this isn't a tough choice...


-----Original Message----- From: Association for Recorded Sound Discussion List [mailto:ARSCLIST@xxxxxxx] On Behalf Of Tom Fine Sent: Thursday, June 18, 2009 5:38 AM To: ARSCLIST@xxxxxxxxxxxxxxxx Subject: Re: [ARSCLIST] Virgin Sacrifice

Hi Jack:

Your situation is somewhat unique, perhaps so unique that there is not
even a niche market for it in the modern download world. However, you
raise a good point -- all the material that is currently out of print,
sometimes called "long-tail content." I've argued numerous times on this
list and in other forums that all of it should eventually be available
as downloads. There is, however, some cost involved with digitizing old
material and some masters are forever lost. The biggest block, though,
to getting the more obscure stuff online is copyright laws. Stuff stays
copyright in the US far too long, especially if it's out of print. I've
argued that there should be a requirement for copyrights to last beyond
what the rest of the world finds reasonable, that the material should
have to be in print in a common consumer format or the copyright
expires. If you didn't have the copyright laws, much much more variety
of material would be online for legal download, put there by fans and
collectors or a guy willing to sell his amateur transfers for a quarter
or a dime a song. It would be great for consumers because it would
probably drive download prices down, as well as offering a "longer tail"
of obscure sub-genre stuff than is now legally available.

Your point illustrates the main weakness of the current music business
model, and it was also touched on by Mike Biel about record stores in
the years before they all collapsed -- a lack of variety is widely toxic
to the business. It causes a general dissatisfaction among the more
mainstream consumers ("who cares, there's nothing new or interesting
there, just the same old
stuff") and stymies those who want to "go deep in the stacks" and really
learn about a genre or artist. A sure way for a stores buyer traffic to
dry up.

Finally, my point wasn't about unique collections like what yours
obviously was (since you were able to sell it). Hence my sentence about
Black Patty and Shaded Dog disks and McIntosh equipment. My point was
about what most of us have for collections, myself included. Roomfuls of
heavy and mostly worthless stuff, shelves of common records and CD's,
boxes of common and/or not-good-condition 78's, with a subset of a small
amount of the volume that's truly valuable. As time goes on, many of us
will find that even this subset won't raise enough dough for our
survivors to dispose of the mass of dumpster fodder. And I think these
dreams of libraries, universities and archives suddenly springing up to
collect and preserve all this are pipe dreams, given likely economic
conditions and general cultural disinterest in anything "old" going

-- Tom Fine

----- Original Message -----
From: "Jack Palmer" <vdalhart@xxxxxxxxxxxxx>
To: <ARSCLIST@xxxxxxxxxxxxxxxx>
Sent: Wednesday, June 17, 2009 11:59 PM
Subject: Re: [ARSCLIST] Virgin Sacrifice

I certainly qualify as an old man. I'm even older than Mike! But
even if I was willing to
download the music only I could not obtain the artist and the music I
want. It is only available
from old 78s. Most of it has never been released on CD or even LP.
So where does that leave me?
Either look for the old records or forget the music I want to hear?
So my choice is looking for
the records. And I enjoy it. I have met so many interesting people
and traveled across the
entire US looking for the music. I can't travel anymore due to health
problems but I still check
out several mail order lists and on line listings. I feel I am doubly
blessed. I get to hear the
music and I also have the original artifact that the music was issued
on. You have to be a record
collector (of any age) to know what it is like. Jack

----- Original Message -----
From: "Tom Fine" <tflists@xxxxxxxxxxxxxxxxxxx>
To: <ARSCLIST@xxxxxxxxxxxxxxxx>
Sent: Wednesday, June 17, 2009 6:41 AM
Subject: Re: [ARSCLIST] Virgin Sacrifice

Hi Mike:

No offense, but your attitude about downloads shows your age. There
are definitely a few "kids"
who want a houseful of dusty objects, but I respect just as much the
person who is collecting the
MUSIC, not the THING, in which case an iPod full of downloads is more
MUSIC in a more convenient
place than ever existed before. Now if only that music were in full
CD quality or better instead
of lossy-compressed ...

Since we can't take either one with us, it might be more merciful on
those we leave behind to
leave a single computer drive and iPod vs. a house of moldy things to
be disposed of. On the
other hand, if it's a house full of minty Black Pattys, Shaded Dogs
and McIntosh amplifiers,
perhaps the survivors will forgive the clutter as the cash rolls in
from selling it! But this
isn't usually the case. I think there are guys on this list who
appraise giant piles of shellac
and vinyl all the time and will report how worthless many acres of
this stuff is, so mainly it's
a burden on those left behind unless they share the love of the stuff
or own a carting business.

As for used bookstores, except for my strange inclination to collect
first edition hardcovers of
certain mainstream books about politics and journalism, I've had much
better luck and saved tons
of money using AbeBooks. So once again, the Internet wins. Aside from
books about music and the
record business, I've stopped buying altogether due to lack of space.
Library trumps wallet

-- Tom Fine

----- Original Message -----
From: "Michael Biel" <mbiel@xxxxxxxxx>
To: <ARSCLIST@xxxxxxxxxxxxxxxx>
Sent: Wednesday, June 17, 2009 1:30 AM
Subject: Re: [ARSCLIST] Virgin Sacrifice

From: "Tom Fine" <tflists@xxxxxxxxxxxxxxxxxxx>
Maybe it's an age thing, but I can't see any reason for physical
for music since Amazon took off. I haven't bought a book or CD from
physical store in probably a decade now.

To a certain extent that is similar to me, especially when I am home
Kentucky, far, far away from any record stores with just a small
non-discount bookstore in town. Constantly when something is
in these forums or I otherwise hear about something available, I
on Amazon and a couple of other places and ZIP, I click and buy. The
problem is not being able to combine shipping in the marketplace
which raises the price considerably when buying several things that
same vendor offers.

But that being said, when visiting Leah in NYC we always try to drop
into Acadamy Records, Book-Off, Strand Books, and a neat remainder
place we found in the Village, and we usually leave these places with
too many things to carry, so I usually drive there. Then there are
special events like the semi- and annual sales at places like the
ARChive of Contemporary Music that Leah and I hit this afternoon. We
crawled out with almost 100 one dollar LPs, almost 50 two dollar
LaserDiscs, and some 50 cent 78s including two Chaillapin Opera
Jazz at the Philharmonic Vol 4 on Disc album 504, Artie Shaw plays
Porter on Musicraft album S2, King Cole Trio Capitol album B8 with an
extra disc, and Tetrazzini on the vinyl Heritage Series 15-0001, and
some other stuff including two Hoffnung books. (The sale continues
Sunday, so if you're in the NYC area you might want to check it out
http://www.arcmusic.org ) And then there's the Jazz Record Bash on
and Sat, and everybody will be there. And then there's the Antique
Phonograph and Record shop in South Jersey we went to last Saturday
while in the Phila area and got a couple dozen 78s there.

There is nothing like being able to handle and inspect the records,
including the ones you don't buy, which can't be done on the internet
nor in mail auctions. While 78 collectors have been using mail
since the 1930s, most of these collectors have also gone thru tens of
thousands of records in stores, so they get to know what the details
in the actual records. I know I have looked at more than a million
records over the years. This is an important learning experience for
collectors. When the rock collectors started having access to mail
auctions in the late 70s in Goldmine and other magazines like it, I
noticed that the majority of rock collectors had never really gone
piles of thousands of records, and usually knew nothing about the
records themselves. Reading the articles in these rock collector
magazines, looking at what they mistakenly called "discographies",
the auction lists themselves, showed how ignorant these rock
were, even the "experts". All too often they had never looked at any
records that were not already in their collection. They didn't know
labels, pressing plant styles, matrix numbers, etc. Obvious
were snapped up like the real things by them if they ventured out to
record show.

And downloads trump even that because not only are they convenient,
they are near-instant gratification. Now if only full 44.1/16-bit
downloads would go down to 99 cents or less per song and be
commonplace, we'd finally be at a reasonable "new paradigm."

So if these "collectors" now stick to just downloading things, that might leave the real artifacts for us real collectors. I'm not interested in paying for vapor, which is all a download is. We did
some free streams as source for some of the music in Leah's
because most of the music was added while I was in New York and my
records were in Kentucky. I do buy plenty of CD reissues of 78s, so
am not a purist who insists on having the 78 even if it is impossibly
rare. But if the reissue is on a CD or a download, I will go for the
CD. You are not a record collector if you go for the download. (In
Leah's documentary, Kurt Nauck discusses the difference between music
lovers who just want to listen to the music, and record collectors
want the record and also might listen to the record.)

Mike Biel mbiel@xxxxxxxxx

[Subject index] [Index for current month] [Table of Contents]