Perhaps you've heard this story by now, but it's awesome even if you have: West Coast record chain Amoeba Music is digitizing their rarest and out-of-print stock to sell online. From Variety:
Many of the LPs have been getting remastering upgrades from the original vinyl and shellac sources. Currently, there are only about 1,000 titles for sale, but Amoeba is adding 10 or 15 more every day.
Some Vinyl Vaults artists are readily familiar, and in some cases Amoeba's source material emanates from its owners' own collections. Some of Prinz's rare Louis Armstrong 78s were digitized and are being sold as downloads, while [Amoeba co-owner Marc] Weinstein's prized collection of 144 Sun Ra albums has also been ripped.
Best of all, for those concerned about royalties going in the right place, the digital sale rights have been cleared wherever possible - and for those artists so obscure that no proper catalogue ownership can be determined, profits from the sale of those records will go into an escrow account, where any claimants can properly earn what's theirs.
Now, certainly The Second Disc's coverage isn't usually focused on artists you've never heard of - or, if you haven't, they're at least catalogues that are owned by a major label. But I for one certainly applaud Amoeba's efforts.
It's easy to dispute the claim that the ease of Internet distribution (whether legal or not) has made it easy to find everything you want to add to your music library. How many single-only remixes or hard-to-find edits can you think of that still haven't made it past your old vinyl, or at the very least, out-of-print maxi-CD singles? I can think of plenty - and if it's going to take outside interests like a major record store to loose those chains around the songs we want to hear, have at it!
And what of you, dear reader? What great tracks do you wish your local indies would digitize for your consumption? Let us know in the comments!
On the one hand, I think this is a good thing. As a life-long avid collector of music, nothing drives me more crazy than a corporate entity that keeps music unavailable simply because they can. For obscure, public domain music, this is truly a godsend. I'd rather have a digital copy of a music file than not have it at all.
But I don't think that copyright holders are going to ignore this if music starts to appear on the market for which they still retain the rights. They'll fight tooth & nail to retain their interests, even if they have no forseeable plans to do anything with the music themselves. It could get very expensive for Amoeba and anyone else that follows their lead.
Ron, that might be the case if Amoeba were just doing what bootleggers do, selling copies of recordings that they but almost no one else seems to have a copy of and not worrying about who may own the copyrights.* But that doesn't seem to be the intent of Amoeba, based on this paragraph:
"Best of all, for those concerned about royalties going in the right place, the digital sale rights have been cleared wherever possible – and for those artists so obscure that no proper catalogue ownership can be determined, profits from the sale of those records will go into an escrow account, where any claimants can properly earn what’s theirs."
So if copyright holders do fight tooth and nail to retain their interests, I suspect Amoeba's not going to fight back. They'll either just stop selling the music and turn over the (no doubt small) amount of money they have gotten for sales of that album, or they'll try to work some deal. Amoeba is primarily in the physical retail business with three awesome stores and a great website, and I can't see them putting that at risk it if someone is (unreasonably, IMO) claiming they are getting screwed by the company, perhaps claiming that teh royalties offered are not enough.
And as an attorney who has spent time in front of judges, assuming I am right about Amoeba's likely actions if and when a cease-and-desist letter arrives, I can't see any judge deciding that, despite the fact that they tried to find the rights holder and when that failed they escrowed the money, they are liable for anything more than the amount they received for the sales of that particular title (and how much are they really raking in but offering a $1.49 MP3 of a single by, say, Norridge Mayhams and his Barbecue Boys?), so they would essentially be out just the time it took them to digitize it.
I love this idea by Amoeba!
* I'm not being judgmental about bootleggers--I have plenty of great ones in my collection. But I know the artists aren't seeing a dime from them. Which is part of the reason why nearly all of my bootlegs are of artists whose entire commercially-released catalogue I already own.
Thanks for your thoughtful response, Steve. It sounds like you and I have a similar philosphy regarding bootlegs; almost all of those in my collection are from artists that I've bought all their "legitimate" releases as well, sometimes in several formats and versions.
I hope you're right, but I recall how the RIAA sought - and received from the courts - the right to collect punitive damages in the past (c.f. the Napster Wars of 2001), in excess of their actual damages. As you know, the principle of protecting one's intellectual property rights against any and all unauthorized commercial use sometimes leads both the legal profession and the courts to do some strange things.
But, bottom line, I too would like to see Amoeba's initiative succeed, and to see other libraries of public domain or grey market recordings return to availability.
It's a fair point you make about the RIAA's reaction to the original Napster and to the people sharing on its platform, but (and I hope I am right here) that was the RIAA using a sledgehammer to kill a flea _during a swarm of fleas that was relentlessly attacking_. Here it would be using a sledgehammer to kill a flea that, well, I can't think of anything that quite makes sense, but say a flea that is providing some benefit to some of its "victims" and trying to figure out a way to provide a benefit to its other "victims." A symbiotic flea!
Okay, bad analogy, but while I thought the RIAA went overboard there in many of their specific lawsuits, you could at least somewhat understand why they were flipping out like that; virtually the entire world was stealing music. Here they shouldn't be so upset, especially considering the escrowed funds. That said, I wouldn't be surprised to see a few IP attorneys being instructed by their clients to go after them with both guns blazing. Hopefully in those cases Amoeba simply says, "Uncle" and moves on without any real harm done. (I wouldn't be surprised if for a large percentage of them they get no sales whatsoever, actually!)
By the way, I have no idea how Wolfgang's Vault is able to stream and sell all the great shows they do. Do they pay royalties to the artists? I would guess so, but I'm not sure. Maybe that's a case of Bill Wolfgang Graham's heirs saying, "We own the tapes, and we can both make some money on them, or else no one will." Because I think both the band and Graham own a copyright; the band to the songs, and Graham to the recordings. But I'm not a copyright lawyer, and I'm not really certain.
Not sure how Wolfgang's Vault gets away with it. It was common knowledge back in the day that Graham and his people were taping shows. In any case, it doesn't seem that any of the hundreds of artists in the Vault have objected or sued, so it would appear that they don't have a strong case.
As a follow-up, here's what Amoeba's FAQ says:
"I am the Copyright Holder of a Vinyl Vaults Title. How Should I Notify Amoeba? Will I be Compensated?
We have tracked down as many of the rights holders as we could find but, unfortunately, there have been some artists, song writers, publishers and/or record companies or their respective heirs and successors that we have not been able to find. We ask you while you are browsing the Vinyl Vault, if you are a rights holder to a master recording and/or composition in the Vinyl Vault or know of someone who is, please contact us at firstname.lastname@example.org. We would like to work out agreements with all such rights holders for the inclusion of such material in the Vinyl Vault so that we can continue to make such tracks available to the music lovers of the world."
I think they have protected themselves quite well.
Perhaps that does constitute due diligence after all.
mark schlesinger says
I doubt most of this stuff will sell, being ripped from ancient 78s. Seems a lot of this stuff is already available from reissue labels like JSP, Ace, Proper, Rhino, etc.-often with great sound. Still, could fill in some gaps, with millions of tunes being recorded over 100+ years.
As far as wanted titles-the first thing that comes to mind is Tommy Boyce & Bobby Hart "It's All Happening On The Inside" LP circa 1969 on the A&M label. I'd love a download or CD of this record-GREAT!
Joe Marchese says
A complete Boyce and Hart on A&M is high up on my list, too, Mark!
"It's All Happening," "Test Patterns," and "I Wonder What She's Doing" were all released in July 2012 on SHM-CD in Japan. All 3 appear to still be available from either CDJapan or Dusty Groove.
My prediction: They'll eventually be sued out of existence. You're still horribly abusing the notion of copyright by offering this service (except for titles where it's been cleared), because it's not simply about setting aside a certain sum.
1) It's about the owner's right to set their own price.
There are record labels and artists who deliberately pull an item off the market temporarily because they know that it will drive up demand and may (paradoxically) result in more sales over the long-term. That's not as odd as one might think - an item that's frequently requested by customers, but generally unavailable may be ordered and put on shelves in greater amounts when it suddenly becomes available. This is the Disney technique for limited-time-only DVD releases of classic films which would certainly sell well. Scarcity drives up demand.
2) It's about the owner's right to distribute music in any manner they choose.
I know of one band - who regained control of their catalog (many here would know them) - only to lose a potential distribution deal due to bootleggers making their product widely available (with no benefit to the band, ever.) Again, paradoxically, the band should have greatly benefited from control of their own product. Parties who took "distribution" and production into their own hands, made things worse for the band than if the label that originally held the rights had kept paying them a measly fraction of the sales revenue. Some parties, like Metallica or Kid Rock or the Beatles, chose not to have their music distributed digitally. Isn't this their right?
3) It's about their right to decide whether they even want something on the market.
He may not be the world's most likable guy, but apparently Dave Clark isn't real interest in releases of his catalog, or he wants more money than anyone will pay (see #1), or the artist is embarrassed by the material. It pained Gil Scott-Heron that he recorded a rather thoughtless song early in his career called "The Subject Was Faggots," and that - because he did not control his rights - he could not remove it from public circulation. Some people find the lord, and don't want their devil music out there anymore. Who knows? But the songs they created are their creations alone (or those of freely chosen assignees, in most cases) - they don't belong to anyone else.
I'm not saying I don't find this Amoeba thing a good idea and a useful resource, but legally they are not absolved from this by setting money aside, or paying it when they can find the rightful owner. If I bootleged (say) recordings of the Beatles' fan club releases and advertised it, I'd be in huge trouble - regardless of whether I'd put money aside.
steveinphilly is just plain wrong. You can be fined for thousands of times more than the money you received. It's for the purpose of deterrence. It's applied to an enormous number of circumstances. If Amoeba were charging 1¢ for a dozen tracks, and I owned one of those tracks and chose to fight their unlicensed use of my track, that the most I'd be able to collect would be 1/12 of a penny? That's absurd.
Eventually, one of the many thousands of artists they are (essentially) bootleg is going to sue them, perhaps as part of a group.
I would respectfully disagree with a number of your points, at least with respect to the likelihood of Amoeba being sued out of existence. Among them:
Point 1) There is no indication that, to cite my prior example, Norridge Mayhams and his Barbecue Boys pulled their 45 from the market from 1957 to present to try to gain some strategic advantage by increasing demand. The vast, vast majority of the artists in the "Vinyl Vaults" are unknowns, and there is _no_ commercial demand for the material.
Point 2) Sure it's their right. But there are no Metallicas, Kid Rocks or Beatles, or anyone who has sold probably 1% of the least of them, in the group. And as a result, there's no real damages being suffered by the artists, at least that can be quantified. Even the Beatles would have had to prove some level of damages had their label, contrary to their wishes, offered digital downloads of their materials. (That is, provided that statutory damages did not apply, which I discuss below.)
Point 3) Again, yes it is their right (assuming they control the rights). But that wish on the part of a band doesn't translate into damages.
Re points 2 and 3, in many cases the label, and not the band, controls the rights, so in those cases Amoeba would need to worry about being sued by the labels and not the bands. And, unlike in the RIAA cases against individuals, several of which are still going, the labels are unlikely to sue Amoeba out of existence when Amoeba is selling a sizable amount of new product of those same labels. Not to mention the negative press that would result from suing Amoeba out of existence. If I set up my own Vinyl Vault, the RIAA or the labels would quite likely sue me, and I would be fighting the same battle that those poor Kazaa/Napster users are fighting. But I just don't see it happening to Amoeba.
But even if they do get sued....does setting aside the royalties and offering to pay them if and when the copyright holders are found absolve Amoeba of liability? No. But it is a good fact, and one that a judge would consider. Under the statute addressing statutory damages for copyright infringement, a court may award damages "in a sum of not less than $750 or more than $30,000 as the court considers just." So there is a lot of leeway that the court is given. Further, if a song is merely offered for sale but not a single sale is made (or free download given), there is not an act of infringement; many of these artists may find that their statutory damages are $0. Congratulations on winning. But you get nothing for it.
Then there is a fair use defense--if copyrighted material is copied "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research", it is not infringement. Amoeba would likely argue that these are being made available for these purposes, since these are generally unavailable elsewhere. In deciding whether something is fair use, a court may consider, "the effect of the use upon the potential market for or value of the copyrighted work". In a day and age where even the top-selling album in the country in a given week sells, what, sometimes as low as 20,000 copies nationwide? Less? In this day and age, what is the effect on the potential value of a 45 that has been out of print for 60 years? A court would consider that.
And did find infringement of an actual copyright, Amoeba would likely claim that the infringement was not intentional. After all, they did try to find copyright holders, and if they were diligent in trying to do so but were unsuccessful, it's not unreasonable to assume that there is no longer a copyright, Copyrights lapse all the time if maintenance fees aren't paid. See, e.g., "It's a Wonderful Life." The only thing still copyrighted there are the songs; you could show it on your own TV station if you could cut out the music and there is nothing that NBC could do to stop you from running it for the 24 hours surrounding their annual showing of it. I would say there is a great likelihood that many of these albums are no longer copyrighted.
Finally, you wrote, "You can be fined for thousands of times more than the money you received. It’s for the purpose of deterrence." You could, and that is certainly one of the reasons, and people have been sued that much. But I have never heard of a case where that has happened in a situation anything like this case. The RIAA's suits have been against college kids, poor people, etc. who didn't hire good lawyers and come up with valid defenses. Read the Wikipedia entry on Sony BMG v. Tenenbaum about the court's description of the defense as being "truly chaotic." _If_ tiny record labels or individual musicians or bands sued Amoeba, "truly chaotic" would be more likely used to describe the plaintiff's counsel, I imagine.
For all of those reasons (and probably a lot more that I didn't think of, as I really don't do any copyright work in my law practice), I strongly disagree with your prediction that Amoeba will be sued out of existence. Now if they start selling Bruce Springsteen and Taylor Swift b-sides, I may change my view. But not with what they are selling. I think they are walking on quite safe ground here.