Vinyl Vault lights fuse on copyright time bomb—but is it armed?

Amoeba Records' new out-of-print music service proves a deep knowledge of the industry it cherishes. But the much-loved music store's archive of obscure classics is also a potential time bomb, ticking away inside a bizarre legal tangle that few in the business are inclined to unravel.

Photo: Masayoshi Sekimura (cc)

Amoeba Records' new out-of-print music service, Vinyl Vaults, proves a deep knowledge of the industry it cherishes. But the much-loved music store's archive of obscure classics is also a potential time bomb, ticking away inside a bizarre legal tangle that few in the business are inclined to unravel.

Amoeba is the real deal, a California record-store chain with three massive retail outlets in an age of digital downloads. It has 10,000, 19,000, and 28,000 square feet in Berkeley, San Francisco, and Hollywood. Its online efforts are more modest, launched in 2012 after a bafflingly expensive $11 million, 6-year in-house project. It offers just 600,000 items, Amoeba told Variety, because its reporting system isn't robust enough for the major labels.

Sales are steady, though, in an age when it competitors are failing. And now the chain is digitizing LPs, 45s, and 78s of forgotten and undervalued music.

It sells tracks as MP3s for $0.78, in Apple Lossless (ALAC in MPEG4's M4A file format) for $1.18, and WAV files for $1.58. There's a slight discount for buying albums. Amoeba says in its FAQ that it tried to run down the rightsholders for these recordings. Where it can't, however, it posts the music anyway, and said to Variety it holds fees for that music in escrow.

There's a problem here. There's no such provision in copyright law for such an exemption, and Amoeba could find itself in real trouble, no matter its goodwill and above-board behavior. This doesn't mean that current copyright law is reasonable on this score; it is not. Rather, that it's fairly clear that what Amoeba is doing isn't permitted.

There's no active copyright police trolling for violations: rightsholders would have to discover Amoeba's work and decide to act, whether to claim escrow fees or file suit. I hoped to ask the chain about the legal advice it had received, but at this writing haven't received a response.

Music published in the United States has two sets of rights attached: the composition itself, which is under a straightforward copyright, and the audio recording, protected separately by a "phonogram" right. Performers negotiate through contract their rights in a work, as a variety of law prohibits reproductions of performances without permission of the artists. (Some countries also have moral rights separate from intellectual property ones, which give irrecoverable vetoes to artists to keep their name on a work or off it, and to prevent their material from being used in a way to derogate them or their work.)

Amoeba runs into trouble in both regards. Compositions published in the United States before 1923 are in the public domain. You'll find that most compositions were put into print because audio recording rights were so fuzzy. Composers and music houses made money selling sheet music to the oceans of home musicians of the day who performed for family and their own enjoyment. (Has that day come back? It seems increasingly so!)

But after 1923, as with books, almost every composition remains either under copyright until 2019 or later, or difficult to track down affirmative knowledge that it's protected. Compositions, books, and other kinds of media between 1923 and 1951 were under copyright's aegis for 28 years and required a renewal in writing to extend the expiration for another 28 years. If the first extension was missed, later updates to copyright law don't protect lapsed work. Some of what Amoeba has digitized may fall into that category. But any work from that time that had a renewal was swept into a 1976 copyright law and then the later 1998 "Sonny Bono" extension. Works from 1923 expire no earlier than 2019 if renewed.

The legal nature of phonogram rights is particularly bizarre. In the United States, no federal law covered audio recordings until 1972. Instead, common law and state law governed whether an audio recording could be duplicated, and such rights would never expire. In fact, all recordings from the dawn of sound in the 1870s through early February 1972 remain under such murky law until 2067! On February 15, 2067, all pre-1972 recordings are federalized for a split second and then pushed into the public domain. (I wrote about this at BoingBoing in relation to the Library of Congress's extensive historical holdings, much of them now digitized, that the library cannot release without permission.)

For the kind of material that Amoeba discusses, it's likely virtually all of it remains under protection until 2067. There are two odd footnotes to this, as well. First, some copyright scholars maintain that the pre-1972 miasma of laws indicates that the party that possesses the master recordings also has the phonogram right to duplicate them unless addressed in a recording contract — and maybe even despite contract terms. (Amoeba's FAQ references those holding rights to either compositions or master recordings.) You can see how that might freak record labels out. They wonder if an album they've sold in the millions since the 1950s or 1960s could actually belong to someone else who holds the master, either to recover past royalties or for future sales.

The second quirk is that because of mergers, acquisitions, and bankruptcies of labels dating back at least to 1900, modern record labels may have the phonogram rights to a lot of out-of-print albums and not even realize it, until there's money to be made or to use as a weapon in negotiation. For instance, RCA was originally part of GE, and owned NBC. RCA bought Victor in 1929; GE divested RCA in 1930, and bought it back in 1986 to get NBC (later sold to Comcast). It spun off RCA's catalog to Bertelsmann, which ultimately sold all its music rights to Sony Music Entertainment. You can't use a Victor recording without Sony's permission.

Some of that history is easy to trace, and I expect Amoeba went directly to the source for well-known ancient labels, like Victor, OKeh, and Columbia (also owned by Sony). Edison's record label shut down in 1929 and masters were sold to Henry Ford, who wanted to protect industrial history. The masters are with the National Park Service now, but the ownership of the rights is cloudy.

The small label Dust to Digital re-releases 78rpm and other old recordings in some incredible curated compilations, but its founder tells me it has been assiduous in tracking down ownership. That was particularly arduous in producing Opika Pende, which had 100 recordings from across Africa from 1909 to the 1970s that had never been issued since their original date.

Where does this leave Amoeba? It seems to be standing on the notion that orphaned works are up for grabs so long as you pay out the owners' cut later when it's claimed. Orphaned works are creations for which no clear knowledge of ownership exists. But there's no provision in U.S. law for how to deal with orphaned works of any kind, music or otherwise. A proposal from 2006 was languishing at the Copyright Office, as it requires Congress to take it up (ha) to establish a clear procedure in law. It's just started moving along again, with the public comment period closing February 4th.

The Copyright Office's most recent statement (PDF) about potential legislation back in October 2012 sums up the issues neatly, including Amoeba's potential problems:

Under current law, anyone who uses an orphan work without permission runs the risk that the copyright owner(s) may bring an infringement lawsuit for substantial damages, attorneys’ fees, and/or injunctive relief unless a specific exception or limitation to copyright applies.

In such a situation, a productive and beneficial use of the work may be inhibited—not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license—but merely because the user cannot identify and/or locate the owner and therefore cannot determine whether, or under what conditions, he or she may make use of the work.

This outcome is difficult if not impossible to reconcile with the objectives of the copyright system and may unduly restrict access to millions of works that might otherwise be available to the public (e.g., for use in research, education, mainstream books, or documentary films).

The legislative proposal suggests that anyone who engages in a good-faith effort to find the rightsholders for a given work (of any kind) would be released from harm should the owners later turn up and threaten a lawsuit. Instead, the party who used the orphaned work would have to then pay a fee that is customary and in line with other work of the same sort. Some worry this law would only help large media companies who could afford both the searching and any fees required later, but I think it has a broader applicability as it eliminates the threat of lawsuit and actual lawsuits, and only allows reasonable fees. (For essentially non-commercial uses, no fee would be owed as long as the work was pulled down if requested, kind of like the safe-harbor provision in the odious Digital Millenium Copyright Act, which prevents liability to hosts of content as long as they follow the form of a take-down notice by purported copyright holders.)

There's a model for this, which reared its head two weeks ago in the case of Jonathan Coulton, Glee, and "Baby Got Back." The compulsory rights model for music licensing, as defined in the U.S., mandates that any composition, once publicly distributed (for sale, given away, or otherwise), can be covered by another artist with a simple notice and a standard fee per copy sold or distributed. For physical recordings and digital downloads, the rate is 9.1¢ for songs up to five minutes and 1.75¢ for every minute (or fraction) thereafter. The original composer can't prevent covers; the artist performing the cover creates a right in the resulting audio recording, but has no copyright in composition, and thus can't protect an arrangement or interpretation.

(That bit Coulton, as Glee's plagiarism of his arrangement is essentially legal, even though Glee, as a TV show, had to obtain synchronization and other rights to distribute its version of "Baby Got Back." But Glee may have used Coulton's actual audio, and if so, Coulton can pursue action on the violation of his phonogram rights.)

Orphaned rights rules can have unintended consequences, because a "good-faith" effort can be subject to interpretation. A bill in the UK in 2010 would have defined an orphan work so broadly that a photograph disseminated in any form, even posted on a personal Web site or emailed to a friend, could be stripped of its identifying characteristics and used without permission by any media firm or private party. The bill lacked strong good-faith provisions and penalties. The bill would have required a standard payment in what would become a form of compulsory use. Proposed rates would be low compared to actual licensing fees. Photographers and others balked and the provision was removed in 2010, but appears to be a problem again this year.

Google in its book-scanning effort became mired in this because it mixed together four categories of books: those to which publishers acceded to include in its scanning or posting efforts, copyrighted works to which the owners were known and didn't give permission, public domain works, and orphaned works. Orphaned works were the least of their problems, really, but its attempted settlement with authors' and publishers' associations would have anointed Google as the sole entity allowed to offer orphaned works for sale, rather than establish a broad principle that any private or non-profit group could follow. Not cool, Google. (The associations also don't speak for all authors and publishers, but were essentially claiming that right.)

Nonetheless, copyright in the United States has already locked up so much material intended to assist in the progress of science and the useful arts beyond the intended brief monopoly that ignoring orphaned works and allowing the status quo to persist would be a colossal mistake. Amoeba's efforts may yield it only hundreds of thousands of dollars, and it's clearly partly a labor of love. But one vindictive rightsholder could make life exceedingly unpleasant for the record-store chain, and pursue maximum statutory damages regardless of all of Amoeba's good faith.

Dust to Digital, the re-release label mentioned earlier, is starting up a non-profit to rescue the massive amount of music locked up in out-of-print 78rpm discs and older recordings. The firm has equipment placed with collectors to let them slowly digitize their discs. But until the law is clarified about orphan works and the risks that ensue, Amoeba may have stepped forward to take the heat, while others linger behind seeking clarity.

Published 8:32 am Mon, Feb 4, 2013

About the Author

Glenn Fleishman, @glennf, is the editor and publisher of The Magazine, a fortnightly electronic periodical for curious people with a technical bent. Glenn hosts The New Disruptors, a podcast about connecting creators and makers to their audiences, and writes as “G.F.” at the Economist's Babbage blog. He is a regular panel member on the geeky media podcast The Incomparable. In October 2012, Glenn won Jeopardy! twice.

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33 Responses to “Vinyl Vault lights fuse on copyright time bomb—but is it armed?”

  1. Sam Ley says:

    I have a lot of respect for Amoeba for taking this risk, it really is a huge gamble. The whole thing really hinges on rightsholders not ever appearing, or appearing in the form of an old family estate owner who is a nice guy and is just glad that grandma’s music is getting out there again and is willing to work out a reasonable royalty deal. That is probably true in 99% of the cases, but it just takes 1 over-zealous estate owner (probably a legal trust with dial-a-lawyers, not an individual) to flip shit and tear the whole thing apart.

    Either way, you can be sure that their efforts to digitize and release this old music is spreading the seeds of our music history far and wide to ensure that when (if) we resolve this copyright mess, we haven’t lost our cultural heritage in the meantime.

    Even if it doesn’t last, I’d encourage everyone to browse their collection, pick up some unique tracks that they enjoy in a lossless format, and help the catalog live on in personal collections.

    In Timbuktu right now, militants have been destroying libraries filled with priceless cultural artifacts, and this isn’t the first time. The only way the community has been able to hold onto their history through all the turmoil over the years is having family libraries, or small family coalitions who maintain distributed libraries on their own, separate from the main public libraries, to firewall against future destruction. That is a powerful lesson to take in a time when corporate interests are raiding, or suppressing through inaction, our cultural heritage.

  2. Gyrofrog says:

    Didn’t something happen in the 1970s where works that did not have a copyright notice, lost their copyright and fell into public domain? (e.g. the film Charade; any number of cartoons that now appear in cheap compilations)  My assumption was that Vinyl Vault had gathered recordings that had been affected by this, although on second thought, they’re probably already gathered at archive.org.

    • Sam Ley says:

      I don’t think much was covered under that, particularly for audio recordings which still seem plagued by confusing rights issues, even for very old works. Read up on the copyright problems faced by the film “Sita Sings the Blues” when trying to use works by Annette Hanshaw from the 20′s that were believed to be public domain (but due to the complex web that is copyright law – were not).

    • No, they’re working from older material, generally. There are a couple of ugly periods in copyright and phonogram rights where if you didn’t have the right symbol or notice, it fell into the public domain. But they were brief and only affected a handful of popular works.

      78 rpm stuff is almost surely 100% under the common/state law sets of rights until 2067.

    • David says:

      I wish I knew more about copyright law, but sometimes a work falls through the cracks when the entity that owns the work fails to resubmit paperwork to the Gov like it should. “It’s A Wonderful Life” and “The Wizard of Oz” both fell into the public domain when the studios that owned them failed to file paperwork. (It’s one reason why they got played so much on broadcast TV.) Maybe it was a one time thing that copyright holders had to do or it’s an ongoing thing. Not sure.

      •  There’s been no paperwork to file since 1978 when the requirement of registration was removed. The only printed published works (including compositions) to go into the public domain since after 1922 are one that are donated to the public domain, or those from 1923 to 1951 for which a renewal wasn’t filed 28 years later (up until 1979 when the 1978 copyright act officially took effect). Everything else remains protected, along with a lot of weird side cases like unpublished manuscripts and works for hire and so forth.

  3. Mike Hathaway says:

    I’m trying to figure out if aomeba is smart or poking a lion.  If they are making arrangements with the big labels that only leaves the small no longer around labels and privately owned records (think vanity press books for records).  If the big labels are dealt with, then it just leaves someone coming out of the wood work.  Not only do they have to find the money to sue amoeba they have to prove a chain of custody for ownership, thats not simple.  If Amoeba honestly tried finding the owner, chances of someone else proving their ownership is going to be near impossible.  Those royalties held in trust, suddenly give amoeba a future profit stream way way in the future.  As the copyrights die off if no one has come forward they get the money, the chances of anyone coming forward at that point are zilch.

    • Interesting question. My gut feeling from research is that it’s likely that the stuff for which you can’t find the current owner may be a complete dead end.

      The reason Amoeba calls out master recordings is that if some collector owns 1,000 master records and wants to try out the law about phonogram rights, he or she might try it, or they might just enjoy some cash.

      The trouble with current law is the that price for each violation is so high, regardless of whether you make any money off the project, that Amoeba could be sued for millions of dollars for selling $50 of music. That’s the uncertainty. It’s unlikely, but it’s a huge risk.

      • Andrew Singleton says:

        Surprised that the RIAA hasn’t gone after this store to be honest. Hell they sue teenagers, vets, and God knows who else for hundreds of thousands for a handful of songs and here’s a business that, while putting the money in good faith someone will step forward going ‘I own the rights’ on questionable works it just seems like they’re painting a target on their heads to get their metaphorical junk sued off.

        However I want to go to their store(s) and buy from them, support the digitizing and preserving of these old beasts before time erodes the materials down to uselessness.

        • The RIAA doesn’t generally represent the concept of audio copyrights. Rather, it represents specific members. It’s possible the RIAA has a study group examining what Amoeba has put up and is matching works with its members to see if there’s stuff going up that’s a violation.

          But the RIAA in recent years shifted to making changes in laws to cut Internet service to repeat violators in extra-judicial processes.

          • Andrew Singleton says:

            And yet it says so right in their name Recording Industry Association. This sort of analog business is what you’d think they would actually be /GOOD/ at.

            Hell if nothing else you’d think they’d want to get some good PR by congratulating these guys for doing the ‘right’ thing by both opening up previously thought closed revenue streams and holding the money for any rights holders to step forward.

            God and FSM both know that they’ve needed some kind of good press.

  4. Slartibartfatsdomino says:

    Does anyone think that some of the problems with our IP law can be resolved through the Federal courts over constitutional issues? The IP Clause of the Constitution reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Seems to me that the cause of promoting science and useful arts and the notion of “limited” have both been lost, not to mention the fact that much of the time actual “Authors and Inventors” are not, in fact, granted “exclusive Right.” 

  5. oasisob1 says:

    Is this a beginning, or another step in a digital civil rights movement?

  6. James Penrose says:

    The Patent Trolls who buy the rights to sue on patents are going to be sniffing around this place like roaches.  Sooner oir later one of them will find a rights owner and start the lawsuit mill going I fear.

    Sooner or later, one of them or the RIAA will try the novel theory that anyone who knowingly *bought* any of those downloads is also violating copyright and start going after customer lists and then it will get *really* ugly as the damage awards are so out of proportion to the “loss”.

    • Copyright law may be a pain, but there’s no judge who would accept a case that someone purchasing this music would be infringing as Amoeba Records asserts they have the right to sell it. The onus lays on Amoeba, although if pressed might have to contact the buyers of specific songs and ask them to delete them, but there wouldn’t be any enforcement possible.

      Further, there’s just not enough sure money in this to press Amoeba for firms to acquire phonogram or composers’ rights. The danger Amoeba faces is an existing rightsholder who discovers the connection and decides to file suit. Prospectively, it seems much less likely.

      • Andrew Singleton says:

        ‘just not enough money to sue for’ Tell that to the twelve year old that got sued for… well sued period.

        The same head hunter ‘make an example’ logic would follow here wouldn’t it? Then again the ‘make an example’ logic didn’t work then, and unlike random freeloader freddie these people are making efforts, and using those efforts in their advertising pitch, to try leaving money for if/when copyright holders start showing up.

        So maybe the RIAA /IS/ learning.

        Patent trolls though. I doubt they’ll ever learn. Kinda surprised folk haven’t come out of the wood works. Then again they’re after low hanging fruit, easy meat. Nobody wants to be the first to take Aomeba to court and find out that they’re about to get their heads stomped in.

  7. Steve Taylor says:

    Thank you for writing something so comprehensive and detailed – it’s a delight to find something so thorough on an internet drowning in bite sized nuggets of information. Good work.

  8. Stone says:

    I see a lot of similarities to computer games, as well. Many of the media of earlier-generation games have already decayed enough to never be readable again, quite a number of which have never been preserved. Of those that have been preserved digitally, the archives are all illegal to distribute — and not just due to Super Mario (which Nintendo clearly doesn’t want to see), but also due to a lot of orphaned works (plus one could argue even many of Nintendo’s previous offerings are now orphaned and threatened by media decay). 

    If/when these works enter the public domain, there is not going to be any media they can be copied from. There will be archives of huge swathes of history made by people who, like amoeba, skirted the law and risked the big stick in order to preserve an important part of our culture for those who come after us. It’s sad.

  9. Pat R x 2 says:

    A secondary topic in this article, I know (and I apologise), but I am still having problems with the Coulton case. Everyone seems to be  treating it as a grey area in copyright law, and I can’t see that at all. The music is completely different – it is a new composition to existing lyrics, not an arrangement or a “cover”. 

    If he got permission to use the lyrics from Sir Mix-A-Lot, it’s not materially different from two different composers setting the same poem in the art song world (which is a common occurrence): the lyrics are copyrighted by the author and the music is copyrighted by the composers, and neither finished song is considered a derivative of the other, only of the poem. It’s just that one of the composers in this case is also the poet.

    That’s the thing, though: in a derivative work, copyright for substantive changes (in this case, the music in its entirety) is vested in the author of those changes. This is according to the U.S. Copyright Office – I’m not discussing my own country’s laws (Canada), but they’re not substantially different in this regard. Up here, this separation can lead to things like the Gershwin songbook being in copyright because Ira’s lyrics are still under copyright, but Gershwin’s solo piano arrangements of the songs being PD because George’s music is out of copyright. (They are considered derivative works of George’s own music, not of Ira’s lyrics.)

    If Coulton got permission from Sir Mix-A-Lot to use the lyrics, I think he has a solid case to bring against Fox for failure to pay royalties. It’s directly analogous to, say, me getting permission from Ira Gershwin’s estate to make a new and different setting of the lyrics for “I’ve Got Rhythm”. If Fox used my song on Glee, sold it on iTunes, and paid Gershwin’s estate royalties for the lyrics, do you really think they’d be off the hook with me? If he doesn’t have proper permission, well, he needs to change the lyrics (which has happened in the past as well), but he still has solid copyright on the music (which I’m presuming is as original as it sounds to me).

    This latter point gives us, I think, the acid test: if Coulton published the song with his own lyrics, a) would it still be considered a derivative work of Sir Mix-A-Lot’s song, and b) would Coulton be under any legal obligation to seek permission from, or pay fees to, anyone else to disseminate the work? I think the answer is clearly “No” in both cases. If Coulton is feeling perverse, I suspect he can do just that, and exert his royalty claims on Fox based on his derivative of his own work. (“Your Honour, this is Sir Mix-A-Lot’s song, and this is mine. Do they sound even remotely the same? Does the music in the “cover” in Glee sound like Sir Mix-A-Lot’s music or mine? Does the defendant claim that someone else has copyright on the tune and its arrangement?”)

    Perhaps I’m missing something in this analysis? I can’t see it, because I don’t think the rules for cover versions properly apply here (it takes more than lyrics to define the authorship of a song), but I’m open to instruction.

    (Edit: Corrected my misspelling of Jonathon Coulton’s name. My bad.)

    • It’s a pretty straightforward case. I interviewed Coulton about 9 days ago, but you can also read him saying this elsewhere. He used compulsory license and went through Harry Fox Agency, which handles most of that.

      His version is statutorily licensed as a version that is substantially similar enough to fall under compulsory license. If it were not, he would have had to negotiate with licensing agents for Anthony Ray (Sir Mix-A-Lot) to get additional rights. The composition rights would still have vested in Ray, unless he agreed to create some kind of derivative work license.

      Compulsory licensed works are specifically excluded in current copyright law from obtaining a derivative copyright. They simply do not get any protection. The only protection an arrangement is afforded is to the original composer. Any subsequent compulsory licensee would be equally free to plagiarize the arrangement. (Note that Fox did not use compulsory license. They had to negotiate with Ray’s agents to obtain a sync license and probably other licenses which are not compulsory and may be withheld.)

      If you are arguing that Coulton’s work is substantially unrelated to the original performance, that’s not an issue. The law doesn’t refer to the performance, but to the composition that is being licensed. To wit: “the arrangement shall not change the basic melody or fundamental character of the work…” http://www.law.cornell.edu/uscode/text/17/115Coulton's version may sound radically different, but compared to the music notation and lyrics it is substantively the same under the law. This is why Johnny Rotten’s and Frank Sinatra’s “My Way” were both legally licensed in this manner.Coulton has never tried to claim this was a legally derivative work, because that would violate his compulsory license. Harry Fox Agency, Ray, and whomever have never said to Coulton, your work doesn’t fall within the parameters, nor would they, because it clearly does. (Again, Coulton doesn’t have to follow Ray’s first performance, only the primary melody and organization.)Maybe the confusion is the definition of composition? In the law and in my comment, it’s about the form of the music as if it were written down. A different arrangement of the same composition with the same melody is, under the way, the same composition.Coulton would have been free to seek a license, and it’s possible he would have gotten one, to create a true derivative work. He did not, and nobody involved is attempting to maintain that it has separate copyright.His audio does have specifically granted separate copyright (the phonogram right), which is a separate issue here, if Fox turns out to have actually copied that directly.

  10. maslov says:

    If this was the 80s I would guess that 10 of that 11 Million went up their noses. 11 Million? Seems more like a government budget!!!???

  11. guest says:

    The escrow bit has been tried before – in Europe, with bootlegs. During the 70s and 80s, some bootleggers used a law that allowed them to place a percentage of profits in escrow, to be paid should the copyright holder come calling… and for a little while, the Dutch allowed bootlegs, as long as they paid mechanical royalties. Neither scheme lasted too long. Details are in Heylin’s book BOOTLEG, but I can’t find the damn thing.

  12. El_Destiny says:

    Isn’t there some wiggle room in the fact that they’re selling *recordings* of the recordings? Especially since they’re recordings of used vinyl records, it’s not a perfect reproduction that Amoeba is making available.

    Of course, they may have another intention entirely.  Amoeba may know they’re about to be driven out of business anyways by the digital music industry. So maybe before the inevitable eventuality of their bankruptcy, their goal is to get as much music as possible released into the digital ecosystem.  Because once it’s out there, it’s out there forever!

    • Nope. The law defines all copies the same.

      Also, they’re not giving the stuff away. It has to be purchased and then a purchaser would ostensibly have to upload somewhere in order for it to be “out there forever.”

  13. Clifton says:

    Great overview of the legal issues!  You presented a vast amount of complexity as clearly as possible given its inherent murkiness.

    My reaction is much the same as yours, I think – it sounds wonderful, I admire them, it’s a public service – but I can’t help thinking they’re walking into a minefield.

    If anybody remembers the late MP3.com, they were doing great until their founder/CEO announced they were going to do something which sounded perfectly reasonable and sensible: if you showed you had such-and-such CD in your collection already, you could listen to their copy of it from their servers without having to upload it.  Makes perfect sense.

    However, from a legal standpoint, there was absolutely no connection between you having a (presumably) legitimate copy of a recording and their being allowed to play you a different copy, when you hadn’t paid for the latter individual copy.  I don’t know whether he didn’t have any legal advice or he ignored the advice he got, but they implemented it and were immediately sued into near-complete bankruptcy.  (A $53 million setlement with UMG, with the prospect of being sued further by other music companies.)

    I really really like having Amoeba around to shop from, and I hope to God they know what they’re doing and avoid a similar fate.

  14. Nihilist says:

    the copyright laws and public domain are a joke. mickey mouse and all the disney characters have been public domain for years, but disneys lawyers and lobbyists have rigged the laws to favor them. many movies and old sound recordings are now public domain, but the riaa trys to screw everyone.

  15. DavidCrowell says:

    Thanks for writing that, I have thought about these issues being a musician myself for years. I have also been selling live albums of artist long gone for awhile and just ponder on what to do about it and making it legit so it can be properly marketed. 

  16. SomeGuyNamedMark says:

    They’ll just keep extending copyrights until the great grandchildren (or just their lawyers) collect on their moldering ancestor’s work.

  17. glimpsis says:

    I very much appreciate this article and the related comments. It comes at a time whereas I’m faced with what seems to be a fairly atypical copyright dilema.  I am the co-writer (composer) of a song written over 38 years ago. The lyricist and I collaborated on the song.  She wrote lyrics and gave them to me to compose music for them.  We worked out a compromise to produce a demo – she paid for the time and I brought a group together and produced the demo.  I had a long time friend with some degree of success in the music business and the plan was to present the song to him in hopes of getting it recorded.  The song was in fact recorded, but the label my friend was signed to at the time folded before the song was released.  Now, more than 38 years hence, arrangements have been made for the release of the song.  My co-writer and I had a verbal agreement that this was our objective, but who could have known it would take 38+ years.  The dilema is that since that time I have lost complete contact with my co-writer, but understand that she should get full credit and whatever compensation is to be had from this recording.  So it would seem that, in affect, the intellectual rights have been 50% orphaned and this presents an obstacle to obtaining our joint release for further marketing of the song (such as synchronization rights).  Are you aware of any precedent for any situation such as this?  I had in mind an action similar to that of Amoeba – placing my co-writer’s share in escrow until such time as I could locater her or her heir’s.  In light of what I’ve read above, this may not be a viable path to take.

    I would appreciate your thoughts on this subject and any suggestions you might have that I might follow in pursuit of resolution to this matter.
    Thank you for your valued insights!

    • While I can’t pretend to a lawyer, I expect that the music industry has worked out precisely these sorts of contingencies before, and you would be able to get a recommendation to and consult an attorney specializing in music rights who could tell you how to set it up.

      The fact that your collaborator wrote the lyrics 38 years is particularly tricky, because it is before the revised copyright act of 1976 went into effect (in 1978)! If the lyrics were never published in any publicly available form, the work is protected by the revised law for 70 years after her death or 120 years from composition if the year of her death cannot be determined (unlikely these days, of course, with the social security register).

      If it was published, but was published before 1978 without a copyright notice or between 1978 and 1989 without a notice and without later registration, it’s in the public domain. Otherwise, it should be fully protected for a prolonged period of time.

      Without a contract, you’re engaged in good ethical behavior, and it may be that a lawyer tells you that an oral agreement made 38 years ago without any witnesses should be considered unenforceable and  you could privately escrow the money for the lyricist should she ever appear or you find her.

      But qualified legal advice seems like the best course, as I imagine scenarios like this are routine.

      • glimpsis says:

        Thank you for the information.  At the time of our collaboration, she had engaged an attorney and we both executed a copyright application which I submitted with my sheet music and her lyrics.  I have an official copy of the copyright certificate. I’m traveling right now and I’m not sure of the exact date, but I believe it was registered in 1972 or 1973.  I will take your recommendation and seek qualified legal advice.  I also felt that this couldn’t have been the first time a situation like this had arisen.  Thanks again!Riley Racer

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