Current trend: selling original CDs but keeping the mp3s

[Dan Gould]

where's dan and goodspeak???

Why, is the Rocket now illegally burning CDs too?

[Neal Pomea]

It is explicitly stated on this Elgar compilation on my desk:

"All rights of the producer and of the owner of this work reproduced reserved. Unauthorised copying, hiring, lending, public performance and broadcasting of this record prohibited."

You are being ironic. If all I needed to do to make something a law were to post some kind of sign on something, I would be the emperor of ice cream.

[seeline]

Bev (and Clave) -

I'm totally on board with legal downloads, which is what you both are referring to.

I've bought items from DGM and Dave Douglas directly, as well as other band websites that I frequent. I think that's a good business model for the future - or at least a step in the right direction.

I've bought some vinyl from the label Yep Roc in the past year, and when you do that, they immediately make available MP3's of the music you have just purchased - before you even receive the vinyl in the mail.

Aggie, thanks - though I've actually been talking about both legal and illegal downloads! So Bev's got the high ground here, but not me.

[Chas]

To answer the original question as to why people have become scofflaws with respect to the copyright laws , it is because they have come to see copyright laws as nothing more than corporate welfare , and that as such , they feel the law is without a moral foundation . I am broadly sympathetic to the view that the public good is no longer being served by current copyright durations . The U.S. Constitution outlines the public good that is served by copyright protection : " to promote the progress of science and useful arts " . Copyright protection for the fine arts including music is thus extra-constitutional , from which one might reasonably infer that it serves a lower-order social good , after all is it not reasonable to think that the economic welfare of a society is more important than its artistic or cultural richness ? And yet currently , patents for things that create economic prosperity for all expire after twenty years , while music copyrights can extend well past a century . As to the proper duration of copyright protection , the Constitution is unhelpful , as it only states that such protection be secured for , " limited times " . This imprecision allowed the Supreme Court to rule that retroactive copyright extensions are permissible , but it's hard not to view this as the triumph of corporate interests over the interests of the people . Clearly if the duration is too long as it now surely is , creativity will not be maximized , as there is little incentive to create anew or build on the work of others . Given such considerations , even copyright protection for the life of the artist is too long , let alone a duration which extends beyond death . We must remember that copyright protection is granted in service of a public good , not as a guarantee of lifetime income for artists or their descendants . One's answer to the question of whether it's wrong to keep MP3 copies of albums one no longer possesses implicitly rests on one's answers to the foundational questions outlined above . I think this thread would be a whole lot more interesting if people laid their philosophical commitments on the table .

[Teasing the Korean]

I think this thread would be a whole lot more interesting if people laid their philosophical commitments on the table .

Philosophically, Sonny Bono is GOD.

[A Lark Ascending]

Bev (and Clave) -

I'm totally on board with legal downloads, which is what you both are referring to.

That's all I'm taking about. I don't have any illegal ones as far as I know and don't have any wish to find them.

But I don't think the companies have any more hope in stopping file sharing between those who do want to do it than they had in stopping home taping in the 70s and 80s.

Seeline: "So Bev's got the high ground here, but not me."

I've no wish for any moral high ground. I have plenty of legal recordings that are of dubious moral origin. As I said earlier, all the ethical arguments about what is a correct or incorrect way of purchasing recordings pale into insignificance when put alongside the question as to whether it is right to spend a fortune on luxury items like CDs/LPs/downloads in a world where millions lack basic food and shelter. I put that one to the back of my mind constantly!

[i'm not trying to launch any guilt trips here - just trying to put the ethics of distributing recordings into some sort of perspective. I don't think anyone who buys lots of recordings (as I do) can get too high up on their ethical horse).]

Edited February 16, 2008 by Bev Stapleton

[seeline]

Instead of the majors approach of witholding product to create demand...

This has never made any sense to me. And the majors are sitting on treasure troves of "niche" material that a lot of people would love to be able to hear.

An acquaintance of mine spent some time in the EMI Brasil vaults a number of years back, and was just stunned by all the top-notch material that deserves release, but has been more or less allowed to decay on the shelf. (I don't mean to imply that the originals are disintegrating; more like they've been ignored and forgotten and/or are perceived to be of little worth.)

When I mentioned a Brazilian music blog where several highly respected artists have contributed rips (from vinyl) of extremely rare, o.p. material - one of the reasons they did that was to allow people to be able to hear some of the great (even unique) material that the majors in Brazil are refusing to reissue. These artists felt (in at least one case) that specific albums were/are hugely important - but that the music and its creators have been unjustly neglected due to label concern re. not being able to make any profits from potential reissue of this material.

The sheer unfairness (and shortsightedness) of companies holding back on issuing some of these albums has literally contributed to a skewed view of Brazilian musical and cultural history. so... maybe the people who sent these files to be posted were doing something that's technically illegal, but that pales in comparison to the way the record companies have selectively ignored these artists and their work. So where's the moral high ground there? i personally believe it's with the people who, by making the music available again, are actually lobbying for it to be reissued. (and I feel grateful to them for making it possible to listen to these recordings, after them being off the market for years and years...)

Edited February 16, 2008 by seeline

[A Lark Ascending]

Instead of the majors approach of witholding product to create demand...

This has never made any sense to me. And the majors are sitting on treasure troves of "niche" material that a lot of people would love to be able to hear.

An acquaintance of mine spent some time in the EMI Brasil vaults a number of years back, and was just stunned by all the top-notch material that deserves release, but has been more or less allowed to decay on the shelf. (I don't mean to imply that the originals are disintegrating; more like they've been ignored and forgotten and/or are perceived to be of little worth.)

When I mentioned a Brazilian music blog where several highly respected artists have contributed rips (from vinyl) of extremely rare, o.p. material - one of the reasons they did that was to allow people to be able to hear some of the great (even unique) material that the majors in Brazil are refusing to reissue. These artists felt (in at least one case) that specific albums were/are hugely important - but that the music and its creators have been unjustly neglected due to label concern re. not being able to make any profits from potential reissue of this material.

Good point.

Though I doubt the majors would use an ethical argument - they'd stick with a cold, legal one. They only use the ethical one when it suits.

[BruceM]

Instead of the majors approach of witholding product to create demand...

This has never made any sense to me. And the majors are sitting on treasure troves of "niche" material that a lot of people would love to be able to hear.

An acquaintance of mine spent some time in the EMI Brasil vaults a number of years back, and was just stunned by all the top-notch material that deserves release, but has been more or less allowed to decay on the shelf. (I don't mean to imply that the originals are disintegrating; more like they've been ignored and forgotten and/or are perceived to be of little worth.)

When I mentioned a Brazilian music blog where several highly respected artists have contributed rips (from vinyl) of extremely rare, o.p. material - one of the reasons they did that was to allow people to be able to hear some of the great (even unique) material that the majors in Brazil are refusing to reissue. These artists felt (in at least one case) that specific albums were/are hugely important - but that the music and its creators have been unjustly neglected due to label concern re. not being able to make any profits from potential reissue of this material.

Good point.

Though I doubt the majors would use an ethical argument - they'd stick with a cold, legal one. They only use the ethical one when it suits.

This is why I have no sympathy for record companies. They say you can't copy music because they will lose money, and at the same time refuse to release the music because it will cost them money. You can't have it both ways.

I will continue to download OOP music from sites such as Loronix.

On the original point, I have gone the way of filing my CDs in metal storage boxes with the CD/box booklets (I hate jewel cases). I have also ripped them to Itunes. This gives me three copies, the original CD, the Itunes folder on a HD and the Ipod itself which is another HD.

[The Magnificent Goldberg]

We must remember that copyright protection is granted in service of a public good , not as a guarantee of lifetime income for artists or their descendants .

That's a very good point indeed, in my view.

MG

[Big Beat Steve]

Indeed it is.

Especially in view of the fact that discussions seem to center around the latter aspect here all too often and that it still remains doubtful if royalties really always go to the original artists (and their descndants) or just to some music industry moguls whose predecessores screwed the original artists in the first place (and still insist a contract is a contract, no matter how morally doubtful it was when signed 40, 50, 60 or more years ago).

So the European 50-year Public Domain cutoff date should be fair enough. 50 years ain't exactly nothing when it comes defining a time frame during which you can reap your rewards.

Sir Cliff Richard et al. take note! :D

[robviti]

I found an informative discussion of the legal issues in the "keeping a burn after selling the cd" topic. It comes from the Patry Copyright Blog run by William Patry, Senior Copyright Counse for Google and former copyright counsel to the U.S. House of Representatives Committee on the Judiciary. I've reprinting his post below, but I encourage you to click on this link to read the thoughtful replies from his readers: copyright blog.

First Sale, Hard Copies, and Digital Copies

Here's an article from the October 23, 2005 New Jersey Star-Ledger. I confess to being baffled by it. It seems to misunderstand the issue entirely. Perhaps readers can point me in the correct direction. Here's the article in toto:

"Contrary to the opinions of a number of readers, I am not a law breaker.

At least, I don't think I am. In a recent column about my transition to an all-digital music collection, I mentioned a plan to sell my CDs after creating digital copies on my personal computer. Quite a few readers wrote to tell me this would be illegal. If you sell the CD or give it away, they informed me, you must delete the digital versions, as the rights to keep a copy of the song reside with the owner of the CD. Was this true? What if I have a 10-year-old CD, with a couple of songs I enjoy? Does that mean I am breaking the law if I keep those songs on my iPod after selling the CD for $1 at a garage sale? I decided to investigate. As is the case with many legal issues, a clear answer wasn't readily available. But at least it is now clear to me how hazy an issue it is. "The law is terribly unclear on this question," says Fred Von Lohmann, a staff attorney for the Electronic Frontier Foundation, a nonprofit advocacy group for consumers' digital rights. "It's very hard to give any kind of clear answer."

Courts might view the situation differently, depending on an individual's behavior, he says. Are you a "buy, rip, and return kind of guy," essentially making digital copies from CDs and then returning them? Or are you, like me, getting rid of physical CDs that you no longer use, simply because you have the music on your computer and you now buy songs from the iTunes Music Store? "The law gives precious little clarity to the average person," Von Lohmann says.

An academic specialist in cyberspace aspects of intellectual property echoed Von Lohmann's views. Whether you can keep digital music files on your PC or iPod after you sell your CDs is legally "untested," says R. Anthony Reese, a law professor at the University of Texas at Austin. Reese says he doesn't know of any court cases dealing with this scenario.

Given existing copyright law, he says, it is "not easy to predict how a test case would come out."

Yet the issue isn't a purely academic one. More and more people are facing this dilemma, as they have no use for the CDs taking up space in the bulky, archaic racks in their living rooms. They use their iPods to listen to music on their home stereos, cars, and elsewhere.

Do they really need to store their CDs in their attics in order to avoid breaking the law?

Yes, according to music industry representatives, though they were unable to provide any real legal backing for that view.

A spokesperson for the Recording Industry Association of America, the group known for filing lawsuits to stop digital-music swapping, pointed me to a document from the Copyright Office to support the idea that you aren't allowed to keep a digital music file once you sell the physical CD. But the document -- see for yourself, [DMCA Report Executive summary, my link]-- sheds little, if any, light on the issue. I e-mailed a top industry executive, whose assistant contacted me to say my rights to digital music would end when I sell the physical CD. But the executive was apparently wary of expressing that view in public, as his assistant suggested I refer to him as "an unnamed industry source." A spokesperson for Warner Music Group referred me back to the RIAA.

But the industry's message, that you must be wary about what you do with music you store on your PC, is clearly making it out there, judging from the e-mails from readers who were convinced that what I was doing was illegal. Don't expect to hear about a resolution to this issue anytime soon. The music industry is unlikely to press it in court, what with its other concerns. But if it is discussed, you will be sure to hear about it at LawMeme (research.yale.edu/lawmeme/), a Weblog covering the intersection of law and technology.

TECHscan Political news junkies have yet another source: C-SPAN's CapitalNews (www.capitalnews.org), a news operation that's designed for people who want to keep tabs, 24/7, on what's happening on Capitol Hill, the White House and the national political scene.

Allan Hoffman may be reached at netscan@allanhoffman.com or in care of The Star-Ledger,

1 Star-Ledger Plaza, Newark, N.J. 07102. "

Here's my reaction to the story: If one links on to the Executive Summary to the Copyright Office's DMCA report provided above, at pages 6-8 , you will find discussion of a proposal to amend the first sale doctrine in Section 109 to provide that where someone's lawfully made copy for 109 purposes was in digital form, that copy could be transmitted to a friend etc., so long as the "original" digital copy is deleted. The Office agreed that the current Section 109 is technologically neutral; that is it applies to lawfully made digital copies, but it declined to endorse the proposal both because of perceived differences in the way hard copy and digital copies degrade and because of doubts about verification of deletion.

But nothing in the report, or the law I am familiar with, says that if you own a lawfully made hard copy, like a CD, and you then make, for personal use, a digital copy, you can't sell the CD. Of course you can. You can sell your lawfully made CD even if the making of your digital copying is illegal: absent some contract provision, the two issues are totally separate.

--William Patry

Edited February 16, 2008 by jazzshrink

[Alexander]

Aggies, how can this be dealt with in a reasonable way, other than charging people twice for the same new item? (Again, I'm not being facetious or intending to be provocative in any way at all.)

What if the thing you ripped is o.p. and rare anyway? What if the label's out of business, and hasn't had its catalogue bought up by another label?

There are so many "what ifs" that I'm not sure it's possible to make some sort of boilerplate ruling - except in our private lives.

It's up to your individual ethics and moral compass I guess.

Illegal copying contributes to a negative spiral - it results in fewer sales of music, and is helping to destroy the industry. Labels shut down, get bought out and shuttered, inventory ends up in some storage facility in some mountain somewhere, never to be seen again, and people lose their jobs. Availability of music dwindles, and artists lose established avenues to provide us music.

I disagree. Illegal copying and file-sharing are a drop in the ocean compared to what's really killing the music industry: People aren't interested in music anymore. They like it. It's a nice background to their lives, but it's not a consuming passion for 99% of potential consumers. Instead, people are interested in DVDs and video games. There's so much more competing for our entertainment dollar, compared to the 80s or even the 90s, that music is getting lost in the shuffle.

Since music isn't selling in the quantities in once did, retailers are shrinking their music presence. My local Borders used to have a pretty damn good music section. Now it's been shrunk by half to make room for the DVDs. This creates a self-fullfilling prophecy: There's less music available, so people buy less of it. The less they buy, the more the space is shrunk. Etc, etc.

The problem is that record companies aren't looking for music that inspires a lifelong interest in music. They're looking for the next number one hit. Record companies have always looked for hits, but they've also taken chances on less marketable music just because it was good (think of Alfred Lion recording album after album of Andrew Hill music, even though he wound up releasing only a fraction of it). With the music insdustry in trouble, who's going to take a chance on an Andrew Hill, or even a Bob Dylan (who conventional wisdom would have told executives there was no market for)?

[Big Beat Steve]

Alexander, I am afraid you've got a good (all to good) point with your "self-fulfiling prophecy".

I've witnessed it at our local music stores here too - to the point of the selection now being only a very tiny fraction of what it was as late as the late 90s. It is indeed as you say - less choice prompts people to buy less and less music. Neither the companies nor the shops seem to care much anymore. To them it doesn't matter if they make a buck from selling a music CD or some computer game trash. And downloading (even legal downloading) does the rest.

Not that I would at all encourage massive CD-R'ing or mp3ing and reselling the originals but what is this compared to the bigger issues anyway?

For all I've experienced, passing on the occasional CD-R's (or in fact even the occasional original CD when you find it to be something that you'd keep as a CD-R but did not need an original) has always meant that the funds thus freed went into buying other collectible CD's that otherwise would have been unaffordable to everybody involved. Small wonder with the flood of music still hitting the market, except you now really have to DIG for it. - Remember everybody how much money you today have to shell out for SHIPPING all the records you still would have bought over the counter some 10, 15 or 20 years ago in your well-stocked brick and mortar record shop? If the money you have to spend on shipping is balanced by burning the occasional CD-R or keeping the mp3 on your hard drive, who's going to throw the first stone and who's to blame? Maybe those who forced you out of your shops and into mail order after all?

Edited February 16, 2008 by Big Beat Steve

[seeline]

Back in the early-mid 1990s, The Washington Post used to publish an "Ask an Expert" column in its Sunday Magazine.

One week, they asked an RIAA rep about the best record stores in the D.C. area. At the time, there were two outstanding independent, family-owned stores. One specialized in classical music, and had an incredibly deep selection of back catalog material, mainly from European specialist labels. The other store was/is more generalized, but had a similar investment in jazz and "world music."

Without missing a beat, the RIAA rep said "The Tower Records store on Pennsylvania Avenue." She went on to talk about the deep catalog there.

You can imagine, I think, how the people at the small shops felt. (And that was in the days when there were still quite a few independent retailers in the area.)

So when the industry people complain about sales, well... I think they have themselves to blame.

Edited to add: stories like this one tell it all. (About artists and estates of artists suing UMG for unpaid back royalties.)

Edited February 16, 2008 by seeline

[A Lark Ascending]

Back in the 60s when rock music hit there was a period of 10-15 years where the record industry was caught on the back foot. Those running the big labels didn't understand it - and when some of them missed the Beatles they were ready to sign anything. You had a golden era when all sorts of oddness got signed; or young, inexperienced mavericks got a degree of control to release what they thought was good, based on the clueless ones conviction that this young hipster was more in tune.

By the mid 70s the industry had caught up and had everything back under control. New off-the-radar movements - punk, grunge, hip-hop, rap - got controlled very quickly. The industry had learned.

But I get the impression that they've been caught completely short again by these recent technological changes and are currently reeling!

Which should, hopefully, usher in a period of anarchy where all sorts of strangeness can blossom.

Eventually, the big corporations will find a way to take conrtol of the internet revolution. But they show no sign of really understanding it yet.

[GA Russell]

I'd like to disagree a little bit with the idea that a decreased inventory in brick and mortars leads to decreased sales. Of course it does to some extent.

But I feel that the relevant decrease is the decrease in selection of what you can hear on the radio. Some of you (New Yorkers, for example) may have a different experience locally, but as I drive throughout the South and other areas, I find the selection of music on the radio to be dreadful.

My favorite example is adult popular music. Every year (except this one!) Tony Bennett wins a Grammy for adult pop album. I can't remember the last time I heard a radio station playing that kind of music that was a current recording. When I grew up in New Orleans in the 60s, there were three radio stations in that city alone which played that kind of current adult popular.

Today as I travel, I occassionally come across a "Music for Your Life" station which plays music from the fifties; but as I say it's been decades since I have heard a current adult pop radio station.

I believe that the limited selection of music to be found on the radio decreases sales more than the limited selection to be found in brick and mortars.

[seeline]

Having grown up in the country, I can't remember a time when the selection of music on the radio *wasn't* limited!

Cable TV/FM helped, but still... the selection was/is minuscule, compared to what you can find on both AM and FM in most major cities, and in many smaller ones, too. Going to Philadelphia or NYC (when I was younger) was fun for the record shopping alone! Jazz, classical (etc.) LPs couldn't easily be found in the better record shops where I lived, and you special-ordered what you wanted, or went to the city to buy it.

Edited February 16, 2008 by seeline

[porcy62]

Seeline, c'mon, it's Saturday, who cares about those uncle scrooges' of the RIAA?

Get a beer, spin some nice records and relax.

[take5]

I have ripped my entire CD collection to digital and sold the CDs, except for a few boxed sets or CDs that are autographed, etc.

I use the FLAC format, which is lossless and therefore there is no sound degradation.

Sound quality is important to me, hence the lossless files. I play it on my main home stereo system using a network music player called a Squeezebox. It is remarkably easy to use and sounds great (though I may get an external DAC to shore up the sound at some point).

I have an external hard drive with all the music on it at home and another drive with a copy of all the music at work. This allows me access to my entire collection from both places and provides for backup incase of failure, theft, etc. The fact that they are in two different places makes them even more secure than CDs. The collection so far is a bit over 300 GBs. If/when the collection exceeds 500 GB, the capacity of the drives, I will get a RAID hard drive system, which is series of hard drives designed to back up information.

I purchase CDs, rip them, than sell them to a used record store.

I have no moral qualms about this because I am paying for my music. If keeping the digital files is technically illegal, I don't care, because no one suffers for it. Were I to keep my CDs, nothing would change for anyone except that the used record store wouldn't have my CDs. Since selling and buying CDs is legal and ethical, no problem.

I also have a problem with people who just download music illegally and never buy it. But I don't have a problem with downloading illegally to sample a song or album and then buying it. I believe that practice leads to sales that would otherwise not happen. I've also known people who got into jazz that way.

As for the notes, album covers and physical packaging- no, I can't say I really care.

[Aggie87]

I purchase CDs, rip them, than sell them to a used record store.

I have no moral qualms about this because I am paying for my music. If keeping the digital files is technically illegal, I don't care, because no one suffers for it. Were I to keep my CDs, nothing would change for anyone except that the used record store wouldn't have my CDs. Since selling and buying CDs is legal and ethical, no problem.

I also have a problem with people who just download music illegally and never buy it. But I don't have a problem with downloading illegally to sample a song or album and then buying it. I believe that practice leads to sales that would otherwise not happen. I've also known people who got into jazz that way.

What you are doing is effectively the same as the people who are downloading it illegally. You've created a copy of the music that is just as illegal to possess (since you no longer own the license to have that digital copy, which you sold with the CD) as the one that is downloaded illegally.

I'm sure the artist that produced that particular album would see that he's sold one copy of the CD, and yet you AND the person who bought your used cd now both have a copy of it. So he's sold one copy but two are out there.

Is that o.k. from the artist's perspective? Do you care whether the artist gets what he's due for those two copies of the music? Because he/she is not.

[seeline]

I think everyone buys from used CD shops, artists very much included. They know that a certain percentage of discs are going to end up there, or at least, in my experience, most do.

Here's a story (true) for you about throw-away music...

A press person [works for a label that will remain nameless] told me about a trip they made to another city. During the trip, they had a dinner meeting with a couple of journalists. One offered to drive the press person back to their hotel, and the press person said "OK." While on the way there, the driver asked if the press person would mind taking a brief detour. The press person said no - and the driver promptly pulled into an alley.

Of course, the press person wondered what was going on. The driver said "I want you to see something," and then pulled the trunk latch. Then both of them got out of the car and walked to the trunk - which was absolutely overflowing with promo CDs in Jiffy mailing bags.

The driver had parked next to a dumpster, and for the next 20 minutes or so he proceeded to methodically rip open each package, scan the contents quickly - and then either toss the disc back in the trunk, or into the dumpster.

The vast majority of the discs that had been in the trunk ended up in the dumpster.

The press person was amazed, and yet - they also saw the sense in what this journalist was doing.

- Having gotten promo copies of discs for a good number of years, I can say that this story rings *very* true to me.

[Chas]

I purchase CDs, rip them, than sell them to a used record store.

I have no moral qualms about this because I am paying for my music. If keeping the digital files is technically illegal, I don't care, because no one suffers for it. Were I to keep my CDs, nothing would change for anyone except that the used record store wouldn't have my CDs. Since selling and buying CDs is legal and ethical, no problem.

I also have a problem with people who just download music illegally and never buy it. But I don't have a problem with downloading illegally to sample a song or album and then buying it. I believe that practice leads to sales that would otherwise not happen. I've also known people who got into jazz that way.

What you are doing is effectively the same as the people who are downloading it illegally. You've created a copy of the music that is just as illegal to possess (since you no longer own the license to have that digital copy, which you sold with the CD) as the one that is downloaded illegally.

I'm sure the artist that produced that particular album would see that he's sold one copy of the CD, and yet you AND the person who bought your used cd now both have a copy of it. So he's sold one copy but two are out there.

Is that o.k. from the artist's perspective? Do you care whether the artist gets what he's due for those two copies of the music? Because he/she is not.

Erik , how can you talk about artists getting their due without taking into account the age of the music in question ? Your blanket condemnation suggests that you feel that there shouldn't currently be any jazz recordings in the public domain in the U.S . If so , then you need to argue for that position , not just keep asserting that current copyright law makes the practice take5 described illegal . As I suggested in my first post , why don't you make your philosophical commitments explicit ?

[ejp626]

Is that o.k. from the artist's perspective? Do you care whether the artist gets what he's due for those two copies of the music? Because he/she is not.

Regardless of the one vs. two issue, if we cared only about the artists, then we would outlaw second hand sales. Even if everyone was scrupulous and refrained from ripping the CD, one used CD might circulate a few times, each time depriving the artist of a new sale.

[Aggie87]

I'm not sure what you're asking - my philosophical commitment has been stated about 100 times already. Illegal digital copies of music are morally wrong, and don't help the artists who make the music that I like.