Okay, this time I'm going to make you guys do the heavy lifting. I have a serious essay question for you. Please, no flip answers. Don't worry, it won't determine your final grade...but it might re-determine your outlook.
When I wrote my columns about converting vinyl to digital couple of months back (Part I and Part II), I truly didn't expect so many of the comments to focus on the (minor!) intellectual property (IP) aspects of the matter. Clearly, interest in that subject is nearly insatiable.
So here's my question to you: what would you do?
Here's the scenario: Imagine that you have hundreds of vinyl records. You have digitized all the music on those records. Your next step is to dispose of the records. Half of the records in question are not available as new purchases in any medium, vinyl, CD, or download (in other words, out of print). What's your next step?
Before you start dashing off your remarks, please read the entire rest of this column.
Some things you may want to think about before writing your answer (you don't have to, if you don't want to):
• Does the difference between the physical record and the music on it matter to you? Many people value the record itself, not just the music. So, when you're thinking about how to dispose of these, would you take both form and content into account?
Taking it further, does the wastefulness of throwing away physically useful property come into conflict with the rights? Should you trash a perfectly good record if not throwing it away deprives someone else of a sale?
• Does money matter? Do you feel differently if you contemplate giving the records to friends, giving them to some charity, or selling them to a record store? Does the amount of money matter? Would you feel differently if you could get $5 an album instead of 50¢ an album?
There are no right or wrong answers to these musings.
Things you perhaps shouldn't be dwelling on before writing your answer:
• Absolutism. Previously, one reader commented that if I was selling my vinyl, I might as well just steal any and all intellectual property that I wanted. That's like arguing that if I admit that I drive three or four miles over the speed limit on occasion, then I might as well drive at any old speed, even 50 miles an hour faster, heedless of safety and road conditions.
Imagine using that logic on a Highway Patrol officer the next time you're pulled over for speeding. "But officer, everyone else was going three or four miles over the speed limit, and you didn't stop them, so why shouldn't I go 30 over? The principle's the same; we're all breaking the law!"
• The Law. Music IP law is not exactly the same as IP Law for photographs, books, or software; there are some critical and important differences. When I wrote last time that I wasn't sure if I was breaking the law, I wasn't dissembling; I really don't know. I suspect I was, on the level of going 3-4 miles over the speed limit, I'd guess. But I am not an expert on music IP law. Unless you are such an expert (if you are and would care to write a short exposition on the subject, it would be extremely welcome), don't try to evaluate the legality of the situation. This isn't about what you'd argue about with Judge Judy, it's about what you'd do.
In other words, if you experience the inclination to start writing "Well, I'm no expert in music IP law, but my belief is..." lie down until the feeling goes away.
• Analogies. Because the IP laws are different for different media, trying to argue this by analogy with how you'd handle a book or a photograph or a copy of Photoshop may lead you astray. I'm not saying don't go there; most of us develop our actions and reasons from analogies with cases we are familiar with. Just be appreciative of the difference between what informs your actions and what is objectively and factually correct.
• Don't tell me what you think I should do; it's already done and I'm really not interested. I'm cleverly disguised as a responsible adult, and I thought out these matters for myself. So, no prescriptions for me or others. Just talk about what you, personally, would do and why.
That's it; have at it. Please remember to be polite and don't be contentious. Nobody's attacking you personally; no need to attack them in return. Whatever you say, there will be nothing approaching unanimity on this, possibly not even a broad consensus. It's not a vote, it's a conversation, so be as nonjudgmental as you can. We will all learn a lot more that way.
Okay, open your composition books!
Ctein's regular weekly column on TOP appears on Wednesdays.
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Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.
Featured Comment by Tom Kwas: "Theoretically, according to IP law, you never bought the records—you bought the ability to listen to the music contained on them in perpetuity. In the past, making tape copies to preserve your originals was still legal. Ditto for CD. What was not legal was to make copies and sell them to others, or prevent the additional sales of the music to others by giving it away to them.
"The record companies did not police this stuff because, pre-CD, the copies were never considered to be near the quality of the original, so the record companies figured that sooner or later, if you liked the source music, you'd get around to buying it. Guess they weren't figuring on guys like me making copies of my jazz stuff on reel-to-reel—but only for my own use, of course.
"But, in reality, not only were the record companies supposed to be coming after you if you sold or gave away copies—you should have been able to get new copies of the record if you wore it out, for a nominal fee: something that never happened either. I've bought more than a few records more than once because I wore them out!
"You can see where the record companies have little to stand on after years of allowing the horse out of the barn, and allowing it to run down the road, and go to everyone else's barn. Hard to call 'foul' now!
"That said, what would I do? Hey, I'm the king of the needle drop, so my records mostly had tics and pops I didn't want to spend hours on cleaning up. I thought about copying my most esoteric stuff over to CD, but never planned to copy all of it. Hey, I do have a life! As lousy as it is....
"When CD reissues really got cheap, I just re-bought the stuff I wanted and chucked the records (who'd want those scratched up things?). I'm sure like everyone, about 30% of the vinyl I owned was a mystery to me why I ever thought I liked it in the first place.
"I will admit to selling my most pristine copies of Mosaic jazz records on eBay, BUT, I didn't copy them over for myself. I'll just get around to re-buying the ones I really wanted. Everything else I had could be 're-had' from the big CD discounters for literally $2.99 or less! Even though I resold the Mosaic stuff without copying, I still think it was wrong. I enjoyed them; now someone else is doing the same without more money going to the artist—and if you know jazz, you know they all need money!"
Featured Comment by Bryce Lee: "Most of not all my music is in the form of something physical; wax cylinders, 78 rpm shellac and, yes, vinyl LPs. I also have the proper equipment to play same. The compact disc or portable storage device is strictly a convenience factor, for me. My entire cassette collection (2000+) is in the process of being converted (as time and my mood allows) to, first, CD, however, it's also being converted to a solid state storage device. The recording medium tends to age over time; yet my extensive collection of VHS and Beta tapes is in fine shape. And they are not being converted to some other medium.
"And as to long term for the original items? The wax cylinders and the pre-WWII records are all destined for an audio museum after my passing along with the proper equipment to listen to them. My collection is fairly basic, although it has a very definite basis towards string and wind instruments specifically pianos and pipe organs with some harp music for good measure.
"At my age (65) figure maybe another ten to fifteen years, if I am lucky. After that my estate shall distribute the items to the appropriate museums and people. After that, does it matter?
"Yes, in one instance; even at my age of listening to an tuning pipe organs am still able to distinguish between an LP playing and a compact disc doing the same selection. The compact disc reproduction is simply not the same.
"Copyrights and similar have long been paid on the recorded music you have now.
"Keep one thing in mind; if all your saved music disappeared suddenly what would be your feelings, if any! That's the final solution, no more no less."
Featured Comment by Dave Van de Mark: "I once owned 72 feet of tightly packed shelves of premium vinyl—now down to 5 feet and representing the best of what I had purchased over many years. This remainder is almost all classical and many represent the earliest and original releases of a given composer and conductor and soloist from Mercury, RCA, EMI, and Decca. They are all very old—30 to 45 years—and all aspects—the LP, sleeve and jacket are very, very clean. Many played once only.
"I intend to sell these and will be seeking the best price I can get. Buyers of these LPs will, like me, be prizing them for not only the musical content but also for the packaging. Virtualy all the composers, conductors, orchestral members, recording teams, and producers are dead! Except for some minor reissuing of some of these on CD (and probably all of that is over too), there will probably never be more copies of these particular works of art commercially produced (and I'm including here the fine and esoteric LP reissue industry).
"I am going to copy some of these recordings and lovingly photograph the artwork and liner notes on the jackets, then sell them with absolutely no feeling I have cheated anyone."
Featured Comment by Marc Rochkind: "I don't see this a slippery slope, or a gray area, or even one where there are no right or wrong answers. You own a copy of the music, you made a second copy for yourself (both legal and ethical) to have the music in a different form, but if you give away or sell the original, you have just made your digital copy both illegal and unethical. The difference is between one person owning two copies (OK) and two people each owning a copy (not OK unless both paid for). So, the correct answer is to 1) keep the originals, or 2) destroy them, or 3) give them away or sell them and destroy the copies you made. Why did you think this was so difficult?"
Featured Comment by Anon.: "(Posting anonymously because I actually am a licensed attorney but don't feel like getting into a debate later with anyone who thinks that I was writing this as their attorney. Mike can get my name from my email address to verify that I'm an attorney quite easily.)
"United States law only looks at whether making a copy was 'fair use' at the time the copy in question was made. If you own the CDs and you format-shift the material to your iPod, the question is: is that a fair use of the copyrighted work on the CD?
"Our normal notions of 'what's fair' are often different that what we find on the books when looking at copyright law.
There's no case directly on point, but an attorney for the RIAA asserted that he thought it would be when he was answering a question from one of the Justices of the U.S. Supreme Court in the Grokster case. Given the parallels with the time-shifting activity sanctioned by that court in the Sony case (the VCR case), an answer otherwise would have been surprising. I suspect that his employer was displeased because they'd be happy to sell you another copy of 'The White Album,' but that's another story."