Use It or Lose It: The Problem with Copyright
Major Labels vs. the Internet Archive, Bob Seger vs. his own lost music
A group of labels led by Universal Music Group and Sony Music Entertainment have sued the Internet Archive, a site that describes itself as a “non-profit library of millions of free books, movies, software, music, websites, and more.” If you’re looking for a web page that’s gone offline, their Wayback Machine search engine is an invaluable tool.
The lawsuit filed in a Manhattan federal court objects to the Internet Archive’s Great 78 Project, which hosts digitized versions of 78rpm records. The labels claim that the archive includes in-print recordings by artists like Frank Sinatra, Billie Holliday, and Miles Davis. In fact, they say they identified 2,749 recordings that violate their copyrights and want damages of up to $412 million.
A judgment of even 1% of that number would forever bankrupt the Internet Archive, which claims to have rescued over 400,000 recordings via the Great 78 Project. Keep in mind that the labels are objecting to just over one half of 1% of the Internet Archive’s 78 library.
Brewster Kahle founded the Internet Archive in 1996 and he’s done a lot for preservation over the past 30 years. He also seems to be one of those stubborn “information wants to be free” tech guys who think that copyright is a hindrance to online culture.
Kahle offered a defense of the Great 78 Project’s decision to post copyrighted tracks that are currently streaming on Spotify or available on vinyl or CD: “When people want to listen to music they go to Spotify. When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”
Is the experience of listening to digitized vinyl different than the one you’ll get listening to over-compressed remastered versions on Spotify? Hell, yes. If the original 78rpm record is clean and there hasn’t been too digital processing to reduce the noise, you’re likely to enjoy that experience more than Spotify.
What’s so frustrating about this debate is the online archivists’ refusal to admit that there’s a material difference between a copy that can only be accessed in person at a research library and an online copy that can easily be duplicated and shared, Limewire-style.
There’s also a tacit admission in the record company filings that they’re not doing anything to preserve the out-of-print copyrights they own and have ignored. When they list the songs included in their lawsuit, they insist that these particular titles"face no danger of being lost, forgotten, or destroyed” because they’re readily available from what the companies would consider to be legitimate (revenue-generating) sources like Spotify or Apple Music.
Granted, lawyers want to narrow their claims so that they increase their likelihood of winning a lawsuit, but they’ve chosen not to sue over copyrights they might own but have neglected to make available on digital platforms. Does this mean they’re cool with a third party crowdsourcing the difficult preservation work that they’re not willing to do themselves? Or should those amateur archivists worry that a label could turn around and sue over songs they haven’t cared about in decades?
What copyright law has failed to do in the United States is require a creator to exploit a copyright or face the possibility of losing exclusive rights to their creation. Copyright was invented to promote the dissemination of information by prohibiting bootleg copies to encourage the owners of printing presses to publish and keep titles in print.
Sidebar
(Anyone who’s interested in this topic might want to check out Mark Rose’s 1993 book Authors and Owners: The Invention of Copyright, which chronicles the 18th-century struggles to define copyright in Britain. But be warned that it’s incredibly dense and assumes relatively detailed knowledge of the era’s history, so don’t expect an easy read.)
This system has worked out well for authors, who generally retain the copyright to their own work and essentially lease their titles to book publishers. Once a publisher no longer wants to sell a title, the copyright reverts to the author and he or she is free to publish again elsewhere.
What’s different about the music business deserves a separate, detailed, and somewhat terrifying post, but the basic idea is that record companies manipulated copyright law in the early days so that they label is actually the legal author of an album for copyright purposes.
That means thousands of artists who’ve made records over the last 95 years have no recourse when the record company lets their music go out of print. Copyright expiration is a swamp we’ll also skip for today, but let’s just say that works currently go into the public domain after 95 years, at which point an artist or their heirs can’t exploit them, either.
Also, let’s be clear that we’re talking about the copyrights in the master recordings (i.e. the record itself) and not the songs that are performed on the record. Songwriters have different (and usually better) protections under copyright law.
Back on topic
So labels have millions of recordings in their catalogs that are no longer available. Should those rights be returned to the artists? Even when a label agrees to license out-of-print titles to a reissue label, the company often makes extortionate demands for cash advances, limits the number of copies that can be manufactured, or prohibits distribution on digital platforms.
The work that the Internet Archive has done is remarkable and worth celebrating. It’s a fantastic archive of fan-recorded live music. It’s where I finally located a copy of David St. John’s out-of-print 1972 political thriller The Coven, a trashy novel notable because it details a conspiracy of Democrats who worship Satan and also because “David St. John” is a pen name for Watergate conspirator E. Howard Hunt. The book’s first line should tell you all you need to know about Hunt’s literary skill: “The sound of my door closing on the day’s last client was not louder than a detonating grenade.”
Here’s what I don’t get about the Internet Archive’s position: Why post versions of tracks that are still in print so that you practically beg the copyright holders to take exception to your work? Couldn’t they just do the archival work and hold back on posting until the copyrights expire on tracks that are available from commercial sources?
Blame the lawyers
I’m sure the Internet Archive has a line of reasoning along the lines of “You didn’t care about the fact these tracks were available on our site for many years, a stretch when only a few people bothered to access them. What’s the problem now?”
Unfortunately, the Internet Archive brought this trauma on themselves after they made a potentially fatal miscalculation during the pandemic. For years, the book publishers tolerated the site and let it skirt copyright issues because it always kept a physical copy of every book scanned into the system and then each book could only be checked out digitally by one person at a time. Because they were only allowing users to borrow a digital reproduction of a book they physically possessed, they believed they weren’t breaking any rules. This tortured metaphor for how libraries work in the real word made Kahle feel like he was on solid legal ground.
When everyone was stuck at home during the 2020 lockdowns, the Internet Archive announced the National Emergency Library program, which eliminated the rule where only one copy of a book could be checked out at a time. Hachette, HarperCollins, Wiley, and Penguin Random House couldn’t stomach this unlimited borrowing program, and quickly filed a lawsuit in late May 2020.
Yeah, that was probably a mistake. The Internet Archive had been getting away with a legally untested lending program for years, but the publishers weren’t going to sit by while the archive freely lent digital copies of books they were trying to sell online.
Here’s my theory, based on a lot of experience with junior business affairs lawyers at record companies: Some enterprising drone read about the book lawsuit and visited Archive.org for the first time to see what he or she could find.
Aha! A 78rpm archiving program that had been ignored by labels for decades was now an immediate and pressing problem. These pirates must be stopped!
Are the online idealists frustrated and even offended now that the labels are objecting to something they’d been doing for years with zero complaints from those same copyright holders? Sure, and it’s understandable why see themselves as the true stewards of culture. The labels have not made music preservation, archiving, and metadata a priority since the rise of the internet.
And yet, the best response is for the Internet Archive to offer to remove the offending 2,749 recordings so that everyone could go back to ignoring each other. I’m not sure the labels would accept that solution at this point, and Kahle’s statement suggests that he’s not up for a peaceful resolution, either.
What About YouTube?
YouTube is giant pirate ship, an endless repository of uncleared copyrighted material that dwarfs what was available via BitTorrent sites at their peak. There are millions of otherwise unavailable recordings streaming on the site, and YouTube almost certainly has no contacts with anyone who deserves payment for all those dubiously-sourced songs.
I can’t really complain about this situation, because I depend on that lax enforcement. I repeatedly used YouTube as a research tool when I was sifting through songs for the upcoming box set I’ve been working on for Cherry Red Records, one that I want to call This Can’t Be Today: A Trip Through the U.S. Psychedelic Underground: 1978-1988. There are at least a couple of dozen songs on my working playlist that I would not have been able to include without spending thousands of dollars to have a chance to hear hundreds of songs not available on streaming services. And at least half of those songs were not properly sourced on YouTube.
There’s been a relevant YouTube drama in the news this week, as Sony Entertainment Television filed dozens of copyright complaints against the Museum of Classic Chicago Television YouTube Channel and its companion Fuzzy Memories website for hosting complete episodes of the 1960s occult sitcom Bewitched. Since they filed a separate complaint for each of the 27 half-hour shows on the channel, the Music of Classic Chicago Television was up against its copyright strike limit and was set to be taken offline.
The channel features a collection of shows that were recorded with early VCRs, and the posted videos include all of the commercials, channel promos, and interstitial logos than ran with the original shows. Even though most of those nearly 50 year old tapes haven’t aged well, it’s mesmerizing to watch TV in its original context. My post would have been sent out a couple of hours earlier if I hadn’t been hypnotized by a November 1978 episode of The Six Million Dollar Man loaded with commercials that included gift suggestions for the upcoming Christmas holiday.
An archival broadcast is a completely different experience than what you’ll get watching the versions of Bewitched currently streaming on Freevee or Tubi. The videotape rips may look terrible in comparison, but they’re far more educational.
The issue was resolved after the YouTube channel agreed to remove the offending episodes of Bewitched and Sony withdrew its copyright claims against the channel. The Museum of Classic Chicago Television YouTube Channel still lives, but it’s still loaded with shows that might inspire other copyright holders to file a complaint. Enjoy it while you can.
I usually only allow comments from paid subscribers, but I’ve opened this post up to everyone in case I haven’t quite explained things. Ask me below if you want clarification on any of the legal stuff.
Counterpoint
One artist who would object to my “use it or lose it” attitude towards copyright is Bob Seger, an artist who’s stubbornly kept his most compelling music out of print for years.
If you discover Seger via a streaming service, you might think he took an extended vacation between the 1968 LP Ramblin’ Gamblin’ Man (Apple Music, Qobuz, Tidal, Spotify) and the 1975 LP Beautiful Loser (Apple Music, Qobuz, Tidal, Spotify). What’s missing is stunning six-album run that represents Seger’s gradual evolution from psychedelic garage rock to the straight-ahead AOR rock that came to define the genre in the late ‘70s.
Noah (1969), Mongrel (1970), Brand New Morning (1971), Smokin’ O.P.s (1972), Back in ‘72 (1973), and Seven (1974) did not have enjoy the commercial success Seger and manager Punch Andrews thought he deserved, and there were a few creative blind alleys as Bob tried to work out his sound.
None of these records is available to stream, and most of them were barely released on CD (if at all) during the compact disc catalog boom. There haven’t been any vinyl reissues, either. You can buy Heavy Music, a CD compilation of the garage rock singles Bob Seger & the Last Heard released on Cameo before the Bob Seger System made Ramblin’ Gamblin’ Man. Heavy Music is streaming (Apple Music, Qobuz, Tidal, Spotify), but you’’ll have to search “Bob Seger & the Last Heard” to find it on Apple Music or Tidal (cf. “The Problem With Metadata” post from last June).
For unknown reasons, Smokin’ O.P.s is the outlier here, because it’s still easy to get on CD for a normal price. You still can’t stream it, and it’s nowhere near the top of my rankings of the missing Seger titles.
As for those blind alleys, I can’t think of any rock artist whose journey to find his or her signature sound has yielded so many great albums. Do Bob and Punch consider these LPs to be embarrassing juvenilia that would distract from the finely tooled music he started releasing circa 1975? Is Ramblin’ Gamblin’ Man available only because it’s hard to ignore an album that features a Top 20 pop hit?
There have long been rumors and stories about reissue labels who’ve approached Punch Andrews (still Bob’s manager after more than 50 years!) about reissuing these titles, either as standalone LPs and CDs or as part of a deluxe box set. Apparently, Seger has gone out of his way to make sure that used vinyl was the only legitimate way to hear these records.
I want to emphasize that these records are incredible, sure to appeal to an audience that may find Night Moves (1976) or Stranger in Town (1978) too slick or mainstream. Seger was a fantastic soul singer in his youth, and his voice combined with the psychedelic and hard rock arrangements on these records reaches heights that Bruce Springsteen never imagined.
OK, so Bob has decided he doesn’t want us to revisit this part of his past. He can’t do much about the LPs in circulation that were sold during their original release, but those early Capitol CDs (probably done on record company autopilot as part of a label-wide reissue program) were quickly pulled from the market and only Ramblin’ Gamblin’ Man and Smokin’ O.P.s are still widely available.
Should Bob Seger suppress his own records? Does his decision to keep that music out of circulation mean he should lose the copyrights in those records?
All of this is an elaborate windup to a confession: I just bought South Korean CD “reissues” of Noah, Mongrel, Brand New Morning and Back in ‘72 on the Big Pink label. The company has released hundreds of late ‘60s/early ‘70s titles that are otherwise unavailable over the past decade or so.
Big Pink releases come in 5 5/16” square cardboard sleeves that are facsimiles of the original LPs, and there’s a lyric sheet inside alongside an elaborate 45-style paper sleeve with Big Pink branding. The spine side of the CD sleeve slides into a wraparound (apologies to collectors who have specific terminology for this stuff and get nervous when someone doesn’t use the right words) that has a brief description of the music. The back side includes a bar code that coughs up general links to the album on Google Lens but gets zero results at Amazon.
Are these properly licensed reissues? I’m sure they’re not even though they sound great. Were they mastered from rare, previously issued CD copies? Maybe, but I can hear a needle pop at the end of my Mongrel CD, so I think I’m hearing an especially good vinyl rip on this CD.
I purchased these titles for around $20 each from a high-profile brick-and-mortar store that has an outstanding mail order operation. They’re one of the very best retailers in the world at this point, so I’m not going to specifically name them because I’m not handing out free road maps. I depend on this store far too much to bring down any trouble on their operation. If you’re someone who’s into reissues, you can probably figure out where I bought them.
Should I feel bad about my purchase? I’m not sure. I can rip these CDs, add them to my iTunes and they’ll now show up in my Apple Music account so I can include these songs on playlists I’m making for myself. Could I have ripped the vinyl for myself and done the same thing? Sure, but for all my alleged expertise in converting vinyl to digital audio, being able to get this music from an excellent-sounding CD is much less of a hassle.
And, in spite of Bob’s best efforts, that missing music is easy to hear on YouTube.
Here’s the question: Does a work of art have rights independent of the people who made it? Much to the chagrin of some artists, you’ve got no control of how people interpret your work once you put it out into the world. How your audience reacts to your work changes the meaning of a movie or song or a painting, and the collective experience of the audience can either match or overrule the artist’s intentions.
Maybe Bob Seger doesn’t like to remember the version of himself that made these albums. Maybe he’s afraid that a large chunk of the audience will think this music is as good or better than the songs on the records that he prefers. If he’s really determined to keep these songs out of circulations, he might even put a clause in his will that prevents his heirs from ever reissuing this music before it eventually goes into the public domain.
That would suck, because I think this music can only elevate Bob Seger’s reputation. He’s a major artist who’s remembered more for those Chevrolet truck commercials than for one of the greatest white guy music catalogs ever.
If Bob ever changes his mind about this music, he can sign me up to work on the reissue campaign. I know mastering engineers, liner note writers, music publicists, and record store owners who would do backflips for an opportunity to be a part of sharing this music with the world. Most importantly, I know that Grammy-winning art director David Gorman would do some of his best work ever, because he’s the only person I’ve ever met who loves these records more than I do.
Y’all just make the call, and I’ll catch the next plane to Detroit.
8-Track of the Day
This one isn’t in my collection. Capitol resequenced the album in an effort to create 4 programs of equal length, but the 7:24 version of “River Deep, Mountain High” had to be split across two programs.
8-track tapes are a loop that features four pairs of stereo tracks. After the tape completes a revolution, the player’s heads physically move down to the next pair of tracks. The player makes a clunk as the heads move.
That means there’s a mechanical clunk somewhere in the middle of “River Deep, Mountain High,” a clunk that starts off as incredibly jarring on first listen but often becomes an indelible part of the song for devoted 8-track listeners. Those random clunks are my favorite part of 8-track listening, no matter how much they interfere with the artist’s original intention.
See also: Bryan Adams' "Let Me Take You Dancing" 12" mix regarding trying to keep music away from streaming services and reissues. It's a great dance record that sped up his vocals to be a better dancefloor tempo with the available technology of the time (with excellent, yet "chipmunk," results), but good luck in locating an online source for it for too long of a time before it gets removed. It's also not exactly styled like his later releases are, but could easily fit into the same with a re-recording in his rockier style.
Thank you! Really enjoyed reading this.