TeleRead: Bring the E-Books Home

Project Gramophone: No music for U.S. surfers?

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Project Gramophone may have to set up shop outside the U.S. and keep Americans from downloading lush music that is part of our own national identity.

Started by my friend Jon Noring, Gramophone is a focused initiative to preserve old recordings by putting them on the Web the way Project Gutenberg has uploaded thousands of literary classics for rich and poor alike. Gramophone “would archive sound recordings made up through the 1920’s or 1930’s and sometimes more recently, depending on various factors.”

Problem is, it may not be that simple for Jon and rest of us in Gramophone to make the Roaring ’20s and the rest come to life on your Net-connected computer.

Along with others on the Project Gramophone list, Jon has been conscientiously researching the laws. Now he worries that Project Gramophone may not even be able to share its music with people in the United States, his own country. Yes, you read it right. Surfers in, say, Australia or Japan might be able to enjoy Gramophone’s music, but not schoolchildren in Harlem or Anacostia, which is all the more unfortunate, given the importance of minorities on the American music scene.

Simply put, it’s high time that America changed its laws to make the online preservation of early audio recordings less of a legal challenge and give us a true public domain in recorded music. For all practical purposes, one doesn’t exist now–even for recordings made before 1923, which is commonly the dividing line for those determining if books can go on the Net for free.

Remember, we’re talking about decades-old recordings, not illegal swaps of Britney Spears cuts. Worsening the problem are vanity laws at the state level, lovingly crafted by industry lobbyists of yore. Of course, one hopes that recording companies will cooperate with Jon despite their past and present ability to buy vanity legislation from cash-hungry pols at all levels. He is the old MP3 not.

Here’s part of his candid reading of the situation–a list of “requirements for the launch of PrGr” under current law:

1) PrGr must not actively solicit source material nor transfers from anyone in the U.S. It must not accept transfers unless it knows where the transfers were done and where the transfers were sent from–the transfers must not have been done in, nor sent from, the U.S. Those who did the transfers from original master pressings must authorize their release to PrGr.

2) If PrGr does its own transfers (which I believe it should using state-of-the-art equipment), the transfers must be done in the country where PrGr has its base of operations. (PrGr would accept “walks-ins” of course, with no questions asked where the records came from, so long as they were not actively solicited from the U.S.–the key for maximum legal protection is knowing and restricting where the transfers are done and by whom.)

3) For at least the first few years of PrGr’s existence, the material transferred initially should meet a voluntary 70 year “term,” so for PrGr operations in 2003, PrGr would only transfer pre-1933 material (see #4 right below), in 2004 it would be pre-1934 material, in 2005 pre-1935 material, etc. Even if PrGr is legally allowed to transfer a lot of post-pre-WWII recordings, it is best to focus in the first few years on the pre-WWII recordings, especially the rarer pre-Swing recordings.

4) If the country of PrGr operation determines copyright of sound recordings based on release/publication date (and not on when the recording was fixed), then PrGr must base what it transfers (see #3 right above) on when the recording was actually released/published. Unissued alternate takes would not be put online since they are obviously under copyright protection. (Thus, it is important to fully understand the law in the host country regarding the term of the copyright of sound recordings, including on what basis the term is calculated from: when it was fixed or when it was published/released.)

5) The PrGr online web site must make it plain that anyone residing in the U.S. may not download anything from the site, including mentioning that RIAA has threatened to, and may attempt to, determine those on U.S. soil who are trying to access the recordings and file legal action against them. I’d make sure this statement is very boldly presented on the home Web page with no editorial comment whatsoever–here’s no need to make an additional editorial comment since just stating it in big bold letters is an editorial statement all to itself.

While Jon won’t make editorial comments on the proposed home page, I’ll speak up here for myself and not at all for Project Gramophone. The RIAA and friends are to old music what the worst of the U.S. efforts were in Vietnam, with a burn-this-village-to-save it mentality. We’re not just talking about the legal risks to basic preservation through widespread replication on the Net. Just how valuable will the old music be to humanity if it vanishes from the mass consciousness because the big money isn’t it it for profit-minded conglomerates? Thanks to the greed and control-mindedness of the music industry, however, no small part of our audio heritage may be lost or restricted to the elite (including the collectors of the master recordings, who, under the current laws, exercise far more far control than they should). I’d love for the RIAA types, if approached by Jon, to disprove my skepticism.

If industry-created barriers can’t be overcome, Project Gramophone just may have to start up in Canada–assuming that the tentacles of the American recording industry don’t reach far enough into the courts and legislative branch of our neighbors to the north.

If, however, the industry behaved decently toward Project Gramophone, Jon would reciprocate. His goal is to help the public, not torment the recording companies. Jon thinks one good step would be to lessen the mostly theoretical liabilities–from hard-to-find heirs of long-dead musicians–that might result if companies donated recordings to Gramophone-style groups or released them to the public domain. Another step, I suspect, might be to give the corporations new tax breaks.

Memo to Howard Dean and other presidential candidates: Care to take a stand? Or are you too worried about your mother’s milk from Hollywood campaign donors?

Suggestion for Larry Lessig: Why not speak up and energize your troops for Jon Noring? This is a posterboy illustration of the need for more enlightened copyright law and related legislation. Ideally you can encourage Gov. Dean, Gen. Clark and the rest to take a stand.

Reminder to the RIAA and its members: You haven’t exactly scored a major PR coup with your threats against a 12-year-old. Helping Jon would be one way to show a new sensitivity to the commonweal.