Jon Noring, an avid audiophile since his college days, has owned thousands of old sound recordings--especially from 1928-1933, the golden age of classic jazz, when Duke Ellington's Jungle Band, Benny Goodman, Jack Teagarden and Jon's other favorites were swinging away.

Now he dreams of a giant archive that, like Project Gutenberg's e-book collection, would be free all over the world by way of the Net.

Ironically, due to a cobweb of laws here in the United States, Americans themselves might initially be denied the enjoyment of their own musical heritage. However, if nothing else, the proposed Project Gramophone just may be able to go outside the States to host reproductions of the recordings. Better still, perhaps Congress can change the laws; write Jon Noring if you can help the project in this or other ways. Ideally groups such as the Electronic Frontier Foundation, IP Justice and Creative Commons can join Jon's efforts, and if well-known legal scholars can overcome the usual NIH barriers and participate--yoo-hoo, Harvard, Yale, Stanford, Berkeley and the rest?--then so much the better. Jon and others on the Project Gramophone list have already done their share of research. Did you know, for example, that the actual recordings, as opposed to the compositions, are not in the public domain even if they date back to the Edison era?

To perfect the proposal below, Jon has been collecting feedback, too, by way of other copyright-related lists, as well as informal reactions from government officials. His project is not part of the Library of Congress, but I am delighted to report that he will be visiting the Library next week as a newly appointed member of working group to discuss discographical database design. I hope that the Library and other large institutions will soon take an official interest in Jon's ideas. Needless to say, Project Gramophone could eventually be part of a TeleRead-style national digital library system.

For those who wonder, yes, this is the same Jon Noring who moderates the 1,800-member eBook Community List and who has so courageously fought for a Universal Consumer Format for electronic books. - David Rothman

THE PROJECT GRAMOPHONE PROPOSAL

By Jon Noring

Abstract

Many of the early U.S. sound recordings--those recorded from the late 1800's up to World War II--are essentially locked away from wide public availability. This article will explain why this is so, and why this should concern the world community. It will also propose a solution, termed Project Gramophone, to "free" these recordings by placing them online, where legal, for wide, international access.

Preface

This article is a follow-up to David Rothman's TeleRead blog entry of September 30, 2003 regarding Project Gramophone (the website is still under major construction) and the status of older U.S. sound recordings. Many thanks to David Rothman for mentioning Project Gramophone in his blog.

What I outline here is my present understanding of this fairly complicated issue. Similarly, the proposed solutions are not claimed to be the only ones that may be considered; others, including variations on the ones presented here, are certainly possible. Email me at jon@noring.name with comments on my accuracy and conclusions--if necessary, I will amend future versions of this article.

Representatives of the recording industry are invited to provide their perspective on this issue. It is hoped the recording industry will not interpret this article as an attack--which it clearly is not--but rather as an invitation to participate in the solution. As I see it, the recording industry will significantly benefit by freeing the older recordings so they are made widely available.

Introduction: What Is the Issue?

Commercial sound recordings have been made in the U.S. since 1889. If we examine the first half of this 114-year era, up to early World War II (specifically up to the July 31, 1942 American Federation of Musicians recording ban, which radically changed the landscape of the recording industry), we come to a startling conclusion. The vast majority of these recordings are effectively "locked away in the vaults," essentially unavailable to the public-at-large as legally authorized reissues.

Only a tiny fraction, several thousand out of the many hundreds of thousands (and maybe even over a million when one counts alternate takes) of the commercial pre-World War II U.S. sound recordings ever "waxed" have been authorized for reissue on CD by their current owners.

The remaining recordings, the vast majority, are not available to the general U.S. public (and, by extension, the world-at-large) as "legal," authorized reissues, with little hope they ever will be, at least until 2067, as will later be explained. Only a small community of dedicated private collectors of commercial pressings have access to most of the original recordings. In addition, libraries and archives that have collections of 78 rpm records and cylinders are few and far between, and their collections are essentially unavailable for just anyone to walk in off-the-street for a "casual audition." The original records are quite fragile and, in many cases, extraordinarily rare. Very few people have the needed equipment to play these recordings.

Nearly all of the pre-WW2 commercial U.S. sound recordings are now owned by subsidiaries within three international media conglomerates: Sony, BMG, and Vivendi. These international companies (based in Japan, Germany, and France, respectively) inherited the rights and existing masters to these recordings after a long-series of corporate takeovers and mergers in the recording, movie and publishing industries, starting in the 1920's and which continue today.

Why Should We Be Concerned?

First and foremost, we must understand that the corpus of these older U.S. sound recordings is culturally very important to the world community and its heritage. Much of today's music worldwide has been profoundly influenced by early U.S. recorded music and the genres it represents: jazz, swing, ragtime, blues, dance, personality, country, gospel, ethnic, and classical, to name the major ones. In turn, U.S. music from a century ago is an amalgam of European, African, Asian and other influences. In its essence, U.S. music is inseparable from the music of the world, both in origin and in contemporary influence.

Thus, these early recordings transcend simple corporate and legal interests--they are an important part of humanity's common cultural heritage, and must be treated with the seriousness, respect and importance they deserve. They must all be carefully preserved for posterity and be made conveniently and readily available to all. Doing so will inspire new musicians and song writers (which, in turn, will bring enjoyment to the music-listening public as well as benefit the present-day recording industry), will aid in cultural and historical research, and will promote international understanding and, ultimately, world peace. These benefits are impossible so long as these recordings are effectively locked away from the world as they are now.

The Legal and Economic Reasons For This "Lock-Away"

The reasons for this surprising (and sad) state of affairs, which are both legal and economic, border on the surreal. To explain this, let me give some background, pieces of the puzzle if you will, which after mentioning them, should clarify why the U.S. sound recording heritage is effectively "locked away" as it is.

First, it is important to realize that all U.S. sound recordings recorded before February 15, 1972 are surprisingly not covered under Federal Copyright statutes in the U.S. Why is this so? I won't go into the gory details, but essentially it was a long-standing oversight by Congress that was not fixed until the 1970's. (Note that song compositions, lyrics, and arrangements, which are separate from sound recordings, have been covered by U.S. copyright law for quite a long time, but that is a separate issue which does not contribute to the situation being discussed in this article.)

Does this mean that the pre-1972 U.S. sound recordings are "Public Domain" in the U.S.? Certainly not! Federal copyright law normally preempts any and all State-level laws--but not in this case. Instead, these recordings have been given copyright-equivalent protection by a complex web of State laws. And here nearly all the State legislatures (with the possible exception of Vermont) have been busy over the years granting quite strict State-level protection to these sound recordings using various and clever legal mechanisms under common law and statutory law, such as State copyright laws (some of which appear to have perpetual terms!), anti-piracy laws, unfair trade practice laws, etc., etc. This sad state of affairs will not mercifully end, thanks in part to Sonny Bono, until February 15, 2067 (by Section 301(c) of Title 17), when Federal Copyright law finally takes effect and preempts State law protections of sound recordings; the early recordings will then revert to the Public Domain in the U.S. (as Title 17 currently stands). This includes the earliest commercial recordings released in 1889, a whopping 178 years later! And a paltry 130-140 years of copyright-equivalent protection for the "Golden Era" of recorded music: those recordings from 1925, the start of modern electrical recording, to 1935.

That's the first piece of the puzzle. The second piece deals with simple economics. It is clear that today's media companies derive nearly all of their revenue (and profits, if any) from sales of more contemporary material--their whole focus is today, which is understandable, albeit somewhat regrettable. Even if the major media companies were to pry open their vaults and reissue every pre-WW2 recording they own, the revenue generated from doing that would only be a small fraction of their total, and the profits even tinier. It is difficult to consider reissuing a CD which may only sell from a few hundred to several thousand copies worldwide (many to libraries so the material will be available to all), even when the production costs are relatively small. It is generally not worth their time to bother reissuing much of this stuff from economic considerations alone.

The third piece of the puzzle, related to the second piece, is more troubling: contractual liability, particularly non-expired "perpetual" contracts regarding musician and orchestra leader royalties. Before explaining how this appears to be contributing to "locking the vaults," let's take one step back and note two facts:

1. The vast majority of the pre-WW2 recordings were not encumbered with any long-standing royalty contracts--nearly all recordings made then were pure "work for hire" with lump-sum payments (this was one of major grievances which precipitated the successful AFM recording ban of 1942 as previously noted).



2. Since the 1920's, the assets of the original recording companies have changed hands several to many times, almost like musical chairs, and as a result nearly all the legal documentation of the few royalty contracts which were signed have been lost in the shuffle. Thus, the contractual status of many pre-WW2 recordings is today indeterminable.

1. Even though the pre-1972 U.S. recordings are not protected under U.S. copyright law on U.S. soil (as noted above, they are protected by various State law mechanisms), they are most certainly covered under copyright laws in most other countries, almost always by the rules that currently exist in those countries.



2. The copyright terms for sound recordings in most developed countries are reasonable and rational. For example, in Canada, Australia, New Zealand, and most of the European Union countries, the term is 50 years after the year of fixation or of first public release. Thus, in these countries most (if not all) of the recordings from the pre-WW2 era are in the Public Domain, including those recorded in the United States. Other countries have slightly longer terms for sound recordings (e.g., 60 years in India, 70 in a few)--in such countries many to most pre-WW2 U.S. recordings are also Public Domain.



3. The very few royalty agreements made in the U.S. before World War II (and they are rare) apparently will not legally extend their reach into other countries when the recordings there are Public Domain and put online by an independent organization that does not own the U.S. rights to the recordings in question nor has any connections to the rights owners. (Of course, on this point competent attorneys in both the U.S. and in the country of interest should be consulted. However, this appears to be correct. Otherwise, contractual agreements in one country can be cleverly used to perpetually prevent access to otherwise Public Domain creative works in another country.)

Still wondering why we keep ranting about the DMCA? Check out Ed Foster's post on Diebold's campaign to hush up critics of its buggy electronic voting machines. The Copyfight blog aptly quoted Foster's nifty rewrite of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press ... except as needed to allow trademark and copyright holders complete power to control discussions about their brands.

Big conglomerates would be able to claim some new rights even on public domain works--just by transmitting them. The bad guys have had the audacity to include that proposal in a new international treaty. Will the treaty enjoy the blessing of copyright 'crats at the international level like Kamil Idris, pictured to the left (more on him below)? Don't be surprised.

Maybe it's time for a fresh term. You've heard of vanity laws like the DMCA--bought by and written for members of specific industries. How about "vanity treaty"? Yoo-hoo, John Dean and you other Presidential candidates? Guess you're taking your usual snoozes.

Below is a warning from James Love at the Consumer Project on Technology, with italics added by us:

From November 3 to 5, the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) will meet in Geneva to decide how to proceed on proposals for a new global intellectual property treaty. The proposed treaty concerns a system of ownership for material transmitted over wireless means such as television, radio and satellite, as well as wired communications over cable networks, and also over Internet computer networks.

This proposal expands or gives new rights to transmitters of information, even if they are not the creators of that information. Rights that are normally reserved to creators and performers would be afforded to organizations that merely transmit creations and performances--even if those works are in the public domain, or if those works' authors wish to have the works distributed without restriction.

There are proposals to extend coverage to broadcast, cablecast, and webcasting technologies, and the treaty will be referred to here as the "casting" treaty...

In today's economy, a country's success is measured more and more by its possession and exploitation of such assets; and our increasingly interlinked world gives heightened importance and worth to inventive ideas, discoveries and artistic expression, particularly when they are turned into currencies of value through the use of the intellectual property system."

The multinational recording companies are vitally concerned with the discovery, nurturing, development, exposure, and commercialization of new talent, new songwriters, new singers, new musicians, new groups , and new music. This process is ultimately their lifeblood, and one way they can secure their future is to keep a constant and large flow of new talent moving through their systems...

You already know: Presidential candidates' Web sites excel in hiding contact info to reach influential advisors. Jack Valenti and crew have the open-Sesame information. You don't. How to articulate the philosophy behind this not-so-accidental little omission on many a campaign site? Well, the protagonist in Our Friend the Charlatan, a novel that the British writer George Gissing published in 1901, does a preternatural job of expressing the elitist DC mindset that permeates the Website-creation philosophy of Dems and Republicans alike, even if they won't fess up to it. Influenced by--wait, more or less plagiarizing from--an obsure French philosophical work, the title character says:

No true sociology could be established before the facts of biology were known, as the one results from the other. In both, the ruling principle is that of association, with the evolution of a directing power. An animal is an association of cells. Every association implies division of labour. Now, progress in organic development means the slow constitution of an organ--the brain--which shall direct the body. So in society--an association of individuals, with slow constitution of a directing organ, called the Government. The problem of civilisation is to establish government on scientific principles--to pick out the fit for rule--to distinguish between the Multitude and the Select, and at the same time to balance their working. It is nonsense to talk about Equality. Evolution is engaged in cephalising the political aggregate--as it did the aggregate of cells in the animal organism. It makes for the differentiation of the Select and of the Crowd--that is to say, towards Inequality.

The Electronic Frontier Foundation is one of our favorite groups. But how to amplify its voice and those of similar organizations? Several times we've called for the creation of a Digital Media Users Association. A little tidbit from The Register--on the disappointingly limited DMCA ruling from the U.S. Copyright Office--really makes the case in effect:

...both the original DMCA and the state-centric "super DMCAs" have sailed onto the statute books without adequate lobbying in DC, without the public being aware of the implications and, in the case of the super DMCAs, without the EFF even noticing.

The EFF renewed its call for "legislative reform" of the DMCA yesterday. But San Francisco, where the EFF is based, is a long way from the dogfights of Washington DC; the EFF lacks the funds or the philosophical inclination to fight a populist campaign that would remind Senators of their obligations; and key outreach staff are permanently absent on blogging duty.

With so many good folk keeping themselves so far from the battlefield, it's hard to see how the next round of legislation is going to be anything but worse than what we have now. The ruthless entertainment industry, whose lobbyists effectively wrote the DMCA, have no such qualms.

Over at PalmDigitalMedia, Lee Fyock objects to an item we picked up earlier on the new Palm Reader Pro 2.2.9's fix for the Tungsten T3. The post said, "The program was not originally designed to work with the Virtual Writing Area, and as a result it would not allow you to see the text correctly with the slider closed." Lee writes:

You're mixing up a couple of things. The Virtual Writing Area, actually called the Dynamic Input Area by PalmSource, is the Graffiti writing area that can slide up and down. Separately, the T3 has a hardware slider that exposes more screen to go from 320x320 to 320x480.

We assumed when we added support for the T3 a few months ago that everyone would read using the full screen, with the slider open. That turns out not to be the case, so the latest version of Palm Reader adjusts the page size when you move the slider open or closed.

The Dynamic Input Area is a separate thing. If you expose the input area, we don't resize the page, because there's no place on the book page to enter text. If you create a note or something, we automatically bring up the input area for you to use in writing the note.

The U.S. Copyright Office, part of the Library of Congress, has just offered four new exceptions to the DMCA--fair use-related. From Wired News:

Busting open a digital lock to get hold of copyright works normally is forbidden, but the Librarian of Congress ruled Tuesday that there are exceptions...

Those who are exempt from the rule are those who are "adversely affected by virtue of such prohibition in their ability to make non-infringing uses of that particular class of works," according to the DMCA...

On Tuesday, the U.S. Copyright Office released the four "classes of works" exempted from the anti-circumvention rule. People may bypass a digital lock to access lists of websites blocked by commercial filtering companies, circumvent obsolete dongles to access computer programs, access computer programs and video games in obsolete formats, and access e-books where the text-to-speech function has been disabled.

Convert Lit, the uppity program that lets you crack Microsoft Reader to make Fair Use backups or read books in evil, unGatesian formats, has moved to a Polish host to escape the tyrannies of the new EU-style DMCA in the United Kingdom and elsewhere. Hollywood and friends apparently have yet to buy Eastern Europe in full.

Meanwhile, despite a new ruling from the U.S. Copyright Office, our American readers should not think that an all-clear signal has definitely and officially been given for nondisabled readers to benefit from Convert Lit. More on this below.

Discussing the Polish-based site, which appears to be at an educational institution there, Dan Jackson writes:

OK, it's not exactly the height of stylish webdesign (I haven't gotten around to writing any style sheets for it yet) but the content is mostly there, which is what matters really. We have a new site at www.convertlit.com. Everyone should change their bookmarks to point there, because (as you already know) starting October 31st the old site will be coming down.

This means no more annoying ad banners (hooray!) and no more broken referrer blocking preventing people from downloading the program (hooray!)

The FAQ has been expanded somewhat from its previous incarnation, too, so it includes more detailed instructions on how to get started and things to check when reporting bugs and problems, and so on.

The Legal page now mentions the recently announced Section 1201 exemptions, which mean that under certain circumstances, usage of Convert LIT may be legal in the United States.

Cheers,
Dan Jackson

Lynn Dimick, a frequent TeleRead contributor with more than his share of wise observations, weighs in with some layman's thoughts on the legal risks of corporations using DRM in the Microsoft vein:

Perhaps the best way to address the MS DRM issues with Office 2003 and Outlook/Exchange 2003 is through the corporate world. Allow me to explain.

In today's litigious business world there are mandates being handed down from most corporate legal departments about document retention and data backups. In our case we are required by the legal department to maintain perpetual monthly backups of all data. No document is to be deleted or destroyed. This includes email. The SEC has slapped some hefty penalties on companies that have not followed these guidelines in the past.

Now, how do you think the IT world is going to respond to M$ with their self-erasing, locked down DRM software given these legal mandates? Imagine the nightmare for the Human Resources department in harassment cases if I can send a DRM message to another employee that cannot be read more than once or by other people?

In my case I will make sure that my job is protected to the point of fighting to keep M$ DRM out of my office.

Ebook Love, a new e-mail list, describes itself as "dedicated to spreading the word about romance e-books." Details:

There are already lists for major print publishers, and for mystery, mainstream, sf/f, etc. This group is for romance ebooks only.

To encourage reader talk about romance ebooks, every time an author or publisher posts an e-book promo to the group, they will give away a free copy of the ebook to a member of this list. Simply sending a private e-mail to the list moderator gets a member's name in the drawing. We hope this method will lure lurkers out of lurkdom and they will be inspired to post to the list about the free e-book they just won, as well as any other romance ebooks they've read lately and want to talk about.

Girding for a book war against Amazon, the Google people have quietly asked publishers in the last few months to let the search engine company handle book content. Via the liblicense-l list, here are some excerpts from Publisher's Weekly Online:

...How that content would be presented is not clear, but it would likely not be provided in excerpted passages to customers, as it is on Amazon. Instead, the material would go into a database that Google spiders would comb, then turning up relevant links.  If a user clicks through, they would be sent to a separate page that contains a book abstract and the opportunity to buy the title. Who would actually be responsible for the sale would be a decision presumably left to the publisher...

...according to a report from one publisher, Google has said it has reached agreements that allow it to enter as many as 60,000 titles in its database and also presented extensive mock-ups to publishers of how book-relevant searches will look.

The Authors Guild's concerns over Amazon.com's turbocharged search engine made today's New York Times:

Paul Aiken, executive director of the Authors Guild...regarded the practice as dubious. He said that publishers did not have the right to make the contents of books available without the authors' permission. "We find it a matter of serious concern," Mr. Aiken said.

He said Authors Guild staff members had managed to view and print as many as 100 consecutive pages of several books by searching repeatedly for different terms. He also noted that recipes from some cookbooks and details from travel books were also available, meaning that users could print recipes or destination descriptions without buying the books. "You don't even have to wait for Amazon to deliver," Mr. Aiken said.