Ray wrote:
I've just read through the decision on "Capitol vs. Naxos". I find the reading tortuous, but I think I understand what they are getting at. Depending on State common law implies that a different result could be had with a judicious choice of state. The bulk of thes cases invoking common law appear to be a part of the original 13. It would be particularly interesting to see how this plays in Louisiana which did not have a background of English common law. The legislation in response to "La Cienaga vs. ZZ Top" would have the effect of restoring common law protection, but it's unclear what would happen when the state had no applicable provisions.
It is true that the laws in each state are different.
From my understanding, 49 of the 50 states (with Vermont being a possible exception) have laws, either common or statutory, which can be used to protect the "monopoly ownership" of sound recordings. They range from copyright to "unfair competition".
So trying to bypass New York state won't really help. Capitol had several states they could have proceeded with their lawsuit, and simply chose New York. So long as Naxos did any business in a particular state, a lawsuit could have been brought up there. With the Internet, the venue gets fuzzy, but probably makes it easier to claim doing business in any of the states of the country, even if the "home" of the effort is done in a "safe" state (if one even exists.)
I think the important thing is that pre-1972 U.S. sound recordings are covered pretty much nationwide with a web of laws that in aggregate is similar enough to Federal Copyright law to be considered the same -- and probably worse than Federal Copyright law (e.g., commercial recordings from 1889 are still protected in many states until 2067 -- that will be 178 years of copyright-like protection.)
From a Wikimedia perspective sound recordings are still only a small part of the material that needs to be freed. Any portion of the $100 million applied to these recordings should be in proportion to the overall distribution of Wikimedian interests.
I agree that sound recordings are only a part of the corpus of works that should be freed. Those who know me know I'm active in the Public Domain community (e.g., Project Gutenberg, Distributed Proofreaders, LibraryCity, and the proposed Top 1000 books project). I'm also very interested in digitizing local materials.
But the older commercial sound recordings have uniquenesses that make them particularly interesting to free:
a) Availability -- the public has little access to the wide range of sound recordings (simply due to the fragility of records and no access to playback equipment), while copyrighted books are much easier for the public to find (some library or bookstore has them, or a reissue) and read. 99% of all commercial sound recordings are very obscure, not having been reissued (or the reissues are themselves very obscure) held only by a few collectors and archives, and hard for anyone in the public to access, much less know they even exist.
It is now possible to digitize en masse the whole corpus of sound recordings and make them all available to the public -- if the laws allow, which they don't.
b) The performances and lyrics are of great cultural significance, on par with any corpus of books. Sound recordings capture a unique look at the culture of the time that cannot be captured with books. I'm not saying sound recordings are superior, but they are not inferior, either. Different and valuable in their own right.
While it is clear that our organizations have a common interest in freeing material from copyright, I would question the appropriateness of turning over any significant portion of these funds to another organization for the furtherance of its objetives.
Well, I understand what you are saying.
But I am not proposing that the funds be turned over to another organization. Most of the funds will go towards the acquisition of the rights of ownership to the works (here sound recordings) which *will* be turned over to the Public Domain -- the rights will not be owned by some other group. This means that anyone can digitize old sound recordings they acquire and put them online or whatever -- no single group will hold an access monopoly on the sound recordings.
And note that, regardless of the medium (books, film, sound recordings, etc.), there has to be people to administer the acquisition, and be involved with cataloging, storage, digitization, etc. This costs some $$$ (how much depends upon the kind of media.) Yes, film and sound recordings will have a higher cost of handling, storage and digitization (we can assume with books a DP process could be used for scanning and digitization), which has to be paid for from somewhere. (As noted, however, there are thousands of people who will, on their own, digitize the old sound recordings, with varying levels of quality, so there will be no monopoly on access to the recordings.)
My prior comment was to note that there already exists a team of experts (who've been studying this issue and are dedicated to the freeing of the older sound recordings) pretty much ready to go to help with the sound recordings project -- if I were the one with the $100 million, I would consider this *vitally* important.
And I know we can leverage other like-minded organizations such as ARSC and the Internet Archive (yes, I've name dropped Brewster Kahle's name -- he *is* very interested in getting all the old sound recordings online) to help out with some of the needed things such as preserving, archiving and possibly even setting up a place to store the still-existent metal parts (the recording companies like Sony BMG will likely not sell their old sound collections until we have a place to store them -- Brewster has talked about a facility to hold all kinds of media artifacts, and the masters could be stored there if that facility comes into existence.)
Heck, with a team of people and organizations working together, we could probably find "matching" funds somewhere and leverage the manpower and expertise of this project to begin purchasing the rights to other types of materials, such as various types of books. So this records project can be a springboard to a major acquisition of rights to all kinds of works. In fact, if I had the $100 million, I would be figuring out how to leverage that money to acquire the rights to all older works.
So even if this project "furthers our objectives" (where "our" refers to me and the people who I am associated with), our objectives are totally in synch with the goals of the $100 million -- to free up currently encumbered works for the public to *own* and *enjoy*.
The team I'm working with will be happy to put together a detailed proposal (like a business plan) pretty quickly if the person with access to the $100 million formally asks us. We are ready...
Jon Noring
(p.s., I reacquainted myself with who owns what of the pre-1942 U.S. sound recordings:
Sony BMG: RCA Victor, Columbia/Okeh, and ARC (a bunch of minor labels) Universal: Decca, pre-ARC Brunswick and Vocalion, and Gennett/Champion EMI: Capitol (founded in 1942, so mostly outside our scope, but was a major label in the 1940's and 50's.)
The National Park Service (Federal gov't) owns the Edison collection, which has, I reckon, about 80,000 to 100,000 recordings -- a lot of them cylinders -- Edison went belly-up in late 1929. Although there is controversy about the copyright status of the Edison collection, most assume the recordings are free to use. There were a few minor labels whose ownership is individual, questionable or abandoned, notably the "Grey Gull" group (with about 5000 to 7000 recordings) which sold records in the 1920's and very early 30's.
But by and large, I would *roughly* guess that 80-90% of all the pre-1942 recordings ever "waxed" in the U.S. are owned by Sony BMG. But the Universal Music Group pre-1932 Brunswick and Vocalions also hold a pretty solid collection of material, mostly from the 1920's, and they should also be approached. Combine that with the Edison and likely abandoned "Grey Gull", and we would have essentially 99% coverage. The remaining 1% we can probably use or secure the rights to for relatively little.)