Is Downloading OOP Music Wrong?

This one has the potential to top the MFSL Yes Album thread debate!

 

The question is misleading.

First, the poll question is about "wrong", but in the post you write "wrong / illegal". Two very different things.

Second, the poll asks about "OOP music", which I assume means music that is out of print and not available on any current format. But the post describes that OOP versions or pressings like DCC and MFSL are meant. Two very different things.

I would answer the poll question as it is with "no", but it is illegal. I have no clear opinion regarding OOP versions of otherwise available music but tend towards wrong.

 

Fair Use has a loophole for research purposes.

So if you were downloading it to see how it sounds before buying it or to compare it to another mastering, I would call that research and totally legal.

There's lots of unanswered legal questions regarding these things. For instance, can I legally download a needledrop of a record I own? Can I download an oop DCC CD if I own the regular release? When I purchase a CD, am I buying a license to listen to the music or am I buying just the disc?

Who knows.

 

Fair Use is a pretty gray area, and typically would only authorize use of a brief excerpt. It is possible downloading entire OOP albums could be upheld as fair use with such a justification, but honestly I put the odds of that at about 10-20%.

 

Here's some related info...

http://www.indicare.org/tiki-read_article.php?articleId=98

Bear Family records sued another label for using Bear Family masterings in their own releases. The music in question is too old to be protected by copyright in Europe.

The court found in Bear Families favor and said that the individual mastering was protected by copyright laws.

So basically, each individual mastering is protected so if you own one mastering you don't have a right to own another mastering of the same title.

Then again, this court case was in Europe so it doesn't mean squat to the US but it does provide insight into how a US court might rule.

 

It's a shame that there isn't a "Blockbuster" or "Hollywood" for CDs, where you can rent them as you wish, knowing that you will burn them, but still the artist makes money.
Oh wait, the recording industry wanted to make renting CDs illegal.

 

The reason I personally am against it is that, even if it's OOP today, that doesn't mean it will forever stay OOP. And wide distribution of OOP material could certainly deter someone from buying it if it were made in print again, and there is the possibility it might keep something from going back in print as a label might think 'hmmm everyone has this illegally, why should we even bother to reissue it.'

 

They're called public libraries!

 

This is what I mean: As you wrote in your example, "the owner of that work is refusing to offer it for sale." So are you suggesting that the consumer can decide to disregard what the owner of the work wants to do with that work, because the consumer's desire to own/hear/see/use the work trumps what the owner who possesses the rights wants to do with it?

I didn't think you were suggesting becoming a bootlegger. I assume we're only talking in this thread about acquiring out-of-print music, for personal use only, by downloading it for free.

Again, you're suggesting that the copyright/license holder's rights to refuse to make a work readily available for purchase are to be disregarded or ignored if you, the consumer, want to enjoy it? Is that the defining factor? "I want to enjoy it, but it's not available for me to purchase except in the used market; therefore, I will find a way to get it for free."

I'm pretty sure leafing through an out-of-print book for a few minutes that's on a table, such as at a used bookstore or a library, is fine. I think your use of print books as an analogy is confusing the discussion, because it's different than downloading an electronic copy of something that was previously only available as a physical item to purchase. Perhaps if you were arguing that it's okay to download for free an unauthorized PDF file that electronically reproduces every facet of an out-of-print book, your example would be more analogous to the downloading music scenario.

If you owned the copyright of that special version of the album, and you were choosing not to release that version for some reason (does it really matter what the reason is?), don't you have that right, and don't you think that it's right for everyone else in the world to respect that right? How would you feel if people didn't respect that right? Would you ultimately approve of the unauthorized downloading because, after all, it was your own fault that you refused to release the music, and/or always keep it in print? What if you had plans to release that music in the future, but the downloading has now spoiled those plans?

Craig.

 

I download for 2 reasons:

- because it's OOP, and too expensive at the 2nd hand market: The Cars "Greatest Hits" DCC over 600$ at ebay,... Out of my budget range I won't pay no longer over 75$ for OOP discs (very special occasions). I would buy them in a minute if they got re-released (OOP DCC's, SACD's,...). At the time they got released, I was still playing with my matchbox cars

- to discover new music: First download the cd. If I like the downloaded cd's after a few listening sessions, I will buy them immediately.
Will not buy them if: excessive brickwalling, if I don't like the music.

Wasn't selling 2nd hand music at ebay etc. forbidden too?

 

Record companies should have cared enough to put out quality masters in the first place. There should be no need for DCC and MS Gold etc if they done their job right and standard CDs were properly mastered. Of course some regular CDs are great, usually the earlier 80s editions that are of course mostly out of print.

 

Agreed. There are varieties of music that will never sell in quantity of music that is out of copyright. Nobody really owns it anymore, so why not?

Charlie Poole and Artur Schnabel come to mind.

 

Good points. I agree with you that this thread wasn't well thought out, and it's going to lead to a very loose discussion from a lot of angles. (Maybe it would have ended up that way anyway, but a more carefully-constructed thread poll and description might have kept the discussion in better focus.)

 

An argument I see often. If somebody owns an artistic creation and can't or doesn't want to sell it, you should be able to steal it. Interesting but makes no sense to me.

 

I personally don't think it's wrong, but the authorities might think otherwise.

 

You sure took his argument the wrong way.

 

Really, help me out. Where was I wrong?

 

But we're talking about downloading OOP music. How is it stealing if there's nothing available to steal? That's the point here, I think. If the rights holder doesn't want anyone to hear the music he shouldn't have released it in the first place. Once it's out there, tough nuts.

 

To me it is absolutely *not* wrong, particularly with rare, impossible to find albums. I can think of countless examples of long out of print albums that are difficult to find, and which haven't even been issued on CD, and perhaps never will. Regardless of how you acquire an album like this, be it from paying through the nose on-line for a second-hand copy, or downloading it from someone's blog, the artist isn't getting a penny. If I were an artist with an out-of-print album, I would prefer that people download it so that it would encourage the label that owns the rights to reissue it and get it back in print. Once it's back in print, however, I think people should purchase it.

 

This is the problem I have. The entertainment industry has spent millions getting rid of public domain and fair use. They have at this point pretty much created indefinite copy-write, I can understand this when they are making money off the work. But they have also locked up tons of material that they clearly have no interest in ever using again. To me it seems like there should be some compromise in the middle if a company is not going to do anything with a work after a certain amount of time it should go into public domain.

Now that's for OOP stuff. For improved masters I'm not sure I care all that much.

 

It's not legal, but I don't feel it's morally wrong. You'd have view each release on a case by case basis.

If the release is simply not profitable enough to stay in print, I would think you can download with a fairly clear conscious, especially if you manage to support the artist in some other way such as buying tickets to a concert, buying other releases that are available, etc.

If we're talking about something where there's a copyright dispute (Moby Grape) or the artist has personal reasons (Neil Young) for not keeping a release in print, you might be on shakier grounds.

 

Apples and oranges. This point has been discussed many, many times on this board already.

Buying a used cd doesn't hurt the artist (+ company, producer, etc), because the artist has already received their fees/royalties on that copy when it was originally purchased. Once it's on the secondary market, it's like any other item that can be purchased/sold as used (a car for instance). I supppose you could try to argue that no products should be bought/sold on a secondary market, but that's not realistic, and it's certainly legal to buy/sell used products.

Downloading OOP music is different, because it creates additional copies of that music that were not previously purchased (like the used cd), and therefore no fees/royalties have been paid to those who are deserving of it for that copy.

 

All of the DCC gold CDs are both OOP and expensive on the used market. Are those saying it's ok to download ok with downloading them too?

 

It's always sad when the artists get the worst deal of them all. I don't care about record labels. However due to all this many artists have just given up on their creation work and are working mundane jobs now...

 

I think this is an excellent point. There's a lot of OOP material in the vaults, which labels are just sitting on. In some instances there are small, independent labels who'd like to reissue OOP albums, but can't because the labels that own the rights charge too much to license them. And yet the labels themselves won't bother reissuing them because they won't see enough of a profit. So, in these instances, either don't act surprised if people are downloading said material, or make it easier for people to access it legally.