Academic journal article Notes

Ether Today, Gone Tomorrow: 21st Century Sound Recording Collection in Crisis

Academic journal article Notes

Ether Today, Gone Tomorrow: 21st Century Sound Recording Collection in Crisis

Article excerpt

Libraries are facing what may be an existential crisis. As more books, videos, and sound recordings are licensed and distributed through online-only means, the amount of such material available for libraries to collect is shrinking. Instead, recordings are available only as a stream or MP3 download via such online distribution sites as iTunes or Amazon .com. These, and similar sites, require individual purchasers to agree to restrictive end-user license agreements (EULAs) that explicitly forbid institutional ownership and such core library functions as lending:

* You shall be authorized to use the Apple Music Service and Apple Music Products only for personal, noncommercial use, except as otherwise authorized by Apple. . . . You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the iTunes Service in any manner. . . .1

* Amazon or its content providers grant you a limited, non-exclusive, nontransferable, non-sublicensable license to access and make personal and noncommercial use. . . .2

This crisis is especially stark for libraries that collect music recordings. As compact disc sales shrink and online sales expand, a growing portion of our recorded music history is unavailable for libraries to purchase. With CDs and other physical items, libraries-along with individual consumers-were able to own their music recordings, which gave them the right to lend them and preserve them for future generations of scholars and fans.


Since 2010 the scale has tipped increasingly toward the online distribution model. Despite a resurgence of niche hipster-led vinyl sales,3 2011 online sales skyrocketed, accounting for 50.3 percent of total music sales.4 In 2013, streaming service sales increased dramatically, by 32 percent for companies such as Spotify and Pandora. The trend continued in 2014, with sales of 326 million digital albums, constituting 68.4 percent of total album sales.5

A growing number of music digital sales are available only online, and many of these are critically acclaimed works. Deutsche Grammophon released several Los Angeles Philharmonic recordings that are available only online, including its Grammy-winning recording of Johannes Brahms's Symphony no. 4, conducted by Gustavo Dudamel.6 Similarly, many popular music artists utilized online releases for mix tapes, bonus tracks, singles, and live performances. This includes Grammy-winning rhythm-and-blues singer Frank Ocean and Et In Arcadia Edo by Jagat Skad. Companies like Spotify had many exclusive online-only releases, including what appears to be an exclusive release on Spotify of Prince's song Stare. This work became available on TIDAL, Jay Z's high fidelity streaming service, a few weeks after the artist pulled his catalog of music from all other streaming services.7


While possibly convenient for consumers with means, such a distribution model poses a challenge for libraries aiming to provide access and preserve music recordings. When music recordings are distributed in physical formats such as compact discs and LPs, libraries are able to legally purchase the works and to distribute them under first-sale doctrine. Together with the fair use doctrine and the library exceptions for preservation purposes in section 108 of the U.S. Copyright Act, the firstsale doctrine has ensured that music libraries can acquire, lend, and preserve copyrighted works without fear of legal sanctions. When music is available only via a license that bars institutional use, however, these core federal legal principles appear to, in effect, be waived in favor of the terms spelled out in the license.8

This model-limited licensing of titles to individual consumers-may benefit a music distributor's bottom line, but it does not guarantee access for the long-term. If the popularity and resulting commercial potential of a recording fades, will a distributor cease to provide access to it? …

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