Amoeba Records Deals With Orphan Works By Pretending It Can Just Digitize & Sell Now, But Pay Later

from the not-quite-how-it-works dept

Fri, Feb 8th 2013 10:44am — Mike Masnick

Glenn Fleishman has a typically fantastic post over at BoingBoing in which he discusses how the famed Amoeba Records chain has launched Vinyl Vaults, an online store for digitized music from vinyl records, available exclusively via the store. Amoeba, for those who don't know, is something of a mecca for music fans. I used to spend hours there buying CDs... until Amazon, CDBaby and the like just made it much easier for me to buy CDs (and eventually MP3s) online. I had no idea, but apparently Amoeba spent six years and $11 million building this online store. That seems like an awful lot. But here's the thing: it appears that the store is basically one giant case of copyright infringement, as Fleishman describes in detail.

Basically, Amoeba decided that if it couldn't find the copyright holder, it would just hold money for them in escrow, and be willing to hand it over should they ever come calling. And, while this might seem like a viable plan in a world that made some sense, it's not what the law allows. At all. Fleishman explores all of the legal nuances (including the fun stuff about how pre-1972 sound recordings are under wacky state copyright laws that have different rules, and won't go into the public domain for much longer than other works). Here's a snippet of the piece:

Where does this leave Amoeba? It seems to be standing on the notion that orphaned works are up for grabs so long as you pay out the owners' cut later when it's claimed. Orphaned works are creations for which no clear knowledge of ownership exists. But there's no provision in U.S. law for how to deal with orphaned works of any kind, music or otherwise. A proposal from 2006 was languishing at the Copyright Office, as it requires Congress to take it up (ha) to establish a clear procedure in law.

Go read the whole thing. It's yet another example of how copyright law makes no sense to most people.

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Filed Under: copyright, digital, orphan works, vinyl
Companies: amoeba records

29 Comments

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Calvin (profile), 8 Feb 2013 @ 10:54am

who sues?
So if they're orphaned works, who is going to sue for copyright infringement?
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Mason Wheeler (profile), 8 Feb 2013 @ 11:01am

Re: who sues?
"Orphaned work" doesn't necessarily mean that no rightsholder exists; it means that no rightsholder has been identified.

Think about submarine patents for a few minutes, and I'm sure you could come up with a viable scenario here...
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Anonymous Coward, 8 Feb 2013 @ 11:04am

What i want to know is how does a claimant prove they they own the copyright, or are entitled to royalties?
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Jake (profile), 8 Feb 2013 @ 11:06am

Re: who sues?
I could see the RIAA or any of the numerous collection agencies getting in on the act to "protect" the artists that it represents.
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Anonymous Coward, 8 Feb 2013 @ 11:18am

Re:
If they're able to, then the work isn't orphaned anymore, and the orphan works problem for that work is settled. Of course, Amoeba would likely pay out the ass for copyright infringement. On the other hand, if Amoeba continues selling these orphan works without issue, would those works be considered abandoned and therefore in the public domain? This is going to lead to a bunch of court cases down the road, but at least we'll have precedent one way or the other. Unless Amoeba folds or settles, of course.
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Tom (profile), 8 Feb 2013 @ 11:18am

There is no such thing as an "orphaned" work.
RIAA will claim ownership by default as the artists' advocate.
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DannyB (profile), 8 Feb 2013 @ 11:35am

Re: Re: who sues?
You just invented a great new business model. Submarine copyright owners.
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DannyB (profile), 8 Feb 2013 @ 11:38am

Re: There is no such thing as an "orphaned" work.
> RIAA will claim ownership by default as the artists' advocate.

The RIAA is made up of member copyright maximalist gatekeepers.

What is possible is a free for all fight amongst the RIAA member companies all claiming to own the abandoned copyright and represent the bestest interest of the artists.
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Nina Paley (profile), 8 Feb 2013 @ 11:45am

Kudos to Amoeba
They might actually know how � works, but also that � law is stupid, and are therefore ignoring it for a higher purpose. They are doing a good thing making old tunes available.
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Anonymous Coward, 8 Feb 2013 @ 11:49am

Pay me 1/10 of what they are charging to download the music legally from anywhere you can find it. I promise to pay the creators when they are found, and I'm sure they will be OK with it!
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Josh in CharlotteNC (profile), 8 Feb 2013 @ 11:52am

Re: Re: Re: who sues?
"Give me a copyright, Vasily. One copyright only, please."
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ahow628 (profile), 8 Feb 2013 @ 12:02pm

Confused
I can't really tell what the tone of this article is. It seems to be bashing Amoeba for what appears to be standing up for the public and trying to counter a broken copyright culture.

I like what Amoeba is doing and wish them the best of luck.
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John Doe, 8 Feb 2013 @ 12:29pm

Think of the children
Orphans need a home too.
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Suzanne Lainson (profile), 8 Feb 2013 @ 12:35pm

Re: Confused
It seems to be bashing Amoeba for what appears to be standing up for the public and trying to counter a broken copyright culture.

I know. I saw the excerpt below and thought, "Why is attention being brought to this? Let it continue to slide under the radar." I'd rather not see Amoeba being turned into a martyr in order to draw attention to copyright law.

Vinyl Vault lights fuse on copyright time bomb�but is it armed? - Boing Boing: "There's a problem here. There's no such provision in copyright law for such an exemption, and Amoeba could find itself in real trouble, no matter its goodwill and above-board behavior. This doesn't mean that current copyright law is reasonable on this score; it is not. Rather, that it's fairly clear that what Amoeba is doing isn't permitted.

"There's no active copyright police trolling for violations: rightsholders would have to discover Amoeba's work and decide to act, whether to claim escrow fees or file suit."
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Anonymous Coward, 8 Feb 2013 @ 12:51pm

Isn't this exactly what record labels already do with mechanical rights in the UK, for artists not registered with a publisher? -- i.e. label them "Copyright Control", put the mechanicals in escrow, and them keep them if nobody has claimed them within 3 to 6 years.
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John Fenderson (profile), 8 Feb 2013 @ 1:12pm

Re: Re: who sues?
RIAA protects labels, not artists.
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charliebrown (profile), 8 Feb 2013 @ 1:29pm

Good for them! Go Amoeba!
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Richard (profile), 8 Feb 2013 @ 2:02pm

Re:
Isn't it similar to what the big labels did in Canada - except that they knew who the money was owing to but just kept it and hoped no-one would notice.

They may have set a precedent that Amoeba could point to if they were sued by those companies.
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Anonymous Coward, 8 Feb 2013 @ 2:19pm

Re: Re: Re: Re: who sues?
"Aye, Captain."
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Ophelia Millais (profile), 8 Feb 2013 @ 7:41pm

Re: Re: Confused
I wonder if Amoeba management sees the end of their business in sight (for other reasons) and is figuring "what have we got to lose?"
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Suzanne Lainson (profile), 8 Feb 2013 @ 10:03pm

Re: Re: Confused
Maybe some folks are pissed that Amoeba is actually setting aside money for rights holders. Perhaps they worry that Amoeba is setting a precedent in being prepared to pay them rather than simply bitching that the law won't let them share the recordings.

Like I said, I would like Amoeba continue to quietly do their thing; articles highlighting their "illegal" activity isn't helpful in that regard.
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That Anonymous Coward (profile), 8 Feb 2013 @ 10:52pm

Isn't this how the labels were working in Canada with the compilation albums they didn't pay for for years?
They managed to walk away not paying the penalties for infringement why should this place be any different?
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junkyardmagic, 9 Feb 2013 @ 2:22am

Maybe amoeba could hand over the any monies owing to the appropriate collection agencies. Although I would probably trust amoeba with the money more than the agencies.
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Anonymous Coward, 9 Feb 2013 @ 5:18am

Re: Re:
As fine a non answer as I have seen, it assumes the answer to the question.
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yclipse (profile), 9 Feb 2013 @ 8:15am

I disagree, Mike
I believe that the law should encourage the display or performance of protected works. They should not be hidden away, as in Al Gore's lockbox.
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Anonymous Howard (profile), 11 Feb 2013 @ 4:40am

Re: There is no such thing as an "orphaned" work.
The RIAA - as it's name says - aren't representing artists. It represents recording labels. They do not even pretend they advocate artists.

How are they able to use the "we're saving the poor ripped off artists" excuse is above me.
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ahow628 (profile), 11 Feb 2013 @ 7:11am

Re: Think of the children
Can you imagine the outrage if the world treated human orphans the same way they treat copyright orphans.

"Hey, kid. You don't seem to have parents, but we aren't 100% sure on that fact. Instead we are just going to lock you in a closet and and not feed, bathe, or attend to you and if no one comes to claim you by 70 years after your death then we will let someone adopt you! Good luck!"
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ltlw0lf (profile), 11 Feb 2013 @ 11:21am

Re: Re: Confused
I'd rather not see Amoeba being turned into a martyr in order to draw attention to copyright law.

I though the same with mp3.com (I spent quite a bit there on independent music before the RIAA sued them out of existence.) Yet, if they did one thing, it was to convince the RIAA that there was money to be made in selling MP3s online.
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Suzanne Lainson (profile), 11 Feb 2013 @ 11:48am

Re: Re: Re: Confused
I though the same with mp3.com (I spent quite a bit there on independent music before the RIAA sued them out of existence.)

I suppose, but I'd rather see people find workaround solutions now rather than spending so much energy arguing for or against changing copyright laws. That will take forever and seems like a poor use of resources. YouTube exists because Google offered rights holders a cut of advertising money. It went ahead and did want it wanted and figured out how to work in a grey area.

Seems like Amoeba is doing the same thing, finding a workaround.

An article saying that they are "pretending" seems to be highlighting them intentionally, perhaps to invite lawsuits against them. Like I said, perhaps someone wants to make them a martyr for a cause. Or stop them from offering to pay rights holders they haven't be able to track down.
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