While the corpses of corporate music retail chains litter strip malls where outlets like Tower Records and Blockbuster Music once stood, Amoeba Music is an independent juggernaut with three California-based stores the size of supermarkets. They’ve been a celebrated shopping destination for music aficionados visiting the West Coast for more than two decades, a place that shines light on small artists and labels and gives fledgling releases an audience and, in many cases, much craved sales they might not attain in big box stores. A large part of Amoeba’s charm is the thousands of used records that are traded in and given a chance at a second life in their used bins. But their latest moves have left some music lovers and industry professionals scratching their heads.
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As used vinyl comes back through the doors of the store, employees have been culling albums to record, master and then sell digitally on the new Vinyl Vaults section of their website. You won’t find the last Radiohead album there or other big time releases from big time artists. Its focus is the left of center, the self released, one-off singles recorded in someone’s basement — an absolute treasure trove of old blues ripped from shellac 78s and unreleased psychedelic workouts. “We’ve been doing this a few years and in the course of buying stuff at our trade counter we’ve found some amazing vinyl artifacts that, [we’ve discovered] through our research, are not available digitally,” says Jim Henderson, who co-owns the stores.
Henderson says most of the material available in the Vinyl Vaults is in fact licensed, but admits some of the works are not. This is where things get sticky. “If we deem that it’s not available digitally, then we try to make contact with the person who owns it. If the person who owns it is interested, we send them a copy of our Vinyl Vaults agreement, do a deal, and put their project up. Make a digital master of the record and clean it up. If we can’t find the rights’ holder, we have a decision to make — if it’s something that we think we can put up and help expose to the world. If it’s something that belongs to somebody, it says right there on our page that we will take it down or make a deal.”
While giving customers access to music they crave and otherwise may not be able to attain is the dream of every record store, the legal ramifications of selling unlicensed releases are real. “The classic line is it’s easier to beg for forgiveness than ask for permission,” says Rob Sevier, co-owner of the Chicago-based Numero Group, a label that specializes in reissuing lost and forgotten relics of music that has garnered a trio of Grammy nominations by doing so. “We go to people who 40 years ago did something that nobody has spoken about since. But you come to them and say you want to do it and show them a simple agreement and you get ‘I don’t know if I want to do this.’ It’s a no-brainer of the century that someone is going to offer you a little money.”
“We’re trying to do the right thing here,” says Henderson. “100% of anything that we’re selling that we don’t have an agreement for is going into an escrow account.” But no matter if Amoeba has the best intentions, selling copyrighted material without contract from the rights’ holders could leave the music giant litigated so hard we could have a new audio format by the time it’s all over.
Temple Law Professor David Post teaches copyright law, and recognizes the issues at hand. “This has become a big enough problem in copyright law that this now has its own name. They’re called Orphan Works,” he says. “Sound recordings before 1972 were protected under state law. People have died, left things in their will, their heirs have died. There’s no central repository of copyright ownership information that’s comprehensive.” But just because you can’t find a copyright holder for an orphaned, self-released folk record that never sold a single copy, doesn’t lessen the possible liability.
None of this seems to sit well with Sevier and the Numero Group. “People are very cagy in this day and age because there’s so many scams. It’s an uphill battle to license this stuff. That’s the shortcut they’re taking. Regardless of legalities and moral issues, my problem is they’re making it harder for us. They’re adding to the noise of bootlegging and distrust that’s already out there. They’re making it hard to do something that’s quality and legitimate,” he says.
Henderson feels differently about their approach. “The core of who we are is ultimate appreciators of music, artists and the medium. This isn’t something that’s being tossed out there without thought, respect or regard for people’s works. That is the goal, a push to get this stuff recognized,” he says.
So is this a possible foolhardy approach by one of the most respected music retailers in the country to move into the digital age or is it possible this is a well thought out plan? Amoeba, after all, has spent an astounding six years and estimated $11 million investing in their Vinyl Vaults before it went online in 2012.
Post thinks this might be a calculated move on their part. “You’re offering this escrow payment that’s, say, $14.11 but I think I’m entitled to $30,000 under the statute and I’m going to go get it. It’s hard for me to imagine that that won’t happen to somebody. They should have legal preparedness and I’m sure they know this is coming,” he says.
The most interesting part is, if challenged in court, Amoeba has a decent shot walking away unscathed. Copyright laws give judges in cases as such an enormous amount of discretion. If Amoeba instantly removes the unlicensed MP3s if requested by the copyright holder as they claim they will, all the profits that have gone to escrow have been turned over. A judge could possibly see this as a public service and significantly award less in damages or even none at all.
While Amoeba’s Vinyl Vaults feels lacking in nefarious intent, their devil may care approach to the sale of unlicensed music is less than admirable to many. They should know better, they themselves sell countless fantastic reissues and compilations that were legally put together by large and small labels alike. The Vinyl Vaults could serve as a musical ark or sorts. Attempting to archive seldom heard records for music lovers for generations to come could be a truly noble endeavor by a much heralded music store. Let’s just aim to do all of it legally.