Brother, Can You Spare a Track? 21 st -Century Online-Only Recording Collection in Crisis Judy Tsou University of Washington

Outline problems of Online-Only Music Institute of Museum and Library Services Grant to investigate the problem John Vallier (University of Washington) Judy Tsou (Music Library Association) Today’s Talk

The Problem Libraries and archives not able to purchase online-only music due to restrictive End-User License Agreements (EULAs) that : – Forbid institutional ownership – Forbid lending, a core library function – No long-term access

iTunes EULA This license granted to you for the Licensed Application by Licensor is limited to a non-transferable license to use the Licensed Application on any iPhone OS-based device … that you own or control…. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof…. Any attempt to do so is a violation of the rights of the Licensor and its licensors. If you breach this restriction, You may be subject to prosecution and damages.

Amazon EULA You represent, warrant and agree that you will use the Service only for your personal, non-commercial, entertainment use and not for any redistribution of the Digital Content or other use restricted in this Section 2.2. You agree not to infringe the rights of the Digital Content's copyright owners and to comply with all applicable laws in your use of the Digital Content. Except as set forth in Section 2.1 above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, license or otherwise transfer or use the Digital Content. You are not granted any synchronization, public performance, promotional use, commercial sale, resale, reproduction or distribution rights for the Digital Content. You acknowledge that the Digital Content embodies the intellectual property of a third party and is protected by law.”

Negotiated with Distributors Reached out to Amazon and Apple. Both were sympathetic but noted terms of use are dictated by content providers.

Negotiate with Content Providers DG Grammy Award winning release of Hector Berlioz’s Symphonie Fantastique (LA Philharmonic, cond. Gustavo Dudamel)

Kevin Smith’s Blog 07/28/planning-for-musical-obsolescence/

What About Fair Use? Contract (license) trumps “Fair Use”

IMLS Grant IMLS Grant ( ) – MLA (Tsou) and UW (Vallier) Funding for five consultants o Could not recruit industry lawyers Three meetings with stakeholders

MLA 2014 – Town Hall Meeting and small group meeting – MLA members – Small group of music librarians Pre-ALA Meeting in 2014 – 5 consultants – Sound Archivists (ARSC) – ALA ebook experts – Other copyright experts Three Meetings

National Recording Preservation Board (NRPB) Presentation Library of Congress – Mandated by the National Recording Preservation Act, 2000 – Representatives from 17 professional organizations (AMS, MLA, ARSC, RIAA, etc.) – Experts in Recorded Sound Three Meetings

Some Threads: Copyright Reform Difficult but good if successful – Industry has effective lobbyists – Copyright reform may become more restrictive for libraries

Some Threads: EULA Reform Library-friendly EULAs – Public libraries leading this effort Work with musicians directly And distributors (e.g., BandCamp and SoundCloud)

Some Threads: Preservation Preservation in dark archives – Models: Portico, LOCKSS, and CCWA (Contemporary Composers Web Archive) Start with smaller labels and/or independent musicians

Some Threads: Public Relations Mission of libraries - access and preserve cultural legacy Libraries are not pirating students Scholars and educators served Provide metadata - enables retrieval

Other Threads Create test case – Push to the limit of the law and challenge EULAs Create best practices for libraries – Music Library Association Statement

MLA Statement Spearhead and craft model legislation LOCKSS-style dark archive Raise awareness via PR campaign MLA mediated list of Online-only works Excluded from statement – EULA reform – Test case

List of Online-only Music Send more titles to: John Vallier Judy Tsou Project Web Page

NRPB Meeting “Collections” Subcommittee (Brenda Nelson- Strauss, chair) will assist in working with U.S. Copyrights Office to push for EULA reform Subcommittee: Includes industry attorney and a representative from RIAA Advised to send a one-page summary to the U.S. Register of Copyrights

To request USCO to study the problem To convene a meeting with industry (Universal, Sony, and Warner) and stakeholders to push through EULA reform Best way forward – some possibility of success Legislative reform – not hopeful If the big three agree, others will follow USCO Ask and Rationale

Questions? Thank You