A little over a year ago, I received an e-mail from Cantaloupe Music announcing the release of a new live recording of Brian Eno’s Music for Airports, available solely as a download-only digital file through iTunes and the label’s website (Cantaloupe CA21045). At Northwestern University we typically buy most CDs released by Cantaloupe, so I investigated what our options were for acquiring this recording and learned that, due to licensing restrictions, the downloaded file could be sold “to end user customers only.” That phrase comes from the iTunes “terms of sale,” which has largely set the tone for all music download licensing agreements.
To be sure I understood the licensing terms, I conferred with our library’s copyright officer; just as I suspected, she told me that our library would not be considered an end user, and so could not download the file and make the recording available to our patrons. Further pursuit of this matter led me to a conversation with an Apple spokesperson who confirmed that “the terms of service dictate that iTunes is for personal use only” and that “libraries are not permitted to purchase music through the iTunes Store.” Meanwhile, I have seen more examples of download-only recordings being released; from discussions with other librarians, I know there are many who have found themselves unable to provide their users with certain recordings available only as digital files. I am not an expert on current or future technologies, and I certainly am no authority on copyright or licensing, but I do have a particular interest in building, preserving, and providing access to music collections. It appears that recent changes in the distribution of sound recordings are challenging our ability to continue this most foundational aspect of our profession.
The download-only trend
Initially, it seemed that download-only releases were being put forward only by small, niche companies like Cantaloupe or as special bonus tracks or EPs by larger labels such as Nonesuch. But this has changed, and it is clear that the recording industry—including the classical music recording industry—has already taken large strides toward a substantially, if not exclusively, online means of distribution.
The most convincing example I know of this change and its effect on our libraries can be seen in the Los Angeles Philharmonic’s recording of Hector Berlioz’s Symphonie fantastique, under the baton of Gustavo Dudamel (Deutsche Grammophon 477 7822). Released in May 2008, it received two nominations and took one prize at the 51st Grammy Awards. By all counts, this is a notable new recording of a standard work on Deutsche Grammophon, arguably the most prominent classical record label in the world, by a major orchestra with a superstar conductor. But this recording is in none of our libraries. As a download-only release available through iTunes or from the Deutsche Grammophon Web Shop, this music is available directly to consumers, but licensing limitations keep it from becoming part of library collections. In fact, the terms of use on the Deutsche Grammophon website spell out the restrictions even more precisely than iTunes does, stating that the sound file must be used “for your own personal entertainment use and not for redistribution of any kind.”
Although I had never thought of it in these terms, it seems that we librarians are in the redistribution business, or at least we have been. Libraries have a long history of adapting to new sound-recording formats, but throughout those changes, we have been able to continue purchasing, cataloging, housing, and coordinating access to the recordings our patrons needed. With the legal restrictions surrounding download-only files, however, libraries are no longer able to carefully develop collections that pertain to the communities we serve. That is to say, a Northwestern conducting student hoping to study Dudamel’s interpretation of Berlioz cannot be helped by our library.Although libraries may be unable to purchase download-only files, our patrons’ desire to hear music for study and entertainment hasn’t changed. Presumably the licensing restrictions for downloaded music were put in place to inhibit illegal file sharing; but one colleague of mine wonders if the unavailability of these recordings in libraries just steers many listeners back to peer-to-peer sources: “Whereas traditionally the library was a place where someone could come to explore different kinds of music they were curious about, now I hear students say to each other, ‘If you want to hear that, you can get it free’ at such-and-such site, or ‘I’ll burn you a copy.’”
The preservation paradox
Along with providing materials to a particular user community, another fundamental role of libraries has been to preserve cultural heritage, but the situation with download-only recordings precludes us from continuing these efforts. Preservation is a costly undertaking, and libraries and archives are much more committed to this investment than are the companies that produce and own the rights to sound recordings.
My first library job was working as a student assistant in Bowling Green State University’s Music Library and Sound Recordings Archives. For one of my first tasks, I was given a list of Henry Mancini LPs to pull. The archivist told me that RCA was planning to reissue a collection of classic Mancini recordings. The company wanted to include reproductions of the original album covers in the booklet that would accompany the collection; but since they had not maintained copies of the artwork or even the actual album jackets, they had called on Bowling Green to provide photographs of the album covers.
Although I played only a small part in this project, I realized that BGSU’s library had kept better care of these Mancini album covers than had RCA and further, that Bowling Green was providing a valuable service to RCA, as well as to anyone interested in the history and documentation of recorded music.
Admittedly, the details of this anecdote apply only somewhat to the current situation with download-only music, especially since the heart of this story—album artwork—is practically now a thing of the past. What’s more, the nature of Bowling Green’s collection and its archival mission are not typical. But my story does illustrate the vital place of libraries in preserving musical culture. Surely, most of us have LPs and even CDs in our libraries that are out-of-print, unavailable for purchase at any price, and that were, in more than a few cases, issued by record companies that are no longer in business. If libraries are unable to acquire download-only sound files, the preservation of our culture is left in the hands of record companies. I don’t know if Dudamel’s Symphonie fantastique will one day be considered an important historical recording; but as things stand, the sole institutional keeper of this artifact is Deutsche Grammophon, and our libraries have no part in ensuring its availability to future listeners.
Subscription streaming-audio databases already provide an alternative to purchasing CDs, but while these products solve the dilemma of licensing restrictions, they also require us to compromise our professional dedication to collection development and preservation. Classical Music Library, Naxos Music Library, the Database of Recorded American Music, and a growing array of similar products have become key resources in many libraries, and our patrons clearly enjoy the convenience and breadth of repertoire these databases offer. But the all-or-none model of these subscription services, much like the all-or-none model of the full-text journal aggregators we have grown used to, does not support the careful selection of materials. Rather, our subscriptions give us access to an impressively large and growing number of recordings that, on an individual basis, may or may not be of interest to our users.
Paying for the right to access recordings that our patrons do not listen to is obviously an inefficient use of the funds we manage, but if we are to move toward an aggregator model for sound recordings, we will be less and less able to develop collections that reflect and respond to the particular—and sometimes wonderfully peculiar—research, performance, and recreational listening that happens at each of our institutions. That is to say, the more we rely on subscription databases for our sound recordings, the more alike all of our collections become. Additionally, the impulse to preserve our collections is entirely unsatisfied by these resources, since a subscription cancellation would render the entire contents of a database immediately unavailable. Even if a subscription is maintained indefinitely, a change in license agreement between the database provider and a record company could significantly alter the collection we are providing our patrons.
The transition from the CD format to an entirely online system of sound-recording distribution is well underway. “iTunes is already the biggest music retailer in the world,” observes James Ginsberg, president of Cedille Records. “It’s a mathematical certainty that the CD will cease to be a viable format. I think you’ll be able to get CDs for several years to come, but as far as being the dominant delivery format, the CD will cease to be that very soon, if it hasn’t already. In the next decade, the CD will become to downloading what the LP became to the CD in the 1980s.”
In addition to the Eno and Berlioz examples mentioned, recent download-only recordings—not available on CD—include music by the Dave Matthews Band, Bill Frisell, Dexter Gordon, Maroon 5, R.E.M., Steve Reich, and the New York Philharmonic performing Beethoven, Brahms, Ravel, and Shostakovich. While moving away from the CD affords the recording industry efficiencies and economic advantages that are well understood, the unprecedented level of restriction surrounding download-only recordings impedes libraries’ ability to develop and maintain collections relevant to the communities we serve—and hope to serve in years to come.
Librarians have only a few options, the easiest of which include subscribing to more and more streaming-audio databases as CDs become less available, or—here’s one for you—giving each of our patrons an iTunes gift card so they can download whatever music they need that our library cannot provide. Either way, these are desperate reactions that are not in the best interest of our libraries or our users.
A more challenging but ultimately more promising tack may be for the Music Library Association, the American Library Association, the Association for Recorded Sound Collections, and other professional organizations to raise awareness about this matter and then, together, engage the recording industry in discussions to develop a viable means for selecting, acquiring, cataloging, housing, preserving, and coordinating access to sound recordings, just as we have done all along. But if that’s going to be our plan, we need to move quickly, because I’m guessing that by this time next year we’ll have even more examples of download-only recordings that are not available in our libraries.
