Spotify, the First Sale doctrine, and my 1-bedroom apartment OR The limits of freedom, ownership, and personal space

I’m probably using this image illegally.

The Supreme Court of the United States, or SCOTUS (which is close enough to SCROTUM that I valiantly tried to add some shit to their name to fit the acronym but gave up after 15 grueling minutes), is in the process of deciding John Wiley & Sons Publishing vs. Kirtsaeng, a case which involves the purchase of American textbooks in Thailand (where they’re significantly cheaper) and the re-selling of those books in America (for cheaper than the publisher can sell them, of course). At issue is the First Sale doctrine, which limits copyright holders’ rights by allowing for the materials to be re-distributed into the secondary market after their initial purchase, which reminds me: does anyone want to buy my VHS copy of 1980’s gay/animal-porn classic “Three Men and a Donkey?” The case currently in front of the SCOTUS (god dammit, I know there’s a way to do it!), should they rule in favor of Wiley Publishing, would essentially remove the First Sale doctrine as an idea, throwing the idea of “ownership” into utter chaos and essentially forcing me to keep my copy of “Three Men and a Donkey” despite most of the scenes with the donkey being unwatchable because the tape is worn out from constant rewinding. This hearing has the added twist of dealing strictly with goods manufactured overseas, which gets into all kinds of outsourcing shit I don’t want to think about as an unemployed asshole. Stephen Colbert has a pretty entertaining summation of the situation that can be viewed here (if Viacom likes you).

What does all this mean to me? First, it means I watch The Colbert Report. Second, it means that my wife (girlfriend if you want to be technical about it) is a librarian. Finally, it means that all those CDs and LPs that are resting comfortably on my bookshelves are either owned by me now or still belong to the people of Naxos and Deutsche Grammophon and EMI, depending on what happens with the Wiley/Kirtsaeng case. But there’s a larger philosophical issue in play here that is every bit as important to a nerdy dipshit with almost nothing to show for his life besides his somewhat oppressive collection of classical music: control.

Sometime in the late 1990s the universe began a shift to a digital environment in which the world online could satisfy whatever entertainment desires a person could have, which wouldn’t be too bad if the only people in the game were Amazon, Google, and iTunes, all of whom sell shit legally (although the Wiley ruling could have something to say about that, too). Of course, humankind wouldn’t stand for that – we had to figure out a way to fuck it up somehow, and the first and most notorious way to do that was Napster, which beget the LimeWire/Kazaa/Bearshare crowd, which beget the torrent crowd, which beget the cloud file services like MediaFire and RapidShare, which ultimately led to me writing this sentence in the style of the Book of Numbers.

I’m a part of the generation that straddles the two entertainment worlds. I listened to cassette tapes growing up until my parents bought a CD boombox, at which point I started purchasing CDs at an alarming rate. I still purchase CDs at times, and I’ve got a decent set of LPs as well, but I’ve also been dipping my admittedly disgusting toes in the digital pool as well. When my friend Dave McIntire recommended the Chilingirian String Quartet performance of the Death and the Maiden quartet, I didn’t want to wait for it to arrive in the mail – I ordered it on iTunes and listened to it within 45 seconds, which is entirely the appeal and really entirely the point of the digital universe. It’s difficult to hold on to the now quaint notion of buying music in record stores because there’s hardly such a thing as record stores anymore (of the 15 or 20 CDs I’ve purchased in the last year half of them probably came from Half Price Books, a national chain store, and the other half came from a single trip to Minneapolis that included a visit to Cheapo records, one of the last really kick-ass stores that I know of); if you want to stay with physical items, you really gotta want it.

The First Sale doctrine re-appears here because that is ultimately the real-world difference between the physical item-world and the digital world: at least as of me typing this sentence, I can re-sell my CD copy of the Bernstein Mahler 3, which I purchased at a store and which contains the discs and the booklet, but I can’t re-sell my CD copy of the Boulez Mahler 3 because I purchased it on iTunes and burned a copy to CD, even though I also printed out the cover and digital booklet and fashioned a crude representation of what the original CD copy might have looked like had it been made by primates. In the realm of the digital, you do not “own” something in the traditional sense; rather, you have a “license” for it. In theory, I can play my Chilingirian Schubert String Quartets recording forever and ever and I can burn it to an infinite number of discs if I’m paranoid about backup copies. What I cannot do is quite literally anything else.

That doesn’t really sound all that bad in the grand scheme of things – I don’t think I’ve ever re-sold a recording in all my years of acquiring the damn things – especially when it’s paired with the convenience and space-saving power of technology. Had I the inclination, I could import all the digital files I currently have on an external hard drive to iTunes, upload all my CDs to iTunes, convert my LPs to digital files and send those to iTunes, and have all the music I’ve ever spent a dime on resting comfortably on the external drive and perhaps a cloud server like Dropbox. Furthermore, I could buy like nine iPods and theoretically carry the absolutely entirety of my music collection with me in a small man-purse or, as I reach my 60’s, a fanny pack. If you’re like me and not particularly interested in the idea of secondary markets in anything other than a purchasing capacity, it’s not really a bad way to go, especially as wireless networks and Rokus and shit make it easier to just pull all that music out of thin air.

Increasingly, though, more and more listeners are turning to streaming services like Pandora, Rhapsody, or Spotify for their music, and this is where I begin to freak out a bit. Spotify, to use the example I am most familiar with, offers you a massive catalog of music for a mere $9.99 per month, which for comparison’s sake and as an exercise in making me feel bad about myself is what a single fancy classical label “budget” disc used to cost (as in “this recording of Claudio Abbado conducting the Chicago Symphony in Mahler’s Symphony no. 7 isn’t really all that good so to save you from paying the $17.99 we charge for CDs we’ll re-package it and put some piece of art or other on the cover and call it ‘Masters’ to distract you from the fact that it’s secretly still kind of a rip-off”). I’m listening to some pretty great recordings of Kiril Kondrashin conducting the Brahms symphonies with an unnamed orchestra and a label that screams “this is probably a pirate” louder than a gay dude with an eye patch, and it’s swell. I can listen to NWA after that, and Ella Fitzgerald after that and it’s all groovy. Except for one thing: control.

Streaming music services make me nervous because you have absolutely no control over any element of it. It is entirely up to whatever cabal of mysterious figures decides what gets in and what doesn’t, a velvet rope club that allows the Kondrashin Mahler 7 with incredibly sketchy (read: unknown) provenance that I’m not listening to in but keeps the legendary Kondrashin Mahler 7 with the Concertgebouworkest out, for reasons that I do not know and wouldn’t understand anyway even if I did. Taking it a step further, with the state of copyright in constant flux and the whims of the marketplace even fluxxier, it’s not difficult to envision a scenario in which the Barry Manilow albums that I listen to when I need an emotional boost (someday I’ll write a post on Manilow modulations, perhaps my favorite musical phenomenon of the late 1970’s) are deemed to draw entirely too few listeners and are subsequently removed from the service.

At the end of the day it becomes a matter of determining the balance between time, convenience, and physical space. My own collection is scattered across several formats, including an increasing number of digital FLAC files that still haven’t really hit the mainstream (you can play them on the computer, but good luck getting them anywhere else). I tried to save space with the CDs by ditching the jewel cases in favor of sleeves with labels (I kept the booklets as well), which now reside in ten black metal baskets and one of those giant travel cases. Between the CDs and LPs, a third of the space on our freakishly enormous (and bad ass) book cases is taken up by recordings. Then there’s the 120 GB of music and videos on the external hard drive, all of which are delightfully sorted for Windows purposes and not at all for iTunes purposes. It would probably take me about as year of casual free time work to get everything housed in iTunes, and as convenient as it would undoubtedly be, I can’t imagine doing it, at least yet.

Stay tuned for part 2 of this manifesto, in which I rant about how the fight over copyright is a microcosm of a larger battle in America between “legacies” and “plain-ass people.” Coming soon…

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4 thoughts on “Spotify, the First Sale doctrine, and my 1-bedroom apartment OR The limits of freedom, ownership, and personal space

  1. I hear you! I really enjoyed reading this, and look forward to part two.

  2. I’m with Elaine. Keep up the great writing, And always remember:
    control=$$$$$$

  3. Fluxxier = <3

  4. Pingback: Copyright: The future of America in a nutshell | Everything But The Music

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