By Brett Koshkin
Timothy Norris
As the corpses of corporate music retail chains like Tower Records and Blockbuster Music litter dying strip malls, Amoeba Music thrives as an independent juggernaut with three California-based stores the size of supermarkets. Amoeba has been a celebrated shopping destination for West Coast music aficionados for more than two decades and is a place that shines a light on small artists and labels, giving 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 given a chance at a second life. But the store's latest move has left some music lovers and industry professionals scratching their heads.
As used vinyl comes back through the doors of the store, employees cull albums to record, master, and then sell digitally on the new Vinyl Vaults section of Amoeba's website. You won't find the most recent Radiohead album or other big-time releases at Vinyl Vaults. Its focus is the left-of-center, the self-released, the one-off singles recorded in a basement -- it's a 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 . . . are not available digitally," says Jim Henderson, who co-owns the stores.
Henderson says most of the material available in the Vinyl Vaults is licensed, but acknowledges that 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."
Giving customers access to music they crave and otherwise may not be able to attain is the dream of every record store, but 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 Grammy-winning label that specializes in reissuing lost and forgotten relics of music. "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 the no-brainer of the century that someone is going to offer you a little money."
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"We're trying to do the right thing here," says Henderson. "100 percent 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 that we could have a new audio format by the time it's all over.
Temple University 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.
Interior of SF Amoeba
None of this seems to sit well with Sevier and the Numero Group. "People are very cagey 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 Vinyl Vaults before it went online in 2012.
Post thinks this might be a calculated move on Amoeba's 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 of walking away unscathed. Copyright laws give judges in such cases an enormous amount of discretion. If by request Amoeba instantly removes an unlicensed MP3 -- as it claims it will -- 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 seems lacking in nefarious intent, the store's devil-may-care approach to the sale of unlicensed music is less than admirable to many. Amoeba should know better because it sells countless fantastic reissues and compilations put together legally by large and small labels alike. Vinyl Vaults could serve as a musical ark of 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.
