The Download Dilemma

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.”