Making Money Selling Music Without DRM

phaedo00 writes "Ars Technica's Nate Anderson has an excellent writeup on the rise of eMusic and how they're suceeding despite their unwillingness to hop on the DRM bandwagon. From the article: 'The Holy Grail of online music sales is the ability to offer iPod-compatible tracks. Like the quest for the mythical cup itself, the search for iPod compatibility has been largely fruitless for Apple's competitors, whose DRM schemes are incompatible with the iconic music player. For a music store that wants to succeed, reaching the iPod audience is all but a necessity in the the US market, where Apple products account for 78 percent of the total players sold. Perhaps that's why eMusic CEO David Pakman sounds downright gleeful when he points out that there's only two companies in the world that can sell to them--Apple and eMusic.'"

Comments

Far more than two companies that sell to ipods

[DrRobert]

Mindawn.com, magnatune.com, studiodownloads.net, disclogic.com, digitalsoundboard.net. There are many more. All work on the ipod. All lossess or (compressed if you want that) no drm. Admittedly the selections is small, but I'd rather have a thousand stores with lossess music and no drm than one store with a large selection.

Emusic is cool but there are many great others too

[linuxbaby]

Credit where it's due, Emusic has been selling 99-cent downloads since 1998. When Steve Jobs announced it in 2003, everyone acted like it was a shocking new revolutionary idea. But some of us couldn't help but think, "Oh, you mean like Emusic?"

I'm an Emusic subscriber and love them, but there are LOTS of legal services out there, these days, selling good ol' MP3s (or even FLAC/OGG) with no DRM

• audiolunchbox.com
• mp3tunes.com
• Many record labels like Magnatune and Bleep
• and the somewhat-legal allofmp3.com for the major-label stuff.

We keep a full list of them at cdbaby.net/dd-partners (in 10 languages!). Though that list is meant mainly for our musician clients, it's a good permalink for a constantly-updating list of digital music sellers, with a short description of each.

Don't forget Magnatune

[Laurentiu]

You bet eMusic is looking forward to the Slashdot effect ;)

But we should also give credit where credit is due and mention that Magnatune (http://magnatune.com/) has been doing this for years. The buyer chooses what he wants to pay per album - in fact, if you're a cheap bastard, you may download a full album for as little 5$ in the format of your choice: MP3, WAV, OGG, FLAC or AAC.

And I love their motto: "We are not evil." Now, where else did we hear that phrase?

for techno fans

[mmkkbb]

don't forget beatport, bleep, kompakt mp3, detroit digital vinyl, zillions of netlabels, etc. etc.

Re:for techno fans

[radish]

Yeah, I was just going to mention those. Plus audiojelly.com & playittonight.com. I'm eternally grateful that the dance labels (even what I would consider "majors") understand that their customers are not criminals and just want to listen to the music.

Re:ipod compatibility?

[Penguinisto]

"so if i have mp3s of my own, i cannot put them on an ipod?"

Yes, you can. In fact, I've never bought a single tune from ITMS but my iPod Nano is packed solid with music (haven't had to go to ITMS - I ripped my entire CD collection to mp3 a long time ago, and continue to do so - much cheaper to buy a used CD in many cases and use it as a 'master copy' of sorts).

You simply import the music into the iTunes library, make a playlist from it, and transfer it to the iPod.

/P

eMusic/J - Opensource Download Manager

[Anonymous Coward]

Don't waste your time with the eMusic provided *nix download manager; there is an excellent opensource alternative written in Java called "eMusic/J" (though it's developed by a third-party):

http://www.kallisti.net.nz/EMusicJ/HomePage/

Re:Emusic is cool but there are many great others

[mattsucks]

Not to be a CDBaby fanboy (okay, EXACTLY to be a CDBaby fanboy) but if you're an artist that has listed your CD via CDBaby's digital distribution service, you are listed at eMusic :-)

And now the shameless plug ... I know this because my band Goodwin is also at eMusic, and according to our accounting reports we're getting some sales.

well, it is legal

[Anonymous Coward]

It is not cheaper but it is legal. allofmp3.com is NOT legal, despite what many people say.

allofmp3.com violates the spirit of the law, if not the exact wording. It is like saying that identity theft was legal because when it first started happening, there was no specific law against it.

no be sure to tell me how legal it is and how paying money to the russian mob is better then downloading via P2P.

If you are going to steal music, just fucking steal it and get off your high horse. I personally hove no problem gettign ALL of my music from P2P, and honestly, having spent time in Moscow, see no need to further fund the terrorist organization that is the russian mafia.

E-music URL

[rueger]

Which bizarrely has not yet been posted here.

http://www.emusic.com/

'indie' versus pop versus ?

[ghostlibrary]

The article kept talking about 'indie', but missed the fact that emusic has a huge back catalog of classic rock and earlier. You want Deep Purple or Eric Burdon, they've got it. It's easy to get much of what you hear on classic rock radio. And since so many (too many) stations are switching to 'classic rock', this must mean people want it.

They also have live stuff. Interested in Colin Hay's solo takes on 'Men at Work', or (back to Deep Purple) live Deep Purple? And what they call indie, I'm not so sure-- Tom Waits gets a lot of media coverage and movie deals for an 'indie'. He's there.

They also have a phenomenal jazz and blues section, which is yet another niche not served. Miles Davis or Charlie Parker aren't "indy", after all. And there's folk, and celtic, and world. It's that 'long tail' model. Basically, emusic has a mix of radio stuff, and all the stuff you can't buy on CD at your local Walmart anyway.

I guess I'm tired of anyone not carrying the latest pop being labeled 'indie', particularly given pop's tendency to forget the past. I don't want this to be a commercial for eMusic, just a note that they are offering the kind of stuff that you can hear by dial-hopping on radio, but can't find in most big box stores. That's more than just 'indie'.

Re:Emusic is cool but there are many great others

[cpt kangarooski]

and the somewhat-legal allofmp3.com for the major-label stuff.

Well, it depends.

Pot is effectively legal in the Netherlands. But that doesn't mean that Americans can import it from there. That something is legal in one country doesn't mean it will be elsewhere.

Similarly, for people here in the US, American copyright law is in effect, and Russian copyright law is irrelevant. And the laws here prohibit downloading from allofmp3, regardless of whether they're legal in Russia or not. As I see it, if you're going to pirate music, you might as well not pay shady Russians when it's entirely possible to do it for free.

And in an effort to prevent people from replying with misinformation, if you disagree and wish to reply, please first consider and address the following issues:

1. That 17 USC 602(a)(2) by its own language is limited to the import prohibition in subsection (a); the prohibition in subsection (b) remains in force.
2. That copies and phonorecords are defined in 17 USC 101 as being material objects, which means that no physical object in Russia can be moved to the US via the Internet, making section 602 a red herring.
3. That the courts have stated that unauthorized downloading of copyrighted works is an infringement of the reproduction right of the copyright holder. See e.g. Napster and Intellectual Reserve.
4. That the courts will generally assign liability for the reproduction infringement to the downloader, barring unusual circumstances, like downloads that were in fact caused by a hacker, and not the user of the computer. See e.g. Netcom.
5. That the standard of proof used in a civil copyright case (e.g. one brought by the RIAA) is the preponderance of the evidence standard, which results in the defendant being liable if thinks that there was as little as a 51% chance that he actually did it, even if they entertain reasonable doubts (e.g. the presence of an open WAP, that there are other people able to use the computer).
6. That 17 USC 1008 is inapplicable, because it does not cover downloading. See e.g. Napster and Diamond. Also see the important definitions in sections 1001 and 101 and what the law would require if 1008 were applicable to computers, per sections 1002 and 1003.
7. That just because RIAA has not sued someone yet does not mean that they cannot or will not. See e.g. the suits against Napster (which started in 1999) and the suits against users (which started in 2003). Tactical concerns, such as how to use the limited budget for legal action in the most effective way, or which

Re:Emusic is cool but there are many great others

[djmurdoch]

All of MP3 may be "somewhat" legal in Russia but it is fully-non legal for Americans (or Canadians, Australians, and anybody else who is lives in a country that's signed on with international copyright laws) to buy music from them, as it says outright in their terms of service.

I don't see any mention of Canada there, just a vague statement that it's up to you to figure out whether it is legal in your country. In fact, Canadians have a right to make copies for private use. This is what the levy on blank media pays for.

Re:Allofmp3.com

[Ngwenya]

It's back up, but my $10.00 re-charge attempted to charge $257.10 on my card as opposed to $10.00. Thankfully I noticed at the Verified by Visa page, but, it makes me wonder if this is their 'exit strategy' of taking 25x more money than they were authorized to, then running away from the mob to a different country.

Nah - that $257 was 257 roubles. I just attempted a refill for $10, and it said 297 RUB = $10. I don't think anyone was trying to cheat you.

Put another way: They're making boatloads of cash as is - why put all that at risk for the sake of a few hundred bucks, which they'll earn normally in the space of a couple of hours?

--Ng

Re:Emusic is cool but there are many great others

[cpt kangarooski]

Your own first links that you cite point out that phonographs, legally copied, are allowed to be imported.

Actually, there are significant limits on that. What 17 USC 602 does, as you'd know if you read it, is it prohibits importing phonorecords unless two conditions are both met: 1) that, had US law applied in the place where the phonorecord was made, the making of it would have been legal, and 2) that one of the three exceptions in subsection 602(a) is applicable. Just satisfying one or the other isn't good enough; it has to be both.

So when you say, These songs were legally produced in Russia, that's not good enough. In order for 602(b) to not prohibit importation, it doesn't matter if it was legal under Russian law. It has to have been legal if US law had applied. And since US law doesn't have the same compulsory licensing scheme that allofmp3 purports to rely upon, it just doesn't work out.

But again, all of this importation discussion is a red herring. When you download, you are not importing. You are reproducing.

So to sum up, you said: NOTHING in the links you posted implies that legally produced mp3s that are legally purchased and imported for personal use have been found illegal.

And you are utterly wrong. It is impossible to import an mp3 by means of downloading it. This is because the statute deals with importing phonorecords. A phonorecord is defined in the law as a material object, such as a CD, or a vinyl record. If you can download one of those, as opposed to the information on it, I'll be impressed. For your next trick, you can download a sandwich. Furthermore, even if you were importing them -- which would basically have to be through the mail or via a courier or something -- that would be illegal because there's really just no way to get around section 602(b).

If you had bothered to read the relatively small amount of entirely on-point legal documents, you wouldn't have made a fool out of yourself. Let's hope you don't do so again.

you resent having to pay .99/song off iTunes, when your "in the know" friends have been paying .9-.25/song.

Actually, I've never used iTMS. I think it's a rip-off. And I don't resent people who pirate music, whether it's on Allofmp3 or wherever. I think that it ought to be legal for people to download music for free.

What I don't like is people spreading misinformation about the law. If someone is making a decision whether or not to break the law, I think they should be fully informed. And I think that in order to rally support for changing the law to reduce the scope of copyright, people are going to need to have accurate information as to just how bad copyright is now.

Re:Selling music online the correct way

[normal_guy]

I ran into the same issue before I subscribed. Here's the direct link.

Re:Emusic is cool but there are many great others

[cpt kangarooski]

17 USC 602 deals with "copies or phonorecords". Not copies *of* phonorecords.

A copy of a phonorecord is also a phonorecord. Take a look at the definition at 17 USC 101.

And you are off again - sending something over the wire is also considered importing. Or have you forgotten the old export controls on cryptographic software transmitted oversears already?

I know them, and there are still controls of this nature. However, those regulations, which were enacted by an administrative agency, rather than Congress, specifically define exportation as encompassing Internet transmissions. Congress, on the other hand, has not so defined importation for purposes of copyright law. The agency definition isn't particularly relevant, as it's not of Congressional origin, and deals with an entirely different subject matter. If you want to argue about what copyright law says, you're going to have to do so based on copyright law, not something entirely unrelated. This might seem odd to you, but it's a fairly ordinary situation.

If you the copy is just for yourself or part of your baggage if you physically came through the borders there is no issue.

Except of course, that 602(a)(2) only applies to the ban on importation in subsection (a). It does not apply to the independent ban on importation in subsection (b), which you are still failing to address.

And of course, Allofmp3 has nothing to do with importation anyhow, as I've shown. That's why you had to resort to an example involving baggage, which certainly isn't involved in most people's transactions with Allofmp3.

Re:Emusic is cool but there are many great others

[cpt kangarooski]

[T]he code indicates the two cases, you insist I be thorough in my responses, I indicate both cases and you suggest I'm resorting to the second?

Actually, I don't have any idea what you're even trying to say here.

The question we've been discussing has been whether a person in the US who downloads mp3s from Allofmp3 has engaged in copyright infringement punishable under US law. Some uninformed people suggest that the various laws regarding importation yield the answer that such activity is not infringing. They are wrong, and I have shown this. On the other hand, I have pointed out that the laws regarding reproduction are directly on point and do in fact prohibit this downloading.

In order to contribute to the discussion, which you haven't done yet, you are going to need to either show, in light of the applicable statutes and caselaw, that it is infringing, or that it isn't. This means not dodging the reproduction issue, and not dodging the vast majority of the importation red herring (if you are going to waste our time with it). So far you've cherry-picked and misinterpreted. It all sounds great, if you don't know anything. But to those of us who are honest, and who really want to know what the law says, your brand of nonsense is pretty sad.

Now, if you are trying to talk about 602(a) and (b), you cannot neglect the fact that there are independent prohibitions on importing in both (a) and (b). The exception in (a)(2) only applies to the prohibition in (a). That is why it says 'subsection,' not 'section,' or 'title.' Thus, even when (a)(2) applies, you must still deal with (b). You haven't. You also haven't dealt with the overall inapplicability of importation anyway. You haven't shown that information being transmitted over a wire or through the air is fixed within a material object, as it must be in order to qualify as a phonorecord.

And it's a waste of time in any case, because talking about physical movement with baggage over borders is a non sequitur. We're talking about downloading, not traveling to and fro.

Re:Emusic is cool but there are many great others

[cpt kangarooski]

It's not importing.

Like I said, to import a phonorecord, the phonorecord itself must cross the border. But a phonorecord is defined as a material object. A vinyl record, a CD, an eight-track tape -- those can all be phonorecords. An Internet download cannot be.

But the material objects at either end of the download -- the computers, their RAM, their hard drives, etc. -- those can be. So, when you download, you create a new phonorecord at the receiving end. This is the act of reproduction, and it is infringing per 17 USC 501 and 106(1).

While I don't care for this result, the Intellectual Reserve case I linked to before does an excellent job of explaining this. This case dealt with people downloading (in order to view) a web page that had been put up unlawfully, but whether we're talking about a web page or an mp3, this analysis will come out the same:

The first question, then, is whether those who browse any of the three infringing websites are infringing plaintiff's copyright. Central to this inquiry is whether the persons browsing are merely viewing the Handbook (which is not a copyright infringement), or whether they are making a copy of the Handbook (which is a copyright infringement). See 17 U.S.C. 106.

"Copy" is defined in the Copyright Act as: "material objects . . . in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." 17 U.S.C. 101. "A work is fixed' . . . when its . . . sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.

When a person [**10] browses a website, and by so doing displays the Handbook, a copy of the Handbook is made in the computer's random access memory (RAM), to permit viewing of the material. And in making a copy, even a temporary one, the person who browsed infringes the copyright. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir. 1993) (holding that when material is transferred to a computer's RAM, copying has occurred; in the absence of ownership of the copyright or express permission by licence, such an act constitutes copyright infringement); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. Distrib., 983 F. Supp. 1167, 1179 (N.D. Ill. 1997) (noting that liability for copyright infringement is with the persons who cause the display or distribution of the infringing material onto their computer); see also Nimmer on Copyright 8.08(A)(1) (stating that the infringing act of copying may occur from "loading the copyrighted material . . . into the computer's random access memory (RAM)"). Additionally, a person making a printout or re-posting a copy of the Handbook on another website would infringe plaintiff's copyright.