Note: The links to the media files are either missing or non-functional until I can find hosting for the files.
My name is Jeff Nicholson-Owens. I volunteer at WEFT 90.1 FM and I host a show there called Digital Citizen. Digital Citizen airs every other Wednesday night from 8-10p. On the show I talk about Free Software issues, copyright, and patent policy. Among other things, I record and air phone interviews with people who are doing interesting things relating to these issues. I learned about Magnatune.com from a friend and called John Buckman, founder and owner of Magnatune.com for the interview. I thought he was someone doing something beneficial for us all. Now I've learned differently.
My first e-mail to John Buckman was sent on September 28, 2003. In it I asked about Magnatune's support for Ogg Vorbis, an audio compression format that anyone can use on any computer operating system without jumping through any legal hoops.
Date: Sun, 28 Sep 2003 17:55:37 -0500
To: john@magnatune.com
Subject: Add Ogg Vorbis support too?
Message-ID: <20030928225537.GA17802@forestfield.org>Hi,
I recently learned of Magnatune and I think it's a fine idea. When I visited the site I found out all the files for listening are in MP3 format.
You might not know this, but MP3 is patent encumbered so no legal Free Software MP3 players exist in the US because the patent license is incompatible with being able to share and modify the player or encoder software freely.
Ogg Vorbis (see http://www.vorbis.com/) is a high-quality lossy audio encoding scheme which is not patent encumbered. There are many free and non-free Ogg Vorbis players in current use (including XMMS, ALSA Player, Winamp, Real One, Sonique, and plugins for Windows Media Player).
Would you consider adding Ogg Vorbis copies of tracks to your site so those of us who run free operating systems can listen to your label's music without violating patent law?
Thanks!
Later that day, Buckman replied to me via e-mail. He said that he knew about the MP3 format being patent-encumbered and he directed me to a Magnatune discussion forum where people were talking about Ogg Vorbis support. Apparently, I was not the only one asking about Ogg Vorbis. Others on Magnatune's discussion forum wanted to know about Ogg Vorbis support too. This letter exchange was the first time I talked about my problems with the patent-encumbered MP3 format with John Buckman.
Magnatune's motto is "We Are Not Evil" and they are using new licenses to allow people to do what is natural--sharing music with your neighbor.
I thought this take on the issue of distributing music was intriguing, particularly in light of how the RIAA is perceived. I thought my listeners would find it interesting too. So, I asked him for a phone interview. On October 22, 2003 I interviewed Magnatune's John Buckman about his licensing for my radio show and a few days later I shared a copy of the interview with him. When I introduced myself to him over the phone, I recall telling him that I was the fellow who asked about Ogg Vorbis support. I recall him responding affirmatively.
The first copy of the interview I shared with him was a relatively low-quality Ogg Vorbis file. I didn't want to monopolize my Internet connection for very long and my link to the Internet is slow (a 28.8 plain old telephone modem connection). So, on October 25, 2003 I made a small file, thanked him for his time again, and sent the interview file to him.
Date: Sat, 25 Oct 2003 01:36:12 -0500
To: John Buckman <john@magnatune.com>
Subject: Re: Brief phone interview?
Message-ID: <20031025063612.GA12777@forestfield.org>--YiEDa0DAkWCtVeE4
Content-Type: text/plain; charset=us-ascii
Content-Disposition: inline[I quoted him asking me for a copy of the interview.]
Not a problem. I've attached an Ogg Vorbis version of the interview.
Thanks again for your time,
Jeff Nicholson-Owens
[The attached small, low-quality Ogg Vorbis interview file followed]
Buckman replied asking for either a higher quality Ogg Vorbis file or a FLAC file. Fortunately for me, he had supplied an FTP site where I could upload another file. If I chose to share a higher quality file with him I could upload the file to his FTP site and do it from any Internet location. I decided to share both a higher quality Ogg Vorbis file and a FLAC file compressed from the WAV file I used as the source for the Ogg Vorbis versions of the file. For those of you who think that looks like alphabet soup, it means I ultimately used the interview file to make three other files; all three were compressed to save me some time in sending Buckman copies. Two of the copies (the Ogg Vorbis files) were compressed to save a lot of time, one of the files (the FLAC file) was compressed so he could recreate the highest quality sound I had to offer.
All three files contained metadata indicating the copyright holder (me) and the simple license. "Metadata", if you don't know, is data about data; for example, the title, author, publication date, and copyright holder of a book are metadata about that book. Typically with compressed audio files, metadata is stored inside the same file as the audio data. This makes it easy for anyone who shares the file to keep track of pertinant information about the file.
I chose a brief and easily understood license, a license that would work for all parties involved (Buckman, me, and anyone who received a copy of the files). Most people just want to non-commercially share copies of interesting files. I understand that sentiment and I wanted to work with it, not fight it. So I chose the following license:
Verbatim copying and distribution in any medium is allowed so long as this license is preserved.
I figured that John Buckman and I were helping each other here: Buckman gave me an interview and he wants to share copies of the interview to help promote his business. I gave Buckman three copies of the interview which he could legally share with others to achieve this end.
On Thursday, December 18, 2003 I learned John Buckman was distributing an MP3 version of the interview. I learned that this MP3 file had serious problems (both from a copyright law perspective and from a give-credit-where-credit-is-due perspective). Buckman's MP3 file contains no indication that I hold the copyright to the interview. Buckman's MP3 file does not reproduce my license. My name doesn't appear anywhere in the MP3 file's metadata.
So I sent an e-mail to John Buckman. I reintroduced myself and requested that he stop distributing the MP3 file. Instead, he could share any (or all) of the files I sent him.
Date: Thu, 18 Dec 2003 13:15:06 -0600
To: john@magnatune.com
Subject: Problem with Digital Citizen interview
Message-ID: <20031218191506.GA32393@forestfield.org>Hi John,
I'm Jeff Nicholson-Owens, I interviewed you for my community radio show Digital Citizen. I see you have reencoded the audio as an MP3 and you're now sharing that copy on your website.
The copy you're sharing has my name and the license terms completely removed from the file. Even the author of the file has changed to reflect only your name. This is totally incorrect and violates my license. The files I sent you were copyrighted to me and came with licensing terms that require complete reproduction of the license in any copy.
Therefore I am requesting that you pull down your MP3 and either share the Ogg Vorbis file(s) (either the high quality or lower quality file, or both at your option) and/or the FLAC file. Which of these files you choose to share is your choice, but all of them have the appropriate metadata that you appear to have stripped from your copy.
Jeff Nicholson-Owens
Buckman did not stop distributing the MP3 file. He replied saying he was sorry and that if I would send him the proper metadata he would put it in the MP3 files. I responded with the following:
Date: Fri, 19 Dec 2003 11:47:11 -0600
To: John Buckman <john@magnatune.com>
Subject: Re: Problem with Digital Citizen interview
Message-ID: <20031219174711.GA32441@forestfield.org>[I quoted his response here]
I have already supplied this information with the files I distributed to you. The license, copyright information, and all the other metadata was already in those files.
If you want to distribute the interview at all, you may distribute any or all of the files I sent you. In any event, the MP3 file you have been distributing is clearly an infringement on my copyright and must not be distributed.
I did not (and still don't) understand why he simply would not distribute any of the files I sent him. The files I sent him are high-quality files that had all the appropriate metadata intact. He continued to distribute his MP3 file. This MP3 file does not have my copyright information, it has no listing of my name, and it has no indication of my license or any of the other metadata.
I cannot legally distribute this MP3 file here because the MP3 file Buckman distributes has no license information. This is ironic considering we're dealing with an organization that pitches itself as being socially advanced about licensing (hence their slogan "We are not evil"); I believe that when a copyrighted work has no license, this means that any recipients of the work must abide by the defaults of copyright law. Generally speaking, that default is to disallow any activity regulated by copyright law. In the US (where both Magnatune and I reside), this means receipients are not allowed to copy, modify, distribute, or prepare derivative works based on that work. In short, I can't share that MP3 file with you. I will not point to that file with a hypertext link because I would rather distribute a copy of the interview you can legally share.
I also have an ethical problem with distributing the interview in MP3 format. MP3s are patent-encumbered and I don't want to encourage people to have to get a patent license or to violate patent law by dealing in the MP3 patent without a license. Patent-encumbered software is most likely non-free software. I'm not aware of any MP3 player that is Free Software in countries which allow patenting algorithms used in computer software (also called "software patents"). I think Vorbis, FLAC, and Speex are all very well suited for what I do with my show. They are also not encumbered by patents.
From a copyright law perspective, I never licensed to allow derivative works. This is important because it is clear that Buckman's MP3 was generated from one or more of the files that I supplied to him. He probably fed the FLAC file I sent him through an automated process which generated an MP3 file, complete with the metadata he desired. I understand that it's not common to think about the licensing for every little file you share (even if it is our legal responsibility). I also understand that mistakes will happen, even when dealing with people who have the best of intentions.
Buckman replied to my response with a question. He asked if distributing his MP3 with fixed metadata would constitute a copyright infringement. I thought his question deserved a thorough response so he could see where I was coming from and realize that I'm trying to work with him while simultaneously living within my ethical bounds.
Date: Fri, 19 Dec 2003 13:51:04 -0600
To: John Buckman <john@magnatune.com>
Subject: Re: Problem with Digital Citizen interview
Message-ID: <20031219195104.GA1237@forestfield.org>[I quoted his question here]
I never licensed to allow derivative works, so the answer to your question is yes. However, there is a reason why I don't make MP3s or license to allow derivative works. As I said on the phone, I don't make MP3 files because they are patent-encumbered. I don't have a license to make MP3 files and I don't want to acquire one. This is why I don't distribute MP3 files myself. I also don't want to encourage others to have to get non-free software to share or enjoy my work. This is why I don't want others to distribute MP3s based on my copyrighted interviews and why I don't grant permission to distribute derivative works in my license.
What's important here is that I'm giving you everything you need to do what you want to do and what happens to the community (your would-be customers) due to your actions. I have given you three files (at your request) all of which contain the appropriate metadata including a license which allows you to do legally what you appear to want to do--promote Magnatune. Apparently, you decided to distribute a derivative of the files that did not contain my name (not close to honest on a common sense level), my copyright information (which constitutes an unauthorized change of copyright holder), my license (an unauthorized sublicensing), or any of the other metadata I supplied. I understand this all may have been a mistake. However this mistake means people have acquired copies of the interview listing you as the sole author, and someone other than me as the sole copyright holder (my copyright information was not present in the file at all).
Recipients of the MP3 file also have no idea what their rights are because no license appears with the file at all. This means everything defaults to copyright's default--people can't even non-commercially distribute verbatim copies of that MP3 file to their friends and neighbors. So what you're distributing is not only a copyright violation, but taken on its own, it is considerably more restrictively licensed than what I distributed to you.
Then I wrote you saying you could distribute 0 through 3 of the files I supplied. Apparently you have chosen to continue to distribute the derivative MP3 containing wholly incorrect metadata. I have asked you twice to take this MP3 file down. Despite my repeated private requests, it is still being distributed to all comers. I am requesting you take this unauthorized derivative work down a third and final time.
I am not working against your efforts. On the contrary, I'm helping you by licensing this interview in a way that is totally compatible with what you want to do--promoting Magnatune by distributing press about Magnatune. I am also doing it in a way that is consistent with my ethical stance on Free Software. Given what has happened so far, I think it's reasonable for you to recognize my objections, stop distributing the MP3 file you've been distributing, and (at your option) distribute any or all of the patent-free files I graciously supplied.
To date, I have received no reply from Buckman or anyone else at Magnatune. Buckman is still distributing the MP3 file I object to. I don't need a reply, it would be fine with me if he silently complied by either distributing no copy of the interview at all or distributing any of the files I sent him.
My experience with Buckman tells me that he can't be trusted with copyrighted works. If I were a musical performer, I would not go to Magnatune to distribute my music tracks. He isn't honoring the license I attached to my copyrighted interview and he isn't informing recipients of that file of the proper copyright holder. So I have no faith he will honor other people's copyrights either.
Given the way he has treated my repeated requests, I can't trust that everything listed on Magnatune's website is actually licensed for Magnatune to legally distribute. So I can't recommend doing business with John Buckman or Magnatune. I also cannot recommend non-commercially downloading any of the tracks from Magnatune. I don't believe he acts in good faith.
I think sharing builds better communities and sharing is what friends do with one another. I wish all copyrighted works could be non-commercially shared verbatim, but until that comes to pass I believe we should license our copyrighted works to allow non-commercial verbatim sharing (at the least). I support this idea in my work (computer programs copyrighted to me are licensed under Free Software licenses which allow far more than non-commercial verbatim sharing. I license Digital Citizen shows with a simple non-commercial verbatim sharing license (I am considering allowing more than this because I see the value of derivative works in some instances). On my show, I advocate for a better copyright regime, one which doesn't punish people for non-commercial verbatim sharing.
I'm sure Buckman would want all of us to honor the licensing terms under which Magnatune's music recordings are distributed. Buckman wouldn't want us to commercially distribute copies of tracks licensed for non-commercial use. So why can't he distribute the files I gave him verbatim or distribute none of the copies of the interview?
The way I figure it, Magnatune's business plan hinges on building trust with the community. I had hoped Magnatune would be a place I could recommend to my friends who are looking for music they can share and enjoy. But now I have to recommend steering clear of Magnatune.
I think my copyright is worth defending. I am using copyright law to do something I believe helps make a better community and I don't think my rights should be dismissed. I would like us all to try to behave according to the law without going to court to resolve every dispute. I've tried private requests, explaining my logic on the situation, and presenting a solution that would make everyone happy (distributing any of the files I supplied or distributing none of them). But Buckman wouldn't have it. So I feel an obligation to let the public know that he's untrustworthy.
I believe I have addressed this thoroughly in this essay and the e-mails I sent to John Buckman which are reproduced above. If you have a more specific question, please feel free to ask.
Yes. I would happily update this page to reflect that he did the right thing.
I don't know. I can only infer that there is something about that interview which favorably stands out to him because he still uses it to promote his site. He has stripped every indication of who holds the copyright to that interview. If I hadn't said my own name in the interview, there would be no indication of who was interviewing him. I think Buckman's behavior is ironic and shameful because he runs a record label (so he builds his business, in part, by leveraging copyright law) and yet he is endorsing violating someone's copyright through his refusal to cease distribution of the infringing MP3 file.
No. I am trying to get a licensee to behave according to my license when it comes to my copyrighted work. I am trying to be nice about it so there is no doubt that I am acting reasonably and out of principle.
I could have, but I don't see what point would be served by doing that. I have already corresponded with him about this matter three times and he still chooses to violate my license. I was clear, succinct, and never rude with him. It escapes me why he chooses to behave in such a manner with someone trying to be nice.
If so, that would be another reason why you should avoid doing business with him or Magnatune. On a related note, isn't it sad when people behave badly and the only way to get them to be reasonable is to sue them? Don't you wish more people would behave well without being under the immediate threat of litigation? It's worth noting that the courts are still open to me.
I first told him of my objections almost a month before I interviewed him. But he might have forgotten that (just a single e-mail from someone who was interested in his idea for distributing music). I reiterated and fully explained my objection in my last e-mail to him.
Something else I have since learned is when he put up the MP3 file--almost immediately after I sent him the FLAC file. Asking his web server for information about the file is telling:
$ date; wget --spider --server-response [URL of the MP3 file]
Sun Dec 21 01:03:46 CST 2003
--01:03:46-- [URL of the MP3 file]
=> `[filename of the MP3 file]'
Resolving [site]... done.
Connecting to [site and IP address]:80... connected.
HTTP request sent, awaiting response...
1 HTTP/1.1 200 OK
2 Server: Mathopd/1.4p1
3 Expires: Thu, 15 Apr 2010 20:00:00 GMT
4 Date: Sun, 21 Dec 2003 06:44:18 GMT
5 Content-type: audio/mpeg
6 Content-length: 959785
7 Last-Modified: Sun, 26 Oct 2003 06:21:24 GMT
8 Connection: Keep-Alive
The Last-Modified header (line #7) suggests that he put the file up (or last changed it) on October 26, 2003. I understand that data from a server you don't control is inherently untrustworthy. But if this were faked data, why pick that particular date and time? It makes it look like this file went up shortly after I uploaded the FLAC file. It appears that it took him very little time to create and begin distributing the MP3 file. It should not take much time to stop distributing the MP3 file.
Buckman has probably been distributing the MP3 file since October 26, 2003. In that time he could have fielded questions about licensing from someone who asked about distributing copies of the interview, or he could have accepted something in exchange for a license. It's also entirely possible that nobody has downloaded the MP3 file before I learned about it and nobody has downloaded the MP3 file since I sent Buckman the last e-mail reproduced above.
I also want people to have a copy of the correct copyright holder and license that comes with my copy of the interview file. I want people to share my interview in any medium but I don't want my work to be represented as someone else's work.
I am working on doing that. My plan is to distribute the show online aired live via streaming Ogg Vorbis from WEFT and also make high-quality archived copies of the show available online for download, sharing, and syndication (including rebroadcast or redistribution in any medium). In the meantime, you can hear Mediageek, another show on WEFT that focuses on media issues hosted by my friend Paul Riismandel. I occasionally appear as a guest on the show or I guest-host the show for Paul.
If you have any comments or questions, please feel free to e-mail me.
This article is Copyright © 2003 Jeff Nicholson-Owens. Verbatim copying and distribution in any medium is allowed so long as this license is preserved.