Guys,

I kinda hate to jump into this discussion, for fear of more repetition, but an anlaogy that hasn't been mentioned is that of stock video and stock photography licensing in the royalty-free domain - very similar to sample licenses.

what you pay for is the right to use the content - NOT the disks. The content is not considered as software, so doesn't fall into the category of a 'transferable' item. Therefore, you cannot sell it on. Any software application that is included (to read files etc) would fall under this category, but is usually free, so redundant.

a couple of other points:

1) it was mentioned that the license doesn't count if you're not given the chance to read it before you open the packaging. Whether this true or not, there is ample warning on the packaging - along the lines of "If you open this packaging, you agree to the terms and conditions of the license agreement. This can be found at ...xxx..." If you didn't read it, then it's your own fault - plenty of chance beforehand.
2) if this type of license agreement violated any rights, I'm sure it would have been picked up long ago - VSL isn't the first or the last to use it. Check your Siedlaczek, Vitous etc licenses. you'll find them all violating your human rights or something. [:)]

just my 2c-worth

peter

All, the real point is that if I no longer wish to use VSL (or any other library) I have just spent £3000 on something, which I (as a hobbyist user) can get nothing back for my investment.

I may have enjoyed using the library, but should I really have to be stuck with it? With no way of making some money on selling it?

I do this with audio hardware a lot of the time. E.g buy a piece of h/w, sell it to get some money back and use that money to upgrade to something bigger and better. Why shouldn't I be able to do this with sample libraries?

There must be a sensible solution, so that the buyer can resell (recouping some money) and the authors get some too. Although I bet Fender would be a far richer company if they gained income on every 2nd/3rd/4th hand guitar that got sold!

@Another User said:

Sample libraries have something in common with library music discs. Library music discs are distributed to film companies, I’m sure it would not be a problem for a film company to sell one of these discs to another film company. However that does not mean that the right to use the recordings in a production has also been sold and bought.

To me there's quite a difference between a recording of a performance and a sound recording. Not all sound recordings are performances (which are defined as "literary or artistic works or expressions of folklore"). In that respect, sample libraries and library music discs have as much in common as Photoshop does with a (digital) painting, the former is the means to an end whereas the latter is the end result.

When it comes to audio recordings specifically, the WIPO treaties carry a number specific provisions. For performers there are some authorization restrictions regarding broadcasting and communication to the public as well as fixation (e.g. on DVD) of their performances as a phonogram (see art. 10). The principle of exhaustion also applies when performances are "fixed" in phonograms (art. 8 ). Using that library music discs and storing the performance in a new audio-visual production would constitute a reproduction which is not an allowed exception, it requires authorization (art. 7). Neither could that film company have it broadcasted without permission. So in this case you would need to clear additional rights. If you purchased that disc and the performer says no, well, tough luck. You could stick the disc in your home stereo though and play it there. [:)]

A sample library could be seen as a phonogram. The principle of exhaustion applies once more, copies which are brought into the market via authorized means result in exhaustion of the rightholder's distribution right (art. 12). Someone selling the original copy of their library (or an audio cd) to someone else is not "reproducing" obviously, that as much should be clear. That's the whole reason you can sell off your audio CDs in the first place, the buyer can legally listen to his second-hand copy. I don't see why this should be any different for sample libraries.

If you want to hold on to your distribution rights then do everything digital, or rent or lend your material instead.

@Another User said:

2) if this type of license agreement violated any rights, I'm sure it would have been picked up long ago

Well, putting nonsense into a license is not illegal per se. As I mentioned before, clauses on exclusion of payable damages are often found in terms and conditions here in Holland, yet they are black-listed in the Civil Code. The consumer can nullify such a clause easily. So, just because the license or terms and conditions state a specific claim, that does not ensure the claim's viability if brought before a court.

Jean,

Obviously there is an aesthetic difference between recordings of single notes (made for whatever purpose) and a musical composition. There is also a legal difference in that a vsl sample disc does not contain any ‘intellectual property’ (such as an original musical composition) However, the sound recordings themselves do enjoy copyright and this is not dependent on a valuation of the worth of the intellectual content.

It might well be that you can legally sell your vsl discs and that the buyer could legally listen to them. However, as in any other copyright-protected recording, special permission has to be granted to make copies. This permission is granted by vsl to users via the mechanism of a one-off, lifetime licence fee. Anyone acquiring the discs by any means would have to also buy a licence in order to legally copy (i.e. include) the recordings in some other work.

In the same way anyone acquiring a ‘conventional’ cd would have to seek permission to use the recordings in another work. In the case of library music this procedure is made simple through the use of an industry ‘rate card’. In the case of a consumer cd the process is more complicated and not guaranteed.

In theory, a sample library could operate more like a production music library in that the discs are freely distributed but users pay when content is actually used. Not practical, I know.

Let me jump in with this "what if":

we're in the future. international law has changed. Holland still does whatever it wants. We are now allowed to sell our sample libraries. great. the license, however, still does not allow hire or rental of the library - it must belong to an individual, and not a company.

this is what the studios will do:

Buy a single copy of VSL.
Sell (for 50 dollars) to each and every client that hires the studio.
Buy (for 50 dollars) VSL back from the client at the end of the session.

it's not a rental agreement - there would be legal paperwork saying that true ownership was in the domain of that client.

it's this kind of crappy loophole that the license agreement protects us from. VSL would lose out with the resultant abuse of the loophole, and then we would lose out - from further development and innovation.
Holland would, of course, decide to hire out the library anyway - they are, it would seem, immune to all laws pertaining to anyone and anything.

peace to all

peter

Jean,

It feels now that you are simply determined to win your argument at all costs - so I will not continue any further.

Lets just look at the real world:
VSL has spent a fortune producing their wonderful products. They want to make money to offset their expenses and realise some profits.

If they sell the disks to one person, who then re-sells it to someone else, what guarantee is there that user #1 will erase the samples from his drive and never use it again? It is simply not cost-effective to try and police to entire planet, going from user to user.

I believe we all understand a basic principle of honesty here: you don't re-sell the library and keep a copy.

Can all your copyright laws prevent the flaws in human nature?

I have my doubts........ [8-)]

Colin

Peter:

"Holland still does whatever it wants" cracks me up. [:)] It's hardly true, and seriously unfair to paint Holland as some underdeveloped country where copyrights mean nothing. In that respect it shows you know little of how national laws relate to one another, why certain legislation is as it is, and how international law plays a role in all this. Oh well, you're not a lawyer, I can understand why some of these aspects would seem confusing.

You probably misunderstood with regards to rental rights, this right to rent does not "exhaust". VSL or any other company would have total control over rental aspects. The consumer has nothing to say about this.

Musos:

Of course I am determined to win my argument at all costs, that's what lawyers tend to do. [;)] But seriously, I am simply giving free legal advice. I'm reporting how things work and what the effects would be for the buyer and the market, period. It's not as if I invented this legislation; these are not "my" laws.

The point about a user selling his legal copy yet keeping an illegal copy on his drive is obviously a real concern, but this is not inherent to sample libraries; it holds true for just about any software package which gets resold.

Of course, copyright laws do not always prevent "the flaws of human nature" rearing their head. But hey, no one expects things to be perfect. Criminal law is clearly not succesful in totally preventing murder either, it's only a deterrence which obviously is not always going to work.

Cheers,
Jean