The picture was similar on YouTube, where 70 percent of the public-domain songs he looked at were available compared with 77 percent of the copyrighted ones. On average, public-domain songs appeared 9.8 times on the site, and copyrighted songs appeared even more, averaging 14 different videos per son. "Copyright status," Heald writes, "seems to provide little impediment to the availability of these 385 old songs on YouTube."
Why are copyrighted songs more common online, not less? Heald says that the answer may have little to do with copyright and more to do with taste: "Previous data [has] suggested that songs on the more recent side of the 1923 divide were intrinsically more popular." Data seems to support this too: Songs from the later period, 1923 to 1926, averaged substantially more views (112,000), compared with those from the earlier period, which averaged just 39,000.
So why is it that copyright seems to have so little impact on the availability of early-20th-century music and yet has dramatically shaped the market for books from that time?
Heald offers a couple of theories.
For one, there's the fact that it's just much easier (and therefore cheaper) to digitize music than it is to digitize printed text. As Heald explains:
a vinyl album or audio master tape can be converted directly to a consumable digital form and be made available almost immediately. A book, on the other hand, can be scanned quite easily, but in order to be marketed as a professional-looking eBook (as opposed to a low quality, camera-like image of the original book), the scanned text needs to be manipulated with word processing software to reset the fonts and improve the appearance of the text. And given that the best optical scanning software can leave glitches in the text, an ebook intended for mass market distribution should also be proofread for typographical errors.
Another reason: Music, especially old music, is easier to consume, relative to books. A song requires just an investment of a few minutes, and services like Pandora may help to surface obscure, older compositions. An old book, by contrast, can be an undertaking, and consumers may not be all that interested, absent a compelling reason, such as an assignment for a class or a recommendation from a friend. "The comparative attractiveness and efficiencies present in the music marketplace may provide more of an incentive for music publishers to digitize, as opposed to book publishers," Heald writes.
But neither of those is the true culprit, Heald thinks. Really, the reason old music is widely available online and books are much rarer has to do with two court cases that interpreted copyright differently for the two mediums.
Book publishers, as per a 2002 court decision Random House v. Rosetta Books, must get an author's permission to republish a book as an ebook. Publishing houses, the Second Circuit court found, had the rights to publish the work "in book form"—a form that was found to exclude ebooks. If publishing houses wanted to make an ebook of a book they had published, they would have to renegotiate each book with its author.