Internet Archive Lawsuit May Have Dire Implications for Lenders and Borrowers Alike: Redefining “Ownership” in the Age of Subscription Services

Open Library

In case the story has escaped your personal social media feed or news aggregator, there is a lawsuit unfolding before our eyes which is unprecedented in the history of librarianship. It has the potential to affect all of us, from students to educators to anyone who supports Article I, Section 8, Clause 8, of the United States Constitution which grants the enumerated power “To promote the progress of science and useful arts” and what it means to “own a book.”

Maria Bustillos of The Nation published a startling summary of the Archive.org Open Library lawsuit and what it may mean for libraries and borrowers in the future. Several other major news sites have reported about the suit, the trial of which is set for next year in federal court, and initial disclosures for discovery are already under way. I’ll quote from this particular article liberally as it most effectively and contextually frames the significance of the lawsuit and its potential impact better than any other write-up I’ve read to date.

Bustillos begins by framing the circumstances which led to the founding of the National Emergency Library at the onset of the global pandemic.

When Covid-19 struck, hundreds of millions of students were suddenly stranded at home without access to teachers or libraries. UNESCO reported that in April, 90 percent of the world’s enrolled students had been adversely affected by the pandemic. In response, the Internet Archive’s Open Library announced the National Emergency Library, a temporary program suspending limits on the number of patrons who could borrow its digital books simultaneously. The Open Library lends at no charge about 4 million digital books, 2.5 million of which are in the public domain, and 1.4 million of which may be under copyright and subject to lending restrictions. (This is roughly equivalent to a medium-sized city library; the New York Public Library, by comparison, holds 21.9 million books and printed materials and 1.78 million e-books

Brewster Kahle, the Internet Archive’s founder and digital librarian, wrote in March that the National Emergency Library would ensure “that students will have access to assigned readings and library materials…for the remainder of the US academic calendar.” He acknowledged that authors and publishers would also be harmed by the pandemic, urged those in a position to buy books to do so, and offered authors a form for removing their own books from the program, if they chose.

More than 100 libraries, archives, and other institutions signed on to a statement of support for the program, including MIT, Penn State, Emory University, the Boston Public Library, Middlebury College, Amherst College, George Washington University, the Claremont Colleges Library, and the Greater Western Library Alliance.

…Harvard history professor and author Jill Lepore joined many media observers in praising the National Emergency Library as “a gift to readers everywhere.”

Next she outlined the terms of the suit and the responsive actions which followed:

On June 1, Whitehead’s publisher, Penguin Random House, together with fellow megapublishers Hachette, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive alleging “mass copyright infringement.” The Internet Archive closed the National Emergency Library on June 16, citing the lawsuit and calling for the publishers to stand down. But the plaintiffs are continuing to press their claims, and are now seeking to close the whole Open Library permanently.

what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book.

Her insights on the indispensability of the Internet Archive follow, demonstrating how critical it is to preserve this organization:

The Internet Archive is far more than the Open Library; it’s a nonprofit institution that has become a cornerstone of archival activity throughout the world. Brewster Kahle is an Internet pioneer who was writing about the importance of preserving the digital commons in 1996. He built the Wayback Machine, without which an incalculable amount of the early Web would have been lost for good. The Internet Archive has performed pioneering work in developing public search tools for its own vast collections, such as the television news archive, which researchers and journalists like me use on an almost daily basis in order to contextualize and interpret political reporting. These resources are unique and irreplaceable.

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video.

Equally importantly, Bustillos draws the parallels between traditional and modern digital libraries like the Open Library:

Like a traditional library, the Internet Archive buys or accepts donations of physical books. The archive scans its physical books, making one digital copy available for each physical book it owns. The digitized copies are then loaned out for a limited period, like a traditional library loan. The physical books from which the scans were made are stored and do not circulate, a practice known as “own-to-loan.”

Harvard copyright scholar and lawyer Kyle Courtney has explained this reasoning very clearly. “Libraries do not need permission or a license to loan those books that they have purchased or acquired,” he said at a recent conference. “Copyright law covers those exact issues.… Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself.”

And it is next that Bustillos expresses the most fundamental concern regarding the suit, and the dangerous implications that it may bear upon the lending market in the future. There is an undeniably growing global trend of media consumers retiring analog media in exchange for cloud-based access to their digital counterparts. But this trade-off comes at an alarming cost.

Physical media libraries continue to diminish as a younger generation is ushered into a subscription-service-based way of life. Music collections are being replaced with Spotify accounts. Video game consoles are being released with no physical disc drives and instead offer digital downloads which have no value should a gamer decide that they wish to explore other systems. DVD collections are becoming less common as viewers opt to curate their “collections” on services like Netflix. And software packages are no longer purchased once physically and owned thereafter – users are instead forced to pay a monthly subscription fee for continued access. 

Could we see the same thing happen with digital books? As a lifelong cataloger and curator, I can’t imagine relinquishing my physical libraries and chaining myself to a perpetual monthly slow-bleed of non-ownership. So much of my identity is embodied in my curation. But if publishers have their way with the lending market and related legislation, we may be forced into just such a reality.

Bustillos explains:

Publishers approve of libraries paying for e-book licenses because they’re temporary, just like your right to watch a movie on Netflix is temporary and can evaporate at any moment. In the same way, publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever.

The Internet is 31 years old, and in those three short decades the virtual world we’ve come to depend on has slowly eroded the idea of private ownership—literally, your right to call your belongings your own. Things you used to buy just once, such as your own private copies of software like Photoshop or Word, your privately owned vinyl discs and CDs, or movies on VHS—have increasingly begun to come through dispensing services you pay for every month, from vendors like Adobe, Netflix, Hulu, and Spotify. And you’ll never stop paying.

“Libraries buy, preserve, and lend,” he said. “That’s been the model forever. [Libraries] actually supply about 20 percent of the revenue to the publishing industry. But if they cannot buy, preserve, and lend—if all they become is a redistributor, a Netflix for books—my God, we have a society that can get really out of control. Because if a publisher maintains control over every reading event, who’s allowed to read it, when are they allowed to read it, if they’re allowed to read it, and be able to prevent anybody, or particular regions, from being able to see something, we are in George Orwell world.

Another journalist, Mike Masnick of Techdirt was equally impassioned and emphatic about the erroneousness and fallaciousness of this lawsuit.

For many years, we’ve said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

While many publishers and authors declared this to be “piracy,” that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don’t need special licenses to lend out books.

Except the identical argument applies to public libraries lending physical copies as well. It does not “grossly exceed legitimate library services.” It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That’s a LIBRARY.

Masnick reiterates this theme of how the Open Library is precisely that throughout his article. He explains:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That’s right: and for tons of people they way they read those books is from a library.

The publishers have been chipping away at “libraries” for years. Before ebooks, libraries could buy books and lend them out. They didn’t need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

But also looking over that list, I see a bunch of books that I know are read in schools — meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being “essential to our society.”

He closes his write-up emphasizing:

…there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

I suspect he is quite right, indeed.

Masnick provides numerous links to sources corroborating each of his points, but for a balanced perspective, I also made sure to search for articles challenging the claims made by these writers in an effort to counter their arguments. I could only find one opposing document, penned by Aja Romano, an Internet Culture Reporter for Vox.com. Romano rebukes reporters for the sense of urgency expressed by those wary of the lawsuit’s implications and says the suit is “not as dire as you may have heard.”  

Romano does give credit to The Internet Archive for its achievements, noting that the Wayback Machine comprises a digital collection of roughly 390 billion pages dating back to 1996 – a 10-petabyte collection and the deepest archive of internet history in existence. But she states that “the reporting surrounding [the lawsuit] was hyperbolic and alarmist.” 

Regarding the impact of the suit on the sustainability of The Internet Archive, Romano notes the following:

If the court awards the plaintiffs the maximum amount provided under the law, the most the Internet Archive would have to pay would be $19 million — essentially equivalent to one year of operating revenue, according to IA tax documents. That’s a huge setback, but for the IA, a tech nonprofit that relies heavily on grants and public donations, it’s not the major death blow it might seem to be.

Even if that is the case, Romano fails to address the suggested implications that such a ruling could potentially have on the market as a whole.

So what do you think? Does the Open Library lawsuit set a precedent for all lenders which could potentially transform the library system into a subscription-based “reading as a service” operation? And might these extreme ebook pricing and licensing terms kill the market for ebook library lending altogether?

Hold onto your books, everyone.

The Department of Records – A True Piece of Internet History

Over the past several months I’ve taken a considerable interest in Copyright Reform, Fair Use, Free Culture, and the fight for Internet Freedom.  I purchased a copy of Prof. Lawrence Lessig’s cornerstone text, Free Culture and have been reading papers on the subject at every opportunity.

This returned my attention to one of the most prophetic and cautionary pieces ever written on collective freedom – John Perry Barlow’s A Declaration of the Independence of Cyberspace.  Written during the infancy of the internet in 1996 by the co-founder of The Electronic Frontier Foundation, The Declaration warned readers to be ever-vigilant, warning that the governments of the industrial world would continuously work to erode and destroy the liberties afforded to us by the world wide web.  At the time of its drafting, Bill Clinton had just signed the Telecommunications Reform Act into law – an act which perpetuated the merging of the largest corporations in the communications industry  granting them even greater control of information than ever before.

Barlow has the distinction of being the only person to be inducted into both The Internet Hall of Fame and The Rock & Roll Hall of Fame.  And his short but incredibly relevant paper is a pivotal piece of internet history.  That’s why I am so honored to have claimed this latest addition to my library.

While poring over the EFF’s deep links, I came upon an article from December of 2014 describing a special limited release from The Department of Records.  DOR’s homepage describes its mission, “to preserve cultural artifacts for the collective memory in both the physical and digital worlds.”  And the first historical work for their catalog is a recording of John Perry Barlow reading his Declaration.

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This special vinyl edition was limited to just 500 copies worldwide and distributed directly by DOR.  The 180g album sports a smart minimalist black cover with the title of the work embossed at the center of the jacket.

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The gatefold sleeve contains a transcript of the original document and information about the three recordings on the album.

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Side A Track 1 features A Declaration of the Independence of Cyberspace as spoken by John Perry Barlow

Side B Track 1 is A Declaration of the Independence of Cyberspace (ft. John Perry Barlow) by Dražen Bošnjak 

Side B Track 2 is an Instrumental version of A Declaration of the Independence of Cyberspace by Dražen Bošnjak.

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DOR kindly offers the album’s contents free to all courtesy of The Internet Archive.

When I discovered that DOR still had copies remaining for sale, I purchased it for my own archive without a moment’s hesitation.  It instantly became the most significant artifact of my cultural custodianship.

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You can watch the recording session below.  Tune in for an incredible moment of our culture’s history.

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Beyond Big Cable: Millennial Viewers Ditch Network Packages and opt for Greater Value with Streaming Services

roku tv

For as long as we can remember there has existed a well-established monopoly whereby consumers have little or often no choice between high-priced cable packages offered by a small handful of national providers.  Broadbandnow reports that five major companies provide service to nearly 250 million customers in the US. And Comcast dominates the market with a staggering 113 million customers in 40 states.  The resulting market is one of ever-increasing prices, preposterous service fees, and abysmal customer service, all at the expense of the consumer.

Fortunately, if current media consumer trends are any indication, none of that matters anymore.

“Cord-Cutting Is Accelerating!” proclaimed the Wall Street Journal this month, citing that, by 2018, 21% of U.S. Households won’t pay for traditional TV.  The feature includes a foreboding line graph with a plummeting projection of cable subscription rates in the years ahead.

And honestly – who can blame consumers for jumping the sinking ship of traditional TV when a streaming cruiseliner comes sailing by?

To set the stage for this sea change of service subscriptions, let’s look at the market as it stands today.

A FEW PRICING FACTS FROM BIG CABLE

The National Average for a Cable Package in the US:

Starter packages run $50-$65/mo while premium packages run $68-$127/mo.

Add to that $6-$8 per mo. in fees for your HDTV cable boxes.  An HD DVR receiver will cost you another $10-$16 per month.  Service to additional rooms or outlets range from $7-$10 each.  And if you want the premium channels you’ll have to shell out an additional $10-$15 per channel per month.

That quickly adds up to a whole lot of money for a passive-feed of non-interactive, commercial-loaded content, which is precisely what Thomas Pecoraro of Western NY thought in 2003 when he was shelling out $130 a month for cable and HD premium channels with Dish Network.  “I really wasn’t using 90% of the content,” Tom explained.  In 2006 his growing dissatisfaction would inspire him to explore the then brand-new concept of streaming media from AOL/Time Warner’s In2TV.com.  

In2TV was an ad-supported stream of content from the Warner Brothers archives.  Tom quickly realized that he could patch an S-video cable from his laptop to his CRT television and enjoy this web-sourced content on his television set.  “The early 5-14Mb/s broadband was not a reliable connection,” noted Tom.  “You could play what you want when you wanted it, but there was heavy pixelization and frame drop abound.”

That same year, WB.com began offering similar free retro cartoons and sitcoms.  It was the early days of streaming, and networks were testing the technology with archival content that they couldn’t otherwise capitalize upon at the time.  “What a lot of consumers don’t realize,” Tom  noted, “is that Time Warner’s IN2TV streaming service was the precursor to Netflix.”

In 2007, Netflix added streaming to their DVD rental subscription service, and by 2008, they made a deal with Starz to expand their catalog.  “They had Give Me a Break, Charles in Charge and a variety of other programs,” said Tom.  “It was exciting to revisit my childhood shows on demand.”

The Next Step: Roku

“As soon as Roku was launched in 2008 I bought the very first model,” said Tom.  “It made it so much easier to access media content.”  At the time he had both Netflix’s DVD and streaming packages for a total of $16 a month.  With the ease of accessibility Roku offered, Tom quickly cancelled the DVD portion of his subscription and kept the streaming service for $8 a month.

“The beauty of Roku,” Tom explained, “was that it was an affordable, one-time investment.”   That same year Tom purchased a Google TV, but the service faced challenges.  “It had a keyboard interface and a browser to search various networks for streamable content.  Many offered programs at the time, but when the networks realized that Google was accessing and distributing their media for free, they unanimously decided to block Google TVs from receiving their media.”  

“Roku approached access rights differently.  They steered clear of network content.  Roku made deals with providers, podcasts, and with Archive.org to ensure that there were no issues with the content.  That’s a big contributor to why Roku came out on top.”

Hulu Enters the Arena

Hulu was the next step in an experiment of networks streaming their own content on their own terms.  It began as a web-based portal of content where networks could supply old and new content without worry of maintaining multiple websites while simultaneously introducing a new avenue of content distribution, so they let anyone sign up to watch the content for free.  

But as new streaming boxes and “media PCs” premiered on the market, each pointing to online content (such as Google TV and Boxee Box), the networks became frightened at their loss of control of distribution.  They began blocking IPs for Hulu and other non-computer devices.  Hulu created “Hulu Plus” for Roku, smart TVs, DVD/Blu-ray players and game systems (and any other market offering competitor Netflix’s content).  

“Individuals like me who watched the web version of Hulu saw Hulu Plus as a joke and a scam,” noted Tom.  “Why pay for Hulu Plus when you would see ads running on their service?  After years of this nonsense and the fear of SlingTV, HBO and others entering the ring, Hulu Plus rebranded Hulu for both the web version and the streaming boxes introducing a new $12 ad-free tier as well as a premium tier for movies from the usual suspects – much like the market of the early years of cable.”

Dish Network – Too Little Too Late

In early 2015, Dish Network launched their SlingTV service (not to be confused with the SlingBox).  The basic package offers 19 channels for $20.  Marketed as “The Best of Live TV,” SlingTV features general interest content like food, sports, and travel.  And, like its competitors, SlingTV also offers premium tiers for children’s programming, sports, and movies for an additional fee.  But it’s passive live streaming, just like regular TV but distributed over the internet.  The basic $20 package gives you access on only a single device, and it’s riddled with commercials.  There’s really no reason to explore this option unless you’re satisfied with passive content.  “SlingTV exists solely for members of the older generation who wish to break free of their cable contracts but want the familiarity of traditional television,” Tom observed.  

Amazon Prime – Great Value For Its Price Point

To compete with Netflix, Amazon in the early days offered a simple rental plan of $4 a movie.  They later launched Prime with free streaming of older video content.  If you order products with any regularity from Amazon then Prime already pays for itself in the money you save on shipping.  Today’s annual rate of $99 is still a great value for their library of content.

Adding It All Up – Streaming vs Traditional Cable

Tom has tried every major streaming service available in his area since the advent of streaming in the early 2000s.  Today he has subscriptions to several content providers, making his monthly bill an excellent case study for a comparison of old services vs new.

Tom kept Hulu for $8 a month because they offer Japanese and 70s sci-fi content that he would otherwise spend far more to purchase outright.  

He also utilizes the free ad-supported Crackle service on Roku which offers a variety of movies, TV shows, and anime.  “It’s a one-stop shop for great content,” said Tom.

An avid fan of Japanese programming, Tom also pays for 3 premium anime services via Roku – Funamation ($8), CrunchyRoll ($6), and Anime Network (also $6).  Together, these services provide a wealth of content both old and new from Japan.

Tom also enjoys content from numerous other providers catering to niche interests.  Services such as:

  • TwitCh – for Gaming
  • <>.TV diamondclub.TV – a community of fan-based content and a video podcast channel
  • Frogpants – similar to diamondclub
  • TuneIn – free radio
  • Livestream – for live broadcasts
  • IHeartRadio – free radio and music stations
  • Archive.org (an unofficial third-party channel) for their unparalleled library of public domain content
  • Presto – the best of HBO and Showtime for a low monthly rate
  • the Google Play Store
  • and PBS

The one-time purchase of the Roku and annual $99 Amazon Prime fees aside, Tom’s total monthly cost for all this content is $35.  All of the media is on-demand and much of it commercial-free.  Compared to his $130 Dish Network cable contract, cutting the cord was a no-brainer.

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Thomas Pecoraro – Cable-free since 2013

A Nationwide Trend

In Oct 2013 Statista.com reported that 43% of users age 18-36 opted for Netflix while 46% utilized traditional cable packages.  I asked Tom whether he believed there will still be a market for cable in 10 years’ time.

“It’s not a black or white Netflix question,” he answered. “It depends on whose stats you read.  But in 1979 networks were frightened about the new concept of cable television.  It’s the same scare now.  They’ve always been slow to change and the technology shows no sign of slowing down for them.”

I’m curious, as I know my readers span a variety of ages and demographics.  Have you cut the cord as well?  To my younger readers – did you grow up with an entirely post-cable experience?

And what is your media center interface of choice?  Do you prefer XBMC?  Plex.tv?  Or Roku?

Whatever you use, it is wonderful to see consumers empowered by a new era of media technology.

Attention K-Mart Shoppers

This installment of Innerspace features a special look at a unique pick from The Internet Archive. Mark Davis, former K-Mart employee and dedicated crap-audio archivist rescued a stockpile of K-Mart muzak cassettes which were broadcast over the store’s PA system throughout the 80s and 90s. Davis wrote an excellent summary of the library on the collection page titled, Attention K-Mart Shoppers:

OK, I have to admit this this is a strange collection. In the late 1980’s and early 1990’s, I worked for Kmart behind the service desk and the store played specific pre-recorded cassettes issued by corporate. This was background music, or perhaps you could call it elevator music. Anyways, I saved these tapes from the trash during this period and this video shows you my extensive, odd collection.
Until around 1992, the cassettes were rotated monthly. Then, they were replaced weekly. Finally sometime around 1993, satellite programming was introduced which eliminated the need for these tapes altogether.

The older tapes contain canned elevator music with instrumental renditions of songs. Then, the songs became completely mainstream around 1991. All of them have advertisements every few songs.

The monthly tapes are very, very, worn and rippled. That’s becuase they ran for 14 hours a day, 7 days a week on auto-reverse. If you do the math assuming that each tape is 30 minutes per side, that’s over 800 passes over a tape head each month.

Finally, one tape in the collection was from the Kmart 30th anniversary celebration on 3/1/92. This was a special day at the store where employees spent all night setting up for special promotions and extra excitement. It was a real fun day, the store was packed wall to wall, and I recall that the stores were asked to play the music at a much higher volume. The tape contains oldies and all sorts of fun facts from 1962. This may have been one of the last days where Kmart was in their heyday – really!

One last thing for you techies, the stores built in the early 1970’s (such as Naperville, IL Ogden Mall Kmart #3066, Harwood Heights, IL #3503 and Bridgeview, IL #4381) originally had Altec-Lansing amplifiers with high quality speakers throughout the store. When you applied a higher quality sounding source, the audio was extremely good. Later stores had cheaper speakers and eventually the amps were switched out with different ones usually lacking bass and treble controls.

Disaffected millennials raised in the age of irony and cynicism will love these plastic corporate recordings. If you’ve any vaporwave music in your library, this is the archive for you.

Tune in and don’t miss the blue light special.

Published in: on October 15, 2015 at 8:37 pm  Leave a Comment  
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The 5 Percent Nation of Chocolaty Delicious: It comes down to THIS!

The long-awaited and much-anticipated Soul Coughing 180g vinyl issues have arrived!

MusicDirect lists the official ship date as 08-31-15 for the Sept street date but pre-orders shipped in advance from their Chicago distribution center and arrived at my door in NY this morning.

If you missed the pre-order and still want to grab these for your collection, each of their albums are still available at the regular price from MusicDirect here.

This is the very first time Ruby Vroom has ever been made available in a vinyl format. If you’re a fan (or if you had a pulse in the 90s) this is the time to claim some SC love for your own.

“And it booms as cool as sugar free jazz”

All my SC promos CDs and cassettes are packed for the move at present, but I’m enjoying digging through my archive of live shows and radio sessions this evening.  And The Rev 105’s Moonlight Meditations program featured a unique look at M Doughty’s poetry in 1996.

Highlights from Soul Coughing and Mike Doughty’s live material

There are currently 126 solo shows available for free at Archive.org.  The site also hosts the 23 known live recordings of Soul Coughing.  This weekend will be a great opportunity to complete my own archive of all things from the Soul Coughing Underground.

Happy Friday everyone!