Tuttle et al v Audiophile Music Direct

[Rt66indierock]

A lawsuit has been filed over the analog production chain of certain Mofi records. The case raises some interesting questions. Is it probable the plaintiffs could reasonably rely on evidence they can present that they relied on misrepresentations, or did they ignore obvious problems with an all-analog production chain and the doubts many have expressed over master tapes? Can the defendants rely on the Cheerios case, nobody can reasonably believe Cheerios would reduce cholesterol? And in Illinois have the courts ever ruled on this type of alleged misrepresentation? If they haven’t, does the first bite is free doctrine apply?  In other words, we didn’t know our statements violated consumer protection laws. We promise not to do it again.

[Rt66indierock]

6 hours ago, JoeWhip said:

In a class action suit, the lawyers get a ton of money from any settlement. Each member of the class gets peanuts.

 

I wish I would ahve gotten actual peanuts for the last couple of class action settlements I received.

[Rt66indierock]

3 hours ago, JoeWhip said:

Do we really have to turn this into yet another digital v. Vinyl thread?

 

I’m following the case on PACER and have talked with Mike Esposito briefly.

It should get down to whether the plaintiffs and any members of the class are reasonable consumers.  The complaint says they are audiophiles, strike one, they bought expensive vinyl records, strike two.

And since dog food is a frequently litigated item this case should go the dogs.

[Rt66indierock]

12 minutes ago, Samuel T Cogley said:

 

I think this is quite humorous, but I also understand many will not share this sentiment.  😎

 

Are those people reasonable consumers?

[Rt66indierock]

39 minutes ago, Rexp said:

This issue here is MoFo were dishonest and anyone supporting their position is either naive or also a dishonest person.

It might look that way to someone not well versed in American Law. But the plaintiffs must show they are reasonable consumers. As I noted earlier this will prove difficult.

 

[Rt66indierock]

16 hours ago, Mike Rubin said:

I don't know where the lawsuit was filed, but, in the Ninth Circuit, when applying California state law, the standard is what the reasonable targeted consumer believes after seeing the representation in question.  By that standard, what audiophiles think about the representations is indeed the relevant calculus. 

 

Obviously, the analysis might be different in other jurisdictions, but, were I a plaintiff's class action attorney looking at filing a lawsuit against a company advertising and selling nationwide, I would pick among the many potential forums very carefully. 

 

Mike, you haven’t read Moore v Traders Joe’s, 9^th Circuit 2021 from an objective viewpoint. Was a significant portion market misled by Mobile Fidelities claims? If we learned anything from the MQA debate it is there are a lot people who doubt the providence of master tapes.

[Rt66indierock]

21 hours ago, sphinxsix said:

Sorry guys but for me someone who's buying an AAA LP and expects all 3 production stages to be analogue is a quite reasonable person.

He wouldn't be one if he was buying eg an AAD vinyl but I guess there may be something wrong with this logic at least according to American law.. 😎

 

Time to air some common knowledge about reasonable consumers.

 

Record labels are not trusted.

 

The MQA debate exposed that providence or authenticity of master recordings is not documented well enough to rely on.

 

Examples

In the complaint The Doobie Brothers Captain and Me is cited and I doubt the original master was used. I might believe a late 70’s or early 80’s remaster. Warner routinely discarded original masters after reissues and remastering.

Workingman’s Dead and American Beauty were remastered by Mickey Hart and the original tapes were thrown away. Priceless American heritage lost forever.

The Nightfly by Donald Fagan was recorded in a digital format and the MOFI albums say Original Master Recording. Maybe it was but we can be sure? It was obvious MQA Ltd used a different master when they processed it.

 

Every reasonable consumer of limited release vinyl albums has reason to doubt any claim of an all-analog chain.  Your example will be shown to be unreasonable.

[Rt66indierock]

17 hours ago, The Computer Audiophile said:

I also see the term “Original Master Recording” rather than master tape. Enough wiggle room there to drive a bus through. 

 

Chris, before I antagonize you, Mobile Fidelity’s situation is like the craft whiskey surprise in 2014. When the Daily Beast broke the story “Your “craft” Whiskey is Probably from a Factory Distillery in Indiana.”

 

Let’s review courtesy of the Orange Bean April 15, 2021. “These businesses, often craft whiskey brewers, may or may not mention MGP. Typically, they create an origin tale about their great-grandfather’s rye whiskey recipe. It’s a marketing ploy, of course, designed to hide the fact that the delectable brew inside the bottle actually hails from a large-scale operation that’s just very good at what it does: making whiskey. In fact, MGP has earned numerous awards for its whiskey.

 

MGP also makes whiskey for large brands such as Diageo, which is headquartered in London and is one of the world’s largest whiskey sellers. Diageo sells many spirits and they’re not especially keen on sharing which products feature MGP ingredients. You might be wondering, is this even legal? Can you make up an origin story about your Uncle Joe’s Appalachian moonshine still, knowing full well that your whiskey comes from a big distillery in Lawrenceburg, Indiana?

 

Actually, yes, it appears to be legal. In the U.S., bottlers of whiskey frequently source their whiskey from one of the country’s few large distilleries.”

 

I struggle to see any difference. MOFI is trying to make the best recording they can. Nobody has said their process is producing an inferior recording before the disclosures. Good evidence of this is nobody noticed for more than ten years.

[Rt66indierock]

17 hours ago, Samuel T Cogley said:

I'm a little confused by the consensus that MoFi buyers are an outlier of the general vinyl-buying public.

 

Aren't (digitally-sourced) new vinyl LPs already priced like $40-$50?  MoFi is just double this, not like 10x.

 

 

How big is the vinyl market? Last year about a billion dollars and MOFI's sales were nine mllion dollars last year. 

[Rt66indierock]

1 hour ago, The Computer Audiophile said:

It seem to be common with many people, to reduce things down to a single black/white issue or decision etc... Life is so much easier when there is no gray and when our decisions can be made based on a single criterion. I get it, life is hard. Making it easier is usually good. But, we, myself included, can go a little overboard. 

 

Chris, I look at this like craft whiskey. High West Distillery’s master distiller Brendan Coyle is an artist at blending whiskey. That’s the product you are buying, an artist’s creation. Mobile Fidelity’s engineers are artists trying to create the best sounding record they can make. And if they use a broader palette than others do to achieve the result they want then so be it.

[Rt66indierock]

31 minutes ago, botrytis said:

 

Well, High West buys much of their Rye Whiskey from that alcohol plant in Indiana. I worked in the industry, for a competitor that got their Rye from the same place in Indiana until they built a large Distillery in Iowa.

 

A bit off topic old friend. When I buy High West Whiskey, I’m buying Brendan Coyle’s blending skills. If it come from Midwest Grain Products so much the better. When I buy a Mobile Fidelity release, I’m buying the mastering skills of their engineers. Not an all-analog chain, I know better.

 

And I had great fun telling people in DC from about 2012 until I moved to Phoenix in 2014, your craft whiskey came from a giant factory in Indiana.

[Rt66indierock]

1 hour ago, Iving said:

 

All experts produce what they produce with the world watching. Many produce to spec. Real experts aren't worried about inspection. They have justifiable confidence.

 

In most legal systems retail products have to be correctly/adequately described. 

 

You are incorrect as far as United States goes. There is a lot of case law that states repeatedly “no reasonable consumer would believe that.” You can’t even bring this case in my home state of Arizona.

 

I can’t imagine any circumstances where your dixie swing master tapes were stored properly. Heat, humidity floods and hurricanes saw to that decades ago.

[Rt66indierock]

1 hour ago, The Computer Audiophile said:

Not sure I live in the same world as you. 

 

I don't think anyone, other than the engineers working on Beyonce's new album, know how it was made. The world is not watching. The album wasn't produced to any spec. If on the other hand, the world demanded she release an album that was AAA, or they wouldn't purchase it, she would've produced an AAA album even if it sounded worse. 

 

Companies have to sell their goods. If the misguided public likes AAA solely because it says AAA, AAA is what they'll sell. 

 

My only interest in this was when I saw the words audiophile and existential crisis. I was laid up with a badly sprained ankle and had time to look at the case. And of course, if there is an existential crisis my first thought is what can I do to make it worse.

To me the problem with all the angst is this. If you want X album and your only choice is a digital step, or album can’t be reissued. What’s the choice? A reasonable consumer would know this and judge it on sound quality. Or maybe not buy it. A reasonable consumer would not file a lawsuit.

 

Mobile Fidelity’s database is nice. I’m happy Foghat’s Fool for the City still exists on tape. But yesterday I heard Barbara Keith’s All Along the Watchtower cover and Dave Alvin and Jimmy Dale Gilmore’s Downey to Lubbock on the Bose (gasp) Sirrus XM system in my Mazda CX-9. You can either hear the music or you can’t.

[Rt66indierock]

2 hours ago, Iving said:

New case "Stiles": https://www.law.com/radar/

 

Vinyl record seller Mobile Fidelity Sound Lab was hit with a consumer class action Thursday in Illinois Northern District Court. The case, brought by Wolf Haldenstein Adler Freeman & Herz and Bursor & Fisher, contends that Mobile albums on vinyl which are marketed as 'purely analog,' or made from original master recordings, have actually been produced from digital files since 2011. Counsel have not yet appeared for the defendant. The case is 1:22-cv-04405, Stiles v. Mobile Fidelity Sound Lab, Inc.

 

Yawn, just another case that should be dismissed.

[Rt66indierock]

5 hours ago, PYP said:

Exactly.  Preservation of our musical heritage is a very important issue (just 4 pages and worth reading):  https://www.aes.org/journal/suppmat/hart_2001_7.pdf   

 

This excellent article goes in depth beyond more recent recordings, but this part about the Grateful Dead might be of interest to folks here:

 

"Can preservation and digitization be good business? Indeed, and the Grateful Dead is a good example. For nearly 30 years we recorded almost every show, over 2400 performances. Now we are at a point where many of our tapes are decaying, and so we are in the process of preparing for mass digitization. Of course, when we talk of the digitization process, it is not just a simple “let’s- throw-it-into-the-digital-domain.” Proper analog-to-digital conversion, Sonic Solutions preparation (see Fig. 1), and careful handling and storage of the source tapes will be necessary to provide for an uplifting and accurate view of these memorable artifacts.

 

A number of prized tapes in the Grateful Dead vault (Fig. 2) were recorded during the years between 1976 and 1981. Much of the magnetic tape manufactured during that period of time has exhibited a problem called shedding. When those tapes are played, they will either squeal loudly as they pass through the tape guides, or they may not play for longer than a few seconds. The problem is mainly due to the use of the polyurethane binders that were introduced with the Ampex 406/456 series of tapes. With the stress of time and humidity, the binder absorbs moisture. The urethane reacts with moisture, migrates to the surface of the tape, and becomes a 

sticky residue. The end result is that the tape is unplayable.

 

The situation can be corrected very simply by baking. We have a custom-built convection oven (Figs. 3 and 4) that keeps a constant temperature (+- 1/10 of a degree over a specified time). We can bake a number of tapes at a time (four 10-inch reels of 2-inch tape or ten 7-inch reels of 1/4-inch tape). We bake them for 12 hours at 130o F, with 30- minute warm-up and cool-down times. The oven does not really need to be very elaborate. Any commercial convection oven and timer can be used. The temperature and time of baking can be varied slightly, although it is safer to go longer with a lower temperature."

 

"Currently we believe the best method [for digital transfers ]would be to use our 192-kHz, 24-bit converter and the Sonic Solutions workstation to create W A V data files, not audio files. These can then be stored on L TO (linear-tape open) car- tridges or on some optical medium such as DVD-R. During the process, a number of CD, DAT, and MP3 ver- sions can be created for listening and for downloading purposes."

 

Yes and note the date, 2001. People were talking about the issues with analog tapes before that. A reasonable consumer would know this. 

[Rt66indierock]

2 minutes ago, Mike Rubin said:

I have been in this hobby for decades, but I learned all kinds of stuff from the linked article. I don’t know a jurisdiction in which the “reasonable “ consumer is expected to have such an expert level of knowledge or, frankly, why knowing that analogue tapes don’t age well translates into an awareness that digital steps by necessity are used in the MoFi technology. 
 

This thread appears to have lost sight of the initial, threshold legal issue: MoFi advertising omitted a fact that MoFi clearly had reason to know was material to the target audience.  Whether there is a damages case is a different matter, of course, but this remains the threshold legal question whether you think the purchasers are or are not idiots for failing to suss out that there “must” have been an undisclosed digital step and whether you think MoFi products are so great and trustworthy that it shouldn’t matter what their advertising says or omits.

 

Sorry Mike I heard about this on the radio listening to rock stations in the nineties. Considering what they are expected to about New Zealand honey I disagree.

[Rt66indierock]

17 hours ago, Mike Rubin said:

Let’s say that you are correct.  
 

Does that mean that today’s consumers should be expected to be aware that there must be a digital step added to the production when a very detailed disclosure of the production process omits that fact?  
 

If they should be, it wouldn’t be news that MoFi used digital processing because everyone would know they must have, right?  And, if that were the case, I honestly have no idea why this disclosure caught pretty much the entire industry offguard, because it should have been public knowledge years ago, regardless of what the advertising said or omitted.

 

Mike and Jud lets step back from the audio world for a bit. And look at mainstream life in America.

 

It has been reported that old movies are deteriorating, and the efforts made to restore some of these. Sadly, many were lost. Many old radio shows suffered the same fate.

 

In the business world tape deterioration of business records was frequently discussed. Tape backups? The horror stories were and still are common. And the floppy disks used to hold files. Well, when you needed them, failure was common.

 

Now let’s go home. Your camera film could deteriorate as could the negatives. As for VHS tapes, how many ads on TV have, we seen for recovering and converting you tapes to CD or DVD?

 

This is the environment of the American consumer.

[Rt66indierock]

1 hour ago, Jud said:

Last night on one of the multiple channels that exclusively show old movies as programming, Grand Hotel was featured, released in 1932. This is the environment of the American consumer.

 

I worked closely with the IT department of a major business segment of my employer, a Fortune 10 company, for 24 years, and remained blissfully unaware of tape backup horror stories.

 

And you watched a movie you can buy at Walmart from a digital copy. Think you could ever watch it in a theater?

 

Jud and Chris, I think your sample size is too small. 36 years of public accounting tells me a different story and my focus is tax not consulting and IT. I began my career with an assignment at a helicopter manufacturer. Started by famous reclose and sold off. Those tapes were an adventure is all I can say.

[Rt66indierock]

36 minutes ago, fas42 said:

 

First and only time in America was a very short stopover in New York ... I felt I was partaking in an episode of The Twilight Zone ...

 

American’s feel the same way, except for those that liken it to visiting a zoo.  

[Rt66indierock]

5 hours ago, The Computer Audiophile said:

This is the environment of the American consumer. 
 

 

The Tuttle and Stiles cases are going be decided by Captain Crunch’s Crunch Berries and Fruit Loops cases. Audiophiles ruled Fruit Loops. That will go mainstream.

[Rt66indierock]

15 hours ago, Mike Rubin said:

 (Wanna have fun?  Try to explain what a DAC is to someone who isn’t a reasonably serious audiophile.)

 

 

Mike it’s easy to explain what a DAC is. I pull my iPhone of my pocket, plug in the Apple headphone dongle. And say this converts a digital signal from YouTube to analog so you can hear it and amplifies it. Then I plug in headphones or earbuds and say here listen. People generally say can I play some of my music? I say Yes go ahead.

 

I’m enjoying the rants carry on.

[Rt66indierock]

20 hours ago, firedog said:

Really? Don't think so. 

How many millions visit there every year?

NYC is great - as long as you have money.

 

In a different way sitting on a patio in Downtown Scottsdale sipping drinks watching the tourist go by is like going to the zoo.   I like zoos of all kinds.

To get back to something close to the topic, DEPOSE STEVE GUTTENBERG!

[Rt66indierock]

8 hours ago, The Computer Audiophile said:

What timing. In my email today, "from the original 3-track master tapes." 

 

If @Rt66indierock is to be believed, the average consumer thinks this is fake because the original tapes are worn out and it's sourced from digital. 

 

 

 

Chris, I went to an event at a Phoenix high-end store in 2017 to hear the new Flying Burrito Brothers reissue of The Gilded Palace of Sin. Many claims were made about the tapes used. I knew better from a dinner meeting after a consulting engagement in Los Angeles in 2009. Somebody after a few drinks let slip that the Universal fire was far worse the anybody was letting on. I asked the Flying Burrito Bros? Captain Beefheart? All gone he said but there are copies.

 

At RMAF on 2017 after seminar I asked the Intervention Records representative about how they had the record. I was a told it came from a safety copy.

 

As for Kind of Blue, people have chimed in about the various tapes. I’ve always wondered whether any of the two and four track reel to reel releases were used to fix errors or places where the tape has worn out.

[Rt66indierock]

21 hours ago, Iving said:

 

Sure. But I'm 60 tomorrow. And I've become kinda interested in TBVO KOB to spend my birthday money on. Can't make the wrong call!

 

Irving happy birthday, enjoy Kind of Blue. I'm off to Cabo for five days. My only audiophile thoughts during this time will be how I'm going to lure Andy Quint of The Absolute Sound to Arizona. I want to show him the Grand Canyon, Grand Canyon Caves and little of Rt 66. If we see any wild horses, wild burros, coyotes, bobcats, and the odd land tortoise so much the better.

[Rt66indierock]

You guys just don’t get it lets go back to Animal house. The record labels are Delta House member Otto, the customers are Flounder and Fred.

Otter: Flounder, you can't spend your whole life worrying about your mistakes! You f**ked up... you trusted us! Hey, make the best of it! Maybe we can help.

Flounder: [crying] That's easy for you to say! What am I going to tell Fred?

Otter: I'll tell you what. We'll tell Fred you were doing a great job taking care of his car, but you parked it out back last night and this morning... it was gone. We report it as stolen to the police. D-Day takes care of the wreck. Your brother's insurance company buys him a new car.

Flounder: Will that work?

Otter: Hey, it's gotta work better than the truth.