Tuttle et al v Audiophile Music Direct

[JoeWhip]

Using the class action gambit in this context is why I have been advocating for class action reform for years. Each individual member of the class will get peanuts and the lawyers, from all sides millions. Such a class action could result in MoFi and their owner, Music Direct , going out of business, all so that people who spent way too much money for a piece of vinyl can get pennies on the dollar. Where is the social utility here? After all, the album that they bought is of the artist they thought, plays just fine on their TT and by all accounts, sounds good. Is it defective as a product in a legal sense, because it has a digital step. I think not.

[Mike Rubin]

54 minutes ago, Rt66indierock said:

 

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

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, intending that audience to rely on the advertising.  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.

[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.

[Mike Rubin]

1 minute ago, Rt66indierock said:

 

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.

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.

[fas42]

1 hour ago, JoeWhip said:

Using the class action gambit in this context is why I have been advocating for class action reform for years. Each individual member of the class will get peanuts and the lawyers, from all sides millions. Such a class action could result in MoFi and their owner, Music Direct , going out of business, all so that people who spent way too much money for a piece of vinyl can get pennies on the dollar. Where is the social utility here? After all, the album that they bought is of the artist they thought, plays just fine on their TT and by all accounts, sounds good. Is it defective as a product in a legal sense, because it has a digital step. I think not.

 

Ah, the "everyone loses" gambit ... something that mankind is particularly adept at doing; making sure that only the people who have zero interest in the actual issues at hand, the lawyers, are winners, and everyone else is worse off ... let's pause for a moment, and give a cheer for the, er, 'intelligence' of the human race ...

[The Computer Audiophile]

1 hour 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.

That’s an interesting take. I like it. The one part I’m unsure of is if consumers were willfully blind to it and people like to pile on when “rich guys” get screwed. 
 

I don’t think anyone really knows the status of any specific tape until it comes out of storage. 

[Mike Rubin]

50 minutes ago, The Computer Audiophile said:

I don’t think anyone really knows the status of any specific tape until it comes out of storage. 

Therein lies the rub.  MoFi knew that, but I am confident that not a single consumer, reasonable or otherwise, had this specific factual data. 

 

May not matter, though.  Considering that people like MoFi (and dozens of others) actually have been making remasters from master tapes for decades without digital processing stages insofar as anyone knows, the consumer would have zero knowledge that it's the condition of the specific master that would determine whether a digital stage were necessary or advisable.  Further, and to repeat myself, if the master's condition were the determining factor and everybody who once listened to FM radio would have that awareness burned into his or her brain, there wouldn't be any reason, and certainly no competitive disadvantage, for MoFi not to disclose what it now does, because everyone in the aftermarket remastering would be doing exactly the same thing. 

 

Others have been pontificating, so please allow me to, as well.  In a prior life, I worked for a Fortune 5 consumer tech company and had a role in defending some serious class action and California unfair business practices litigation arising from advertising failings akin to this one, many with damages issues as speculative or insignificant as this one.  After a dozen years of doing that, my takeaway was that, were it not the fear of and annoyance with these lawsuits, my employer would have always asked for forgiveness and never permission. Successful companies are aggressive. 

 

While the plaintiffs' lawyers indeed got rich and individual consumers didn't recover much in any particular case, the one thing I can assure you is that my employer would have screwed consumers at fifty times the pace it generally did if there were nothing ever holding it accountable. The in terroram effect of even the threat of class actions or statutory consumer law relief was unarguable.

 

How do I know?  Because I sat in meetings with executive team members who said exactly that. 

 

Further, some of the proof of the prophylactic effect of potential litigation is how often big companies push the envelope these days, now that their customers have had to submit to arbitration and class action waivers as a condition of doing business.  When there is no consumer leverage left because of these contract provisions, companies get away with a lot more than they would have had the SCOTUS never issued the opinion greenlighting non-negotiable remedy waivers.   

 

Are you better off for that?   Sounds like most of you think you are a lot better off, indeed. 

 

End of rant. 

[Jud]

4 hours ago, Rt66indierock said:

 

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

People (including me) tend to confuse personal knowledge with what everyone should know.

[The Computer Audiophile]

1 hour ago, Jud said:

People (including me) tend to confuse personal knowledge with what everyone should know.

 

 

[Iving]

3 hours ago, The Computer Audiophile said:

 

 

Scary

[Jud]

3 hours ago, Iving said:

 

Scary

 

Americans are famously bad at geography. There was a "mind-reading" party game going around years ago in which you thought of a country starting with "D," and then an animal whose name began with the second letter. Then you were supposed to be surprised when you were told you were picturing an elephant, because Denmark. Except I thought of a jackal, because I was the only one they'd ever tried the game on who knew Djibouti existed.

 

We're pretty bad at math too (and language, if social media and the letters I used to read at my former job are any indication). And of course there's the whole perversely proud anti-science thing, arrgh....

[Iving]

14 minutes ago, Jud said:

Americans are famously bad at geography.

 

In the 1980s I was headhunted by a USA insurance co. wanting to establish itself in the City near the Lloyds of London insurance market. A British (well - Irish by roots - as I am) guy slightly older than me had gone there first. His early reports about his American colleagues in relation to their geographical understandings ran along such lines. He said that USA folks had a world map mental image like this (I just drew it up from memory to illustrate):

And yes - not unlike this:

 

 

Americans in that insurance office would walk past me saying in their best British accent (either Plum = posh, or Cockney) "cup of tea" and "anyone for tennis".

 

We were equally amused that to them the whole of the UK was "England". Unless they were referring to Scotland. In which case things could get a little confusing.

 

24 minutes ago, Jud said:

We're pretty bad at math too (and language, if social media and the letters I used to read at my former job are any indication). And of course there's the whole perversely proud anti-science thing, arrgh....

 

All ignorance is scary. It's not just about US High School as Jay parodied. We have our own problems that can be traced back to lack of education. And further to the East similar. Shows the importance of "High School" (and beyond) for everyone.

[Mike Rubin]

1 hour ago, Iving said:

 

In the 1980s I was headhunted by a USA insurance co. wanting to establish itself in the City near the Lloyds of London insurance market. A British (well - Irish by roots - as I am) guy slightly older than me had gone there first. His early reports about his American colleagues in relation to their geographical understandings ran along such lines. He said that USA folks had a world map mental image like this (I just drew it up from memory to illustrate):

And yes - not unlike this:

 

 

Americans in that insurance office would walk past me saying in their best British accent (either Plum = posh, or Cockney) "cup of tea" and "anyone for tennis".

 

We were equally amused that to them the whole of the UK was "England". Unless they were referring to Scotland. In which case things could get a little confusing.

 

 

All ignorance is scary. It's not just about US High School as Jay parodied. We have our own problems that can be traced back to lack of education. And further to the East similar. Shows the importance of "High School" (and beyond) for everyone.

The education gap between their respective memberships is now the defining difference between our two political parties.  This alone tells me that we never will be on the same wavelength ever again.  But we digress.... 

[firedog]

5 hours ago, Iving said:

 

Scary

Americans generally aren't taught geography; and b/c they live in a giant country with oceans on 2 sides and one major language, they don't feel they need to know much about the world. Most Americans don't have a passport and never leave the US. Travel for them is in the US. 

 

Beyond that, I've always had a problem with the "Jay-walking" bit: yes, some of the people are ignoramuses; but others I think are so intimidated by the presence of Jay Lenno that their brains just don't function.

[PeterG]

I often buy CDs just on seeing they have been reviewed.  This was the case a month or so ago when I saw Mark Smotroff's July 6 (pre-MoFi news) Audiophile Review coverage of Ella Fitzgerald at the Hollywood Bowl.  I was disappointed with the sonics (maybe I should read the reviews? haha), so returned to the review just now.  HA!  It includes a pragmatic discussion of all the issues here--how tech and media issues interact with sonics, how these things are described to listeners, and how to put that into a buying decision context.  Hat's off to Mr Smotroff, he anticipated the whole thing:

 

Sonics wise, Ella At The Hollywood Bowl sounds very good all things considered — it is after all a 60-plus year old analog tape captured from the soundboard, recorded live without a net. I enjoyed listening to it on vinyl a bit more than I did the high resolution 96 kHz, 24-bit stream on Qobuz (click here) which sounded a bit bright. So the vinyl presentation helps to warm things up — a little bit. Curiously, the album was not completely available yet on Tidal but the couple of songs that are there (click here) sounded a bit less bright (if you will), streaming at 48 kHz, 24-bit resolution.  It is also streaming on Apple Music (click here for Hi Res Lossless).

I do suspect this original tape source was digitally remastered for this release. In the album liner notes, a company called Izotope — which manufactures digital audio workstation type software — is credited. I don’t view this as necessarily bad but the result is a more modern sounding release than one might expect from a 1958 live concert captured on analog reel-to-reel tape. This production style is probably a 21st century necessity if this recording was to have any chance at a life on the Internet as well as modern day radio and TV applications. So, analog purists do set your expectations accordingly.

In the world of Grateful Dead tape traders, this is what people used to call “a crisp soundboard.” 

[firedog]

19 minutes ago, Mike Rubin said:

The education gap between their respective memberships is now the defining difference between our two political parties. 

There are plenty of "educated" people who are ignorant. Education - as defined by a degree - doesn't mean you actually know much or have insight.

At least up till Corona, the anti-Vax movement was dominated by "highly educated" people, for one example. 

Lots of Americans with Bachelor and advanced degrees know zip about geography, general history, mathematics, and science.

They simply aren't taught it and the culture doesn't value that knowledge outside of areas where it has a direct economic value. 

[firedog]

Just now, PeterG said:

I often buy CDs just on seeing they have been reviewed.  This was the case a month or so ago when I saw Mark Smotroff's July 6 (pre-MoFi news) Audiophile Review coverage of Ella Fitzgerald at the Hollywood Bowl.  I was disappointed with the sonics (maybe I should read the reviews? haha), so returned to the review just now.  HA!  It includes a pragmatic discussion of all the issues here--how tech and media issues interact with sonics, how these things are described to listeners, and how to put that into a buying decision context.  Hat's off to Mr Smotroff, he anticipated the whole thing:

 

Sonics wise, Ella At The Hollywood Bowl sounds very good all things considered — it is after all a 60-plus year old analog tape captured from the soundboard, recorded live without a net. I enjoyed listening to it on vinyl a bit more than I did the high resolution 96 kHz, 24-bit stream on Qobuz (click here) which sounded a bit bright. So the vinyl presentation helps to warm things up — a little bit. Curiously, the album was not completely available yet on Tidal but the couple of songs that are there (click here) sounded a bit less bright (if you will), streaming at 48 kHz, 24-bit resolution.  It is also streaming on Apple Music (click here for Hi Res Lossless).

I do suspect this original tape source was digitally remastered for this release. In the album liner notes, a company called Izotope — which manufactures digital audio workstation type software — is credited. I don’t view this as necessarily bad but the result is a more modern sounding release than one might expect from a 1958 live concert captured on analog reel-to-reel tape. This production style is probably a 21st century necessity if this recording was to have any chance at a life on the Internet as well as modern day radio and TV applications. So, analog purists do set your expectations accordingly.

In the world of Grateful Dead tape traders, this is what people used to call “a crisp soundboard.” 

Don't think there's much reason to prefer a high res version of such an old album from tape. The tape recorders in the 50's and even into the 60's (not to mention the microphones) didn't record anything above 15k. 

You want a good remaster, but in such a case there's unlikely any reason a hi-res version would snecessarily sound better than a Redbook one. 

[Iving]

A primary foundation of education is reliable information.

 

A primary fruit of a good education is the capacity to think for oneself.

 

Uneducated people are easy prey to nefarious charismatic leaders (emphatically not mentioning any by name).

 

A culture that stifles information and encourages blind trust in the people at the top is one in which grave trouble lurks, waiting to happen. The whole of the free world has emerged from such darkness in the last few centuries.

 

In the commercial environment, the same principles apply in exactly the same way - even if on a more trivial level.

 

Adequate and correct information about retail products, evaluated by properly- thinking buyers, avoids problems of the MoFi variety.

 

Second hand "they got it right" and blind "trust the experts" are exactly the wrong messages to promulgate in the wake of MoFi.

[austinpop]

@Jud and other world geography aficionados: you might enjoy this game: https://worldle.teuteuf.fr/

[Jud]

To @Mike Rubin's point about companies pushing the envelope in marketing: Don't know if folks can access this, but here's the bottom line: Close to 40% of all stock mutual funds have made their results look better by simply changing the market index they compared themselves to, whether or not that index was the appropriate one to reflect a fund's strategy.

 

And regarding what a reasonable consumer would know, perhaps this is old hat to people familiar with the field, but it was news to me.

 

https://www.wsj.com/articles/stock-market-fund-benchmark-change-11660940613

[PYP]

5 hours ago, Iving said:

 

In the 1980s I was headhunted by a USA insurance co. wanting to establish itself in the City near the Lloyds of London insurance market. A British (well - Irish by roots - as I am) guy slightly older than me had gone there first. His early reports about his American colleagues in relation to their geographical understandings ran along such lines. He said that USA folks had a world map mental image like this (I just drew it up from memory to illustrate):

And yes - not unlike this:

 

 

Americans in that insurance office would walk past me saying in their best British accent (either Plum = posh, or Cockney) "cup of tea" and "anyone for tennis".

 

We were equally amused that to them the whole of the UK was "England". Unless they were referring to Scotland. In which case things could get a little confusing.

 

 

All ignorance is scary. It's not just about US High School as Jay parodied. We have our own problems that can be traced back to lack of education. And further to the East similar. Shows the importance of "High School" (and beyond) for everyone.

Well, having lived for a long time in New York City many years ago, I would suggest that for those inhabitants the map looks different, although the idea is similar.  Manhattan is the center and everything outside that 13 X 2 mile island is the world of the ignorami.   Same thinking for folks who grew up in Los Angeles, albeit on the other side of the world.  

 

I do like the Scotchland label.    

[PYP]

3 hours ago, Mike Rubin said:

The education gap between their respective memberships is now the defining difference between our two political parties.  This alone tells me that we never will be on the same wavelength ever again.  But we digress.... 

The explanation of the rift in the U.S. that makes most sense to me is the result of a survey regarding one's feeling about authoritarianism (pro/con).  Does that correlate with education differences?  But, back to making MoFi pay for its sins of omission or commission (depending on point of view).  How quaint.  

[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.

[Iving]

32 minutes ago, PYP said:

Manhattan is the center and everything outside that 13 X 2 mile island is the world of the ignorami.   Same thinking for folks who grew up in Los Angeles

 

Yeah this map I scanned from a British infants' school textbook "World Geography 101"

[Jud]

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.