There is music, particularly of the electronic, techno and hip hop varieties, which is now currently unavailable as digital downloads and is not available new on other formats because of the samples they contain. The example that Idolator brings up is De La Soul's 3 Feet and Rising, an album which is one of the most influencial hip hop records of all time and also one which was the focus of one of the major legal decisions when it comes to sampling.
It had never occurred to me that the direct repercussions of that case would be influencing the distribution of digital versions of the albums involved today. I had heard about many digital holdouts it's true, but I didn't really think the fact that a holdout artist had been sampled on another artist's album or that a song/album was so sample rich that reclearing the rights would take time and money could delay or prevent their release onto the digital market. But given what is going on in the realm of DVD's, it does seem to fit the pattern.
This development makes me very worried about how the estate of James Brown is going to use its power over his catalog now, as he is the most sampled artist ever (the-breaks.com lists it at 903 samples of Brown's work floating around in other people's music). And because hip hop/electronic music produced before the De La Soul case often incorporated uncleared samples, there are probably many other artists that are not available today because the cost/profit analysis of their rereleasing their work makes clearing all the samples for this new distribution model not worth the time or money. Also given the fact that many of the recordings made during the formative years of electronic/hip hop music were made at smaller recording companies, companies that were likely bought out by one of the majors during the 80's and 90's, there is very little incentive on the record companies' part to do this work to preserve a legacy by being reasonable with their competitors when they come to discuss the clearing of samples.
Of course there are other ways you can acquire these albums and songs legally, but really, these restrictions are hurting a generation of artists who could benefit from hearing how it all got started. I am sure that some of these issues will be dealt with as time goes on, but I have a feeling that there are some artists and songs that are on the verge of disappearing because of their past indiscretions with samples, and that is a real shame and a loss for us all in the end, even for those who do not find merit in the types of music I am discussing.
In the end, it may come down to music that was made underground returning underground and being distributed through illicit means. I am sure that at least some of the traffic generated through P2P music exchanges are songs and albums that are caught up in this growing legal quagmire and as more work becomes available for legal download, these tracks will probably start to make up a progressively higher percentage of the P2P downloads.
I think it is also interesting to note that the article which Idolator linked to mentioned the PBS' miniseries Rock and Roll, which itself discussed in one episode De La Soul and the legal problems they had with the Turtles, one of the factors leading to this current digital dilemma.
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