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December 3, 2005
The story that would not die
Cory Doctorow at Boing Boing reversed himself and determined that the Dead/Archive compromise is a sham: Boing Boing: Grateful Dead “reversal” on fan-recordings is a smokescreen
I agree with much of what he says. He gets a few things factually wrong, but probably only a Deadhead could make some of these distinctions accurately:
What, exactly, is the Grateful Dead’s “legal property?” The media on which the recordings reside? No, those belong to the fans and/or the Internet Archive. Rather, the thing that the Grateful Dead controls is the copyrights in the performances. But they control the copyright in the non-soundboard recordings every bit as much as they control the soundboard recordings.
So why is this being characterized as the Grateful Dead changing its position? They’ve reversed on a minor point — that freespace recordings may be traded — but they’ve stuck to the main point: recordings made by fans with the blessing of the Dead and the admonition to share them far and wide are no longer to be shared without the explicit blessing of the band’s surviving rightsholders.
I think Cory is correct that copyright is not the real issue. What is relevant, at least to Deadheads who care about these niceties, is that the fans were given permission to make audience recordings (which, some people have pointed out, at their best sound better than a dry soundboard tape). Soundboard recordings got into the fan community in one of two ways, primarily: either longtime soundman Dan Healy gave fans a “patch” to his board mix, or the band’s board tapes were “leaked” from the vault.
In the former case, Healy was revered for his occasional generosity to a chosen few tapers, but legally he probably had no right to do so. Similarly, whomever “liberated” this or that soundboard from the band’s collection deserves thanks of a sort but undoubtedly did so with formal permission.
Now, of course, there’s no getting the cat back into the toothpaste tube once the horse is out of the barn (tip of the hat to Michaelz for this apt turn of phrase), but there is a subtle if obscure rights issue involved here.
If you’re an absolutist about copyright being for “the Man” only, as Doctorow appears to be, this is all just a self-defeating quibble.
It’s clear why these rightsholders want this. The Grateful Dead is famous, and lots of people are interested in buying GD recordings, merchandise, and tickets to the successor band, The Dead. The Grateful Dead’s fame is the direct consequence of the goodwill they exchanged with their fans when they adopted their liberal policies for recording and sharing of shows.
Well, sure, that was a major pillar of their continued fame, of course. I would chalk some of the credit up to the music they played as well.
Now the rightsholders want it both ways: they want to profit from the goodwill that fans retain for the band due to its generosity, but they want to revise that generosity downwards. They want to change the deal so that fans continue to do just as much evangelizing, spend just as much money on shows and shirts, but get less in return.
Well, they don’t want it to be so easy to get high-quality direct feeds of board mixes, yes. But the regime that made them so popular had very few such recordings in circulation - we mostly made do with audience tapes ranging from spectacular to indifferent in quality, and the occasional “crispy” board, often as not taken from a 70s-era bootleg LP.
Meanwhile, via Gans, I see that veteran Times music critic Jon Pareles (who always wrote insightful reviews of Dead shows) has his say (The Dead’s Gamble: Free Music for Sale).
He gets the nuances of this story “just exactly perfect”:
The Dead are thus the latest victims of the notion that digital copying is qualitatively different from every recording technology since the invention of music notation. Yes, digital copying is fast; it’s exact; it’s easy. For a recording business that has realized far too late that it is selling music, not discs, digital copying has destroyed the old monopoly on pressing and distribution.
Digital downloads can also provide numbers for accountants to tabulate and for statistics-mongers to misinterpret. (Just because 10,000 people download a concert doesn’t mean 10,000 people would pay for it.) Oddly enough, the numbers also seem to encourage visions of wringing every statutory nickel out of every recording ever made. In conformity to copyright law that was designed for sheet music and discs rather than the Web, visions persist of the Internet not as a cornucopia, but as a pay-per-play jukebox. The Deadheads’ old trading network had looked back to an earlier model: music as folklore.
Suddenly, after all these amicable and profitable years, Dead representatives are talking about “rights” to those concert recordings. It’s lawyer talk, record-business talk, and entirely valid on those terms; the Dead do hold copyrights and are entitled to authorize or withhold permission to copy their work. (So, incidentally, are those who own the copyrights to Dead concert staples like Buddy Holly’s “Not Fade Away.” )
Enforcing that permission on the Internet is another matter. Digital-rights management by technical means is iffy at best: widely circumvented by professional pirates and problematic for consumers trying, for instance, to transfer songs from their CD’s to an iPod. Sony BMG Music, trying to limit copying of CD’s, included software that created security hazards in its paying customers’ computers and is now recalling some four million CD’s and facing lawsuits. The next Windows operating system may place anticopying mechanisms beyond users’ control.
The Dead’s problem is more temporal than technical. Grateful Dead recordings, including soundboard recordings, have been circulating since the inception of the Internet and are not going to disappear by fiat.
The Dead had created an anarchy of trust, going not by statute but by instinct and turning fans into co-conspirators, spreading their music and buying tickets, T-shirts and official CD’s to show their loyalty. The new approach, giving fans some but not all of what they had until last week, changes that relationship.
(Note: I couldn’t get a non-rotting blog link to this article so I’ve quoted from it extensively. I’m hiding behind fair use and hoping to avoid a meta-discussion about the Times’ intellectual property right as they monetize something that they at one point were giving away for free….)
Posted by xian at December 3, 2005 12:18 PM
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