[Dixielandjazz] Free Music for Sale or How to Learn To Love Copyright Law

Steve barbone barbonestreet at earthlink.net
Sat Dec 3 06:53:24 PST 2005

Here is an interesting take on the trading/downloading of recorded music
from The Grateful Dead, who allowed it for years. Also note the idea that
each live concert is a different event and worth recording, even though the
songs may be the same.


The Dead's Gamble: Free Music for Sale

By JON PARELES - December 3, 2005 - NY Times

The Dead did a quick turnabout - call it a half-step uptown toodleloo - this
week. First, band representatives told the Live Music Archive, at
www.archive.org, which includes countless jam-band concerts in its
repository of freely downloadable music, to stop making available its trove
of live Grateful Dead recordings, which have been free online for years.
Grateful Dead Merchandising (www.gdstore.com) now sells downloads of the
band's own concert recordings, and didn't want free competition.

Fans were so furious that within days, the band was forced to relent
partway. Now recordings made by audience members are back on the archive,
available for download. The Dead's pristine soundboard recordings, with
minimal crowd noise, are no longer available for quick downloading, but can
be played as streams (and recorded in real time). It's not a complete
reversal, but all the music is online again. Now, however, the Dead are
going to find out how difficult half measures can be.

The Dead's easygoing attitude toward concert recordings had been a bulwark
of its legend. At concerts, there was always an authorized "tapers' section"
- a mini-forest of high-quality microphones on long poles - and the band
never tried to stop fans from trading the recordings, as long as they
weren't sold. The traders' network upgraded through the years from cassettes
by mail to digital downloads.

Doubtless there were some cottage-industry sellers of Dead concerts. But on
the whole, fans respected a simple ethic: Enjoy, don't profiteer. With no
restrictions imposed, fans took it upon themselves to do the right thing.
The more committed ones went beyond passive listening to active,
time-consuming archiving, editing and processing of the music they
cherished: making, for instance, so-called matrix recordings that synched
the clean soundboard signal with a touch of audience recording for a more
realistic ambience. And it all existed, like so much of the Dead's example
and legacy, outside the structures of the recording business.

As in so many other ways, the Grateful Dead set an example for jam bands
(and other do-it-yourself types), who found that concert recordings were a
great way to build word of mouth. Sites like archive.org sprang up; there's
also a Napster-like peer-to-peer interface, the Furthur Network
(www.furthur.net, named after the destination sign on the Merry Pranksters'
bus, which the Dead once rode). It swaps recordings from an approved list of
performers, including the Dead, the Dave Matthews Band and Sigur Ros.

For the Grateful Dead, and the many bands that emulated them, there was
logic to the whole libertarian enterprise, as well as to the old hippie
spirit. Each improvisational concert was different, and thus worth
collecting. The best ones would convince new fans that they had to see the
next concert, and the next. The band not only was handsomely paid in the
first place for shows that routinely sold out arenas, but also kept its own
recordings should it ever want to issue them. (It has done so, in 36 volumes
of multiple-CD collections called "Dick's Picks.")

There was also something far less tangible and pragmatic, but no less
essential: a generous suggestion that once the music was in the air, it
belonged as much to listeners as to the band. The concert recordings were
like memories, to be shared and savored, rather than products. On his Web
site (www.phillesh.net), the Dead's bassist, Phil Lesh, writes about using
archive.org to hear old concerts while writing his autobiography. Even if a
Deadhead was not downloading dozens of concerts, the boundless opportunity
to do so meant something. There was a bond of trust between the band and its
fans - one that is now strained.

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

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.

No doubt it will sell some additional concert downloads in the short run.
But by imposing restrictions, it will also encourage jam-band fans - a
particularly Internet-savvy demographic - to circumvent those restrictions,
finding the soundboard recordings through unofficial channels. The change
also downgrades fans into the customers they were all along. It removes what
could crassly be called brand value from the Dead's legacy by reducing them
to one more band with products to sell.

Will the logic of copyright law be more profitable, in the end, than the
logic of sharing? That's the Dead's latest improvisational experiment.

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