FUTURE/NOW

July 22, 2010 – 10:55 am

In October 1995, the Recording Industry Association of America was making great advancements in building a wall between music fans and their beloved live music bootlegs. But was it just a battle won by the industry in a war destined for failure? We all know the answer to that now, but things weren’t so certain back then. In that month’s issue of Live! Music Review, editor Bill Glahn, ICE’s Erik Flannigan, and a few anonymous bootleggers surmised about the future.

Rambling Notes (10/95) - The Future of Bootlegs in the United States: Recent events, both overseas and in the United States, have some collectors wondering, “Is this the end of the road for live imports (bootlegs)?” Recent mail to this magazine in response to our reports on changing laws and recent seizures reflects that there is a lot of concern among collectors about the future availability of one of their favorite forms of music collecting. When news of seizures began appearing in such highly distributed publications as USA Today and the ICE Newsletter, the future seemed bleak indeed.

When ICE, probably the most widely read compact disc newsletter in America, ran a report in their September 1995 “Going Underground” column about a new United States federal law and the rash of recent busts in the Northeast, it sent chills up the spines of a large segment of the music collecting community. Respected for the accuracy of their research and information, this column was generally taken as the death knell of the bootleg industry as we know it today. So… is it?

Probably. But certainly not the death of the bootleg industry as a whole. More likely, there will be a return to past form. The likelihood of purchasing CDs which contain inserts featuring a whole catalog of goodies inside, order forms, credit card service and correct business addresses will shortly become a thing of the past (if it isn’t already). With the courts in Europe granting more protection to the artists and official labels, the wide open manufacturing and distribution of “protection gap” recordings is quickly coming to a close. With a new 50-year public domain statute in force, the “gap” has effectively been closed.

Even despite some large and highly publicized raids in Italy earlier this year, a few companies there are still announcing new releases that obviously don’t meet the over-50-year standard. One manufacturer has told us that the secret is to act as if nothing is wrong - in essence, to appear to be official and hope for the best.

“Of course, things are not really OK,” stated our source. “And we are planning to move our business out of the country. But the process of setting up an official business in another country is a time consuming and expensive process. Most likely we will be operating officially in another (unspecified) country by the beginning of next year. It is not our wish to continue in an illegal environment so we must move to a location where the process is still legal.”

But even in a safer manufacturing environment it is unlikely that many of the European “protection gap” specialists will find the business attractive enough financially without the US market. And it appears that, armed with a new federal felony law and greater punitive powers, the authorities in the United States are taking a greater interest in stopping the distribution of bootlegs in America at the point of entry.

Besides the well-documented busts, American distributors of live imports report that US Customs have put discs on hold to check for possible piracy and virtually nothing is being delivered, at least not if it’s landing in New York. “The attrition rate is great at this moment,” states an importer.

Where does this leave the collector? My guess is “down, but not out.” If past history is any indication, there will always be someone willing to fill the collectors’ wants and desires. And we have yet to see any of the new laws tested. One of England’s premier music publications, the New Musical Express, covered a series of raids at British music fairs in which over 70,000 (cumulative) live disc were seized. The British authorities were aided in the raids by representatives of the BPI, th UK equivalent of the RIAA. In a subsequent issue, a small dealer wrote a letter to the editor raising a valid legal question.

“I can’t imagine any other situation where the police receive a complaint (from the BPI) then use the complainants as professional advisors, allow them (not the police) to remove my stock, give them my personal details so that they may telephone me, allow them to interview me in police custody, further allow them to remove my computer/fax machine and anything else they like while letting them search my house. Are they now going to use them as ‘professional’ independent witnesses in a subsequent trial?”

In the US, the RIAA is also used as advisors on cases stemming from their own complaints, although it is improbable that they have ever been given direct seizure and interrogation authority. [Editor’s note: Two years after this article was written, the Chicago Sheriff’s Department acted under direct orders from RIAA operatives. Although the RIAA was not allowed to interrogate the arrested individuals, they were clearly in control of the bust and the Chicago cops were working under their supervision.]

In the US, most busts have resulted in plea bargaining situations and the majority of cases never come to court. Some that have, listed a specific record company or artist/management as the complainant. But one has to wonder, is it proper for the RIAA, an industry organization which exists to increase profits for the major labels, to act as complainant, advisor, and expert witness in broad based complaints regarding live imports.

The idea that customs can hold up shipments until an RIAA representative can advise them on copyright compliance seems absurd. To intrude on the flow of business of small importers [Note: Many who are dealing only in legitimate goods] while the companies that the RIAA represents continue their business unimpeded must certainly be viewed as an obstruction of free trade. The use of taxpayer money to finance a vigorous assault by a business organization on an alleged threat to their profits is something I assumed we left behind at the turn of the last century with government union busting activities. Policing agencies should not be tied up in protecting business interests. They should be capturing drug smugglers, terrorists, murderers, rapists, etc.

But that’s only the way it SHOULD be. The reality is that the flow of live discs has slowed to a trickle when compared to the wide variety of titles available over the last several years. Most assuredly, bootlegs will continue to be made and offered to the music collecting community. Many small independent record shops depend on such things as live discs and used CDs (another target of the RIAA which launched a campaign to collect royalties on secondary sales several year ago, a campaign which backfired with some extensive negative publicity) to turn a profit, finding it impossible to pay their overhead with the pathetically small markup possible on discs manufactured by the “Big 5” music corporations.

One has to wonder, is it proper for the RIAA, an industry organization which exists to increase profits for the major labels, to act as complainant, advisor, and expert witness in broad based complaints regarding live imports.

Without the advertising subsidies that large box stores and higher wholesale costs, the small independent shop/dealer is faced with a dilemma. Pursue every possible avenue or stick to the rules laid down by the companies that are screwing them at every turn?

Those that played by the rules are disappearing fast. Some major independent establishments that had become landmarks in their communities, such as Houston’s Infinite Records and Minneapolis’ Flipside Records, stores that catered to the music fan as opposed to the occasional hit buyer, stores that have lasted over a decade, have closed their doors in the last year. The occasional rare record sale and indie band product were not enough to pay the light bills.

The biggest loss to the music community with the closing of those stores was the availability of new sounds by unsigned bands and a huge variety of different musical styles. This is a MAJOR setback for music fans. The biggest complaint that we hear from avid music fans is “there’s no variety on the radio.” Picture a scenario where there’s no variety in the music stores either. A frightening thought!

Other independent stores that don’t find a moral objection to bootlegs would rather risk the legal problems than close the doors if that is what’s necessary. Unless the government goes completely bonkers and launches another “Operation Intercept” (a costly and ineffective program to stop the importation of marijuana in the late ’60s), bootlegs will continue to be a part of the American music culture.

Most likely, availability will mirror the vinyl days in both supply and the types of artists offered. Erik Flannigan, editor and writer of the Going Underground column in ICE, offered the following speculation in a conversation with this writer: “I think you’ll see the disappearing of the ‘flavor of the month’ bands on bootlegs. With smaller distribution, the labels will be less likely to take a chance on artists that haven’t yet proven to have long-term collectability. I think you’ll see a resurgence in the amount of ‘dinosaur’ bands being offered.”

In terms of quality, Flannigan offers: “It could be a double-edged sword. A return to the collector/fan manufacturer (as opposed to the profit driven entrepreneur) will probably yield a higher percentage of interesting and quality releases. On the other hand, the more limited availability could result in some pretty shoddy releases to fill the fans hunger for something/anything in the way of live discs.”

With decreased availability and continuing demand (not to mention higher risk) prices could possibly escalate back to late ’80s highs of US$30-35. Other fcators, though, may effect price, mostly due to new technology. In a feature article in the October 1995 Musician magazine, writer P. J. Huffstutter wrote: “The Internet has quietly become the world’s largest jukebox, a haven for cyberfans who believe music was meant to be free.” Although the article focuses largely on cyber pirates (the posting and downloading of official releases), Huffstutter states that about 1/5th of the postings are live concerts. Flannigan scoffs at such a premise and with good reason, “The technology just hasn’t reached the point yet where such access to music is practical.”

In fact, a group of Australian artists, worried about the lack of laws governing the Internet, recently went before the Australian Parliament with a demonstration of how music can be transferred over the phone lines from computer to computer. Even though the demonstration was meant to show a need for legislation to govern Internet transfers of music, it proved to be less than persuasive by taking over two hours to download a new song by Neil Finn (with members of Midnight Oil, INXS, and the Hoodoo Gurus) called “Be My Guest” in passable quality, using a typical PC computer with a 14.4 modem and requiring additional software (Apple’s QuickTime).

At the rate in which computer technology is advancing, such a scenario that could (will?) be exploited more effectively by major record companies than by bootleggers. When the companies can sell their music directly to the consumer in such a manner, the majors may decide to bypass the music stores completely, selling music directly to the public in a direct marketing setup that is unprecedented. This is a possibility only if both laws and technology are in place. My own suspicion is that this is years away but a definite possibility. If the Austraian Parliament reaction is any indication (despite the poor showing they made an informal commitment to place a priority on updating transmission rights) the laws will be in place before the technology can be used.

I believe the CD-R will do more to keep bootleg prices (and corporate monopoly?) in check. The recordable CD technology is already available and affordable to a large segment of music collectors. Blank discs can be purchased for as little as $7.50 each in bulk wholesale purchases (the way most serious tape collectors now buy their tape). As a music archivist, my primary attraction to bootleg CDs has been that the CD itself is a better storage mechanism than its tape counterpart. There is a large community of tape traders who buy bootleg CDs only if they contain quality material that is unobtainable in their circle of tape traders. The CD-R will no doubt become the next level for tape traders.

There is also that portion of the collecting community that will utilize CD-R home recorders to make their own version of the commercial bootleg by using their computer skills to make jewel case inserts from PC graphics to give a more manufactured appearance - then sell them as “limited editions.” A few of these are already beginning to appear at record conventions around the country.

The CD-R medium has great potential for the live disc collector, but it does have limitations. The biggest, no doubt, is that the recording will only be as good as the source tape used. It is quite likely that if you saw a CD-R of a Led Zeppelin show from 1977, for instance, listed in five different dealer’s catalogs, the quality of each dealer’s copy would be different. Whereas, if you purchase a Gold Standard manufactured disc from five different vendors, the quality would be identical.

Erik Flannigan brings up another reason why the impact of CD-Rs on the sales of commercial bootlegs may be limited. “Collector’s like to buy commercially manufactured products.” And indeed, the shopping experience is firmly entrenched in the American psyche. The idea that something is manufactured on equipment available to eveyone makes it somehow “less real.” Personally, I subscribe to this theory also, finding a certain fascination with a lot of the bootleg packaging over the years. How do you compare a “video snapshot” image to a classic piece of William Stout artwork?

Indeed, the obstacle of providing a product that can be touched, admired, fondled, and even bonded with would probably be the biggest obstacle standing in the way of the corporate music industry in any attempt to turn music into a bland product to be delivered like so much junk mail. Let’s hope so.

2010 Update: While our crystal ball wasn’t functioning at 100 per cent in 1995, the basic premise of the article stands. Who could have perceived that the music industry would do the unthinkable and fight the oncoming technology. It’s amazing that Hilary Rosen can find a job anywhere these days after botching the future of the major labels so effectively. So now Apple controls the vast majority of online music sales, not the labels. And CD-Rs have plummeted from $7.50 a disc to 15 cents a disc. Laws were passed as speculated, but they’ve been ineffective in stopping the flow of illegal downloads. Which can now be accomplished in seconds rather than hours. What used to be live rarities are now only a mouse click away. Newer artists are embracing the new technology to connect with fans and developing new approaches on the fly. The big winners are the fans. The biggest losers, the labels. Cool.

Note: Bill Glahn wrote, edited and published Live! Music Review, a magazine devoted to bootleg recordings when bootlegs were not so common. And they are still not so common today. Live! Music Review is now on Facebook (click here) and on Twitter (LMRonTwit). Do drop by to say hello and, as Bill says, all comments welcome.

  1. 3 Responses to “FUTURE/NOW”

  2. Hilary Rosen can always find some evil corporations to ally herself with. She’s now working as a spin doctor for British Petroleum. My guess, is that if there were such a thing or individual as “The Devil”, and he needed a spin doctor or publicist, Ms.Rosen would take the job if it paid her enough money. This lady has no conscience.

    By Phil Cohen on Jul 22, 2010

  3. The Internet has changed bootleg collecting for the better since you don’t have to pay an average of US $20-25 per disc. Not only are top-quality recordings (e.g. the Neil Young Albany NY show) available within hours of the performance, “classic” boots such as the Beatles’ “Ultra Rare Trax” can also be had … for free! And budding anthologists can create their own single/multidisc comps … why, the possibilities are endless!

    By MrSka57 on Jul 23, 2010

  4. Well, The recordable CD technology is already available and affordable to a large segment of music collectors.

    By Susan on Jul 29, 2010

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