"So, why don't we start by recasting copyright as an exclusive right of commercial exploitation?" -- J. Litman
In this paper, I will examine the unique methods of creation and distribution employed with a particular recorded media. Since the primary motivation for this study will be to increase our understanding of the exercise of intellectual property protections, I will use the insights gleaned from the initial example to draw implications for other kinds of creative content and hopefully to illustrate the different ways that content may be valued.
The community I will study is the "taping-trading" community. In using this hyphenated term I am referring to those individuals who record and exchange recordings of the live performances of certain rock and jazz musical acts with the permission of the artist. The term "tapers" refers here to anyone who brings hundreds or even thousands of dollars worth of their own audio equipment to concerts for recording purposes. Virtually all tapers are also "traders" who actively engage in exchanging recordings with like-minded fans. As a result of the high initial cost and the risks to property involved, many people are content to assemble a tape collection solely through trading, thereby making tapers sought-after individuals within the community.
In addition, a few words about the class of performers under study here is in order to complement the short sketch of the consuming group of tapers and traders already made. Most of the musicians for whom permitted taping and tape trading is an issue fall into one of two loosely-defined categories. The first and longer-running of these is bluegrass musicians. Stories of bluegrass festivals in the 1950s at which fans brought large reel-to-reel recording equipment are something of a legend today. The second general category might be called "improvisational rock music," a category represented by the Grateful Dead, a band also well known to have permitted recording for decades. Many of the younger bands of today have been inspired by the Grateful Dead both musically and otherwise, and this seems in most cases to have included allowing audience taping.
We will return to the musicians and understanding their motivations in the next section, but first it is important to be aware of a significant feature of the taping-trading community's ethos that is almost universally held by tapers and traders alike. The prevailing sentiment within the community holds that the only entity entitled to profit from the creative expression of an artist is the artist. When translated into everyday practice, this conviction only prevents monetary gain from the wide distribution of recordings made by tapers and traders. Since such non-commercial exchange flourishes with the permission and often the active encouragement of the performers, the taping-trading community is uniquely valuable for the purpose of showing that implementations of intellectual property protection are highly malleable. Perhaps IP protection in other realms can be modified, as it has been here, to recognize the needs of the creators, the properties of the media, and the desires of the consumers.
This question is inevitably the crux of the matter. What could artists possibly gain from giving away the vast majority of their products absolutely free? This section will present some of the answers and explanations that artists use to justify their seeming folly. It will also explore the viewpoints of record companies and other groups.
The reasoning in this section all relies on the fact that performers believe, perhaps correctly and perhaps not, that taping of their live performances and trading of those tapes benefits more than harms their interests. While clothed variously in notions of expanding popularity, fostering of fan interest, or even plain-old flattery, the truth is that the existence of permitted taping depends on the naked self-interest of the artist as much as anything else. This is as it should be, for protecting creativity and the interests of the creator is a primary goal of intellectual property.
The idea that permitting or even encouraging taping and trading could be to the artist's benefit is still not entirely clear. From experience, though, many performers have found this to be true. One expression of the fairly typical sentiments that are held by performers comes from David A. Schools, bass player and vocalist for the Athens, GA-based band Widespread Panic.
Schools asserts that Widespread Panic has been allowing taping at their live concerts for their entire 10-year history. At first, taping of their concerts was mainly a concern of the band members themselves, as those recordings provided a way for them to review past performances and take stock of their progress. The band discovered by accident that their friends also enjoyed hearing those early recordings. Schools and his bandmates also found tapes helped spread their fan base from the southeast to the rest of the nation:
"After a few years, when we finally crossed the Mississippi through the Rockies and beyond we were delighted to discover that these tapes had already found their way out to the west coast through the grapevine. We thought that this was a great means of advertising ourselves, so to speak, as we travelled into new territory. This way, folks had a chance to listen to the real sound of the band even if they had never seen a show before."
This type of reasoning holds for many younger and smaller bands who allow or encourage taping. For them, the informal network of tapers and traders is the most powerful and cost-effective way of distributing their music to interested people. In such a case, that distribution stream usually serves in place of an established record company and their distribution stream of stores and resellers.
When traditional corporate interests such as record companies become involved in the promotion of artists who allow taping of their live concerts, the dynamics of the fan-artist relationship often change dramatically. The giving away of intellectual property very similar to that which a record company owns is not a pleasant prospect for them-- by contrast, their version of an artist's songs are often contained on a CD costing $15 or more. Schools suggests: "Obviously the labels do not enjoy the aspect of taping because they fear it will take sales away from their carefully planned studio releases."
This is questionable reasoning, however. Bands like Widespread Panic initially conceived of taping as a method of promoting themselves without costly investment or even much effort. These low-cost taped performances have been and continue to be primarily a promotional tool for the artist. There is no evidence that a recording contract would in any way change this situation, precisely because "carefully planned studio releases" and live performances are quite often different. In fact, the difference between them is nowhere more apparent than with those bands who allow taping; they often pride themselves on making each live performance unique. This in itself attracts a taping audience. Despite the involvement and different interests of a record label, David Schools said, "Nowadays it makes even more sense [to allow taping] because the music is of an improvisational nature.... They [tapers] want to document these moments for posterity. I think that's a pretty high compliment."
For such improvisational music, painstaking and comparatively expensive album releases more likely work in tandem with live tapes made by enthusiastic fans and distributed informally. Schools added: "People who have an interest in live recordings... have most likely already purchased all available studio recordings and just want more." The three main stakeholders here are clear-- musicians whose main concern is well-crafted self-promotion, record labels whose main concern is increased sales, and consumers whose main concern is voracious musical consumption and encouragement of their favorite groups.
The musicians we are discussing here make their performances accessible to tapers without cost. The purchase of a normal ticket is all that is generally needed to bring audio gear into most concerts. Some smaller bands will even give free admission to tapers because they realize the exposure that can result from a well-distributed live tape. In return for this privilege that musicians extend, they almost always insist that all distribution of the resulting recordings be made for non-commercial purposes only. Recent guidelines published for the tapers of the band Phish ended on just such a note: "Please remember that audience taping is for non commercial purposes only [underlined in original]; any sale of tapes is completely prohibited and will endanger the future of taping at Phish shows."
It is this second clause that understandably raises the collective eyebrows of tapers everywhere. The threat that for-profit exchange of live tapes poses to the rule-abiding tapers and traders is real. Thus, everyone in the community has a great interest in ensuring that the rules are properly followed, lest their own practices be curtailed. The origins of such a strong common interest is indeed clear.
Unfortunately, not all tapers are so upstanding. Here it is crucial to separate the rule-following community from those who are correctly called "bootleggers," a term that refers to illicitly recording music for personal monetary gain. This practice, of the duplication and sale of what ought to be freely available recordings, is undoubtedly the scourge of the legal taping-trading community.
There are several ways that the community combats bootleggers. Since virtually all live CDs for sale were originally taped with the permission of the band in question, there are almost always other copies of the recording held by other individuals. To deprive the profiteers of a market and spread awareness of the availability of low-cost live tapes, traders, particularly those with internet access of some kind, have occasionally organized what has been called a "combat boots tree."
The term "tree," or "tape tree," requires some explanation. In its full metaphorical form, a tape tree is accompanied by a "seed," by one or more "branches," and, inevitably, by "leaves" as well. This form of organized free distribution begins with one copy of a tape (the seed) and creates a hierarchical structure capable of spreading far and wide. The time and effort of duplicating scores of copies of the tape is thereby distributed so as not to become onerous.
In a combat boots tree, members of the community are attempting to place their informal distribution network in direct competition with bootleggers who are reaping profits from unsuspecting fans. Keith Oliver, a trader who organized a large-scale tree of this nature for fans of the Dave Matthews Band, summarized his mission thus, "this is a combat boots tree, thus, to effeciently do so, we must distribute this show to everyone who wants one, in order to thwart any desires to actually purchace the cd boot...." The mission that Oliver and others like him set out for themselves is to undermine the value of costly illicit CDs by ensuring that the free distribution method succeeds. In this particular case, the combat boots tree was responsible for distributing 200 free copies of the concert in question. With no money changing hands.
There is another significant way in which the taping-trading community can ensure that its ethical rules are observed. In contrast to decreasing the market for high-priced bootlegs by spreading tapes in an organized way, others have targeted retailers who make these products available with the explanation that they are "imports." While it is true that most of the CDs in question are pressed in Italy (where bootleg CD companies and plants have long thrived) and then shipped to the U.S., this fact does not ameliorate their legal standing. The generous policy that many bands extend to their fans is still being violated.
Since so much of the informal networking among tapers and traders takes place on-line, the few on-line retail vendors of bootleg CDs are destined to be among the first commercial entities to interact with the taping-trading community. Lee Silverman, the Phish.net archivist and a trader himself, argued for removal of Phish bootleg CDs from the extensive catalog of the online vendor CDNow. He wrote, "[F]or bands that *do* have a realistic policy on taping, having companies like CDNow distribute bootleg CDs of their concerts for upwards of $50 per CD really makes it hard for them to justify such a forward-thinking policy." A compromise was eventually struck in which CDNow provides free information and links to other on-line taping-trading resources for bands that allow taping.
The original mission of this case study was to examine the taping-trading community in order to shed light on alternative IP protections and compensation schemes for information in general. The question of how the specific findings above can be applied more broadly to such products as written works, images, and computer software is the present concern.
In "The Economy of Ideas," John Perry Barlow explains that "It may often be true that the best way to raise demand for your product is to give it away." This rings true, particularly in light of the example used in this paper. Scores of musical acts have discovered that free distribution of live music is an excellent low-cost promotional tool. But there is more to being a financially secure creator of intellectual property than having produced a product in high demand. There must be some method of compensation. The reason why Barlow and his collaborators, the Grateful Dead, can encourage taping and low-cost free distribution of those tapes is that "no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual property protection derives from our being the only real-time source of it."
If it is the real-time temporal nature of music performance that allows musicians to tolerate or foster free distribution of recordings, the extensions of this type of liberal intellectual property protection that we can draw will be quite limited. Indeed, modifications of intellectual property might only apply to other information substances that can be distributed through multiple and mutually-exclusive channels.
For example, Barlow rightly asserts that the Grateful Dead are the only real-time source of Grateful Dead music; if serving as the real-time source of their own creativity brought the Grateful Dead most of their earnings, they would not be threatened by non-real-time sources such as live tapes. Surely no one would claim that live performances of the band are in competition with tapes of those performances.
By the same token, producers of other varieties of content that share some of the same time-sensitive properties as live music might benefit from emulating the intellectual property protection strategies of these musicians. In the case of the finance business, to take but one example, real-time updates and analysis of stock market fluctuations might be analogized to attending a concert. Distributed electronically for a fee per quote or billed to the customer hourly, such information would have only one real-time source. There might be other analysts, but there are other musicians too. The analogy still holds, for Barlow suggests, "I believe the concept of performance will expand to include most of the information economy, from multicasted soap operas to stock analysis." After a set amount of time, when the importance of the information has lessened, it could be made available free. This would be an excellent promotional tool for good analysts who could showcase their intelligent advice and allow their enhanced reputation to propagate freely.
However, incorrect analysis or other unimpressive insights into the market might plague producers of mediocre information resources. But this too has an analogue in the music world. David Schools suggested that another reason why most record companies object to live taping is that they "fear the fact that many "radio" bands can't play their songs without the benefit of studio trickery and highly paid session players. If fans document concerts by these artists they too will discover this fact." In short, the existence of a secondary distribution method of creative content, whether it be music, market analysis, or any other time-sensitive substance, will be most favorable when it meets two criteria: (1) the second distribution of substance must not compete with the first for a single audience (although they may have the same audience), and (2) the second distribution must promote the creator's first distribution (which will usually be the main source of income).
It would certainly be an overstatement to say that from the limited example of the taping-trading community we could develop a plan to overhaul all of intellectual property. However, this community is an excellent example of the adoption of protection under the commercial exploitation doctrine. In this case, copyright holders voluntarily relinquish some of their statutory rights. But in return not only do they receive free distribution of their recordings, they earn admiration for their generous policy and subtly enlist fans in the task of ensuring that the limited rights they still do claim remain unviolated. What we can expect from a large-scale adoption of similar common-sense intellectual property protection schemes for creative substance of all kinds? Although this answer has only begun to emerge from the preceding paper, the taping-trading community's relationship with their substance provider-- musical acts-- represents almost an ideal synergy. They have quite similar interests, they act for each other's benefit, and they protect each other from hostile forces. In time, this kind of cooperation between creator and consumer may prove to be the best kind of intellectual property protection, because it will signal a balanced compromise between the rights of the creator and the rights of the public.
Barlow's article was of great help on two levels. He speaks in generalities about information and its value, but he also deals specifically with the Grateful Dead and their taping policy. His brief discussion reassured me that there would be value in a more in-depth study of this topic.
CDNow is the leading on-line music store. In response to recent requests they have made information available on where interested fans may find live tapes.
Heylin's new book deals exhaustively with the bootleg record industry. While not directly pertinent to this paper his book is fascinating for some of the interesting parallels it contains: while today's tapers villify bootleggers (as I have shown), many of the bootleggers in Heylin's book take great pains differentiate themselves from "pirates" who are presumably even less reputable.
The Trader's Corner is a fan-run site offering dozens of tapelists from individuals around the country. It is one of the places that people go on the net to find taping and trading information.
A now-defunct e-mail discussion list for fans of the Dave Matthews Band. Messages archived by month (oct93 to mar95) are available upon request. Relevant discussion of the combat boots tree began in January 1995.
This site is similar to the previous one, although this is a hotlist that will connect to the web space of individual traders. Nolan begins his site with the trader's one sentence credo (complete with misspelling!): "Tape trading is a privelege that certain bands allow us to do."
Litman's paper served as the inspiration for this paper. Her suggestions for modifying copyright law first caused me to think seriously about how intellectual property protection functions in various ways.