Thursday, December 01, 2005

Bootlegs and New Pony Records

As we await the Second Circuit's decision in the Martignon case, I participated in a Fordham panel on bootlegs, along with Martignon's lawyer. A few days ago, I received the following link to a new site:

Here's a description of what the site is about:

New Pony Records is Fan-based
We’re tape, disc and file traders, authors, scholars, collectors, and even some lawyers, who have spent decades collecting and sharing the music we love. We’ve amassed literally thousands of recordings, indexing and preserving them for posterity. We’ve applauded each installment of Sony’s Bootleg Series as it brings a sampling of this huge catalog of unreleased Dylan recordings to a wider public. And we applaud each new unauthorized recording as it circulates within the trading community. We have no formal connections to Sony, Dylan, or the commercial bootleggers. We’re simply interested in seeing these recordings reach the broader audience we believe they richly deserve. To us, it’s all about the music and our right to listen to it.
New Pony Records is a Not-For-Profit Record Company
We see the mass market record industry and the commercial bootleggers as obstacles to broad public availability of these recordings. The record industry, through its trade associations, has sought to criminalize any access to recordings which do not maximize their bottom line. The commercial bootleggers, exploiting the lack of transparency among unreleased recordings, charge exorbitant prices for recordings of highly variable quality. We’re articulating an alternative to the major labels and commercial bootleggers; an alternative that sincerely strives to accommodate the competing interests of artist, distributor, and fans alike. We’re asking Dylan and Sony to grant us a license to distribute the best of Dylan’s unreleased live recordings. We’re offering to pay Dylan a royalty on every recording sold. We’re restricting distribution to web-based mail order so we don’t get in the way of Sony’s mass market official catalog. We’re creating a one-stop website which can unify and clarify the vast and jumbled market in these recordings, assuring fans they’ll know what they’re getting and can trust it reflects the best of what’s available. And we’re a non-profit corporation, required, by law, to retain earnings for the purposes of the corporation and not for the profits of any shareholders.
New Pony Records Challenges Copyright Laws Which No Longer Serve the Public Interest.
We’re talking about recordings of live paid public performances. Dylan and his band have been paid once through ticket sales for these performances and we’re offering to pay Dylan a second time to license the recordings. We’ve watched copyright restrictions expanded in recent years to criminalize the unauthorized recording and distribution of performances such as these. Strict compliance with the law means these live performances are lost to the ages, an ironic twist on the avowed purpose of copyright law: To promote broad availability of copyrighted works by granting the copyright holder a distribution monopoly for a limited period of time.
What meaningful basis can there be for restricting access to these performances once they have been paid for through concert ticket sales? Contrary to the insidious arguments of the industry, copyright is not a property right, but a limited-term exclusive right to distribute recordings in an effort to hasten broader availability. How ironic to see copyright extended just as the means of distribution have been liberated by the digital revolution. How absurd to find the “Information Age” marked by laws undermining, even rolling back, the public domain. When did the economic interests of record distributors become more important than our freedom to hear and listen to what we want? This is great music which speaks to — and ultimately belongs to — the ages. How can it reach those future generations if copyright law can be used to prevent it being recorded, punish distribution, threaten possession, and stifle discussion?
So here we are, offering an alternative which honors both the free market and the public interest copyright law was meant to protect. We’ve chosen Bob Dylan because his performances are worth the fight. His management team has shown a deep understanding of the struggle between art and commerce and chosen integrity throughout. His fans -— now and in future generations — deserve the opportunity to hear his music because, like all music, once it reaches our ears it’s no longer only his.

Any predictions on how long the site is available?


CopyComment said...

"Any predictions on how long the site is available?"

Looks like it might be up for a while - they have it plastered with "You can't hear this." and "You can't buy this." As far as I can tell, no music is available there now. They're making fair use arguments on the Dylan photos they're using. It seems to be a political and protest site with e-mail links to petition Sony to license them.

I'm not sure Sony could do so even if it wanted to. The recordings they want to sell are unauthorized bootleg concert recordings. I doubt that Sony holds the required rights.

Max Lybbert said...

I don't see the site being all that successful, and I can see it fighting some kind of DMCA takedown notice or even some kind of Trademark infringement claim. Lawyers can get pretty clever sometimes.

William Patry said...

I think CopyComment points out the point of the site. I have wondered how far one might go in providing information. What if, for example, I say on this blog, "I just bought a great bootleg down in Washington Square, at _ store at __ address. I urge everyone who loves this group to go buy it." Is there liability?

Or, what if I am walking around Washington Square, and someone comes up to me and asks where they can buy a bootleg. I say, "Yeah, right over there," and point to the store.

Anonymous said...

Mr. Patry,

Thank you very much for this blog. It is one of my favorites and the information and knowledge you share are greatly appreciated.

I have a comment and question that dovetail's directly with this post. Let's take a hypthetical example from something that happened - The Simon and Garfunkel concert in Central Park. Using a nice telephoto lens, I gather it would have been OK for me to take pictures of the artists and even sell them. They were out in a public place and a 1880's Supreme Court case (Eastman Kodak vs somebody, I forget who) said that it was OK to take someone's photo while they are out in public. I guess it's possible that NYC suspended that rule for that area so the concert could happen, but I doubt it.

If I could take their picture, then surely I could record them, correct? What is the difference between pictures and sound? Wavelength. One uses film to capture light waves and one uses a microphone to capture sound waves. Something tells me that I would probably be in trouble today were I to have a recording (bootleg, made from the audience) of this show on my web site freely available. I want to know why this is?

In addition, I want to know why I can't record something off of the radio and share it on the internet. Again, it's the same thing as the photograph case. The only difference is that I'm using a machine to capture the radio waves that are out IN THE PUBLIC. Well, there is another difference, a radio tower makes the waves and the sun makes the light that bounces off of a person into a camera.

There is something wrong somewhere when a photographer can capture an image of somebody walking around in public and sell it, copyright it and otherwise protect it to the hilt (I should note that I agree this is correct and it should be allowed). But if radio waves are bouncing around and I capture them, I can't even freely distrubite the essence of what's in them. In each case, the material being distributed wasn't created in a vacuum.

I guess after this rant, I'd like to know your opinion on whether or not I should be allowed to distribute a performance made in the public arena, such as the Simon and Garfunkel case. And along the same lines, what about if I happened to have a house next door (or within earshot) to a Bob Dylan show and I recorded that from my front lawn. Could I make a web page and redistribute it (let's leave aside the fact that it would sound VERY bad)?

Thanks again for all the work you put into this site.


Mark Jaffe said...

The question is whether Dylan has the contractual right to license these performance, notwithstanding the live performance protection.

Most recording contracts have provisions that the artist may not release the same songs on other recordings. Wouldn't such provisions be enforceable, even though the record company doesn't have the statutory right to record the live performances?

Another problem is cover songs. Dylan can't authorize a commercial release of songs he didn't write, unless someone pays the statutory royalty.

Some people love to argue to me how benevolent the Grateful Dead is for letting their audience record and perform their performances. But they don't have the rights to all the songs they perform. For the songs they didn't write (and play really badly, I might add - I can't understand why someone wants to hear Jerry Garcia sing Smokey Robinson), they don't have the right to let people record and trade. A compulsory license is necessary, and mechanical royalties must be paid.

If both those problems are not obstances, then isn't it okay for this company to ask for Dylan's permission to release the bootlegs?

William Patry said...


I'm very glad you are enjoying the blog. I think there are a number of possible answers to the distinction drawn between recording of a live concert and off the radio, none of which may be persuasive, but here they are. I am not engaging in the circular, "because the law says so," but rather trying to figure out policy differences.

In the case of a live musical performance, the performer has not given consent to any fixation and may not want to for various reasons: first, he or she may want to make money over of his own fixation and distribution; second, he or he she may want to take chances, or say things that he or she would not want memoralized. In the case of radio broadcast of previously fixed recordings, the artist has already been paid both through sale of the record and through a proportionate amount of the public performance license fee for the broadcast; plus, there is no concern as with the live example of the performance not being what you want.

Bootlaw said...

We've already received a request from Dylan's management to remove the audio samples and, while noting what we feel to be a solid fair use defense supporting our use of these samples, we've complied for the time being.

The site itself is simply meant to articulate an alternative -- market-based -- approach to the "bootleg problem." Our purpose is two fold.

First, we want to publicize what we feel to be an inexorable degradation of the public interest embodied in copyright law driven by the natural tendency of monopolists to extend their monopoly power. In the anti-bootlegging context, it is one thing to say an artist should be able to prevent copying and distribution which might interfere with the artist's ability to market the same recording to the public. It is quite another to say an artist has the legal authority to prevent any fixation of that performance whatsoever, depriving posterity any access to that performance. The quid pro quo of copyright -- limited term monopoly to promote public accessibility -- is reduced to a unilateral property right in the anti-bootlegging statutes.

Our second purpose is to publicize the fact fans of these recordings are relegated to a gray market and subject to potential civil and criminal sanctions merely for wanting to hear music they value. By tailoring a business plan which seeks to accommodate the interests of fans, artist, and distributor, New Pony Records begs the question, "What plausible purpose can there be to restricting access to these recordings beyond the mere fact a constitutionally-sanctioned monopoly allows you to do it?"

Dylan's management will ignore us as long as they are allowed to ignore us. Journalists we've approached to publicize our effort can't get over the fact we're not breaking the law and, without a clear legal conflict, don't see a story here. As one WSJ journalist sniffed, it "seems somewhat high concept."

Such is the copyright debate.

William Patry said...


Many thanks for the posting explaining the purpose of the site and your contacts to date. An important purpose of this site is to encourage people to raise and discuss "high concept" issues.