Morality vs. Sanctity<BR>

Morality vs. Sanctity

Sender: news@math.ucla.edu

I know a lot of you have seen this discussion before, but it seems that every time a new crop of readers arise, the "morality" of bootlegs and their brethren becomes a hot topic once again. Perhaps it would help to review the legal facts concerning the case. This might make it easier to understand why things are as they are.

Bootleg (non-released material) and counterfeit (illegally-copied releases) recordings are covered by a field of law called intellectual property rights. This means that the generator/composer/writer of said material *may* control distribution even if there are no currently existing contracts. Some countries (Germany, Japan, Italy) pay no attention to intellectual property rights; France has more stringent controls than the U.S. does. Under United States law, it's illegal to sell, trade, play, duplicate, and/or traffic in bootleg or counterfeit recordings. If there *are* existing contracts, then the artist or owner may have even more extensive control over distribution and marketing of the creative gems in question. And for legal purposes, there is no distinction made between bootlegs (material not already legally available) and counterfeits. Sure, *you* can see the difference, but the courts don't care.

How about private ownership, viz., tapes or unauthorized vinyl/CD?

Ownership per se is not prohibited, but ownership is *presumed* by authorities to indicate an intent to sell, trade, play...etc., unless the owner can prove (if asked to do so) that he/she has no intention of ever using the material in question; to wit, the owner of a bootleg record would have to show that it was still in its sealed wrapper, that there was no playback/recording equipment on the premises...all of which is rather silly, of course.

The loophole thus allows ownership only if you can prove you'll never play the material in question. Since the FBI presumably considers it troublesome to pursue the private collector, most private collectors have not received a midnight summons from the Powers That Be. But the definition of *who* is private or commercial becomes clouded when you do something as simple as sell off your personal collection of "rare" recordings.

It matters little how distant your taped copy of Ultra Rare Trax is; it could be seventeenth generation, handed down to you by people you don't even know, but it's still considered a bootleg recording, even if you didn't "boot" it yourself.

Major record stores that sell bootleg recordings are taking their livelihood into their hands. Some are raided, stock confiscated, and owners cited. Some try to get around the laws by selling from under the counter, or opening sealed copies and placing them in "used" record bins. It's still illegal to sell these things.

People who collect bootleg recordings are thus usually circumspect about their sources. Asking publicly where you can find these materials can result in diminished supply of the very music you want to hear, indirectly or directly.

All this hardly helps the Beatles fan who just wants to hear some of this "collectible" music, but the current situation is likely to continue, since the courts have determined that the rights of the artist to *protect* material supersedes any rights of the listener to fair use.

There are similar laws controlling radio and television broadcasts made by networks or other concerns. Although it seems in theory that the air belongs to everyone and therefore the *airwaves* also are free for the taking, it's not so. This explains why BBC radio shows or CBS Television programs featuring a performer are not in the public domain...and why distribution of said shows are also heavily controlled, sometimes to the point of non-availability.

My source is United States federal patent, trademark, and copyright law, Sections 102-104, which defines subject matter of copyrights (Section 102(2): "musical works, including any accompanying music" and Section 102(7): "sound recordings"); plus unpublished works (Section 104(a), which protect unpublished material "without regard to the nationality or domicile of the author").

Also of interest are sections 106-107. Sec. 106 grants the owner of said copyrights "exclusive right to do and authorize any of the following", of which 106(3) is noteworthy: "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending".

The blanket statement regarding copyrights, just for clarification, is Sec. 102(a): "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device".

As I've mentioned before, there are several areas where it is theoretically possible to "own" bootlegs. Sec. 108 defines these limitations on exclusive rights for "reproduction [of material] by libraries and archives" (thus my suggestion that a virtual "bootleg museum" might be legitimate!); Sec. 107, Fair Use laws "for criticism, comment, news reporting, teaching including multiple copies for classroom use" (wonderful incentive to return to academia. :-) But ownership outside of these carefully defined uses is prohibited, as you can see.

I have to admit that, after years of hearing from various parties that "ownership" of bootlegs per se was okay---including private trading and copying---I was confused as to whether this was really true. That's what led me to look up these sources and consult with experts.

The "morality" of these circumstances is something very different... almost philosophical. It's a personal decision whether one wants to buy/own/etc. bootleg or counterfeit recordings. Some people insist it's their right to have access to any creative process. Others would beg to differ---artists, primarily, look dimly upon a public that demands such control.

Current law gives the edge to the artist. Even if Paul McCartney suggests he wouldn't mind the EMI vaults be opened to everyone, he knows that this is unlikely to ever happen. This makes it easy for him to sound magnanimous. :-)

I've heard people argue that they have a moral right to listen to artistic material that, legally, belongs to others. This is a decision people must make on their own...rather like deciding what religion one will follow. In an abstract sense, law creates morality (and you probably thought it was the other way 'round! :-) But law doesn't control the individual listener...unless you get caught. Then try arguing to a judge that Macca doesn't think it's a personal violation and that you're only following a higher order of justice!

The defense that the Beatles created music in public, and therefore should relinquish any claim to their private lives (one assumes their private creations as well), is not supported by existing law. It's an interesting argument, and could make the nucleus of a fascinating attack on current theories of international property rights. But you'd have to base your case on substantive legal precedents.

Only time will tell us whether in some remote future, where legalities have shifted, the rights of the consumer will outweigh those of the artist... or, in instances where some poor bloke has deeded away those rights, the owner/distributor. The consumer of art is always on the short end. Or so it seems. But to the artist, it's all too easy to lose control of the fruits of one's labor---witness the current ownership of the Lennon-McCartney songbook (that's one deal for which Macca will never forgive Michael Jackson....)

I'm one who *does* believe in "the sanctity of the creative process"; I see why the artist must predominate. Yet I'm also one who agrees that the value of these illegal recordings challenges that sanctity. Remarkably enough, without the music-listeners' mania for rarities, this treasure might have perished altogether, victim to some engineer's audiophonic housecleaning. Irony upon irony: the consumer indirectly creates the market for bootlegs, and thus preserves a slice of pop-music history of incalculable worth.

Too bad we can't expect the artist and listener to work together towards the same goal. But that would make life too easy. :-)

--
"Modern music is, however, the groups' delight, and, as if to prove the point, John and Paul have written over 50 tunes, ballads and faster numbers, during the last three years!" --------------------------------------------saki (dmac@math.ucla.edu) Click here to return to the rmb home page.

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