Haystack Pudding: Record sales are down

Haystack Pudding

By Pumpkino

Record sales are down. People are downloading official albums for free. The music biz has decided to take action.

But, as always, they seem to be chasing the wrong people.

What with the death of our dear green and pink friends one wonders if there are new tactics being used by the record industry against bootlegs (which they have always insisted, quite wrongly, on calling ‘pirated’ releases, but now may have a new and more useful term). Are we to believe that record companies can start to refer to unreleased archive material as ‘Pre-Release’ now? For example, would they call the Beatles session tapes ‘Pre-Release’ under the premise that they might have one day wanted to release the tapes themselves?

It’s just seems to me that the interest levels and markets for GENUINE ‘Pre Release’ stuff (i.e.-copies of oh, say, Mariah Carey’s latest legitimate studio album, sent out as promos to journalists for the purposes of review and made available-without artwork-to the public a full month before it’s officially released) seems very negligible. But when it comes to studio outtakes on bootlegs (especially those from the 1960’s) the record companies come along saying, “Hey, we had every intention of releasing that at some point on a box set in the future!!!”. Then, from a legal standpoint it would appear that there’s very little you can actually say.

The thing is though, all those bootlegs of the Dylan “JUDAS!” gig from Manchester in 1966 only served as years of advance publicity to make that gig an (even more) historic moment in rock music (just think about all the articles about that single gig in the music press over the years, and then when the nostalgia-driven music magazines (Mojo and the like) opened for business, it was material like that which made up a great deal of those magazines’ content. Mainstream exposure actually ensured that the official release of the concert was guaranteed to sell lots of copies outside of its specialist fan base. Even a DAT quality soundboard pressing of the full gig (called Guitars Kissing And The Contemporary Fix, which was actually a rejected CBS mix) that came out before the official Bootleg Series 4 release did nothing to hurt sales of the real thing, when it came out in a nice box, with nice photos and everything.

The first famous bootleg, Great White Wonder, was decried by CBS in 1969 as “a disgrace to the reputation of an important artist”. By 1974, their opinion had seemingly changed as the material was released as The Basement Tapes, and is now considered a classic release, and in the minds of some the defintive Dylan album. The reams of press devoted to Great White Wonder ensured a rabid audience once the “real” release appeared, and GWW is a large factor in the legendary status of those tapes.

But if some hot-shot lawyer has cooked up this “Pre Release” term with archive outtakes in mind and is going to start arguing that studio outtakes are not unwanted and/or discarded experiments on the path to the perfect recording but rather the ‘archival releases’ of tomorrow then I can’t help thinking that that is gonna give the record companies and their hired copyright goons more clout than ever in the courtroom.

The implications seem huge. No longer would a case rely on Paul McCartney turning up in court to argue loss of earnings. Now record labels themselves could possibly use the old “loss of earnings” line in relation to any bootleg containing an unauthorized studio outtake. They are at the point now where they want to make an example of a few people to try and scare other folks from downloading legitimate releases. And like a drowning man, they are ready to do anything it takes.

Who’s to say they are lying, if they say “The split-second false start of “Leave My Kitten Alone” was always going to be released one day”. Taking this tack, all studio tapes released in unauthorized ways could be re-classified as “Pre-Release”, that “someday” they might release March 5, 1963, so any copy is a stolen “pre-release”. Seems to me that there’s some concept in copyright law about balancing the needs of the people with the owner. The concept behind copyright is to give a “creator” a reasonable amount of time to capitalized on what they have created, usually, in theory, for the period of the author’s life or the author and his or her children (20 or 40 years). But there have been many copyright/trademark infringement cases where the creator made no effort to register, or utilize their creation (except maybe once, in a magazine ad or something) for decades, and they lose their right to exclusivity. If you take the maxim that a music artist has a five year marketability window, or even a 20 year window in the case of stars, then it’s ludicrous that some tape from 1974 is robbing anyone of profits – it’s a self-confirming argument, if the record company thought they would make money, they would’ve put it out, right? So who are bootleggers robbing exactly?

Neither studio bootlegs OR professionally recorded live tapes OR ‘Walkman-in-the-second-row” live recordings have deprived the record industry of a single penny. If Apple were to release an official version of the bootleg “It’s Not Too Bad”, a nicely presented CD+booklet that charted the development of Strawberry Fields Forever from John Lennon’s first taped snatches of lyric and tune ideas right through the various Abbey Road sessions and finally to the final two versions which were spliced to make the master WE’D ALL BUY IT.IMMEDIATELY. We’d buy it for the improved sound quality, the inevitably different mixes. We’d buy it for the presentation. That’s if it contained the same tracks as the bootleg-WE’D STILL ALL WANT TO BUY IT. Some people would buy it simply because it existed and they’ll collect everything and everything by the Beatles. Unfortunately this argument has been hashed and rehashed and the situation is impossible to resolve because there’s no room for truth or common sense in the minds of the record companies.

The industry will have to come up with a new variation on the dog-eared “We’ve seized 50,000 pirate CDs with a street value of half a million pounds. Money that may have been used for terrorism or buying large quantities of drugs” type of statements they’ve made since the dawn of bootlegs. CD sales are going into freefall and to suggest somebody is making money from downloads is patently ridiculous to anybody who knows anything about them, or bootlegging for that matter. If this “Pre-Release” terminology is their new weapon against “Piracy”, it’s a ridiculous route because they’re not going after people who are stealing directly from the record companies – the real “Pirates” who copy their work wholesale and flog it to the punters in place of the real thing. Yet still they feel compelled to go after the people who cause the least damage to the coffers of the music industry out of all so called music criminals. The humble bootlegger and downloader – the easiest targets.


It’s tiresome.

But the hidden issue is the real pirates, and at least as far as I understand, they absolutely dwarf bootlegging, and always have. Millions and millions of copies of “legitimate” CDs of “real” releases are manufactured semi-openly in much of the world, and truth be told, under the auspices by organized crime and the record companies right in the USA. But it’s very difficult to identify a pirate copy in this day and age – DESS is kinda both boot and pirate, but outside of the fact that they’re unique, I challenge anyone to prove they’re not real by sight alone. The point is to make replicas, which are very hard to trace. But do the record companies really want to?

In the end, I think the pursuit of downloaders and bootleggers comes down to: 1) the record companies are manufacturing gratuitous “overruns” that they wish to keep hidden and 2) they honestly believe that their marketing cycle for an artist does not allow for more than one release every 2-3 years, that if they, say, put out three albums a year, overall their profits would suffer. They see an apocalypse where there’s one copy sold – or, god forbid, the artists release it themselves via the internet. Which of course is totally plausible right now, today – the obstacles are really consumer awareness, consumer habit, and the lack of an online downloading “record store” with a large selection.

It is wearying and dumb… I live in a small town, but on the TV news from the nearest “big city”, they have a story every night about the police making a “big drug bust” – almost always a comically small amount, far more than personal use of course, but in a year I doubt the cops get 1% of the traffic. If you just happened to have partaken in such substances at any time in your life, then you know the figures they are giving on the news don’t add up. – these are same tactics used by the record companies. Except bootlegging is harmless. We live in a terribly propagandized world.

The record companies refuse to distinguish between what you could call ‘niche’ releases (bootlegs) that aren’t authorized but don’t affect a record labels sales ONE IOTA and complete rip-offs of material they have invested in and prepared, and just plain illegal downloading. They don’t want to – because if every truth becomes known, there will a great number of grievances the record industry will be forced to rectify. As Williams Burroughs said “the time comes when everyone knows what’s on the end of everyone else’s fork”. As long as the BPI and RIAA can blur the line between bootlegs and pirate copies of legitimate stuff, they can continue to give life to the lie that bootlegs are in some way connected with organized crime. As long as they can blur the lines between illegal downloading of music that ought to be paid for and music that you couldn’t buy even if you wanted to (if it hadn’t been bootlegged that is) they can blame the bootleggers for the loss of income.

For now, all we can do is watch, while all around us the agencies created and funded by the large entertainment multi-nationals take out their frustrations from completely missing the p2p out and archive release boat. It’ll be on the wrong people, and they’ll continue to refuse to make a distinction between a bona fide Pirate and some guy who’s not even a bootlegger but has some unreleased stuff that he dared to share for free out in the open. They don’t dare take the chance to have it all out on the table.

(special thanks to Rodcow – anything in this article that makes sense he wrote)


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  1. I’ve wondered for decades now why artists, for example, didn’t “choose” to release more complete live concerts in the past. Have the Rolling Stones, for example, ever released a full live concert of theirs on compact disc capturing their fertile period or any period for that matter. This would certainly have been appealing to many consumers and potentially profiting to their record label(s) and themselves instead of the patch + paste jobs of the past giving the semblance of a concert release. It took far too long for the record labels to get it. They have of late been releasing deluxe 2 CD packages of classic albums for public consumption. Bravo! How long did it take for Capitol Records/Apple to finally release the Beatles Anthology Volumes 1 – 3, with trepidation much less, decade(s) after most of that material was in already our bootleg collections in some form or another. And what a banner set of releases the former turned out to be. The idea of the public having access to unfiltered complete live audience and/or soundboard recordings of their favorite artists was just never collectively realized unfortunately except for a smattering of exceptions. The Grateful Dead, thankfully encouraged their cult like audiences to tape their shows., for example, has been offering their “Encore Series” of complete live Genesis, Duran Duran, Who and Peter Gabriel concerts for sale. Bravo! Wouldn’t it be nice for many other “acclaimed” artists to join forces to avail their live shows for public consumption at affordable prices and for their deserved and well-earned profit. It’s a nasty business no doubt. But the sad part of it all is that we may all lose access to worthy releases from compelling artists of any genre in the future because the public may just collectively lose interest and move on to realizing other forms of entertainment in the process.

  2. Implicit in this thoughtful article is the ubiquitous fact that so many people download music from the internet, for free. This fact, alone, undermines any argument about financial losses to the artist as there’s a historically accepted, and enforced, copyright doctrine called fair use. For me, if there’s no money exchanged between two (or more) people enjoying unreleased material, then the only debatable “loss” to the artist is from the original source making it available on the net. Those who download it are paying nothing to that source, who’s not making a profit, so it’s a fair use of that music. I personally see no problem with sharing rare music in this fashion.

  3. That makes a lot of sense. Anyone who totally GETS boots will understand the logic.
    The idea of using the term “Pre Release”(when we all know they had no intention of really releasing stuff) certainly could give them extra clout. Maybe ive missed something, has there been a case where this has been used recently?


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