Re: records shows

At 10:18 AM 6/19/96 -0500, you wrote:

>Any new idea is a departure from the historical 
>means of doing things, so that doesn't matter.

     The discussion has varied back & forth over
whether boots are "good" or "bad" because "the
law" says so. In that regard, "the historical
means of doing things" most certainly *does*
matter. However, I agree that the better discussion
involves whether boots are desirable or not from a
policy perspective -- so I'll let the sleeping
[law] dog lie ...

>I think copyright laws (and, more widely, the 
>control of intellectual property) is as beneficial 
>as the invention of individual ownership of 
>physical property.

     I certainly respect whatever Alan chooses to
think; the question is how we test the desirability
of *why* he chooses whatever opinion he has. In this
particular context, referring to "control is good"
in the abstract is immaterial -- I agree with the
general principle. The questions are how much control
someone should have over downstream distribution
after they've sold the work or a public performance
thereof.

>... "the public interest" is frequently cited as 
>the justification for copyright laws (including, I 
>think, in the laws themselves)...

     The Constitution authorizes intellectual 
property protection "to promote the progress of
science and the useful arts," and authorizes federal
control over interstate commerce. The latter grant
of authority doesn't reach my noncommercial, 
intrastate copying of public performances; the former
creates conflicts with other individual rights that 
Congress and the courts have harmonized through the
"public interest" purpose. That's the limit of 
government intervention. 

>I believe there are only individual rights and 
>interests; there is no public interest aside from 
>that belonging to the individuals that make up the 
>public.

     This assumes that the whole is no more than
the sum of its parts. Comparing member solo works
to the collective Who suggests otherwise. Also, 
focusing on "individual rights" ignores the heart
of the debate -- to what extent should the government
restrict the "right" to enjoy publicly-available 
works in favor of the "right" to make an undeterminable 
amount of extra money from them? If we rely on sheer
numbers of individuals, the artists and publishers
*lose.*

>My own take is that the individuals in the band, 
>as performers of the music, have the original
>right to say whether their performances may or may 
>not be taped or reproduced.

     I would agree in the case of non-public performance,
i.e. the studio. Unlike some other voices, I do not see
any "obligation" to publish outtakes or any other work
that has not been placed in the public domain. Once in
the public domain, *someone* has paid for the work and,
so far as I am concerned, has purchased the right to 
use or dispose of it as h/s/i pleases. Where that use or
disposition results in a commercial transaction, I would
support a compulsory license fee to the artist as a way
to encourage both efficient distribution and the 
production of additional works. But I do not believe that
any legitimate economic or moral basis exists to grant
an artist control over all economic results of h/h 
published work.  

>My educated guess is that the band signs over all rights
>to all reproductions of their music to the music company 
>they work with.

     My limited understanding is that artists can sign
contracts for a specific number of recordings to be
produced for the "music company" distributor, or may
sign an agency relationship for someone to handle general
production, promotion and distribution for a period of
uears. Neither really addresses the point we're 
discussing because the agreements either assume or do
not assume control over the actions of others. At least,
nobody asked me to sign the Who's contracts with MCA or
Warner. 

>If this is the case, the music company has the right to
>prohibit unauthorized reproductions ...

     *Only* if the collectively-enforced law makes it
so. Otherwise, *I* didn't sign their agreement and I
can do whatever I bloody well please. Thus, we're back
either to what the law is or should be, for reasons
beyond the scope of the specific artist-record label 
relationship.

>... the band saying, "heck, we don't care, go ahead 
>and tape," is meaningless, along the lines of me
>telling you you can use a car I've already sold to 
>someone else.

     I concur that the agreement *or* prevailing law
may make the band's opinion meaningless.

>>to restrict the distribution of intellectual 
>>property without proof of any corresponding benefit.  

>Benefit...to whom?  the public?

     As we discussed, that's the basis for permitting
government restrictions on downstream use of published
material.

>the public didn't create the music.

     Members of the public *purchased* the music once
the artist decided to publish in hopes of commercial
gain. Those members therefore are at least equal
"possessors," and the question becomes why they should
be restricted in their downstream use of what they have
purchased.

>Does it benefit more from having no music or having 
>some music?  

     That's not the right question -- the music already
exists in the marketplace. The question is whether 
publishing monopolies should be protected against 
downstream competition through collective action. I
agree with the focus upon individual autonomy absent
specific countervailing benefits, so my answer to the
question is "no." 

>>My purchase of a ticket allows me to experience the 
>>performance so long as I do so in a non-disruptive 
>>manner.

>How do you arrive at that interpretation?

     Because (1) that's what the ticket says, and
(2) the police power of the State will enforce 
private action against behavior constituting a public
nuisance.

>As far as disruptive, I've encountered very disruptive 
>concert-goers who weren't in the least suppressed by 
>security.

     Likewise; which suggests that restrictions on
individual autonomy are likely to be enforced 
arbitrarily. That fact hardly supports an argument
that audience rights are or should be inferior to 
those of the artist or publisher. Indeed, it suggests 
precisely the opposite.

>I dispute that your statement of what your purchase 
>allows is factual.

     Well, as a general matter I can do anything
that's not illegal or that I have agreed not to do
in a legally enforceable contract. So I have the 
abstract *right* to tape unless a relevant court in a 
specific context says otherwise. And that process is
the end, rather than the beginning of the inquiry of
what I *should* be able to do.

>>In the southern states I might expect prohibition of 
>>shoes as a matter of historical tradition,

>_Red_ shoes? :-)

     *Particularly* red shoes -- too reminiscent of the
rebel Stars & Bars that my revered Billy Sherman took
such pains to suppress so well. I must admit that I
regret the dismantling of the Reconstruction-era 
military districts ... ;-}

>>... there is no preset course of dealing that 
>>imposes a flat ban on tapes, etc.

>But certainly not an unexpected or unprecedented 
>condition -- and thus, reasonable.

     Considering all of the tickets sold to all of
the public performances of all the artists in all
of the world, I suspect that a distinct minority
of those tickets have "no recorders" across the
top. Indeed, my Ticketmaster tix from last night's
Styx/Kansas show have no such request. And simply
being less than "unexpected" or "unprecedented" is
not enough to hold a consumer to a restrictive
covenant imposed after the fact. Imagine buying
your house and finding a "no recorders or cameras"
strip added to the Closing Statement, to cite one
example. Or a "black & white film only" covenant
on your 35mm with the 80x zoom that you planned
to take to Daytona Beach ...

>You can't reasonably claim total ignorance of the
>fact that recorders are usually banned from shows.

     I certainly can claim ignorance about "most,"
AAMoF I usually don't take a recorder because they
get in the way and don't think one way or the 
other about what I could or could not do with one.

>You didn't bargain for it unless before buying the
>ticket, you said, "I plan to bring in a recorder, 
>is that allowed?" and got a positive answer. If 
>you want to play that way, you should ask for a 
>full disclosure of ticket conditions before buying,
>then buy or not as you choose.

     Not so. Because I'm an individual with the
basic right to do whatever I please, it's the 
responsibility of the artist or venue to bargain
for me to do something less. 

>You're trying to lever deliberate avoidance of
>a question into the answer you'd want were the 
>question asked.

     Nope. I'm assuming that the sophisticated
vendor understands that I'm an individual who can
and will do as I please unless they bargain for
something less. There's no reason for me to ask
the question in the first place.

>>Actually, I would have recourse and I suspect 
>>that if it were worth the effort, I'd win a court 
>>challenge.

>I'd be interested in the outcome of this, myself.

    After I become independently wealthy, I'll
set aside a few years and tens of thousands of
dollars to give it a try and report the results.

>>... the enforcement is pretty lax as well 

>I wish it were! They did pat-searches at the 
>Fillmore and had huge security goons cruising 
>_through_ the packed crowd at the Supper Club
>during the show :-(.

     Wowwwwwwwwwww -- worst I've ever seen were
metal detectors at a concert in Houston, because
of some recent bomb threats. Bizarre that they'd
search actively for recorders during a show 
that's going to be re-broadcast ... guess I'll 
have to invest in a pin-mic & wireless transmitter
some day ...

Best & strictly noncommercial regards,

Bob
Bad defeats Good then self-destructs ...