Just in time for the Langerado festival, I'm treating you to a 78-page legal paper on the virtues of jam band culture.
Don't be afraid: I've read it so you don't have to, but if you've got some free time, I recommend "Fear and Norms and Rock & Roll: What Jambands Can Teach Us About Persuading People to Obey Copyright Law." It dates to 2005 (I only learned about it today, so it's news to me). It's written by a law professor with an easygoing, readable style, and a well-developed sense of history and context. And its main point is intriguing. The author, Mark F. Schultz, argues that jam bands in the mold of the Grateful Dead and Phish offer the mainstream music industry a workable, less confrontational way to keep downloaders from destroying their business.
Interestingly, they do this by encouraging free trade of their music -- to a point.
The typical jam band, of the sort that you'll find at Langerado, doesn't generally have to sue or threaten to sue in order to get a financial settlement -- tactics the major labels have adopted as part of their ongoing campaign to discourage unauthorized song-swapping.
Jam band fans tend to obey whatever restrictions the band cares to place on copying. They do so partly because there are so few restrictions. Fans are encouraged to tape the band's live shows, make copies of those recordings and trade as many of them as often as they please. Schultz notes that taping wasn't invented by the Grateful Dead or Deadheads, but that band and its fans "institutionalized" the practice and showed the way.
For upcoming Langerado acts such as Widespread Panic and moe., free fan taping and tape-trading in live shows is as much a part of the experience as touring, selling t-shirts and putting out studio albums.
The modern day jam band draws the line at a couple of places. Tapers may not sell or profit in any way from these free concert recordings. And when it comes to studio albums, fans are encouraged to buy those at the retail price and to not upload-download them at will unless the band has said it's OK to do so. Overwhelmingly, fans comply, because that's the handshake arrangement they entered into as tapers or supporters of the band.
Jam band culture, in short, has developed rules that require little or no legal enforcement because everyone agrees they work and everyone opts in. Schultz writes:
Jambands can trust their fans because the fan community has developed social norms against copying music works that jambands have designated as "off limits." ... The community enforces these norms internally and externally, sometimes even reporting violations to the bands' attorneys.
The fan pays for a concert ticket (and he may have gotten first dibs on good seats by being a loyal taper or member of the band's fan club). But he gets to record the show for free and receive free recordings of other shows from other tapers. Call it legal, nonprofit bootlegging.
The band, in turn, gives up some of the income it might have earned as the sole distributor of its concert recordings. But giving up most control of live tape traffic promotes affection, goodwill and loyalty -- feelings that make it easy for the fan to open his wallet come tour time or upon the release of a new studio album.
And the band has another ace up its sleeve: the official version of the same tape-traded show, this time exquisitely mastered, mixed and packaged. Pearl Jam -- hardly a jam band despite the name -- embraced this two-tiered approach: Pearl Jam lets tapers tape, but the band also makes its own soundboard recordings and then releases literally every live show on CD, often within months of the concert date.
The Grateful Dead camp, meanwhile, is still making money by putting out CDs and DVDs of shows that have been circulating free of charge among Deadheads for decades.
Is there a lesson in this way of doing business for the mainstream music industry? Schultz doesn't say to give up enforcement, but he does suggest that enforcement alone -- lawsuits, cease-and-desist orders, threats of prosecution -- cannot change hearts and minds. It's also going to take patient persuasion, and a set of practices that make music fans feel good about respecting limits on file-sharing. Shultz writes:
Digital distribution -- both legal and illegal -- is bringing about the demise of the old business model. No longer can the music industry rely on one-hit-wonders to sell relatively high-priced pieces of plastic or vinyl containing one or two hits bundled with less desirable songs. People have choices now, and among those choices is the choice whether to comply with copyright law. The music industry thus needs to think in terms of building loyal communiities that have reciprocal relationships with artists rather than merely moving physical products into the hands of consumers.
He also notes that technology has its own force of gravity, and that the migration of recorded music to the Internet is inevitably causing more bands, "jam" and otherwise, to strike up more of these two-way relationships. Songs and videos are streamed and shared, and other information is exchanged, through communal sites such as MySpace and YouTube. Bands, and record labels, give away some of their work in hopes of attracting people who will pay for other offerings.
This sort of exchange becomes habit-forming for bands and fans, and impossible to stop once it starts. Over time a more intensive kind of sharing and interacting with the music becomes natural -- and expected. And it doesn't necessarily depend on touring and taping. Some bands have handed out master recordings of individual tracks and allowed fans to remix the songs and share the results online. Bands that don't want to live on the road can surely find other ways to give and receive.
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