Getting the Boots

The Grateful Dead stretched out on many a long jam. But they never got into a jam like the one Scott Johnson is in. His jam could land him a 25-year stretch in federal prison. His alleged crime? Not drug smuggling. Not armed robbery or any other violent offense. Johnson, a 32-year-old Long Island resident, faces a potential quarter-century prison gig if convicted of violating the federal anti-bootlegging law. Trafficking in unlicensed music, not bathtub gin. The artists included Stevie Ray Vaughan, Tori Amos, the Dave Matthews Band and... the Grateful Dead. Johnson isn't alone. He was arrested in Orlando, Florida, on the morning of March 14 along with six others alleged to be involved in "manufacturing, importing and distributing of unauthorized or 'bootleg' compact music discs," according to a press release from the U.S. Attorney's office for the Middle District of Florida. Several of the individuals arrested are European citizens who were lured to Florida by a U.S. Customs Service sting."This operation marks the largest criminal bootleg investigation of its kind, both in terms of the numbers of individuals involved and the transnational scope of their operations," declared Frank Creighton, Vice President of the Recording Industry Association of America (RIAA) and associate director of the Anti-Piracy Division, which assisted Customs in its investigation. "Without a doubt the removal of so many major players will substantively and severely disrupt the global bootleg industry." The sting was perhaps the biggest example of a recent comprehensive crackdown on bootleg recordings -- not counterfeits or pirates which are cheap, knock-off copies of legitimately released material which compete directly with record companies' catalogs.Bootlegs are prized by collectors because they contain material not available elsewhere, material the record companies don't or won't release, such as live recordings and studio outtakes. The crackdown threatens the livelihood of scores of independent record stores and the availability of rare performances by some of the era's most compelling musical artists. This past April, a lawyer for the Dave Matthews Band, accompanied by a federal marshal and armed with an injunction, visited dozens of record stores from New Jersey to Massachusetts -- including a well-known independent store in Fairfield County -- seizing bootlegs and demanding cash settlements in the $10,000 range.In February, 1996, the RIAA won a court case saying that flea market and swap meet owners can be held liable if vendors are selling unauthorized recordings. Some indie stores in Boston have yanked the boots from their stock, fearing arrest. An owner of one of the stores, which does more than 40 percent of its sales in bootlegs, says, "We could go belly up." Bill Glahn, editor and publisher of Live! Music Review, agrees that the Florida busts have greatly curtailed the availability of boots. Subsequent arrests, he says, indicate the goal is to "eliminate major nationwide distributors.""It's the same techniques used in drug enforcement: Eliminate the source, you eliminate the problem," states Glahn. "But there's another parallel: You don't eliminate the demand." This demand touches on a host of thorny issues that transcend the concerns of just a relatively small but fanatic segment of music fans. They include artists' rights to control the release of their work and to get paid for it, the treatment of culture as a commodity, the related issue of the control of information by multinational corporations in the era of "free trade," and the impact of technology on the recording business.Already the bootleg industry is moving underground, away from international manufacturing plants that exploited loopholes in copyright laws and into garages and closets, fed by the burgeoning availability of CD-R (compact disc recording) technology. The crackdown, including an arrest and conviction of a Connecticut distributor last year, raises important questions concerning who should be the arbiter of which cultural documents will be allowed to circulate: The record companies, with their official history mindset and their policies of calculated scarcity? The artists, with their self-interested, if understandable, desire to control their public image and their works-in-progress? Or the public?What is gained by suppressing unofficial music compared to what would be tragically lost? The modern history of bootlegging starts with Great White Wonder, a double-album of Bob Dylan material that hit the head shops and hip record outlets in the summer of 1969. It included cuts from the legendary -- and then unreleased -- "Basement Tapes" recorded with the Band, as well as tracks reportedly recorded in a Minneapolis hotel room in 1961. But historians of the field track bootlegs' footprints back to cylinder recordings of the Metropolitan Opera made from 1901-1903 by Lionel Mapleson.In later years, jazz, classical and blues aficionados preserved concerts, broadcasts and out-of-print recordings through unlicensed pressings. Great White Wonder's success spurred a cottage industry of releases by stars such as the Beatles, the Rolling Stones and others, as well as a spate of legal attacks by the recording industry. Using tapes generally garnered through unethical, if not illegal, methods, a parade of covert companies distributed short runs (500 to several thousand) of records throughout the 1970s.Their availability ebbed and flowed in relation to busts and the legal attentions of the legitimate record industry. The record companies also responded by releasing authorized live albums and material like Dylan's The Basement Tapes, which would otherwise have remained in the vaults. Quality control has always been an issue. Many boots sound like they are fifth generation copies of recordings made through a wall by a microphone wrapped in a pillow. In the early years, almost all had plain white covers and blank labels; if they were annotated, the information was usually wrong.Others, however, are superb. When I first heard the leadoff cut on the Beatles' Ultra Rare Trax Vol. 1 CD, Take 2 of "I Saw Her Standing There," I was stunned: It was like being in the studio with the Fab Four. The listener could experience the tactile aspect of the pick striking the guitar strings. The 1990s have been a Golden Age of boots. A combination of technology -- compact discs and high quality miniature cassette and DAT recorders -- and gaps in copyright protections in some countries unleashed a flood of discs.While still minuscule compared to the mainstream music industry, bootlegging music became a multi-million dollar business. Labels like Kiss the Stone, Yellow Dog and others garnered reputations for releasing superior quality product -- and even for paying royalties to the artists (into escrow accounts, which artists don't draw on for fears of legitimizing the products). The growth of the industry meant that a wider circle of artists were honored (or ripped off, depending on your point of view) by being bootlegged. At the same time, facilitated by the Internet, tape trading has gained in popularity.Following in the footsteps of the Grateful Dead, bands such as Phish and the Dave Matthews Band have bonded with their fans by welcoming taping at live performances. But to the surprise of many, some of these same groups have taken a hard line when -- as if this couldn't be expected -- bootlegs circulate. The Golden Age may now be over.International trade treaties such as the General Agreement on Trade and Tariffs (GATT) have standardized copyright law. Loopholes that allowed the legal manufacture of boots in some European and Asian countries -- although they were illegal to import into the U.S. -- have been closed. And in December, 1994, Congress passed a federal anti-bootlegging statute as part of GATT. The new law gave the U.S. Customs Service the power to seize bootlegs at the border. "Free trade," in this instance at least, means a less free market. Lobbying zealously and successfully for these changes was the RIAA.Bootlegs are ripoffs, says the RIAA. They hurt the consumer who gets stuck with expensive but inferior quality discs that can't be returned. They deprive artists of their rightful royalties and control over what is released under their name to the public. And they cost the industry millions of dollars annually. How many millions is hard to quantify. In the press releases accompanying the Florida busts, the RIAA is cited as saying bootlegs cost the $12.5 billion music industry $300 million annually. But as material posted on the RIAA's website ( shows, that figure includes losses attributed to pirate and counterfeit recordings, as well as "bootlegs."Frank Creighton, the RIAA's chief domestic anti-piracy investigator, says it's hard to quantify the cost, both because they have incomplete figures for the number of seizures last year and because it's difficult to calculate "displaced sales" for material that has no counterpart in companies' catalogs. Some 800,000 CDs were seized in the Florida investigation. At $25 retail per disc, the total end value of those boots is $20 million, or two tenths of one percent of the legit industry's $12.5 billion annual sales.This is clearly an insignificant figure, even if one were to assume a dollar to dollar corresponding loss which even the RIAA doesn't claim. "One thing those bootlegs do is take away the ability for record companies and artists themselves to decide how and when to release those live recordings so their marketability once they're out in public is nonexistent," says Creighton. Offered the example of the Beatles, whose Anthology series was a bestseller despite the fact that much of the material had appeared in pristine form on bootlegs, Creighton says they're an extreme example. More problematic, he argues, is "the alternative, up-and-coming band that is very concerned about the quality of their recordings."Still, even the Beatles and other superstars have the right to control the quality of their material and "the majority [of bootlegs] are pretty crappy in quality," he says. "If I spent years perfecting my art to put out the highest quality sound recording, I would want to control what songs, what show that is and how that material is taped," says Creighton. "That's not the case when bootlegs are around." The RIAA's task of suppressing unofficial music is getting harder all the time.Both CD-R technology and the Internet are decentralizing the ability to disseminate music digitally. Creighton says the RIAA is monitoring the Internet, cracking down on sites that use official releases without license. As the price of raw CD-R recorders and discs plummet (recorders can now be had for as low as $500 and discs in bulk are approaching $3), the recording industry faces the prospect of losing all control.As for the artists, opinion is divided. Some encourage their management to hunt down bootleggers and get the royalties due them. Others consider the unauthorized recordings a tribute and may even collect them themselves. In Clinton Heylin's book The Great White Wonder, Patti Smith Group guitarist Lenny Kaye says the band was "really excited" when the first bootlegs came out, that it was a validation that they had made it.In the same book, Graham Nash, apropos of a version of a Dylan song the singer had withheld as too personal, says, "If it was too personal, why the fuck did he write it in the first place and why the fuck did he record it? I think you're committed, I do." On the other hand, Robert Fripp, in an article published in Musician in 1979 wrote that taping his live shows was akin to "taking notes of a personal conversation to circulate or publish later."Bootleg dealers and collectors pooh-pooh the notion that artists or record companies suffer substantive economic damage from bootlegs. How, they say, can you lose money on something you haven't or wouldn't release? In fact, they believe bootlegs often boost an artist's popularity.Additionally, they contend that the bootleggers have played a useful role to the record industry by demonstrating a market for material the big companies were hoarding in their vaults. Besides, they say, artists have been ripped off by the major record companies for more money than bootleggers could ever hope to steal. And it's hypocritical, they charge, for record companies like Sony to complain about bootlegs while marketing the miniature cassette and DAT recorders used to make the concert tapes. "Nobody goes into a record store and says 'I don't own anything by Pearl Jam.I think what I'll do first is spend $45-50 on this double live Pearl Jam CD,'" argues "Dogman," a retailer who has sold bootlegs and asked not to be identified. "More often than not, people already own everything and they're looking for more. One of the problems is record companies are neglecting fans who want live recordings." The boots are also valuable historical documents, advocates say. The live concerts chronicle the bands as performers -- without the overdubs and touch-ups that often prettify authorized live releases -- and the studio outtakes are exciting insights into musicians' creative processes.Dave Marsh, Playboy rock critic and editor of Rock & Rap Confidential, and others defend the circulation of live recordings. "There's a lot to be said for the idea that the concert stuff is out there -- it was put out to be heard, let it be heard," Marsh says. The release of studio tapes, often pilfered by former employees, is a different issue. Marsh says there are "serious legal and ethical questions there" but adds with a chuckle, "although I buy [those CDs]." "I can understand their argument -- 'this record isn't finished, what the hell is it doing out here?'" says Dogman."But sometimes I think they're too sensitive about what they want to release. We're fans. We want more from a band. Is that a sin? They should be happy someone cares." The record industry's real reason for attacking boots, says Glahn of Live! Music Review, is to completely control the music marketplace, in part by favoring the big chains and undermining the independent stores which are more likely to carry bootlegs. With a decade and a half of ever-climbing profits from the conversion to compact discs ending, this theory goes, the industry is looking for scapegoats.If Tower Records or HMV were selling boots, says Frank Creighton, they'd be busted, too. (The indie store owners claim they need to sell boots to stay afloat because the chains get much better wholesale deals from the major record companies.) "Many of the retail locations we've hit are not selling five or 10 of these pieces of bootleg product," responds Creighton. "We're talking about people having thousands and thousands of these discs and in many cases it's a majority of their stock.... This is not your poor ma and pa record store here."Neither does Creighton agree that the record companies are at fault because they haven't released this material. "Record companies and artists own the rights to release that material. It's just like any other product, whether you're buying Q-tips or the new Triscuit crackers or whatever it is. It's a big business," Creighton says. "People decide when to release it, how to release it, what price they're going to release it at, etc., etc. Nobody's sitting there screaming at the fact that Triscuit has not come out with a new cracker yet -- hasn't released a sour cream and onion cracker. This is no different than that. This is a business decision."That's precisely the problem, says Dave Marsh. "To the RIAA this stuff is just property where to the rest of us it's culture," he says. "Anybody who would reduce Bob Dylan live in Manchester in 1966 or Bruce Springsteen at the Bottom Line in 1975 or various blues and gospel records which for years could not be had in any other way to the same level as Q-tips and Triscuits is a person who ought to be fired summarily if the industry in question has any self-respect," Marsh says."Of course it hasn't. It has a gaping need for profits and doesn't know the value of its own commodities. That's one reason why viewing it as a commodity is a disaster." For the casual fan, suppression of boots would be no loss. But some of us crave more. To linger again over that concert experience, rewinding the tape of time. To hear John Lennon giggle as he muffs the words during an outtake, or to follow the development of "Strawberry Fields Forever" from a rough demo to a finished masterpiece, demystifying the process of creation at the same time as we appreciate it even more.There is a wealth of the great bebop alto saxophonist Charlie Parker's material available because someone was taping radio broadcasts. Boots exist, of course, because there's a market for them. They are commodities, too. For now, even if bootlegs are an imperfect and ethically-tainted mechanism for preserving aspects of our musical heritage, they are an effective one, nonetheless. Upon Franz Kafka's death, his executor Max Brod found a note requesting that "everything I leave behind me" including "diaries, manuscripts, letters" be burned. Such monumental works of 20th century literature as The Castle and The Trial -- which was unfinished -- had not yet been published and, had Brod acceded to Kafka's wishes, would never have been. Although afflicted with a "conflict of conscience," Brod did not destroy the unpublished work.There were many reasons but foremost was "the fact that Kafka's unpublished work contains the most wonderful treasures, and, measured against his own work, the best things he has written. In all honesty I must confess that this one fact of the literary and ethical value of what I am publishing would have been enough to decide me to do so..." Should Brod have done as the artist asked?Research assistance by Julia Parish and Josh Westlund.---Sidebar: The Better Boots by Hank Hoffman and Christopher ArnottWith recording quality so variable, taste in bootlegs is largely conditioned by taste in artists. A Velvet Underground fan may be fascinated by the 40-minute performance of "Sweet Sister Ray" recorded April 30, 1968, at La Cave in Cleveland. Others might find it unlistenable. This is a far from comprehensive list of some of the best boots. Happy hunting!* The Beatles. The Ultra Rare Trax CD series on The Swinging Pig Records, particularly Vols. 1 and 2, and the similar Unsurpassed Masters series on Yellow Dog. If you were left wanting more from Capitol's Beatles at the Beeb, look for Great Dane's nine-CD BBC Box.* Bob Dylan. Dave Marsh and Dogman both tout Guitars Kissing & the Contemporary Fix, a double CD recorded in Manchester, England with The Band in 1966.* The Beach Boys. Leggo My Ego, a three-CD Pet Sounds outtakes set. Before the project was (temporarily?) shelved, Capitol planned to use material from this boot collection for its own Pet Sounds collection.* Patti Smith. Free Music Store, which primarily chronicles a May, 1975, performance on WBAI-FM radio, features a giddy Smith performing before her band was completed with drummer Jay Dee Daugherty.* Rolling Stones. Liver Than You'll Ever Be, a 1969 Detroit show described by Marsh as "astonishing." May only be available -- if you can find it at all -- on vinyl.* Bob Marley. Jah Love, live in 1973 at the Paris Theater in London. According to Dogman, the only known live recording with Marley, Peter Tosh and Bunny Wailer all playing together.* Prince. The Black Album. Later, with much less fanfare, released as an official album on the Warner's label. But many fans prefer the rough, second-generation-tape edginess of the omnipresent bootlegs of these sessions, which The Artist Formerly Known As Prince refused to release.* Tori Amos. Tori Stories, a stunning four-disc box set from Primadonna, is for the true Amos fanatic. It contains recordings from wedding ceremonies at which the piano prodigy accompanied her father, a minister, when she was still in her mid-teens. There's also Amos' voice as heard on a promotional song for the city of Baltimore. The accompanying booklet has dozens of photos.* Ray Davies at Toad's Place, 1995. Recordings do exist of this singular concert/book recital, which Davies later codified into a concise one-man show. The New Haven appearance featured several songs from the Kinks leader's illustrious catalogue which apparently weren't performed at other stops.* The Replacements, The Shit Hits the Fans (Twin Tone), a semi-authorized bootleg released in a limited cassette-only edition of 10,000 copies by the band itself after they confiscated the master from a fan. Helped the band spread the legend of their sloppy-genius stage personae nationally. The exercise begat a series of less endearing sequels, notably More Shit for the Fans.* Charlie Parker, some 20 random volumes of previously unissued material spanning the jazz titan's entire career, released in Italy on the Philology label.* Jackson Browne, The Nina demos. Unadorned studio recordings of 30 songs made by an 18-year-old Browne in February, 1967, for the Nina company (who'd signed him) as demos to hawk to major labels. In an unusual move for such casual recordings, 100 vinyl copies were pressed and distributed (in plain white sleeves) somewhat arbitrarily in the New York music community. Browne has been said to have personally destroyed over half of these, disowning the demos, though they are treasured and endlessly analyzed by his greatest fans.* The Cure, The Making of Disintegration (Hot Wacks). A thoughtful 1989 compilation of interviews and studio outtakes, documenting a band on the verge of international superstardom.* Jimi Hendrix, On the Killing Floor (Swingin' Pig). The Konserthuset gig in Stockholm, with amazing clarity.* The comedy contingent: Lenny Bruce, anywhere live. Ditto the more recently departed Bill Hicks, 1980s comedy casualty Andy Kaufman, and rare kinescopes and recordings of vintage Ernie Kovacs


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