Guest Post: A response to Michael Geist’s Defense of Bootleg Beatles Records by Canadian Music Publishers Association’s Executive Director, Robert Hutton

[This post by Canadian Music Publishers Association Executive Director Robert Hutton is reprinted with permission from the CMPA’s Sept. 3, 2015 newsletter.]

We recently read the article posted by Michael Geist to his website earlier this week on the matter of Stargrove Entertainment’s legal action against parties allegedly impeding their sale of recordings which were, at the time, in the public domain in Canada.

We are frequently asked by our members and international partners to offer some counterbalance to Mr. Geist’s views and have been reluctant to do so until now, feeling that it is best not to feed the flames or enter into something that is not based on facts or fairness.

CMPA has no interest in or ability to comment on a legal action. We have no position in the matter, nor can we. We are not going to comment here about the legal aspects of this case.

However, we do have a point of view on many of the tenets of Mr. Geist’s article, and feel compelled to address the broad misconceptions and lapses in logic of his position.

The core of Mr. Geist’s argument is very simple – that copyright is harmful to consumers, who in his view should be able to access music for as low a price as possible.

Actually, in Mr. Geist’s view, that should be pretty much nothing. Free, nada, zilch, a full on race to the bottom. Central to his argument, if you look more closely at his history, is the notion that in the online world, we have a bonanza of free access, and any attempt to curtail that – like in cases where something is under copyright – is keeping prices high for consumers.

Basically, Mr. Geist just wants your songs to be available for free. Fair enough, most of us want to pay less for things, and would actively look for ways to pay less. Everybody loves a sale or a discount. Most of us would never turn down a legitimate opportunity to get something free either.

Mr. Geist appeals to this consumerist view at a simplistic level, and he appeals to the online legions of post-Napsters who believe that if they can find music for free online, they are entitled to pay nothing.

Let’s look at a few of Mr. Geist’s comments. He claims that Stargrove simply pressed up CDs of public domain recordings by The Beatles and The Rolling Stones. What he fails to mention is that virtually all the digital masterings of both these artists are NOT in the public domain – those masterings are still well within copyright.

So what is Stargrove attempting to sell? There are really only two ways to get around the existing digital masterings being under copyright. First is to go back to the original 1960’s vinyl pressings and needle drop those pressings, transferring the needle drops to digital. Second, a bit more nefarious, is to rip the current CD and do some post remastering on that digital clone – inevitably, degrading the sound quality, or at least corrupting the representation of the artist’s work they want to be in the market.

The latter, obviously, has big commercial ramifications for any artist. A substandard version of their work floating around ultimately is disappointing for consumers and makes them less inclined to buy other works from that artist. I hardly think that serves the need of any consumer. It certainly does not serve any notion of preserving our cultural heritage!

Sorry, Mr. Geist. Pressing some needle drops on a slab of Canadian bacon and sticking it in a jewel case is surely not giving cheaper access to cultural works.

The term for these types of pressings that Mr. Geist seems to resist using is gray area CD’s. Product that kind of, sort of, maybe or maybe is not technically legal, but is…shady. Did Mr. Geist ask Paul McCartney, Ringo Starr, Mick Jagger or Keith Richards how they feel about having their work represented to their customers this way? Well, maybe not Keith..
And I hardly think that anyone, be it a record label or anyone else, going to a retailer’s site to warn consumers about a substandard product is unethical. Mr. Geist is very effective at employing social media to distribute skewed misinformation. Complaining about a record label doing the same: pot, meet kettle. Stargrove certainly don’t disclose their sources so consumers can make an informed choice, do they?

One of Mr. Geist’s frequent arguments is that copyright restricts choice and access to Canadian Heritage by keeping creative works under the control of those big, nasty monolithic record companies. He doesn’t make that argument in this case, I suppose because it is hard to claim iconic British artists qualify as Canadian Heritage.

Of course, that is nonsense. There has never been easier access to more creative content in human history. Virtually everything can be obtained at low cost from streaming services, download retailers or other legal means. There is no great vacuum in the market that Mr. Geist positions himself as championing. The Beatles are not Canadian Heritage – but without a doubt, they are part of the cultural fabric of millions of Canadians’ lives – indeed, it would be hard to argue that The Beatles have not had a huge cultural impact on every corner of the globe.

The Beatles are part of the Global Cultural Heritage. Is it right that such icons of global culture should not be given the same copyright protection in Canada as they have in the United States, the U.K. and pretty much every other jurisdiction? Mr. Geist fails to mention that Canada is virtually alone in the global economy in providing the same level of copyright protection that The Beatles and thousands of other artists enjoy.

Or should Canada treat music as the commodity that Mr. Geist advocates, consigning artists like The Beatles and The Rolling Stones, and countless others, to any huckster’s opportunistic profiteering to the benefit of the discount bins at Wal-Mart?

We think not. We are sure fair-minded Canadians, when the true context and facts are fairly presented to them, would agree.

There is nothing wrong with companies – and people – the songwriters, performers, artists and employees – making a profit and a decent living from their creations. That is how our economy is supposed to work. It isn’t all about a race to the bottom. In the world Mr. Geist envisions, not only will Canadian artists become an endangered species as they can no longer make a sustainable living from their work, Canadian culture will fall under the control of some app in Silicon Valley with a market cap of some billions based on pure speculative investment by some Wall Street hawks. Is that really what Canadians want, to save themselves a few bucks? Doubt it.

The biggest fact that Mr. Geist evades is much more fundamental, and by invoking The Beatles, he again plants the seeds of collapse for his arguments. The reality is, The Beatles and The Rolling Stones have subsidized, through their massive sales, decades of record label investment in up and coming artists, some of whom ‘made it’, some of whom did not, and others who fall into the area of ‘cult legends’ – i.e. hugely influential but never sold enough to pay for a cab ride home. In that sense, it is fair to say not only that copyright had huge economic and cultural benefits – but that it continues to do so, perhaps even more so today as the recording industry continues to adapt to falling revenues brought on by advances in technology.

That is the main reason copyright needs to be extended. Investment in jobs, culture, heritage. I would place real money on betting that Stargrove aren’t investing in creators like record labels, publishers, rights managers and other industry players do. Investment capital. R&D capital. That’s what Mr. Geist misses.

And I wonder how that can be. He is a university professor – a seller of knowledge and intellectual property, in effect. No different really than a songwriter or artist in the sense that in a knowledge-based economy, the song is the creator’s intellectual creation. As a university professor, he is tied into some decidedly consumer unfriendly monopolistic practices – tenure, for example, which maintains quite possibly above market salaries and restricts access dramatically. I figure that most of his ‘product’ can easily be found online, for free. In fact, I can buy a degree from some ‘gray market’ huckster for a few hundred bucks! Why do we maintain this expensive, monopolistic bricks and mortar university industry which obviously both restricts Canadian’s access to higher education by overpricing and is harming consumers? Why should we pay, say, $25 grand a year for university when not only can I get it all online for free, but can get it way cheaper from the gray market?

The answer is – those university fees, endowments, contributions – and yes, a whole lot of taxpayer money (which Mr. Geist frequently rails at the music industry for receiving, all the while having HIS hand firmly in the same pocket) goes to funding a whole lot of RESEARCH going on at Universities. That’s right, R&D spending, the exact same thing the music industry does, largely subsidized by sales of heavyweight artists protected by copyright. Why should consumers pay for that? For the same reasons as the music industry. Some of it recoups, most of it never does, but out of that every once in a while a Beatles will emerge.

Now, the reality is, Mr. Geist knows all this, so he is really kind of a Donald Trump-type guy, taking outrageous positions that find some resonance among a certain demographic because in a subliminal sense he validates their base fears and entitlements. I suspect that if Mr. Geist’s followers were asked to work for less pay, or no pay, or to stand by while their work is posted online for free, they would be outraged. It’s always okay as long as it’s someone else, preferably someone who remains unseen and unmentioned so you can’t put a human face to it. I saved a few bucks, don’t remind me that I did so on some real human being’s back.

These are all just inconvenient truths to Mr. Geist and those who adhere to his views. They will tell you – those big, bad, monopolistic record companies have been ripping me off for decades! I’m entitled to stick it back to the man! And that is exactly the type of sentiment that Mr. Geist cultivates.

The discount bin at Wal-Mart, the bane of late night host barbs, is hardly the gold standard to which any industry aspires (but I had better be careful here, after this my next job may very well be a greeter at my local Wal-Mart).

Ultimately, the only real solution lies with re-establishing value to consumers and putting a human face on our arguments. We can’t overcome the Geist’s of the world who are the one-eyed men leading the blind. On many things, I tend to agree with Mr. Geist. But on this – I can’t help but feel that he has let a personal beef drive a biased agenda. We can’t beat bottom-feeding sentiment with technical arguments on copyright that for many will simply entrench these attitudes even deeper. We have to talk in terms Canadians will respect and understand, putting a human face on what is all too often an abstract matter. And we have to take back the quality mantle.