The Grateful Dead and Philosophy: Ownership, Authorship, and Intellectual Property

First, the big news -- The Grateful Dead and Philosophy is out! It's real, it's on shelves, and I could not be happier with the book or prouder of my Deadhead cohorts who contributed wonderful, engaging, insightful, and fun essays.

The book was made easier to put together by the fact that philosophy is a reactive discipline. Philosophy starts after someone else has caused a revolution that has left some part of the intellectual landscape in shambles. As much as folks like Plato and Descartes wanted to assert that philosophy is a foundation upon which to build the rest of knowledge, the fact is we're more like the architects you call in once a building has been destroyed in order to figure out how to rebuild: what parts of the old structure are still intact and strong enough to bear the load, what parts need to be slightly refashioned, and which parts should never be rebuilt in the old way. After a revolution, be it in science, politics, art, or society, we need to figure out what just happened, what we can still believe, and what we need to puzzle out. The Dead were a part of revolutions in so many ways that there is lots and lots of philosophy to be done.

One of those topics surfaced in yesterday's conversation about John Locke and property -- especially the question about the relation between authorship and ownership -- which is quite similar to a discussion between Dead guitarist Bob Weir and Dead lyricist and Weir's longtime friend (and partner in crime back in their boarding school days) John Perry Barlow. Barlow has gone on to found the Electronic Frontier Foundation, an organization dedicated to protecting on-line access to information. One of the revolutions fomented by the Dead was their approach to intellectual property and McDaniel College philosopher Peter Bradley has a wonderful essay in the book discussing the Dead tapers' ethic and considering whether it should be used as the basis for a new approach to intellectual property.

Bootlegging is the recording and reproduction of other people's performances without expressed consent. In much of the music industry, it is seen as piracy, theft, a sin against the performer and the industry as a whole. In accord with yesterday's passage from Locke, they created it through their own labor, they own it. How dare you take it without asking and no, you may not have it.

The Grateful Dead, on the other hand, took a slightly different attitude. After the first song of their August 6th, 1970 performance at the Hollywood Palladium, Bob Weir can be heard to say to a guy in the audience close to the stage, "You, with the microphone, if you want a good recording, you'll need to move back about forty feet." A few seconds later, Jerry Garcia pipes in, "Yeah, right about there." The Dead did not try to stop and actively prosecute bootleggers like most other groups; no, they did what they could to help them. Indeed, they would reserve the acoustically best spot in the venue specifically for the tapers.

Coming out of the Haight-Ashbury district in San Francisco in the mid-60s, the Dead were close with people who were deeply suspicious of property rights and ownership altogether. The Diggers a group dedicated to the notion "free," that people could not be free unless food, medical care, housing and other needs of life were free as well. They were friends of the band who shared their deep suspicion of authority, especially corporate authority and it manifested itself in a rejection of the standard approach to intellectual property rights. It was the Dead's refusal to sign off on granting exclusive intellectual property rights that kept them out of the documentary made of Woodstock.

In return, the tapers came to develop their own ethos. Tapes were to be traded or given away, not sold. Tapes could be made of the Dead's own soundboard recordings, but not if they had been mixed down by the Dead's professionals. The act of post-production mixing made the result property of the band to be held in "The Vault." Much like Locke, the idea was that the music in the air was unowned. If you added your labor by taping it, it was yours; if the band's folks lent their effort, it became property of the band.

Enter archive.org and their live music archive. In the old days of cassettes, each new tape degraded the quality of the recording slightly, but with digital reproduction this loss could be eliminated, allowing for near-perfect reproduction. When the Dead's soundboard recordings appeared on archive.org, it raised some new questions. Suddenly professional quality recordings of people's music could be found for free. This worried Bobby, not because of his own work, but because the Dead often covered tunes they loved by others. These folks had invested the labor of writing the songs and under copyright rules were entitled to royalties for reproduction that they weren't getting. Weir's attitude was that if he wanted to give away his own work, that was one thing, but he didn't have the right to give away what belonged to someone else.

Barlow argued contrarily that this was information that should remain free. A compromise was ultimately reached wherein soundboard recordings could be streamed, but not downloaded.

This, of course, raises several interesting philosophical questions. The notion of property rights is a product of Locke's time when they were thinking about things you could touch. Does it make any sense to speak in the same way of the more ephemeral "things" like information? Does/should authorship entail ownership? What can be owned? What counts as reproduction? What counts as having -- a material recording? the ability to listen at will? What was the best performance of Dark Star?