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08/10/2007 Entry: "Confessions of a Bootlegger"
At first, Tracey thought I was an FBI agent. I'd been bidding on his eBay auctions for weeks, purchasing CD recordings of local concerts that took place from the mid-'80s onward. Though clearly not official releases from the artists' catalogs, the CDs attracted me with professional packaging and promises of "A+ sound quality." Curiously, auction descriptions always referred to them as "imports," usually said to be from Italy or Australia. Once received, I was surprised by the excellent audio clarity and high production values, utilizing genuine silver discs rather than cheap CDRs and with silk-screened disc art, full-color inserts, photos, set lists, and sometimes even lyric sheets, foldouts, and booklets. It was obvious all the CDs had been auctioned by the same person using different eBay screen names -- the concerts all took place in San Diego, item descriptions were nearly identical, and all, it turned out, shipped from the same Clairemont Mesa PO box.
I e-mailed the seller to ask, "Hey, am I bidding on bootlegs or what?"
He replied, "The CDs I sell on eBay contain archival performances and are leftover inventory from overseas record labels which were forced out of business years ago...they are not bootlegs." This raised more questions -- if the CDs aren't bootlegs ("archival performances"?), why were the import labels "forced out of business"? And why were some CDs auctioning at $50, $60, even $80 or more? Once I convinced him I wasn't a fed, just a curious reporter, he agreed to a phone interview, on the assurance that his full name and eBay handles aren't disclosed.
Tracey says he's been sneaking recording equipment into hometown concerts for around 20 years. "I always use top-of-the-line gear; first high-bias cassettes and stereo mikes, then DAT, and now I can record to CD, minidisc, or direct to WAV or MP3 files on a laptop computer." He has around a thousand local concerts, plus a few hundred others recorded in other cities by himself or obtained in swaps with other tapers.
"I used to license my masters to overseas record companies, who could then legally release the shows on CD and sell them as imports to U.S. distributors without having to pay artist royalties. They were imported while there were still 'protection gap' loopholes in international copyright law. The CDs weren't pirated copies of authorized releases; these were previously unreleased concert recordings. It was completely legal to manufacture overseas and bring them into the country...the black market became kind of a gray market for a while."
Later research reveals that "protection gap" refers to a period, beginning around late 1990, in the early days of CD technology. The RIAA (Recording Industry Association of America) lobbied the U.S. government to avoid signing on to any international copyright agreements that gave intellectual property rights to the artists on their rosters, in order to enable the record companies to maintain control of their own releases. This, however, left the door open for the exploitation of unreleased material. U.S. concert bootleggers moved their operations overseas, where American artists received no copyright protection for live recordings.
In Southeast Asia and Eastern Europe, particularly Ukraine, record companies could legally release unauthorized concert recordings, so long as the tapes originated in another country. The CDs could then be exported to North America, thanks to the wording of U.S. Copyright Law, Title 17, Chapter 6 (Manufacturing Requirements and Importation), Section 602 (Infringing Importation of Copies or Phonorecords): "In a case where the copies or phonorecords were lawfully made, the United States Customs Service has no authority to prevent their importation."
"I didn't start as a bootlegger, not for money," says Tracey. "I used to trade [concerts] with other tapers and had a pretty big catalog with maybe a few hundred shows...and that was just a fraction of what I'd actually recorded! My list got around, and all these foreign companies started approaching me to get a hold of my master recordings, especially in Italy, Germany, and Australia, where they didn't give a shit about U.S. copyrights. All of a sudden, the labels were spinning off new labels just to put all my stuff out! Especially when they found out I had hundreds of concerts I never duped for anybody, anytime -- I had the only copy." He claimed his personal archive was the sole inspiration and content source for so many imprints that "At one point, I was probably responsible for starting up more record labels than David Geffen, Berry Gordy, and Suge Knight combined!"
He says he licensed concerts to the European companies rather than selling his masters outright, earning a one-time fee for exclusive rights to a performance. He won't specify the fee ("It depends on the popularity of the band or how historic the concert was...San Diego shows are a lot rarer than L.A. or New York"), but he speculates that he was one of the highest-paid suppliers. "Even before the protection gap, I already had hundreds of live tapes I recorded myself, on DAT, mostly from soundboard feeds. Complete shows with fully mixed sound, stuff that nobody in the world ever heard outside my headphones. There were bidding wars [among overseas labels] for my stuff, especially for '70s bands like Jethro Tull, Pink Floyd, Kiss, any of the FM guitar heroes like Robin Trower, Eric Clapton, that sort of thing."
A lot of money was changing hands. "The CD plants had minimum press runs of 1000 copies, so that would be the smallest release. The big labels, Great Dane [Italy] and Yellow Dog [Holland/Luxembourg], I'm sure they were doing 5000 units on most of their titles. Armando Curcio was a legitimate label [in Italy] that went into live CDs big-time in '91 with a bunch of Zappa concerts that sold better than his studio stuff. KTS [Kiss the Stone, in Italy] got rich from my Tori Amos concerts. Dieter Schubert [of Germany's Swingin' Pig] bought an office building with what he made off my Stones tapes."
So why license the concerts? Why not just start your own overseas label and keep the profits yourself? "I was kind of involved for a while," he says warily. "The laws get hinky when it comes to owning a business in another country. I guess you could say I bought into some labels, Oxygen, Moonraker, and a few others, to a lesser extent...it was basically my money and my tapes that started them, but I couldn't take money directly out of the accounts, the international banking was, uh, complicated."
He was also "involved" with a company named Red Line and an actual part-owner of KTS, both of which were notoriously prolific and blanketed Europe with shoddy CDs, with good source sound ("archiving" many San Diego shows) but packaged generically and often pressed on defective discs. "They were trying to cut costs to have the cheapest retail price in the market, but that was kind of a failed experiment. Those labels were based in San Marino, a sovereign country inside the borders of Italy, to get around some of the OSA fee requirements [the equivalent of BMI or ASCAP], even though the CDs themselves were being pressed in Prague [Czech Republic]."
He pauses. "Not that there was anything criminal going on." He's correct; by exploiting a loophole in the Rome Convention, it was technically legal, in countries that had signed the Rome Convention, to issue concerts recorded in countries that hadn't signed. Such as the USA. "In Italy, we went through the Italian Authors' Society. They charged us a registration fee, and the government issued an approval stamp that went onto each CD...that made us immune from prosecution in Italy for bootlegging."
But if they were releasing concerts without performers' permission, weren't the CDs still bootlegs? "No," he explains, "to get the stamp, we had to promise to pay royalties to the original artists. Rinaldo Tagliabue at Great Dane [Records] was the first guy to realize you didn't need permission, you only had to offer the performer 'fair compensation.' We just had to make this nominal deposit in an Italian bank, and there'd be this little line of type on the back of the CD that says, 'Hey, if you're one of the guys on this CD, well, guess what, you have some money waiting for you in an Italian bank account.' "
Did any performers ever withdraw their token royalties?
Tracey laughs. "Almost never. Actually, I think a couple of British guys requested the [bank] routing number."
He waxed on about "the good old days. In Australia, bootleg CDs with American concerts were legal as long as the word 'unauthorized' appeared on the cover. Every newsstand and grocery store in the country was selling my stuff! They were coming in [to the U.S.] by the boatload, all cleared by customs. Even the major distributors were picking them up. BMG would carry Comet Records and Planet Song titles, and they'd turn up at Tower and Strawberrys, all racked the same as regular releases. Everybody knew about the copyright loopholes...there were stores like Second Coming and Revolver in Greenwich Village where more than half their stock was 'live import' CDs!"
Being a well-paid supplier instead of a label owner turned out to be a good plan when retail prices for import concert CDs plummeted in late 1994. "This guy in Bavaria, Wolfgang, had a label called Live & Alive...he flooded all the supermarkets in Europe and Australia with live CDs that he sold at half price. The market fell apart when people realized that bootlegs don't have to cost more than a regular CD; they can even be cheaper."
He was also rethinking his financial stake in the Italian labels, after being visited in his San Diego home by two darkly dressed men who "suggested" that he consider selling his entire masters collection to Teddy Bear Records, a rival of his own business associates with reported ties to the Italian Mafia. He declines to go into further detail.
The protection gap era ended December 8, 1994, when President Clinton signed the Uruguay Round Agreements Act (URAA), implementing the General Agreement on Tariffs and Trade (GATT), including trade-related aspects of intellectual property. Provisions in the URAA amended U.S. copyright law, creating a new federal "Anti-Bootleg Statute," which criminalized "unauthorized manufacture, distribution, or trafficking in sound recordings of live musical performances." Convicted bootleggers were subject to up to five years in prison and a $250,000 fine.
The GATT was signed by the United States and 119 other countries. Shortly after its enactment, the RIAA utilized the FBI and U.S. Customs to shut down overseas importers, seizing incoming shipments and raiding stores that carried the now-illegal bootleg CDs. The U.S. government threatened China with trade restrictions over its failure to honor international creative copyrights. A sort of global copyright system was set up, enforced by a brand-new international antipiracy team called the IFPI (International Federation of the Phonographic Industry). Police forces throughout the world agreed to assist the IFPI, especially among members of the new European Union (E.U.), who were offered import tax benefits if they agreed to enforce E.U. directives explicitly granting performers the right to "authorize or prohibit the fixation of performances."
In 1995, the IFPI issued a report that estimated 32 percent of Italy's domestic music sales the previous year -- about $145 million U.S. -- involved pirated or bootlegged recordings, and this accounted for about half of all pirate music revenues in Europe. "Word got around that the Italian government wanted to put on a show for the U.S. by raiding all the concert labels to confiscate equipment and destroy stock...people were leaving the country under cover of darkness, with DAT decks under their arms and tape boxes busting out of their luggage. I lost all the money I invested as part owner of the labels I was involved with...a few [record companies] paid me off in free CDs that they got American distributors to dump on me by the boxful. The CDs were already in the country, but [distributors] were afraid of getting busted by feds, so they were happy to get rid of all their concert imports." Not all the Italian labels went under overnight. "Kiss the Stone packed up and moved to Singapore, and they kept buying my stuff for a while. They couldn't get anything into the States, though...at that point, Customs was even opening up single-CD packages."
Tracey says demand for his concert masters dropped to almost nothing after July 1997, when a meeting between 11 European and American bootleg distributors ended with their arrest in a complex U.S. Customs sting operation (at Disney World!). The distributors were charged with a total of 40 counts involving conspiracy to make and sell bootlegs. "That killed 90 percent of what was left of the wholesale network, so I pretty much stopped circulating my concert master catalog. I still recorded shows for myself, and sometimes I swap with other tapers, but I think the last company to buy a concert from me was [Spain's] MC Records, around '99."
Then he registered as a seller on eBay. "I saw people getting big bucks for those old live concert CDs. Not just the original imports, but home-burned CDR copies. Well, I still had a warehouse full of CDs the labels gave me in lieu of money they owed me, when all the new laws came down." The quick proceeds from auctioning old protection-gap imports inspired him to dip into his archive of unreleased concerts, the majority recorded locally.
Currently, he produces new CDs that he burns and packages himself on his home computer. "I manufacture to order, and I usually only auction a few dozen copies, for anywhere from $20-$100 each, before I move on to the next concert." Those triple-digit sales aren't unusual when he releases something brand-new-to-market featuring Springsteen, Nirvana, Bowie, Dylan, and other powerhouses, but surprisingly, he says top dollar is also common for '80s synth-pop acts like the Cure, Gary Numan, Siouxsie and the Banshees, and Depeche Mode. "That's why you see so many San Diego shows on eBay now...I was running tape at two or three [concerts] a week for years."
As to how he managed to secretly tape so many shows, for so long, Tracey offers a tutorial, saying he rarely tapes now and sees no potential backlash in sharing his methodology with a reporter. "A lot of those places are long gone anyways -- the Bacchanal [Clairemont], Flash Café [Mission Valley], the Rodeo [La Jolla], Spirit [now Brick by Brick], the old Casbah [Midtown], places where you just had a couple of doormen, not a gauntlet of security guards patting you down like at the Sports Arena."
The first challenge involved getting gear inside the venue.
"I taped pretty much every Del Mar [Fair] concert up until just recently; you could sneak in a buttload of equipment, mike shields, and everything. It's outdoors and they aren't searching for tapers, they're worried about knives and submachine guns." He says bars like the Bacchanal were also fairly easy. "There was this short, bald guy who ran the door for years, he ended up bouncing across the street at a nudie club, but during the Bach days, all I had to do was go in with a girl with her titties hanging out, and I could just about roll in my gear on an AV cart, he was so oblivious. He didn't even look at my ticket half the time, let alone all the equipment I had strapped under my jacket."
In the '80s, before technology allowed for shrinkage, his gear was bulkier and harder to sneak past the gatekeepers. "I had a Sony rig with dual mikes that had its own EQ unit, leads, all kinds of stuff I could use inside to remote-tape [using mikes rather than tapping into club/band audio]. But it took up so much space, I had only a few options to get it in. There was the old wheelchair trick, which gets you in the door, but then they tend to seat you in a special section near the back, so people don't trip over you, and it's hard to get the gear where it needs to be for the best sound."
"So I rigged up the inside of a basketball that I cut in half, with all the gear laid out inside and taped down, buttons up, and I had a girlfriend who'd strap this on under a puffy blouse and go in pretending to be pregnant! We had wires snaked up the arms to lavalier [clip-on] mikes on her shoulders or on either side of a hat that I rigged up. She went to the bathroom, turned it on in the stall, walked back out to the front, and we were taping! But then she had to stand, not sit, in the center of the stage all night, to get the stereo sound, and everyone kept asking her, 'When are you due?' and saying, 'You can sit in my chair,' and all that stuff got recorded too. They were babbling into the microphones and ruining my tape."
The "pregnant" trick had limited possibilities, especially on repeat visits, where bouncers began to wonder about his perpetually knocked-up girlfriend. He says he sometimes had paid arrangements with security or other venue employees who'd turn a blind eye to his gear upon entry, but he preferred stealth to bribery. "The fewer people who know and who have something over you, the better. It got expensive, and door guys come and go all the time anyways. Maybe they rat you out in the process.
"The guy to bribe is the soundman, whether it's a house guy or the band's guy. You get there early in the afternoon while they're setting up, buy the guy a beer, or just chat him up and go into your game; you're a big fan of the band, you want a copy of the show forever, you have X amount of dollars to make it easy, can he help? A lot of these guys are only making a hundred bucks a night anyways, so they'll let you plug into the board for another hundred and hide your outboard gear under a towel on the floor or something."
Failing a deal with someone to plug into the soundboard, he was reluctant to just point microphones at the speakers and push "record." His preference was to somehow tap into the club sound system, as this provided infinitely better audio quality, perhaps even fully mixed in stereo.
"The simplest thing is 'speaker tapping.' I'd stake out a spot alongside the stage or scope out the club PA and just find a monitor or speaker, ideally one that seems to be receiving multiple feeds, and look at the back, check to see if there's an output jack. When there was, I could plug into a line-out, drop wire down to the floor, maybe use some gum to hold the wire down so they don't see it going to my unit [recorder], and I'm ready to tape." He says he hid his recorder on the floor under the stage or even sometimes had a wire running directly from the speaker to his leg, with the recorder strapped under his pants. "Gotta stand real still all night for that one."
The Belly Up was his favorite spot to speaker tap. "For years, they had these PA speakers up on risers with an extra set of quarter-inch line-outs on the back, for hooking up satellite speakers, and there was another set [of speakers] in the back with open RCA [outputs] that I could plug into if those weren't accessible. I'd leave my unit under the stage or buried with cable boxes. It was a hot mono signal, but I used a custom splitter to spread the sound out back over two channels, and then, when the show's wrapping up, I just yank the plug from the back of the speaker when nobody's looking."
In instances where no output jack could be found, he had an alternative. "I brought in a quarter-inch splitter. When nobody was looking, I'd unplug their speaker, stick my own splitter in, female to male, and plug back in. There's my own line-out access, and I drop wire to the [recording] unit. There'd be the same hot-mono problem, though, with noise cancellation at the high end, because of splitting the signal."
Technical limitations weren't the only potential problems with speaker tapping -- there was also the need for ultra stealth and the attendant fear of being beaten by bouncers (and possibly arrested) if caught. "There were places where I left my speaker-tap in a panic or just couldn't get back to the jack, and later they'd find my cable or my splitter hanging out of the speaker. Then I'd have to find new ways to tape there." Like snaking a cable direct from the soundboard, without the soundman's knowledge. "I studied manuals for all the models, so I always knew the best outputs, and I had all kinds of different plugs and adaptors with me. I even had a tech kit, where I'd actually splice a feed wire, cut into it, and tether the leads to my own jack unit. That was kinda dangerous, and I could have blown up someone's sound system, and you can only ever do that once at the same place. They find that cut in their cables after the show, they're gonna be loaded for bear and gunning for you from that point on."
Tracey says he had to abandon his whole recorder once at the Bacchanal around 1996. "I watched them [the stage crew] find it in the middle of the show, stashed under the stage, hooked to a speaker jack. I think someone saw me hook up and told them it was there. Meaning they probably saw ME. So I see this guy who worked there, everyone called him Snake Man, looking around for me, total murder in his eyes! I just eased on out the door and never looked back over my shoulder, and I never went back, just in case someone spotted me. Place closed pretty soon after that."
Sometimes, he lost equipment to the performers themselves. "I got nailed speaker tapping at the Civic Theatre by Bruce Springsteen himself, from the stage, while he was just walking onstage. He saw me trying to tack down my drop wire [from the speaker], and he pointed at me and yelled, 'Get that guy!' You can hear it on other tapes of the show. I had to pull out and run off...someone told me Bruce looked like he wanted to tear off the stage and come after me himself, he was totally pissed off. They didn't chase me past the door, but they got my recorder, my master tape, plus I couldn't go back in there again. Everyone got a real good look at me. Someone got himself a $1000 bonus that night, that's what the unit was worth. Never mind what I would've gotten for that DAT master."
By the mid-'90s, microtechnology made it preferable (and safer) to go back to remote taping, entering the venue as a self-contained recording unit and pointing high-quality microphones at the sound source. Once digital recording media like DAT and recordable CDs became available to consumers, Tracey, in order to remain on the forefront of technology, was compelled to drop big bucks on such equipment as quickly as it was introduced, rather than waiting until prices inevitably dropped. "I went to Japan in 1996, just to pick up all the top-of-the-line gear that wasn't out here [in the U.S.] yet. After I got back, I made this $5000 vest I sewed up myself, with all the cables and microphone wires stitched into it and a DAT recorder I controlled just by running my hand under the vest for a minute. There were hidden pockets for jacks, battery packs, everything. The mikes were so small that I had them wired to the rims of clear glasses that I wore. A lot of it was spy stuff, or intended for 'nature recording' -- at least that's what they [manufacturers] pretend. The digital one-eighth-inch mikes were the most expensive part, and the optic cables that snake up the [eye]glasses straps, that's $1000 right there. You can get a good DAT recorder for $600 or $700, but the mikes are where the quality comes in. I paid $50 just for the [outdoor wind-block] foam I put over the mikes."
Though mostly retired from taping since around 2000, Tracey says he's dabbled in new stealth-taping technology. "I got a minidisc recorder for about $150 last year and caught Social D at the Casbah, and it came out pretty good. You lose some sound by compressing down [into sound files], but it was fine just for my own collection.
"If I was gonna swap or sell, though, there's a saying among tapers: 'Friends don't let friends burn MP3.' I also have a Nomad Jukebox, it records to WAV or MP3 files, and then you can transfer onto a computer with a USB or FireWire, but it doesn't have a volume display. They're still tinkering with new technology. I don't keep up anymore."
He's intrigued that some tapers are bringing laptop computers to shows, to record 44.1KHz music WAV files directly onto their hard drives. "If I was in the supply biz today, I'd have a lot of fun with that part, the technology. I could make [the equipment] pay for itself pretty quick. But I'm in my 40s now, and it's hard just to get up and go out to a concert nowadays, let alone go several nights a week again. I have a real job [he declines to specify], I don't need to make my living as a taper. I like sitting still, at home, and I figure I already have enough old stuff to sell online to keep me in burritos and beer money for a few more years.
"Right now, I run about a hundred record labels that don't really exist outside my hard drive," he says. "I come up with new company names and launch new labels all the time, so one label can concentrate on a specific band or genre. All the cardboard inserts still say, 'Euro import,' just to be on the safe side, so eBay doesn't stress." eBay policy forbids the sale of unauthorized merchandise but seems to turn a blind eye toward items modestly disguised. "The CDs I make now weren't imported from anywhere other than my desktop, but people still figure the protection gap covers them."
He admits he sometimes even reproduces the old Italian "approval" stamp, though its protections were applicable only in that country and haven't been in effect since 1994. His new releases are almost indistinguishable from the '90s imports, though some concerts he's offered on eBay took place years after the international copyright protection gap was closed. eBay seems to consider them acceptable. You can find all manner of gray-market concert CDs on the auction site ("imported" or not) by browsing their music category -- type in keyword "San Diego," and most any search will return several locally recorded concerts. (See sidebar article "Bootleg San Diego.")
Despite his initial distrust of me, and his reluctance to be identified in print, Tracey claims to have little fear of prosecution. "The record companies mainly go after pirates who copy commercial releases. Nobody's gonna get busted buying or selling concert CDs on eBay. The RIAA is busy prosecuting kids who download prerecorded music off the Internet for free on their college computers."
Tracey estimates his imaginary record labels release about 20 "archival performances" on eBay per year, many of them selling for $50 or more during their first few weeks of release. That's how long it usually takes before other sellers are offering CDR copies, digitally reproducing his CDs with identical sound quality and sometimes even duplicating Tracey's self-designed packaging.
The irony isn't lost on him: the bootlegger being bootlegged. "The difference is that I'm not copying someone else's record right down to the graphics. I'm creating an item that never existed before. Yeah, as soon as I put it out, copies are gonna end up all over the Internet. That's the price of technology. But, look, I already made a couple bucks off the first few CDs, so I'm happy. The CDR guys can have it from that point. It's worthless once it's been bootlegged and sold and traded for free that often."
"Worth" is a relative term. Looking over concert CD auctions I know to be Tracey's, I calculate at least $4800 in sales over the three-month period preceding this writing. He says he still has hundreds of shows he hasn't even listened to since they were first recorded. "I don't give a shit about people burning copies [of my CDs]. It's not like I can sue them. Besides, I'm already working on the next release. Fans want new stuff all the time, not the same old thing over and over again. And they're willing to pay good money for it."