All hail Italy! Glorious land, kissed by the Mediterranean sun, mother of Empires, cradle of the Renaissance - and bootleg record capital of the world.

Many extreme and absurd claims have been made lately about “unofficial” music. Web users stake an inalienable right to free tunes (ignoring how much they cost to produce), while industry execs condemn boots as a fatal threat to their bloated incomes (although anyone avid enough to collect this stuff surely already will have bought all of an artist's official albums). The problem is real: college dorms already boast more upgraded computer speakers than stereo systems and the explosive and continuing growth of the Internet, high-speed access, MP3, CD burners and other technology only promises to heighten the stakes.

A confession: recently, I've bought lots of “unauthorized” classical CDs. They've vastly enriched my appreciation and left my conscience completely clear.

Let's draw an essential distinction that's often blurred. Counterfeit records (copied directly from official product) are theft, pure and simple. So are pirate albums and computer files (material previously released in different form) when they comprise current items. They're not only illegal, but immoral, robbing creators of their due. But the law and morality are less clear for bootlegs (concerts, broadcasts, outtakes and other unreleased material) and pirate CDs of unavailable music.

Copyright controls the situation but is often misunderstood. Copyright does not give artists and producers absolute control over distribution. Rather, their interests are balanced against those of the public. To encourage creation and dissemination of their work, artists are given a legally-enforceable period to control marketing and exploitation. But the public has rights, too, largely in the form of “fair use,” which allows copyrighted works to be used for culturally-important purposes, so long as the market value of the original is not substantially harmed. And after a specified period copyright protection lapses and the “public domain” takes over.

Copyright is generally fair, but with one exception - its duration. Current law provides protection for - are you ready for this? - the life of the artist plus 70 years. That's absurd! Medicines and inventions that require billions of dollars of research are protected only by 18-year patents. Why should great-great-grandchildren still monopolize distribution of an artist's work?

But all of this is mere legal theory, and that's where Italy enters the picture. Their copyright laws are minimal - no record is protected at all if it was issued before 1975, is more than twenty years old, or was produced before the source country became bound by a certain treaty which the US has yet to sign. Plus, nearly any recording becomes legal upon payment of a royalty fee to SIAE, the state licensing agency. And it's not just la bella Italia; Germany, Japan and other countries with similar loopholes contribute mightily to the flood of unauthorized product.

Moreover, enforcement is lax, even in the US, where bootlegging began 100 years ago at the very birth of the recording industry when Lionel Mapleson cut cylinders backstage during Metropolitan Opera performances without the artists' consent. Beyond an occasional bust of a record show or street vendor, prosecution is rare and reputable retailers (both brick and virtual) support pirate editions by carrying them alongside legitimate copies, often at vastly lower prices. Responsible independents who pay for licensing rights and careful restoration can only appeal to collectors' consciences to buy their versions, but few fans can resist the temptation to save major bucks on copies that are readily available and, quite literally for digital media, identical.

Here's where I would draw the line. It's essential to respect creators' rights to determine how to market their own work. Just because session or soundboard tapes exist doesn't mean they're there for the taking or that anyone with access has the right to release them. If an artist decides to leave outtakes on the cutting-room floor or to suppress a performance from an “off” night, such decisions should be honored. And if an artist elects to issue an overpriced CD with a single decent song and lots of junk filler, that doesn't give netizens the right to spread free copies of the good cut.

But, on the other hand, if an artist chooses to post material on the Web, whether to attract notice, to shrewdly promote an upcoming album or just as a gesture of thanks to the fans who made it all possible - fine! If an artist approves taping a concert - great! If an artist broadcasts a show, terrific! In each instance, the music is already out there for free and fans should be able to preserve and swap it. And, once legally issued, if a performance is deleted from the catalog and the artist or record company won't reissue it, then at that point the public's right takes over and shouldn't bar others from marketing and enjoying it.

From that perspective, there's a lot of illicit material out there. From the seminal Anthology of American Folk Music through the Beatles Rarities collections, Dylan Basement Tapes and Beach Boys Smile, to the countless videos that flood current record shows, all are copyright violations. Yet, these and other bootleg and pirate albums have played and promise to continue to play a huge and essential role in preserving and extending our modern culture. Classical fans, too, have benefited enormously from such releases.

    Shrinking Catalogs - American orchestras have a proud history of performance, albeit with imported conductors. In the 1940s alone, Reiner/Pittsburgh, Mitropoulos/Minneapolis, Rodzinsky/Cleveland, Koussevitzsky/Boston and Monteux/San Francisco all combined excellence with an edgy excitement rarely heard in Europe. Yet, you'd never know it from current authorized CDs. The first three were all Columbia artists but Sony, the inheritor of that proud catalog, issued only a handful of their records in its Masterworks Heritage line and reportedly plans no further releases. Dozens, though, are available on the French Lys label. As the owner of the originals, Sony should have the first distribution opportunity, but if it declines then why shouldn't another label fill the void? The Columbia trove is not just Sony's private property, but our heritage! It's ironic that just as so much of our rock history is archived in Germany and jazz in Japan, our classics increasingly reside in France.

    Concerts - Most of us think of Toscanini as the dry, severe, unyielding purist of his late studio records, which RCA (and now BMG) incessantly recycles, but the real Toscanini who revolutionized modern performance arose in his live performances. The German Naxos label has issued 25 CDs of Toscanini's weekly NBC radio network broadcasts (all at least 50 years old, the limit of German copyright protection). Nearly every one is more intense and expressive than the "approved" studio counterparts. To further complete our picture of this hugely influential musician, many volumes include works he never recorded.

    Insight from Outtakes - Several Naxos Toscanini sets contain extensive rehearsal segments. Engineers often kept their recorders running, hoping to catch one of the Maestro's legendary temper tantrums. (I have two acetates that are real scorchers!) But these were rare, and most reveal a tireless craftsman patiently molding minute details into a cohesive artistic statement. Indeed, often the playing during these rehearsals, while fragmentary, is more vital and daring than even the concert takes.

    Mic-shy - Not all great artists embraced the microphone. The most defiant was conductor Sergiu Celibidache, who, for philosophical (Zen) reasons, refused to make records at all. Before his heirs licensed some late Munich concert recordings to EMI, our only knowledge of his bizarre but fascinating art came from bootleg CDs of his European broadcast concerts. Indeed, it's uncertain if the EMI “authorized” releases ever would have materialized had it not been for the success of the earlier boots and the huge reputation they helped fuel.

    The Great Influences - Veteran artists preserve the authentic styles of important composers. The pioneering early electrical records of Piero Coppola, now on Lys, reflect the aesthetic of Debussy, Ravel and other French impressionists and provide essential signposts for modern performances. And I could never have grasped the full extent of the achievement or written my appreciation of German master conductor Hermann Abendroth without supplementing the handful of licensed releases of his work with 22 Arlecchino boots of his concerts and long-deleted Eastern European LPs.

    Mellowed Masters - The majors' emphasis on stereo-era reissues has distorted our memories of many “Golden Age” artists whose glory days were then behind them. It's hard to glean from his few bland stereo records how Dimitri Mitropoulos could have inspired Leonard Bernstein to become a conductor. Listen to him tear through Mendelssohn, Schumann or Mahler in the mono era, though, and you'll hear why. Most artists relax considerably over time; the genial stereo remakes of Bruno Walter, Pierre Monteux and many others have come to eclipse the dynamism of their earlier fame.

    History - The May 1946 dedication of the restored La Scala opera house in Milan, the crown jewel of Italian culture destroyed in wartime bombing, was an event of supreme national importance, symbolizing the triumph of art over Fascism. Toscanini, returning from exile, led a deeply impassioned celebration of Italian pride (Rossini, Verdi, Puccini and Boito) with transcendent commitment. It's a key event in classical music history. Although broadcast throughout Europe, amazingly only a single private aircheck of the concert is known to exist. Official release was precluded by the artists' various licensing rights, but it's preserved on various boots. Despite poor fidelity and condition, it remains startling for its exultant humanism.

    Better Sound - Early boots were plagued by derivative source material, haphazard processing and shoddy production, so it's surprising that many recent ones have earned the opposite reputation. RCA, for one, often did a miserable job of reissuing the gems of its catalog in depreciated sound despite access to the original masters, but Biddulph and other independent labels transferred them from commercial pressings with far more accuracy and warmth. Recently, Naxos has launched a budget-priced series of magnificent transfers of crucial early violin, piano, cello, orchestral and opera records (all more than 50 years old, of course) that puts the majors' editions of the same material to shame.

We're all deeply indebted to modern pirates. They retrieve and share our cultural gold when owners are content to leave it buried and forsaken.

Copyright 2000 by Peter Gutmann