Why does the 2009 Houston International Festival forbid cell phones?

On March 31   I went to buy tickets online for the Houston International Festival (i.e, Ifest).  The page containing Ifest rules caught my eye:

We love animals, but Houston City Ordinance prohibits pets of any kind from attending the festival. Personal cameras and hand-held camcorders okay to bring; however, you may not videotape the performers.
And in the interest of public safety (and so everyone can enjoy the festival), please leave these items at home during the festival:

Pets such as dogs, amphibians, reptiles and snakes (We love animals but it is a city ordinance that no animals are allowed in city parks and plazas, sorry)

• Alcohol and other beverages
• Coolers
• Food
• In-line skates
• Laser pointers
• Radios
• Skateboards
• Fireworks
• Weapons
• Audio recording devices for recording of any live performances
• Professional camera equipment for recording of any live performances
• Video recording equipment for recording of any live performances
  (Sorry, due to performer’s contracts, no recording devices are allowed during live performances. Any person found in possession of such equipment will be asked to leave the venue and all film and tape will be confiscated.)

The rules about recording devices have always struck me as ludicrous, but up until now I have ignored it. In fact, one year I even brought an audio cassette recorder to iFest  –-not to record performers, but to record an audio letter I made for  my Ukrainian girlfriend during the intermissions. As it turns out,I ended up recording some songs (maybe 5 or 6). The audio quality was not great, but listenable. I remember even listening to the songs again before I sent the cassette overseas. Ahh, illicit pleasures.  I pray every night that the copyright police won’t  come and lock me away.

That was the year 1999. Now it is 2009. Now everybody has an audio recording device; it is called a cell phone. Nowadays, many cell phones have video recording capabilities; some are even high quality. Everybody has a digital camera. Almost every digital camera  nowadays has the ability to do video and audio recording. Many have the capability to record HD video.  Surely people will be tempted to press the record button.  Why not? The intended purpose of these devices is to record moments, and it seems only natural that the ambient music would be a part of those moments.

Why did Ifest make these rules?   In previous decades, the music industry was paranoid about bootleg copies floating around, and so a few music managers of headliner acts  inserted  these clauses in concert contracts. Then, to accommodate the wishes of these performers,   Ifest just decided to make a blanket festival-wide rule.   In other words, rather than restrict audience freedoms for a small number of performers, Ifest decided it was easier and more convenient just to restrict everyone’s  freedom.

If I ran Houston Ifest, here would be my rules: 

1. IFest should set up 2 zones: the Freedom Zone and the Nonfreedom Zone. In the Freedom Zone, audience members have reasonable ability to make use of their gadgets to record their memories of being at Ifest. The Nonfreedom Zone should have metal detectors at the entrance to prevent devices from even being smuggled inside.  They should also have recorders around to intervene if audience members from spontaneously bursting out into any 19th century songs owned by multibillion dollar media companies.
2. Performers who perform inside the Nonfreedom Zone will be paid exactly 50% of the rate they would have been paid if they had performed in the Freedom Zone. 
3. Performers in the Nonfreedom Zone will be required to handwrite and sign a statement indicating their agreement that they want to forbid any devices with recording capabilities. These handwritten statements should be scanned and made freely available on Ifest’s website. 

I personally would like to know which specific performers are insisting on banning recording devices. Why? So I can avoid them at all costs. Chances are that this performer would not be audience-friendly anyway.

My question: If given a choice between going to concerts in the Freedom Zone and going to concerts in the Nonfreedom Zone, which zone would you prefer?

I can imagine the Festival’s defense of their policy: 

“Just because we have inserted these conditions for concert admission doesn’t mean we will enforce them in every instance.  Obviously if you have a cell phone, your recording is unlikely to be high quality, and we will probably not intervene. The main purpose of this rule is to discourage the serious bootleg recorder who may later share the recording online and/or sell it.  Ifest did not propose this rule, but we respect the artist’s right to have exclusive control over their works and we think it is a reasonable request to make.  As long as the rule is on the book at the venue, it will easier to demonstrate that any recording actually produced  during the festival was illegal.

Here is my reply.

First, bands already have the right to prevent the sale of bootleg recordings and their free distribution online. Just making a recording of a concert does not give the recorder the rights to sell/distribute it. In fact, the processes for filing a takedown notice under the DMCA are clear enough (and Youtube has been unusually diligent about respecting takedown notices from copyright holders).

Second, a 2007 court decision United States v. Martignon, 2007 WL 1695089 (2d Cir. June 13, 2007) reaffirms Congress’s rights to restrict individuals or businesses from selling bootleg recordings.  I am not a lawyer, so I may not appreciate the decision’s nuances or impact (see a discussion on Patry and on Substantial Similarity and on a wikipedia article).  But I do not believe that the mere act of recording a concert allows the recorder to distribute these recordings without the consent of the copyright holder.

Third, many bands have found it beneficial not to prohibit recordings. Grateful Dead, etc. In fact one of the bands at Ifest I did record during that weekend of lawlessness was Red Elvises. As it happens, they already  include lots of “unofficial recordings” on their own website (as well as videos). So I guess that this particular band wouldn’t have minded fans recording their music. Hey, Ifest, why didn’t you tell me that?   Although I recorded 4 or 5 songs from their Ifest performance, I ended up buying 3 Red Elvises CDs and even going to one other performance.  But this is a clear case where the allowing of recording did  not prevent Red Elvises from deriving some benefit later.  Is my case typical? (By the way, Red Elvises are a kickass band!) 

Fourth, practically speaking, the overwhelming majority of the audience will not be doing substantial recording with their gadgets. However, I smell a business opportunity; why don’t  the festival and/or performers sell people an authorized mp3 recording of the concert shortly after the concert itself? $5 sounds like a reasonable price to pay for a semi-pro recording of a live concert afterwards. Also, if you knew that you could buy a semi-pro recording  afterwards for a reasonable price,  why on earth would you bother to do  it yourself with your crappy  iphone microphone?  As an alternative, Ifest could sell  premium passes to give people access to a bootleg section in the audience to record for  noncommercial use. 

Fifth, loosening the recording rules may have positive effects for the Festival itself. It might result in more publicity, more videos which in turn will create a lasting record of what the International Festival is/was. By forbidding any recording, the International Festival just fails to use social media adequately.

Let me give an example of what I mean. In the early 1990s at Ifest, a friend and I saw an amazing performance by a small Azerbijan band. Apparently, Azerbijan had a sister city cultural exchange  with Houston for that year, and they had sent this little band which was dynamite. Just dynamite! Me and my friend attended all three performances of this band. I would have killed to make a recording of this group..or at least to remember what this band’s name was. (I may be mistaken, but I do not think they sold cassettes/CDs; they struck me as way too amateurish for that).  Wouldn’t it be better for the bands involved if a simple google search allowed you to find out a band’s name or to hear an excerpt of what they actually performed at Ifest?

Sixth, bootleg recordings can serve a valuable historical purpose. Many unknown bands share the stage on Ifest with national (and international) acts. It’s good and well to say only the copyright holders should be able to make recordings of individual concerts, but practically speaking, bands usually don’t have time to do that. And if a band were to break up (or a singer were to die tragically), these bootlegs may be all we’re left with.

Seventh, rule makers frequently insist on discretionary powers to restrict the freedom of individuals…and then they say, “don’t worry, we won’t actually enforce these rules very rigorously; we just want the authority.”  That presumes that all people in authority are benevolent and reasonable.  I’d like to believe that Ifest  is more interested in putting on a good show than restricting the liberties of Houstonians. On the other hand, it seems to be asking for trouble, especially when IFest presumes to speak on behalf of all performers. 

I’ve been attending Houston International Festival for nearly 20 years. I’ve had the wonderful opportunity to discover many new musicians from here and overseas. I’ve seen incredible performances by Tito Puente, T-99 Wilson, Clarence Gatemouth Brown, Natalie McMaster, Zap Mama, Bob Schneider and dozens of other names.  I’ve enjoyed Ifest tremendously.

But this year I have to draw the line.  By making blanket prohibitions about the use of gadgets,  Ifest prevents the very kind of cultural sharing that it is trying to encourage.