Eric Clapton's lawsuit, bootlegging, and the veil of ignorance

 I have never really been a fan of the Grateful Dead.  There's an old joke.  (OK, there are many old jokes, but here's one among many).  What did the deadhead say when he ran out of drugs?  "Wow, these guys suck."  Too harsh, yeah, but I'm not really a fan.  That said, there was an amazing band called "Jazz Is Dead," consisting of the great Jimmy Herring on guitar, along with several other luminaries, playing jazz-fusion versions of Dead tunes.  Actually... good.  I recommend their albums.  The Dead?  Not really my thing.  That said, I always approved of their ethos.  Not the drugs, of which I have never partaken.  However, they toured constantly, improvised, and encouraged bootlegging.  Any true fan would go to their shows, and no, that's not a "no true Scotsman" fallacy.  Count up the negatives in that sentence!  Anywho, I approved.  The Allman Brothers could play circles around them, but I approved of their ethos.  Once upon a time, musicians made a living by, you know, playing music.  If nothing else can be said of them, the Dead did that.

And then there's the least musically interesting member of Cream.  Who was the most interesting?  That should not be a question.  Ginger Baker.  Have you checked out his Fela Kuti stuff?  His work with Bill Laswell?  His Frisell trios?  Ginger Baker was one of the most interesting jazz drummers of the era.  Jack Bruce?  Pretty cool too.  Of the Yardbirds guitarists, who was the most interesting?  The best?  Not even close.  Jeff Beck.  Wired?  Blow By Blow?  Come on.  Jeff Beck.

On the other hand, we have the guy spreading anti-vaxxer conspiracy theories.  And now, suing a woman for selling a bootleg.  On eBay.  For $11.20, after the conversion from euros.  Yes, Clapton did that.

The gods of irony have laughed their final laugh on the Yardbirds in the matter of intellectual property, and Jimmy Page has checked the calendar to make sure that everything he ripped off has now entered public domain, making him Scot-free, and not a true Scotsman.  Incidentally, he did rip off a true Scotsman-- Bert Jansch (from Pentangle).  "Black Mountainside," was actually, "Black Water Side," recorded by Jansch in 1966 for Jack Orion, but Jansch is too dead to sue him.  I don't think you can Weekend At Bernie's a lawsuit.  Otherwise, someone would dig up every dead bluesman in America, and haul Plant and Page into court somewhere.

The irony of course, or rather, an irony, was that Clapton, Bruce and Baker covered blues standards and just, you know, gave credit.  Some measure of poetic justice came about when Black Sabbath ripped off Zeppelin, but whatever.

So here comes Clapton.  Suing a woman, in the smallest, pettiest way.  If Page were the one doing this, you'd have to laugh his hypocritical ass out of court, right?  But it isn't.  Clapton gave credit.  At least credit him with giving credit.  Unlike the "no, really, we wrote that stuff" gang.

Now let's step back.  This is a punching-down lawsuit, and it is always easy to hate someone who punches down.  It is also difficult to see the woman on the other end as some nefarious villain.  She was selling a cd on eBay.

Let's go through an exercise, though.  Divorce the case from any knowledge of Clapton's wealth or fame.  Why?  We're doing this Johnny Rawls- style.  Theory-'o-justice.  Behold, my veil of ignorance.

Remember the veil of ignorance.  Always remember the veil of ignorance.  The concept of the veil of ignorance is that you should evaluate a system or a rule in ignorance of the position you might hold within the system.  Only if you would accept the system in ignorance of the position you might hold does that system meet the Rawlsian standard of justice.

Once upon a time, Rawls was the lefty hero, but the left no longer talks about him.  Why?  Well, if there are to be special rules for one group, and the left defines itself by a demand for special rules, Rawls goes out the fuckin' window.  I kept my copy when the left tried to change the rules.  I read books instead of burning them.  (If I were a true Scotsman, I could do that in a really cool accent.)

Anyway, the veil of ignorance demands indifference to any category, characteristic, trait or identifier.  The veil of ignorance demands indifference to the fact that Clapton is wealthy and famous.  You don't get to write off an infringement on the grounds that he is rich and famous.

We must evaluate the rule under which the suit is brought, and we must do so open to the possibility of artists who are far less wealthy and far less famous than he who is far less divine than Jeff Beck.  Just sayin'.  About the Jeff Beck thing.

I dig Jeff Beck.

So what if a poor and struggling artist brought suit against someone selling fuckloads of bootlegs on eBay?  The veil of ignorance demands indifference to size.  We evaluate principle.

Then, you'd side with the artist, right?

The point is that this is the same case.  It must be treated as such.

If someone walked into Clapton's big-ass mansion, and stole some stupid tchotchke, that'd be theft, right?  Petty, minor theft, but theft.  Clapton's wealth does not justify it.  Unless you take such a wackadoodle position on the nature of property that we enter Reign of Terror Territory.  No, you can't do that.

Does it speak well of Clapton that he actually gave a fuck?  Can't say as it does, but from a legal perspective, here's the thing.

Consent.

I circle back to the Dead.  They just basically told you, go ahead, bootleg, record, trade, whatever.  Then come to more shows!  They'll be different anyway!  (Or at least, the drugs'll make you think so.  Kids, don't do drugs.)

The standard of consent cannot cease to apply simply because Clapton is rich.  Or a douche.  Or an anti-vaxxer moron.

(Kids, get your boosters.)

If he were Page... go ahead and rip him the fuck off.  It would be poetic justice.  Oh, wait.  Sabbath did that.  Never mind, justice achieved.

But now let's really put this in perspective.  COVID.  I'm all about perspective these days, and that means shit like COVID.  You know what COVID has done to the arts, right?  COVID has shut down the performing arts, and the artists who have suffered most are the less famous ones.  The touring artists.  The ones dependent on shows.  Should they choose to grant consent, that's their prerogative.  Consent.  Yet in the absence of consent, and in the absence of the capacity to make a living on performance, what is left?

Recordings.  Recordings and royalties, and while those don't make any difference anymore to Clapton, they do make a difference to the struggling artists.

eBay has a problem.  It has many problems.  Scams, frauds, counterfeits... Would it help struggling artists if the sales of illegitimate bootlegs, sold without the consent of the artists, were shut down by eBay?  That is difficult to ascertain, given that we are talking about a secondary market.  Yet any positive benefit depends on the pursuit of those legal claims by those who have the resources.  You know who does?  That douche from Cream.

(Actually, by all accounts, Baker was the biggest douche, but he was also the most amazing musical genius, so... getting off track again.)

All of this is to say it would have been far easier to sympathize with Clapton had he gone after someone bigger, and it is difficult to feel enmity towards the woman who sold a bootleg for $11.20, converted from euros.  Yet, we cannot adjudicate the legal or moral principle on the basis of "who's bigger."

You don't have a right to break into someone's house and steal his shit just because he has more money than you do.  Play that out.  You see where it ends, right?  The extreme discrepancy between Clapton's wealth and power, and that of the bootlegger can obscure the legal question, and make it difficult to evaluate the case from behind the veil of ignorance, but the veil is always the right tool for the concept of justice.

Period.

Just because Clapton was a douche doesn't mean he was wrong.  One can be a douchebag and correct at the same time.  The two are not mutually exclusive.

[Says the douchebag, with self-interest.]

And of course, Jeff Beck, "Behind the Veil."  The original version is on Jeff Beck's Guitar Shop, which is a pretty good album, if not quite up to his 70's classics, but here's a live version from Ronnie Scott's with Tal Wilkenfeld on bass.  Beck deserves credit for raising her to prominence.  She's amazing.  Also, Eric who?