Photo by Patrick Nelson

If you’ve been following along like us on Phish Summer Tour, you’d probably be aware that the last two shows of the run were broadcast live through thanks to a dude named taper420. The Phish audience is quite impressive technically speaking; we’ve been receiving iPhone broadcasts from Phish shows since the band returned last year. What made these final two broadcasts beyond special was the use of an actual tapers rig to record and stream down the show to the 2,500 people (or more) that continually tuned in, chatted along, tweeted the link to their followers, etc. In fact, you’d have to be completely disconnected from the band to have missed this fact over the course of two days. Hell, the dude got his own hashtag on Twitter.

The band has taken notice, and before we could even refresh our open letter from a while back asking, nay demanding that the band start offering their own high-quality streams directly from the shows, the band has updated their taper policy to include language referencing any live broadcasting or webcasting of the shows and how this is illegal in their current rights agreements with ASCAP/BMI. My emphasis added:

Can I broadcast or webcast live Phish recordings?
Officially released recordings of any kind (live or studio) in any format may never be copied or otherwise traded or offered in whole or part as compilations, online streams or other methods of distribution. You may play live Phish recordings as set forth in our taping policy and as determined by the band in its sole discretion. Broadcast of unreleased Phish recordings via: radio, online or other means is permissible only if the broadcaster is duly licensed and if all their activities conform to all the guidelines set forth in this policy. That includes broadcast or webcast only if you have all appropriate licenses from ASCAP and BMI. The band lacks the legal rights to permit real-time streaming of live shows under any circumstances. Real-time streaming is defined as passing along a live recording before you leave the venue. If you have a radio show, please note that you should name the show carefully so as to avoid infringing upon trademarks such as the name of the band.

PT’ers cry fowl! Could this be a move that the band recognized they need to cover their own legal skin and make sure they have language directly outlined that states that this is not a policy that they can comply with? Does that mean they’re going to police it now? Would this be difficult for the band in any meaningful capacity? All good questions that need answers.

In the meantime, though, we’re probably not going to waste too much more of our time on this subject now that they spelled it out for us. It felt ambiguous before, but based on this note it’s something that all tapers and audience members should likely avoid if they want to keep this type of freedom available to all of us at the shows themselves. If one streamer’s quest for domination starts to overshadow the efforts of the tapers that attend the show and get home before they upload the final product to a sanctioned torrent sharing site, then I’d like to propose that we not try to screw this up for the rest of us. These are privledges, not rights, and they are not expressly given to us going forward forever and ever no questions asked. Technology may very well win here and we’ll likely still see streams pop up from time to time, but this is something the band is paying attention to and will likely find a way to prevent.

To me, I’m taking a lot of this language at face value. The band clearly states that this is not something they can do legally. Case closed, right? We can ask and demand and setup guerilla streams all across the country, but it’s not going to stop the notion that the band will not pursue this option in the near term.

That sucks, but it’s also not all that surprising.

What are your thoughts about this whole mess?

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