Suit Over Pearl Jam Live CD Raises Questions

Best Buy chain, Sony Music and band keep tight-lipped on legal battle over recalled live disc.

Three days after 50,000 copies of what would have been the first live Pearl Jam album were recalled from the stockrooms of a major retailer, myriad questions surrounding the incident remain unanswered by the story's principal players.

Such queries include: how did the album -- which was announced Sunday as an exclusive gift to those who purchased Pearl Jam's "Single Video Theory" home video at Best Buy retail stores -- ever come as close as it did to release?; why did Sony Music need to file a lawsuit to quash the CD?; and how does the band itself feel about the incident?

Stuck on the sidelines are Pearl Jam's fans, who have been left to wonder how the release slipped through their fingers and whether they will ever see a live album from the group.

As of Sunday, 50,000 copies of the 17-song, 70-minute Give Way CD were sitting in 295 Best Buy stores throughout the country. On the same day, advertisements in several major-market newspapers touted the release as a bonus available Tuesday, the opening sale day for the video.

According to Patricia Kiel, a spokeswoman with Sony Music (the parent company of Epic Records, for whom Pearl Jam record), Sony learned of the live CD less than a week before its intended distribution, and only then through backdoor channels.

"Sony Music first heard about the Best Buy offer on ... July 31 through an employee who learned about it via a media source," Kiel said in a faxed response to questions from SonicNet Music News.

By Monday, Sony had filed a lawsuit to bar the release in the U.S. District Court for the Central District of California in Los Angeles, according to a court clerk. The action charged the Minneapolis, Minn.-based Best Buy with copyright infringement and unfair competition and sought to halt the distribution of the disc and receive compensation for damages, according to Billboard.

All copies of Give Way were said to be en route from Best Buy to Sony on Monday. The record company, however, refuses to discuss its efforts to recall what would have been the first concert album by one of the most popular bands of the past decade.

"As far as Sony Music is concerned, the matter has been resolved, so we are not offering information on the details of its resolution," Kiel said in her fax.

Also refusing comment on the Give Way debacle are Pearl Jam, the Seattle-born hard-rock band whose live performances have drawn sell-out crowds and critical raves. Earlier this week, band publicist Annie Ohayon said, "We had nothing to do with it," but she otherwise declined to talk about the matter or Pearl Jam's take on it.

One of the most intriguing questions still unanswered is how -- and from whom -- Best Buy secured the release in the first place.

The recording for Give Way was taken from a March 5 concert in Melbourne, Australia, and was originally broadcast by that country's Triple J radio network.

Best Buy spokeswoman Laurie Bauer said Wednesday that she could not discuss how the Give Way project came about, including whether the company obtained the music directly from Triple J or if it had ever approached Sony about authorizing the release.

Clearly, however, Best Buy officials believed they were within their rights to issue the disc, for which they promoted a track listing and created full-color artwork reminiscent of the band's latest studio release, Yield.

"We're not distributing it because Sony contends that it was not previously authorized," Bauer said.

Daniel Redy, the attorney for Best Buy, could not be reached at press time. Meanwhile, neither Russell Frackman, Sony's attorney for the case, or representatives from Triple J, which broadcast the concert over local airwaves and the Internet, could be reached for comment Thursday (Aug. 6).

Whether the disc will ever see the official light of day remains to be seen, although Best Buy is apparently still holding the door open for such a possibility. "The unforeseen copyright issues that arose, we are trying to resolve," Bauer said. "At this point I have no information about where that stands."

Caryn Rose, who maintains the Pearl Jam online fanzine "Five Horizons," said she found it hard to fathom excitement over the disc, which has been available among the group's well-networked legion of tape traders for months and has even found its way onto fan-produced recordable CDs available for as little as $8 to $13.

"My concern is now that we're going to start seeing [copies of Give Way] turn up at a couple hundred dollars a pop," Rose said.

Although she said she knows of no one personally who has obtained one of the rescinded discs, she said rumors abound of fans who had friends at local stores sneak copies out.

"You've got fans going to a Best Buy store and dealing with employees," neither of whom has the situation straight, Rose said. "I've got college students debating copyright law on the 'Five Horizons' message board."

In lieu of Give Way, Best Buy instead offered purchasers of "Single Video Theory" a CD of their choice valued at $14.99 or less. Bauer said she had no figures on how many free CDs were given away and said company policy prohibited disclosure of such numbers.