Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century

by Alex Sayf Cummings

  This book asks how American society dealt with the prospect of uncontrolled copying in a century when culture industries rose to new prominence in the nation’s economy. From the time Wynant Van Zandt Pearce Bradley bootlegged Italian arias to the leak of Bob Dylan’s basement tapes, the United States emerged as an industrial world power. As piracy became more ubiquitous in the 1960s and 1970s, Americans began to discern the outlines of a new post-industrial economy, one geared toward producing the very expressions that pirates copied. Early on, copying was everyday business in a disorganized, developing record industry. In time, piracy moved to the fringes of the music business and later reemerged as a mortal threat to it, with the introduction of technologies such as the compact cassette (1963) and the online file-sharing network Napster (1999). The legal suppression of new forms of copying and sharing reflects changing trends in American political culture, revealing the shift from a hands-off cultural policy that emphasized free competition (copy and compete) to a more aggressive stance that protected capital investment in the name of economic growth.7

  Capitalism has always made more with less, whether it is the labor and time necessary to make a shoe or the land needed to make a bushel of wheat. Culture is no different. Alongside the arc of industrial to post-industrial—from manufacturing, that is, to “information”—one can also trace a line from mass production to mass reproduction. Printing made it possible to turn music from an ephemeral experience, a performance, to a text that could be manufactured en masse. The innovations of Edison and Emil Berliner, who invented a technique for mass-producing disc records, did the same for sound. The industries built by the entrepreneurs who followed them sought to sell as many copies of a few records to as many people as possible, maximizing the capacity of a label’s factories and sales force. Then, with growing access to media such as magnetic tape and the Internet, the record industry lost its near monopoly on the means of production, and bootlegging was no longer confined to a small number of collectors and underground labels. Piracy and home recording are new frontiers of production, harnessing labor and technology to make more music—more CDs, more MP3s, more performances circling the world—than ever before. Seen this way, the travails of the music industry in the twenty-first century look like a classic instance of the perennial capitalist problem of overproduction.8

  Music posed some of the earliest and stiffest challenges to the nascent information economy for several reasons. Music is compact; for pirates in the 1890s, a piece of sheet music was easier to copy than a novel, and an audio file today is typically smaller than a movie file. Music is social, something that people want to share with each other and experience together. Courtship, for instance, frequently involves the mix CD, the concert, the quoting of lyrics in a love letter. One friend wants to tell another about a new and little-known artist, to share in the fruits of a good find. This social dimension of music emerged when Americans began to collect records in the 1930s, archiving and at times copying the legacy of recorded music up to that time; it was clear when listeners circulated copies of rock outtakes, Grateful Dead concerts, and hip-hop bootlegs later in the century. Such practices have, at times, pushed the music industry to adapt to consumer interests, although retaliation in the courts and Congress was a more common response.9

  Journalists and many scholars have been keen to draw bright lines between different types of copying, distinguishing, for instance, a concert “bootleg” from a “counterfeit” of an officially released record.10 To some extent, these distinctions have merit. Scale and intent matter; a person who tapes a copy of an LP for two friends is different from a Mafia-run factory that produces thousands of copies of the same recording. When classical aficionados traded recordings of operas that had never been officially released by a label, they were documenting moments in cultural history that might otherwise have been lost. The vocalists who appeared on such recordings might not have been happy about their work being recorded and distributed without their consent, but this bootlegging can be credited with serving a greater interest than profit alone.

  This book treats all kinds of copying as points along a spectrum of unauthorized reproduction. British sociologist Lee Marshall has defined piracy as “the unauthorised copying of a published work,” in part to emphasize that bootlegs, his chosen subject, are documents of performances that had never been officially published, such as concert recordings. For Marshall, bootlegs should be treated differently from purely commercial pirated or counterfeit works, since these records supplement rather than substitute for music that is already on the market. In other words, bootlegs do not hurt the record company’s bottom line since the person who is interested in buying a live disc of Phish or Prince is almost always a fan who will buy their official releases as well.11

  The difference between “piracy” and “counterfeiting” has been somewhat fuzzier. Many critics attempt to justify bootlegs to carve out a legal or ethical space for a certain degree of copying, but pirated works have less often benefited from such advocacy. Typically, a counterfeit is an unauthorized copy that attempts to pass itself off as the “real thing,” mimicking the packaging and style of the original release, whereas a pirate recording may include previously published material but with a different cover, title, or track listing. According to this definition, a counterfeit would be an unlawful copy of the Beatles’ Revolver, while a tape compilation called Ten Golden Beatles Hits would be a pirated work.12

  These terms, while helpful to a degree, do not always fit real recordings very well. Pirate tapes and disks jumble together officially released material with live performances and studio outtakes, blurring the line between bootleg and pirate. An online “torrent” file that allows a user to download hundreds of files by one artist does not discriminate either. Indeed, the idea of a counterfeit recording matters little online. Moreover, the critical issue of intent—is the copying done for profit, for the love of the music, for the greater good?—is not always clear. Bootleg labels that reproduced old recordings of Blind Lemon Jefferson or Bix Beiderbecke in the 1950s might have meant to make a profit, but they were also making it possible for people to discover music that had been neglected by the major labels.13

  For this reason, the words “bootleg” and “pirate” are used more or less interchangeably in this book. Whatever a copier’s intent, he or she is always copying something produced by someone else without permission. This characteristic defines all pirate works—even the use of “samples” that grew out of hip-hop culture in the 1970s, when DJs learned to mix parts of different records together. A tape recording of a DJ set at a Bronx roller rink may contain parts of Kool and the Gang and James Brown; it is both a copy of those artists and a bootleg of the DJ who combined them. Piracy defies categorization just as easily as it confounds legal judgment.

  This book begins in the late nineteenth century, when a new “talking machine” industry struggled to find its footing and legal regulations were practically nonexistent. Artists had to defend themselves against unauthorized use of their name and their recorded performances, while various companies experimented with different formats and paid composers nothing for the music they recorded. At this point, it was far from clear that sound recording would become a chiefly musical endeavor. Chapter 1 follows the evolution of piracy, the music industry, and legal thought about what constituted property and theft. The conclusion reached by Congress—that composers deserved to benefit from recordings of their work but that record companies did not enjoy a copyright for their recordings—set up a struggle over property rights that unfolds over the next five decades. Chapter 2 examines how collectors, listeners, and entrepreneurs took advantage of this legal gray zone to rerelease old and out-of-print recordings, beginning in the 1930s. These activities landed bootleggers in court, but the results were often indecisive. Chapter 3 traces the rise of magnetic recording as a new medium for sound, from its humble origins on wire in the 1880s to the eventual success of the high-fidelity market after World War II
. Tape recording offered devotees of genres like opera new ways to copy and exchange classical music, a taste that appealed to a minority of well-heeled consumers, before the advent of the four-track, eight-track, and compact cassette in the 1960s opened up recording to a much broader—and younger—audience.

  The second half of the book explores the impact of piracy as it mutated from the practice of a select few with esoteric tastes into a potentially mass market, triggering political action and legal reforms that define the contours of intellectual property law to this day. Chapter 4 follows the spread of piracy to pop music, particularly rock, as a young generation embraced both tape technology and radical rhetoric to position bootlegging as part of a general social ferment in the late 1960s. A moment of possibility opened between 1969 and 1971, when a large, creative, and unruly pirate market operated parallel to the mainstream music industry, and a copyright for recordings finally passed in Congress. Although the intentions of bootleggers were often less than noble, the alliance between bootlegging and counterculture produced a legacy that documented much of the music of the age on illicit records.

  The flamboyance of the bootleggers, though, came at a price. States and then the federal government granted unprecedented protections to recordings, as composers, musicians, and labels united against the common foe of rampant piracy, a battle that unfolds in chapter 5. The Supreme Court offered its endorsement of the new property rights, which in many cases went well beyond anything previously passed and arguably impinged on the limitations of copyright set out in the Constitution. Chapters 6 and 7 bring the story into the 1970s and 1980s, as pirates in the United States adapted to a newly hostile legal climate, developing new networks of production and exchange. New genres such as jam music and hip-hop challenged ideas of ownership, and piracy reached epic proportions in the developing world.

  The reaction was both predictable and paradoxical. “Intellectual property,” a relatively novel term in the 1970s, became the subject of organized political pressure, as the Reagan and Clinton administrations embraced copyright as an issue in trade negotiations. Laws became more punitive, yet piracy remained nearly as pervasive as ever, even as new technologies (such as the compact disc) were introduced to stem the problem. People continued to tape, pirate, and exchange. The advent of widespread Internet access paved the way for the compressed audio file (most prominently, the MP3) in 1993 and a new era of unconstrained panic and lawlessness with the rapid rise of the file-sharing network Napster.

  In the early twenty-first century the public continues to flout the demands of copyright interests to control how their products are produced and distributed, but new businesses have emerged that attempt to reconcile the yen for free culture with property rights. YouTube, for instance, permits users to circulate a recording of the same Jimi Hendrix concert that a bootlegger might have sold in the early 1970s—at least until a record company or other media conglomerate asks that the clip be removed. A great deal of music and video ends up available online anyway, allowing for a degree of unauthorized reproduction to occur within a for-profit context. Rights owners get to exercise a veto on their work being reproduced; fans get to share work that may not be available anywhere else, such as an old TV clip from the 1970s; and Google, the site’s owner, makes money off both the music and the efforts of the fans who upload, remix, and mash up the material. The model is not without its critics, of course. Media conglomerate Viacom sued YouTube in 2007, for example, accusing the service of enabling flagrant and widespread copying of its television shows, movies, and music.14

  YouTube may herald a new era in which companies like its parent Google replace record labels as the intermediaries who profit from artists’ work. If so, it might be a case of “new boss, same as the old boss”—or even “worse than the old boss,” as musician David Lowery warned in 2012.15 Regardless, media like YouTube and Facebook domesticate an impulse to share and use music that Napster once harnessed, that bootleggers have catered to since the 1890s, and that copyright interests have fought almost as long. This communal element of culture—the part that says, “this is here for everyone,” not for the artist, not for business, not for myself—is visible in the captions of videos on YouTube:

  “taliban song”—toby keith God bless our troops! do not own any of the material. made for the enjoyment of others.16

  Bonus track on the Whatever and Ever Amen album by Ben Folds Five. I like the feel of this song, so enjoy. (No copyright infringement intended, whatsoever)17

  Toby Keith and Ben Folds Five recorded songs in a studio, which fans have now uploaded to YouTube with only a still image to accompany them. Essentially, the upload is a copy of the sound recording and nothing else. The sounds are distributed online and issue from potentially millions of computer speakers, but “no copyright infringement [is] intended, whatsoever.” The contradiction between this desire and the rights of artists and businesses lies at the heart of this ongoing history.

  PART ONE

  THE BIRTH AND GROWTH OF PIRACY, 1877–1955

  || 1 ||

  Music, Machines, and Monopoly

  Music lends itself to reproduction. A musician composes a song by fumbling for the right chords, and then transcribes the sequence of sounds as notes and words on paper. The written composition is of little use unless someone brings it to life. The performance is then captured as a sound recording, which can be reproduced on a massive scale and replayed again and again. Other performers cover the song made famous by the original artist, making their own copies of the underlying musical script. Later on, musicians take fragments of the recorded performance and incorporate these samples into new electronic works. When I download the song from an online file-sharing network, my computer makes a new copy of the recording in a folder for the music player iTunes, as well as a separate copy in the “shared” folder that provides access to the file for other searchers online. As a music publisher complained early in the twentieth century, “Cheap music is more easily copied than a book or any other work of literature.”1

  At each step, a new and different version of the original music is created, whether a performer’s recording of a composition, a cover artist’s reinterpretation of another recording, or the digital file extracted from a compact disc. The fact that one piece of music can be split into written symbols, mechanical sounds, and multiple interpretations has caused many headaches for those who have tried to figure out who owns the scripts and vibrations. Consumers, entrepreneurs, lawmakers, and musicians grappled with this conundrum, as the technological means of reproducing music grew increasingly numerous and complex over the course of the twentieth century. From the first mechanical reproductions of music in the 1870s to media as different as magnetic tape and the Internet, locating the author of a musical creation—or the owner of a musical commodity—has proven difficult.

  What counts as music, and who should be able to control it? Is it the idea of a melody, the written composition, the live performance, or the inscription of a performance on vinyl, tape, or disc? Should the songwriter, performer, or record company have the exclusive right to control the production of a sound recording and benefit from selling copies of it? For much of the twentieth century, legal authorities could not answer these questions, and federal copyright law actually held that no one owned the recording itself once it was published. Under a system established by Congress in 1909, the songwriter (or the publisher who held the rights to a song) could choose to license the first mechanical use of a composition, but any subsequent renditions were beyond the copyright holder’s control. The composer would receive a flat royalty for each copy made of a recording of the song, but that was all. And, until 1972, the producers of mechanical copies of music, such as long-playing (LP) vinyl records, piano rolls, or wax cylinders, could not copyright their products.

  Throughout this period, Americans weighed musicians’ and companies’ interest in controlling the products they created against the public’s interest in having uninhibited access to mu
sic. During the Progressive Era, Congress feared that the recording industry would be consumed by monopoly and favored protecting the public domain over strengthening property rights. Courts subsequently wrestled with the dilemma of how to respect the value that artists and entrepreneurs had invested in recordings, even though lawmakers had explicitly excluded any such consideration. As usual, attention to copyright surged upon the introduction of popular new forms of communication. As media such as the phonograph and radio became familiar to American society in the early twentieth century, judges and legislators had to grapple with the ways various technologies affected the rights of copyright owners. Many of the new gadgets, whether a paper piano roll or a shellac disc, involved the reproduction of sound, and mechanical reproductions provoked some of the most heated debates about the proper assignment of rights. The earliest cases sought to mark the line between the copyrightable music and the machine that conveyed it; once the Copyright Act of 1909 provided an ingenious way of drawing that line, courts faced new questions about whether or not record companies (and, in a related case, a news agency) had any right to prevent others from copying or otherwise exploiting their works.

  The Machine That Talks, Sings, and Steals

  One year before Edison first etched a sound pattern on tinfoil in his New Jersey lab, the playwright Griffin Hall penned a curious skit called The Bogus Talking Machine, or the Puzzled Dutchman. In this 1876 “Negro Farce,” a sly professor named Stanley fools a circus owner named Martello into giving him $5,000 to build a machine that talked. Stanley gets Pete, a black boy, to sit inside a box and talk. The boy is reluctant at first, noticing that the box says COD. “You can’t sell dis chile for any codfish,” he says.2 Stanley explains that he will pull one string for the boy to whistle and another for him to holler. Pete wonders why the professor’s head “is like a poor man’s pocket,” but he complies. Both Martello and his servant, the Dutchman, are terrified by the talking box, the latter so much that he cries out for “lager bier und sour krout.” Pete claims to be the devil, as if the machine were possessed by an evil spirit. “Oh! Blease, Mr. Debil, don’t dake me,” the Dutchman implores. “I vill gi you mine frow, mine beer, mine money, mine grout, and mine everytings.”3