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

by Alex Sayf Cummings

  In conjunction with radio and television, magnetic recording provided a practical way for enthusiasts to capture music free of charge. Jazz writer John Corbett fondly recalled the era of the 1940s, when enthusiasts had been forced to find other ways to document and exchange the sounds they heard all around them. “There was a cruder, and in some ways more beautiful technological precursor: the acetate,” Corbett says. The acetate was a flimsy, temporary disc recording, often used in studios to make demos and by radio stations to record and play commercials, which typically had a short shelf life in any case. In a time when “canned” (i.e., prerecorded music) was disdained on the air, live performances filled the radio waves. These unique arrangements and interpretations vanished into nothing as soon as they appeared, unless one owned a costly and delicate disc cutter.2

  The acetate was beautiful because it was ephemeral—radio stations and studios used the discs for a brief time and threw them away. Even if preserved, the record deteriorated after so many listens. Before magnetic tape became common in recording studios, the acetate disc provided a temporary document of a session without committing to the costlier process of making a permanent master recording.3 Erasable and far less delicate, magnetic tape would soon supplant discs as the medium for basic studio recording, even though the sounds were subsequently transferred onto a vinyl LP, a new format in the late 1940s, for use by the general public.

  Figure 3.1 “Never Available Heretofore!” Boris Rose declares on the top of this release from Jung Cat Records, one of the many labels Rose used to publish collections of broadcast recordings by Bud Powell, Miles Davis, and many other artists. No copyright notice, date, or address appears on the record, but the fine print exhibits typical Rosean humor: “A good musical record from Duck Run, Ohio.” Source: Reprinted by permission of Elaine Rose.

  Boris Rose, a compulsive collector and sound engineer from the Bronx, bridged the age of the Hot Record Society, the disc cutter, and the acetate and that of newer media such as LPs and cassettes. Rose recorded performances from the radio, making homemade acetates and LPs available to fans of jazz, classical, country, and countless other genres for decades. Each featured a unique cover, designed and Xeroxed by Rose himself. “We should thank goodness that someone was documenting these broadcasts,” Corbett writes, “or they might have been lost forever.”4

  Rose’s vast catalog contained virtually every genre of music from every contemporary outlet—concerts, radio, records, television—so much that one pictures him sitting by the radio all day, every day, with his finger near the little red button on a reel-to-reel tape recorder. Subsisting on the rental income from a property he owned at Second Avenue and Tenth Street in Manhattan, Rose provided records on demand and at cost to anyone who found out about him; he was also an archivist, tirelessly documenting the past and present.5 Although he mostly worked alone and hid behind dozens of pseudonyms, he was not, in fact, alone. Many others joined him in copying music in the 1950s and 1960s, as wartime uses revived the old technology of magnetic recording and consumer spending sped the development of the electronics industry.

  The Long Rise of Magnetic Recording

  For a new technology to gain popular acceptance, there first must be some organized interest that will invest enough capital to put the idea into practice and market it to consumers. Whether a corporation, government, university or some other combination of forces champions an idea, someone must pool resources and put them into action. It is never enough for one person to have a foggy notion of what a new invention might do and how it might work. The past is full of the forgotten names of men and women who had conceived of devices like the telegraph or telephone, but who never told anyone, or lacked the technical skills to develop the idea, or simply could not find a sympathetic ear to hear them out.6

  Historians of technology call the development of an initial thought into a workable concept “ideation.”7 One might imagine that sound patterns could be etched on a surface and then replayed by tracing over the pattern, but before someone with technical ingenuity demonstrates how the sound could actually be recorded on wax or tinfoil, the idea comes to naught. In fact, French inventor Édouard-Léon Scott de Martinville developed a technique for engraving sound vibrations on paper in 1857, yet these “recordings” were only played back when researchers devised a way to translate the etchings into sound in 2008.8

  Often ideation is also inadequate. Historian Brian Winston emphasizes the importance of a “supervening necessity,” a social need that could be fulfilled through a technology that motivates those with influence, talent, or wealth to help perfect a design and bring a new device to the public.9 The case of Oberlin Smith reveals how ideation itself is not enough for new technologies to succeed. An engineer in New Jersey, Smith first set out the ideas for magnetic recording in an 1888 article for The Electrical World magazine. Smith suggested that an electric current, when piped through a telephone circuit, would alter the magnetic arrangement of iron filings on a cotton thread. The thread would retain the pattern of the current, which could reproduce the sound when retraced.10 However, Smith admitted that he lacked the time and the resources, such as a real laboratory, to test out his conjectures. Instead, he donated the ideas to the public, “hoping that some of the numerous experimenters now working in this field may find a germ of good from which something useful may grow.”11 He expected to get credit if someone else worked out the details, and concluded that knowledge would be advanced even if his ideas were conclusively disproven.

  Subsequently, Valdemar Poulsen, an electrical engineering student at the University of Copenhagen, proposed his own model for magnetically recording on wire as a class project in 1893.12 Only sixteen years had passed since Edison’s laboratories pioneered sound recording on tinfoil, and the recording industry was still in its infancy. Magnetic wire could have become an important medium for sound. However, Poulsen’s American Telegraphone Company ran through its capital before developing a marketable product, while the emerging major players of the record industry, such as Victor and Columbia, were already tied up in patent wars over cylinders and disks. Historian William Lafferty suspects that the telephone and phonograph industries may have colluded to snuff out Poulsen’s new medium. The wire had its own shortcomings as well, since the device was prone to tangling and the sound it produced was too faint in the days before amplification.13

  With the development of radio and the sound film in the 1920s, magnetic recording once again appeared as an alternative to other sound technologies. Poulsen’s patents lapsed and advances in amplification made it possible for innovators to use magnetic wire in a variety of ways. The German engineer Curt Stille, for instance, pioneered uses of wire for railroads, the telephone industry, and office dictation.14 Unfortunately for Stille, the ballooning inflation of 1920s Germany made it less expensive to hire stenographers than to invest in new technology. He joined with Ludwig Blattner in 1928 to develop the Blattnerphone, a magnetic tape machine that could provide the soundtrack for film screenings, but the big firms of the German film industry muscled the pair out of the business.15 Prefiguring the breakthrough of magnetic recording in the United States, the Blattnerphone did enjoy a second life in the hands of the British Broadcasting Corporation. The BBC recognized the value of a medium that was reusable and durable, since the same tape could be used over and over to rebroadcast a previously aired program, record rehearsals, and capture important speeches for later replay.16

  As in 1920s Germany, the resistance of established interests in the United States stymied innovation in magnetic recording. Numerous firms had approached AT&T, the telephone monopoly, with ideas for answering machines and similar recording devices that would attach to the existing phone system. The company rebuffed all such offers, but by 1930 was instructing researchers at Bell Labs to study inventions such as the Blattnerphone and Stille’s Dailygraph wire recorder. Led by Clarence Hickman, engineers did indeed devise practical means of recording and playing back sound over the telep
hone lines, but, as Mark Clark has shown, the corporate leaders of AT&T made sure that magnetic recorders were used only within the organization. According to Clark, the company believed that people’s fear that conversations could be recorded would lead them to use the phone system less, undermining AT&T president Theodore Vail’s vision of “universal service.”17 In the 1928 decision Olmstead v. United States, the Supreme Court had ruled that federal investigators could collect evidence on (alcohol) bootleggers through wiretapping, which stoked public anxieties that anyone could be listening in on their calls.18 Meanwhile, AT&T executives guessed that one-third of all phone conversations concerned illegal or immoral topics.19

  One wonders what the executives were talking about on the phone, given their suspicious view of other telephone users. AT&T itself had an image problem in the 1930s and did not want to risk adding any more sinister tones to its perception by the public.20 Since radio broadcasting in the United States was dominated by live performance, and AT&T viewed magnetic recording as a threat to its central control of the phone system, there was little prospect that the working models of magnetic recording would be widely adopted. Its introduction as a phonograph medium was also unlikely, because the Depression reduced demand for disc records, and listeners had turned to free entertainment on the radio.21

  German companies pursued magnetic recording in the 1930s at the same time AT&T was withholding it. As the engineer Semi J. Begun observed, the Nazis were keen to buy up all the recording equipment they could, which the Gestapo could put to its own nefarious uses.22 Begun himself had fled Germany in the 1930s, and subsequently worked on military contracts for recording equipment through the Brush Development Company. What had been for the BBC an easy way to reuse previously aired programs became for the Nazis a tool for repeating political messages over and over again on the airwaves.23 However, the historian Hillel Schwartz likens the use of magnetic recording by Hitler’s totalitarian regime to the simultaneous embrace of new means of photochemical copying by Franklin Roosevelt’s New Deal and Britain’s Conservative governments; in each case, states relied on new technologies to transmit and manage the vast amount of information generated by the expanding scope of government activity in the 1930s.24

  In this sense, AT&T’s use of magnetic recording as an office tool internally is as significant as its suppression of the technology as a consumer good. Already, the way was being paved for wider use, given the right social and political impetus: the medium would soon be used by offices, factories, snooping governments, and eventually by consumers after World War II.25 In 1953, the Los Angeles Times described a number of applications that were popping up in the workplace, such as “a new superelectronic machine using magnetic tapes … designed to cut sharp corners in solving complicated problems” and “a phonoaudograph that ties one recording machine in with a number of phones.” Businessmen began to use sound recording for dictation and other conveniences, as originally envisioned by Edison.26

  World War II sped up the development process in two ways. First, the avalanche of wartime spending fell on companies exploring sound recording as much as it did on aerospace, computing, and other fields. Begun believed that progress in magnetic recording went further and faster during the war years than in all the time before. Magnetic wire was compact and resistant to heat and vibration, qualities that proved useful on the battlefield, as did the possibility of re-recording on the same medium multiple times. “Hardly any attention on the part of the operator is required during the recording process,” Begun noted, which meant that soldiers and pilots with little technical training could use the tool without being distracted from other tasks. One such device, mass-produced by General Electric and the Armour Research Company for the Army and Navy, could record sixty-six minutes on a spool the size of a doughnut. “Instead of the customary pad and pencil now used by pilots in making note of what they see on scouting trips, they can dictate into a small microphone just as the busy office executive now uses a dictaphone,” scientist R. H. Opperman reported in 1944, noting that the wire was highly durable and held up over thousands of uses.27

  The war’s other major contribution came at the end, when Americans learned that German recording technology had progressed further than previously understood. The US military discovered the Magnetophon, a reel-to-reel tape recorder developed by German engineers in the 1930s, toward the end of the war, and Americans were soon experimenting with the device back home. The technology rose to prominence by capturing the attention of Bing Crosby, who was eager to record his East Coast radio performances on magnetic tape and rebroadcast them later the same evening on the West Coast. Weary of performing twice every night, the singer left radio in 1944, after NBC refused to let him prerecord his show. In 1946, ABC got Crosby to return with the promise of recording on acetate discs, but the sound quality was too poor. When Crosby learned of the Magnetophon in 1947, he assembled a team of engineers to work on improving the technology; when their efforts fell short, he ponied up crucial funds to the Ampex Corporation, which allowed the company to expand its operation and produce a viable tape recorder by 1948. Crosby was the biggest star on the roster of record label Decca, which soon began using Ampex tape for its master recordings.28

  Even before broadcasters adopted magnetic recording, the technology had made limited inroads with the listening public. The Brush Development Company had debuted its Soundmirror, a reel-to-reel recorder that used steel tape, at the World’s Fair in 1939. By the next year, professors at Hunter College in New York City were using the device to help students correct speech impediments.29 After the war, Brush marketed the Soundmirror to consumers as a way to capture “your favorite radio programs, records, children’s voices, two-way telephone conversations.” In 1947, the New York department store Schirmer’s guaranteed that its “radio-television service department can show you better than anyone else how to operate Soundmirror in your home … how to hook it up to your own radio or phonograph … and how to install such accessories as the Telechron clock which enables you to record your favorite program while you are away from home.”30 A year later, Magnetic Recorders Company, a retailer in Los Angeles, urged consumers to “keep forever great moments of radio [and] record your own parties, speeches, conferences,” using a Soundmirror with a built-in radio.31

  Why did consumers begin showing interest in home recording in the 1940s? Recordable media were common in the early days of the music industry. The first phonograph was the wax cylinder, which could be recorded on, yet the cylinder rapidly lost ground to disc recording. (Two cylinders were sold for every one disc in 1909, but by 1914 the ratio had flipped to one cylinder for every nine discs.)32 Henceforth, only a select few listeners had access to technology that could inscribe sound, which remained largely confined to the studios and pressing plants of record companies. Why, then, were people not interested in home recording in the early twentieth century? David Morton, a historian of sound recording, thinks the answer is simple: “Americans disliked standing before the recording machine and hated the sounds of their own recorded voices even more.”33 Of course, other factors likely contributed to the dominance of playback-only records as well. Emile Berliner’s flat disc was more durable, clearer, and perhaps more convenient to store. The disc was also a permanent record—once recorded on, whether in a home or studio, it could not be erased and reused, unlike the later forms of magnetic tape and wire. For an amateur using a disk engraver, making a permanent record of false starts and flubs could be unappealing.

  Cultural and economic conditions were also more auspicious in the 1950s than in the 1890s or 1930s, when manufacturers had previously introduced amateur recording systems with little success. The availability of radio and television provided fodder for home recording, beyond dictation at the office or performance in the home, as the Soundmirror’s marketing suggests. In the 1890s and 1900s, people could document their own performances, and some even invited friends to bring their instruments over so each could make her own record
ing. At the time, the only other option would have been to lug the fragile equipment into a concert hall.34 Companies such as RCA struggled to market home disk-recording machines in the 1930s. The difficult operation of such machines appealed to a small group of music enthusiasts and collectors, such as the members of the Hot Record Society, but for most Americans years of personal experience ingrained an understanding of discs as containers of prerecorded sounds. In his study of the early development of sound recording, Jonathan Sterne argues that the shift from wax cylinders to discs resulted from changes in middle-class leisure and family life. In the Victorian era of the late nineteenth century, the cylinder provided a way for families to entertain guests, listening to home recordings in much the same way a family might share a photo album or home movie with friends. The phonograph industry focused on selling prerecorded sounds rather than home recording equipment in part, Sterne suggests, because consumers took greater interest in a broader consumer culture outside the home, which radio and recorded music on discs symbolized.35

  The rise of magnetic tape as a consumer good in the 1950s suggests that the habits of family life alone cannot explain the success or failure of home recording. Certainly, the domestic, suburban turn of American life after World War II may have contributed to a renewed interest in the shared experience of recording that Sterne describes in the Victorian Era. However, certain technical features of magnetic recording made it more appealing than the wax cylinder, which reached its peak of popularity years before the advent of electric recording in the 1920s improved the fidelity and amplification of recorded sound. Magnetic tape’s greater potential for durability, flexibility, and quality stimulated the adoption of a “high fidelity” hobby by middle-class consumers in the postwar era, when prosperity enhanced the prospects for a new method of home recording to gain popularity.