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

by Alex Sayf Cummings

  While Philips had made no deals with Detroit, its launch of the compact cassette in 1964 further complicated the burgeoning magnetic tape business. The cassette was smaller than open-reel tape or the various cartridges, and Philips initially deemed its sound quality better suited for dictation than for listening to prerecorded music.105 The electronics firm offered a free patent license to any company that would maintain the same basic specifications of the original tape, allowing competitors to develop better cassettes while preserving compatibility. The press at first expected the compact cassette to be used for recording nonmusical sounds, while the four-track or eight-track cartridge delivered prerecorded music in the car or home. These two uses eventually converged in one device, but that outcome was not apparent in 1966. The compact cassette, with its facility for both playing and recording, won out in the long run, surpassing vinyl record sales in 1983.106

  In the late 1960s, though, chaos prevailed in the market. “The rise of the cassette … has added to the great buzzing confusion that characterizes the cartridge tape business,” Business Week reported in 1968. Lear’s eight-track had won the support of some record companies and the automakers, but the tug of war continued. Muntz won the right to manufacture tapes of 75,000 Capitol recordings in 1967, but no one system emerged as the clear favorite in a crowded field, and other companies had new formats slated for release, each supposedly superior to all the others.107 “Retailers, who must now stock the same musical selections on monaural and stereo discs, reels of tape, several types of cartridge, and cassettes, are beginning to get that hunted feeling,” Business Week said. “Enough, they say, is enough.”108

  The great tangle of different tape formats in the late 1960s resulted in supply gaps when one medium fell into disfavor. The record companies, unsure of which horse to bet on, were willing to pull their support if one type of cartridge began to lag in sales. The Los Angeles Times’ profile of Muntz implied that he was gaining the upper hand in 1967, but as soon as four-track sales slipped, the record companies abandoned him and backed the eight-track tape instead. Muntz ended his tape business in 1970, eventually turning to the nascent cell phone industry a decade later. As a result, the supply of four-track tapes dried up and left consumers who had Muntz’s players in a bind.109

  Donald Koven, a Canadian migrant who sold stereo equipment and tapes in Los Angeles, had difficulty supplying his customers even before four-tracks were discontinued. “It would take so long for a factory tape from the record companies to come out,” Koven recalled. “A hit record would appear, but the tape came out months later. I had to supply my customers with tapes, somehow.” Other electronics stores were making their own four-track tapes from the already available vinyl records, leading Koven to purchase quality equipment and compete with them. When record companies stopped making new four-tracks, he expanded his operation. The cost of machinery led Koven to manufacture continuously, in order to maximize his investment, and the resulting oversupply of tapes motivated him to branch out by wholesaling to other stores. “There were millions of four-track machines,” he said. “How could the public get four-track tapes? What the hell are you supposed to do? What’s the public to do? … I was forced to give my customers good service.”110

  Koven was also forced to plead “no contest” when he ended up in court in 1971. California had passed a law in 1968 prohibiting the unauthorized reproduction of sound recordings—the first state to do so after New York. Koven and other entrepreneurs in the tape field formed the Tape Industries Association of America to defend their activities, and they aimed to overturn the antipiracy statute as unconstitutional. Copyright was the federal government’s job, they said, and Congress had excluded sound recordings from any legal protection. The California state government was thus intruding on an area that Congress preempted. Their campaign would eventually reach the Supreme Court in the landmark Goldstein decision of 1973, which upheld state antipiracy laws, but for the moment, one aspect of the case is most relevant: pirates such as Koven responded to the record industry’s inability to cope with the technological disorder of the late 1960s in much the same way as the Hot Record Society and Dante Bollettino had done before. When consumers wanted a product, and the established industry could not or would not provide it for them, someone else stepped in and connected supply with demand.

  Koven’s rationale strikes one as more self-serving than Bollettino’s. Koven had to start pirating in order to keep up with his competitors, and then he had to build a bigger manufacturing operation to stay profitable. He could not turn to the cultural preservation defense that jazz pirates had used, since he copied commonly available contemporary music. Still, the case bears a similarity to the bootleg boom of the early 1950s: periods of technological transformation and uncertainty can foster a sort of market failure, in which the official offerings of industry fall especially short of the desires of consumers. In the late 1940s and early 1950s, when the music business moved away from the shellac record, bootleggers pressed LPs of older recordings that stood little chance of being issued in the new vinyl format. In the late 1960s, record companies were divided in their allegiance to four-tracks, eight-tracks, and other formats, meaning that not all music was available in each medium. When one type of cartridge stopped being made, consumers could either choose to trash their now-obsolete players or turn to a pirate like Koven who would sell them the latest hit in the medium of their choice.

  This clash of formats mirrors the conflict over technology and property rights in the early twenty-first century, when file-sharing networks such as Napster or Limewire made music available free of charge to Internet users in new, digitally compressed file formats such as the MP3. The record industry stuck to selling compact discs, until online services like iTunes provided a legal means for listeners to purchase audio files in the new medium. Likewise, bootleggers in the early 1950s furnished collectors with copies of old recordings that had not been released in the new format of the vinyl LP. Piracy filled the shortfall between established media and technological means.

  The struggle over magnetic tape as a form of sound recording resulted from the convergence of postwar consumer goods—cars and music—when the baby boom generation began to come of age. It is no surprise that the first version of magnetic tape to gain widespread popularity was built for a car, nor that a teenager put in touch the two men who made magnetic tape into a mass medium. When Business Week spoke of a “Music Maker for the Masses” in 1968, it pictured a bearded boy placing a microphone in the face of young folk-singing girl, strumming her guitar; two teenagers dancing on the beach with tapes scattered around a portable player; a girl lying down, recording the sounds of a radio; a war reporter sticking a microphone into a foxhole; a barbershop quartet harmonizing into a tape recorder; and a businessman dictating on an airplane.111 One can imagine a middle-class man purchasing a hi-fi system in the 1950s; a decade later, his son might have a four-track player installed in his Mustang, or his daughter might have taken Philips’s Norelco Carrycorder to a rock concert. New formats for sound recording proliferated in the 1950s and 1960s—first the LP, then the four-track, Stereo Eight, and compact cassette—creating a confusion not seen since the days when discs, piano rolls, and wax cylinders vied for supremacy as a vehicle for sound. In the era of new media, though, the ever greater investment companies made in producing and promoting a record was undermined by the ease of appropriating that investment with the push of a button.

  “It’s All Done with Tape Recorders”

  Whereas Joe Gould kept his ears open and a pen and paper handy as he documented the sounds of New York, William Burroughs relied on the tape recorder. In his 1967 essay, “The Invisible Generation,” the Beat novelist urged readers to exploit the full range of subversive possibilities presented by magnetic tape. He emphasized the medium’s ability to capture and replay sounds that are normally not studied closely, like the sounds of the street or idle chatter around the office. “Record your boss and co-workers,” Burrou
ghs advised. “Analyze their associational patterns learn to imitate their voices oh you’ll be a popular man around the office but not easy to compete with.”112 On the other hand was the medium’s capacity for distorting sound, slowing it down, speeding it up, and rearranging it, to reveal new meanings not detected on hearing a sound the first time. Burroughs touched on the same theme of deception raised by classical bootleggers who attributed a performance of Wagner’s Ring cycle to a made-up festival, or Eli Oberstein’s invention of generic blues singers to sell records in grocery stores. But Burroughs’s renegade was something of a mild-mannered spy:

  this is the invisible generation he looks like an advertising executive a college student an american tourist doesn’t matter what your cover story is so long as it covers you and leaves you free to act you need a philips compact cassette recorder handy machine for street recording looks like a transistor radio for playback playback in the street will show the influence of your sound track in operation of course the most undetectable playback is street recordings people don’t notice yesterday voices phantom car holes in time.113

  Burroughs did not merely catalogue a variety of unconventional uses for a new media technology. He also touched on a number of distinctive characteristics of magnetic tape as a medium. The cassette recorder was small enough to be portable and easily concealed, allowing for sounds (such as concerts) to be recorded without knowledge of the authorities. It could be erased and re-recorded on, permitting freer play of experimentation. That magnetic tape was divisible and editable meant that Burroughs could reassemble conversations to preserve the best or worst parts, but it also meant that a bootlegger who recorded a live opera performance could revise the weaker elements of a performance before making the recording available to the public.

  Burroughs also spoke of “the efficient generation.” The technologies that he believed could subvert received wisdom and break “obsessional association tracks” had been developed for business and military applications. The techniques were effective for processing information as computer development made great strides in the postwar period and the metaphor of “information processing” became commonplace for describing human consciousness, especially in the emerging field of cognitive psychology.114 The conversion of sound into magnetic traces prefigured the general inclusion of all “information”—whether moving images, genes, music, poetry, or anything else—under the rubrics of “intellectual property” and “content.”115 (The latter term, ever more popular in the early twenty-first century, suggests that knowledge is a fluid, homogeneous substance that could fill a container of any size.) The pamphlet that inspired Masaru Ibuka and Akio Morita to develop Sony’s first tape recorder suggested the use of magnetic recording, not just for music or even dictation, but for capturing traces of any measurable phenomenon—any kind of data. 999 Uses of the Tape Recorder informed Ibuka and Morita that “Magnetape recording can be applied to any phenomenon that can be converted into a varing [sic] voltage, current, resistance, pressure, opacity, humidity, viscosity, temperature, transparency, impedance, torque or speed.”116

  In the 1950s and 1960s people spoke more and more of sound as a matter of information—of how many tracks, or how much information, could be crammed onto a magnetic strip of a certain size.117 The manipulability of tape—its capacity for slowing down, speeding up, fast forwarding, rewinding, editing, and rearranging—meant that recorded sound was a more fluid and malleable medium than ever before. The Supreme Court in 1908 could not accept the notion that a pattern of holes in a piano roll qualified for copyright, since the mechanical inscription was not a human expression that could be understood with the naked eye, unlike all previous drama, fiction, music, photography and poetry had been. Even when Congress addressed the thorny issues raised by the court’s decision, it recognized only the underlying written composition as deserving copyright protection. The unintelligible representation of music in the grooves of a disk record or wax cylinder, the perforation of a piano roll, or the pattern of magnetic particles on a tape or wire would not qualify under federal law as a protectable expression until 1972. By then, pressure to recognize all information, including sound and music, as copyrightable (and economically valuable) expression had risen to a fever pitch.

  PART TWO

  THE LEGAL BACKLASH, 1945–1998

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  Counterculture, Popular Music, and the Bootleg Boom

  As a boy in Germany the filmmaker Wim Wenders loved American rock and roll, even though he could not understand the lyrics. “For the longest time,” he recalled, “I thought the words ‘Be-Bop-A-Lu-La’ actually meant something.”1 Geza Ekecs had much the same problem when he worked as a DJ for Radio Free Europe in the 1960s. Beaming Western music into the Communist bloc, he struggled to find a way to explain what the song “Too Pooped to Pop” would mean in Hungarian. Translation problems aside, young listeners continued to tune in. Those who could get their hands on a tape recorder would copy their favorites from the radio. However, Communist authorities considered Western music, especially jazz and rock and roll, to be decadent, preferring to provide the masses with classical music.2 Tape recorders being scarce in the Communist world, diligent listeners had to find another way to copy music that was unavailable or forbidden: they collected discarded x-ray plates from hospitals, rounded the edges, and recorded music from the radio onto the images of human skeletons. “X-ray plates were the cheapest and most readily available source of necessary plastic,” Artemy Troitsky recalled. “People bought them by the hundreds from hospitals and clinics for kopeks, after which grooves were cut with the help of special machines (made, they say, from old phonographs by skilled conspiratorial hands).” The records became known variously as “ribs” and “bones,” and were circulated under the table and played at secret dance parties.3

  Unauthorized reproduction takes many forms. For instance, these Hungarians could be seen as pirates of a sort. Like jazz and classical buffs in America, they copied music from the radio and traded it outside the bounds of the law, in samizdat fashion. As Troitsky notes, the sound of the bones was often quite bad, but people eagerly settled for it. Both the capitalist and communist pirates sought to acquire or make available music that was hard to get, only in America the recording company would not manufacture it (nor let anyone else do so) and in Hungary the Communist Party disallowed it. Ekecs reported the copying of rock hits in Hungary in 1965, and a few years later Americans were also reproducing popular music without permission—albeit not with x-ray plates or, necessarily, tapes.

  The bones story shows that technological capacity does not determine whether people will disregard the rules and copy music. There must be a will, and there must be some conceivable sort of means, but the former may be more important than the latter. Many observers have credited the advent of the cassette tape recorder as the cause of a surge in bootlegging during the 1960s and 1970s, but this explanation ignores the fact that most bootleggers actually made and sold vinyl LPs, at least at first. For most listeners, the Bob Dylan “basement tapes” that touched off the bootleg boom in 1969 were not tapes at all. When a curious customer inquired about them at the local record shop, the clerk would pull one or two vinyl discs, usually in a plain white sleeve, from under the counter. Recorded in a hotel room or basement, or copied from the radio, these recordings may have come into the world on magnetic tape, but the vast majority of early bootlegs—of Dylan, the Beatles, the Rolling Stones, the Who—reached consumers as conventional LPs.

  Popular music now joined the underground market, which had been dominated by bootlegs of classical, folk, and jazz recordings prior to the late 1960s. A practice that had once been confined to a small niche, catering to minority tastes, abruptly moved onto the turf of platinum-selling rock stars and the image-makers who sold them. Several cultural, economic, and technological trends converged in the 1960s to make this bootleg boom possible. Advances in recording technology made it easier to get copies of music out of the studio and to s
neak tape recorders into concerts, while the availability of independent plants and custom pressing services allowed entrepreneurs to convert their recordings into vinyl records. Meanwhile, a generation of young listeners seized on the new technology to circulate every utterance they could find of iconic artists such as Bob Dylan or the Beatles, animated by the zeitgeist of the counterculture and social rebellion.

  Predecessors like Dante Bollettino or Boris Rose had aimed to serve fans of less popular genres by reproducing the vanishing traces of America’s musical heritage, but the new bootleggers wanted to liberate the music of the moment. Some flaunted their products and personal images in the media, insisting that they were blazing a trail for a new way of producing music. Record companies soon discovered that they could not curb the unauthorized reproduction of their products with the old remedies of injunctions and civil suits. In response, Congress would pass a reform of copyright law that the recording industry had desired since 1909.