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

by Alex Sayf Cummings

  To the pirates, the state’s antipiracy law violated the Constitution. Copyright was a responsibility of the federal government, and the historical record showed that Congressmen had consciously excluded “mechanical reproductions” (i.e., sound recordings) from protection under the 1909 act. Moreover, the California law indefinitely barred the unauthorized reproduction of a sound recording, providing the presumed owners of the recordings—record companies—an open-ended monopoly that surpassed the rights enjoyed by creators or owners of works under federal copyright law. This permanent property right, the pirates argued, violated the Constitution’s mandate that ownership should last only for “limited times.” Though bankrupt, Goldstein enlisted the help of attorney Arthur Leeds, who had persuaded several veterans of pirate defense to help him argue the case in California. Leeds believed that fighting a criminal prosecution would be the best strategy to undermine the antipiracy laws, since a jury might shy away from imposing so severe a penalty (prison) for the act of copying tapes.85

  The court ultimately endorsed a capacious view of states’ rights in a 5–4 ruling. Citing Alexander Hamilton, Chief Justice Warren Burger argued that the states could only be constrained from doing something under three conditions: first, if the Constitution gave that power exclusively to the federal government, as in matters of foreign policy. Second, an action would be illegitimate if Congress specifically forbade the state governments from taking it—for instance, if Congress had stated that mechanical reproductions of music were ineligible for copyright in the 1909 law, rather than simply leaving them out. Third, a state could not act in a way that was “contradictory and repugnant” to a similar federal policy. Burger admitted that the California antipiracy law might fall into this category, but he reasoned that the Constitution had not specifically barred the states from writing their own copyright laws.86 The chief justice pointed to states such as Massachusetts and South Carolina that had granted their own patents in the late eighteenth century. He also dismissed Leeds’s argument that the open-ended, unlimited property right created by California was contrary to the constitutional requirement of copyright “for limited times.” That restriction only applied to federal copyright, Burger said.87

  The majority also rejected the notion that Sears, Compco, or any other precedents should stand in California’s way. Decisions such as White-Smith and RCA v. Whiteman specifically refused to turn sound recordings into intellectual property, but Burger and his allies sided with the line of cases, such as Metropolitan, that protected a company’s investment. In fact, with the important exception of Sears and Compco, American courts had drifted in this direction for some time, given the reversal of Whiteman and the series of rulings against tape piracy in the late 1960s. Burger argued that Sears and Compco involved potentially patentable objects (light fixtures) that failed to qualify for patent, while sound recordings had been out of the federally defined ambit of copyright altogether. Therefore, the states were free to protect these goods in whatever way they saw fit. The chief justice brought up Louis Brandeis’s dissent in the 1919 Associated Press v. International News Service decision, in which the progressive jurist suggested that “the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”88

  Burger disagreed. “There is no fixed, immutable line to tell us which ‘human productions’ are private property and which are so general as to become ‘free as the air,’” he said.89 Lacking such a line, the court preferred to err on the side of property. Goldstein v. California came down on the side of property rights and state power, to the detriment of the public domain and federal supremacy. Better to give property the benefit of the doubt, Burger seemed to say, unless such rights were explicitly denied by Congress or the Constitution. A Los Angeles record company enjoyed stronger rights than a songwriter in Little Rock, and the investment of capital got surer protection from the state and federal governments than the labor of a writer or inventor. Goldstein can in part be attributed to the conservative shift of the Burger court; it followed soon after the departure of Earl Warren, whose judiciary had favored federal power over the state and local governments in cases such as Brown v. Board of Education, Griswold v. Connecticut, or, for that matter, Sears and Compco.90

  The dissenters—Harry Blackmun, William Brennan, William Douglas, and Thurgood Marshall—believed that the creation of quasi-copyrights by the states would undermine “national uniformity,” which they considered a top priority of federal policy. In his dissent, Douglas sounded the once-familiar cry of monopoly, which moved the Supreme Court in 1973 no more than it had Congress in 1971. The justice, an appointee of Franklin Roosevelt, pointed out that federal law may create a monopoly in the form of copyright, but it was a limited one, quite unlike the right created by California law.91 Meanwhile, three Nixon appointees—Burger, Lewis Powell, and William Rehnquist—sided with the state of California, joined by Potter Stewart and Byron White.

  The Los Angeles Times reported approvingly of the court’s move to protect the performers and composers of California’s “vast record industry.”92 Chief Justice Burger argued in his opinion that states had a legitimate interest in protecting their local businesses that other states (and the federal government) might not share. If piracy deterred record companies—“a large industry in California,” as Burger pointed out—from making new recordings, then the state had every right to pass laws to stop it.93 In such a way did the Supreme Court understand its treatment of music and property in 1973. Congress had considered a ban on pirate recordings to be unworkable little more than ten years earlier. In that short span of time, ensuring the recording industry could recoup its investments became accepted as a matter of economic necessity for local and federal authorities. Copyright became a safeguard and a symbol for the capital invested in creative works, and the lines between copyright and other property rights, formerly stark, became increasingly blurred in the move toward stronger, longer forms of protection. The recording industry accomplished this political feat through a decade of intense lobbying and litigation, but persuading law enforcement to enforce these measures posed even greater challenges in the decades that followed.

  The Politics of Enforcement

  The Sound Recording Act took effect on February 15, 1972, but tangible results did not materialize right away. Offenders had to have the opportunity to break the new law, and it took time for federal law enforcement to track the offenders and build cases against them. In the meantime, the RIAA took advantage of the Supreme Court’s mandate in Goldstein to press state and local authorities to enforce existing antipiracy laws and to pass them where they did not exist. Twenty-seven states had passed such statutes by 1975, but the coverage was patchy. In the Midwest, for instance, Indiana and Nebraska had barred unauthorized copying of sound recordings, but Illinois, Iowa, Michigan, and Wisconsin had not, making it easy for pirates to evade criminal prosecution or civil suits.94

  Pirates of pop hits carried on much as before, retailing their tapes in outlets where music was not conventionally sold. As Max Arons of the American Federation of Musicians observed, “In New York State every garage and everywhere else, every drug store they can get it.”95 The Chicago Tribune found them in “gas stations, laundromats, convenience food stores, and the like.”96 Mom-and-pop pirates relied on mom-and-pop outfits such as the local drug store to sell their products without anyone important noticing; the small business also represented a poor target for an industry lawsuit, unlike a record store chain like Sam Goody.97

  RIAA agents had to explain to many policemen that pirates were actually violating the law. Francis once spent several hours at a precinct in downtown Manhattan, explaining to the secretary that he had found several stores around town selling pirate tapes. She eventually decided to transfer him upstairs, where he explained to two detectives that New York had a state law against piracy. “One of the detectives was willing to listen and the other fel
low felt it was too much trouble to pursue an obscure misdemeanor and suggested some other bureau handle it,” Francis said. Following a call to the assistant district attorney’s office, he ended up recounting the story twice more to several other detectives that afternoon.98

  If police in downtown Manhattan had not been informed of the antipiracy law, how much easier would it be to violate the statute in some remote hamlet upstate? Unless the FBI stepped in to enforce federal copyright, record companies had to rely on state laws that were carried out by city, county, and state police. Where states had only made record copying a misdemeanor, police departments seldom placed a high priority on seeking out pirates or following up on complaints.

  The case of Jack and Julius Kessler suggests that pirates had begun to coordinate such operations nationwide, consciously choosing production sites they believed were beyond the reach and attention of law enforcement.99 From 1971 to 1972, the Kesslers worked with Leonard Lockhart, owner of a dress manufacturing company called Playgirl Industries, to produce tape anthologies of pop music such as Janis Joplin’s Greatest Hits and The Best of Rock, 1970. They did attempt to meet their obligations under the compulsory license system, sending out $95,578.65 in checks to publishers and songwriters, of which $53,000 were not cashed. (At least some songwriters were accepting the payments.) The business operated out of a “windowless white concrete building in a secluded area in Elk Mills,” according to the Maryland Supreme Court. Piracy was not yet a criminal offense in Maryland.100

  Lockhart, described as “the proverbial ‘sad but wiser’ man” in the ruling, defended their activities with a critique of the music industry that was familiar to many pirates and their lawyers. “You see, Atlantic and Columbia have a great gimmick in what they do,” he testified. “They put two good songs on and six bad ones and they will sell it for $6.95. Now, very honestly, what we did was we put eight good ones on and they were sold to the market for $3.00. So that it was a value to the kids around the country and it serves a purpose, in my mind.”101 In any case, the pirate enterprise ceased operation in March 1972, less than a month after the new copyright for sound recordings closed the loophole that Lockhart and his friends sought to exploit.102

  The decision to call it quits suggests that the Kesslers had learned their lesson, but Jack soon ran afoul of the law on the other end of the country. Going by the name Jack Fine, he was indicted in Los Angeles in December 1973 for his bootlegging activities, on grounds of tax evasion—the result of an IRS investigation. Like most pirates, he and his partner Martin Stern worked with cash and hid their actual profits from the government.103 “Most of them don’t even pay their employees by check,” the RIAA’s Jules Yarnell observed, emphasizing the harm of such practices to ordinary citizens. “They pay all in cash … There are no social security deductions or payments. There are no unemployment insurance payments, no health or other benefits, and the general public has to bear that additional burden.”104

  Local officials in Los Angeles launched a crackdown against piracy the same month that Fine and Stern were indicted, focusing on retailers. The city government enlisted the help of the Latin American Record and Tape Association (LARTA), in part because police raids found pirated tapes in many stores that catered to the Latino community. LARTA president Osvaldo Venzor formed the group after finding that bootleg recordings were being sold throughout Oklahoma and Texas. “We hope to make a dent in Southern California and then move on to the northern part of the state,” Venzor said. “Then we will move east.”105

  Both the state and federal operations reveal a collaboration between law enforcement and corporate lobbying, in what might be called a public-private partnership. The RIAA started a twenty-four hour hotline for tips on the sale and production of illicit records, although an industry spokesman implied that the number got few rings. Meanwhile, the group’s Anti-Piracy Intelligence Unit functioned as the music industry’s own spy agency. “Part of our job is to disseminate information and acquire information on pirates all over the country,” Jack Francis told Louis Lefkowitz, the New York attorney general. “It’s a very clandestine operation. When something happens in New Jersey they know about it in Columbus, Ohio, two hours later.”106

  Of course, all that information could only lead to more tedious civil suits unless local or federal authorities were persuaded to act, and the industry’s representatives had to train police to do their bidding. “We finally educated the state police up there and they being aware, there have been two subsequent arrests since then on their own without anyone’s help,” Francis said. “They know a pirate tape when they see one.” Joel Schoenfeld, an intern with Lefkowitz’s office, teamed up with RIAA counsel Jules Yarnell to scour the five boroughs of New York for evidence of pirated recordings, and then reported the information back to the police.107 (Schoenfeld went on to become a major RIAA spokesman.) Likewise, LARTA assisted the Los Angeles police in pursuing pirates.

  This collaboration resulted in ever more elaborate sting operations by local law enforcement. At the initiation of the RIAA, the District Attorney’s Office in Manhattan began investigating piracy in the city, and detectives soon identified All Boro Records and Tapes as a wholesaler of counterfeits. Police raided the firm’s office at 156 Fifth Avenue and called in label representatives to determine whether the recordings were copies. The experts said they were, but the sound quality was so high that prosecutors feared they could not persuade a jury that the wholesaler definitely knew he was dealing in counterfeits.108

  As a result, the NYPD began using informants, undercover agents, and surveillance. The police used these tools, including wiretaps, to arrange deals to purchase 35,000 recordings from Premier Albums of 10 W. 66th Street, posing as retailers. Delbert Green, the owner of All Boro, had taken the precaution of moving his enterprise to Farmingdale, Long Island, where he stored records in a car wash. Premier Albums got its products from Green and “a source in Pennsylvania,” Assistant District Attorney Roy Kulcsar said. On the day Premier Albums delivered the shipment to the detectives, police carried out simultaneous raids on the car wash in Farmingdale and a warehouse in Long Island City, Queens. Along with Green, Michael Javits and Phillip Vaudevehr of Premier pled guilty in February 1974, and the New York County district attorney pressed hard for jail sentences. The maximum penalty would have been one year in prison and a $1000 fine, but the judge only imposed fines on the men. All the work it took to nab these three pirates hardly seemed worth it.109

  Even with a federal copyright for sound recordings, reams of favorable rulings, and an array of state laws, the record industry found itself in much the same spot as in the 1950s and 1960s. Piracy continued, and its trade group still had to pressure the government for further protection. Continued litigation such as the Missouri case NBC v. Nance (1974) and A&M Records v. MVC Distributing (1978), which reached the Sixth Circuit Appeals Court, suggests that the new statutory penalties had inadequately deterred copiers.110 Jan Bohusch or Rubber Dubber might have gotten out of the business with the passage of the federal act in 1971 or the Goldstein decision two years later, but some players persisted, and others joined in the game.

  Bohusch’s old partner at E-C Tape, David Heilman, also carried on, despite having his stock confiscated by the FBI in May 1975. E-C Tape sold mixes tailored to those with a taste for “Early Beatles” or “Revolutionary Beatles,” and nostalgia collections such as “Return of the Big Bands” and “Country & Western Classics.”111 Heilman moved the business from Wisconsin to California, where it ran afoul of A&M Records and the state antipiracy law. According to court records, Heilman’s earnings from 1971 to 1975 amounted to $4,300,000, of which he personally collected $200,000. He broke several injunctions against continuing his business, and defied a ruling of unfair competition by the Superior Court of Los Angeles. Heilman went on plead the reproducers’ case at hearings for the Copyright Act of 1976, but his appeal to the Supreme Court was denied in January 1978.112

  The ease of entering the p
iracy business tugged the curious into what was now an unambiguously black market. Pirates could begin with a small investment and reap large profits. One Maryland man set up a pirate factory in his living room, with a turntable connected to five tape recorders. Beyond the initial capital costs, he only needed blank tapes and an LP to use as a master recording. This kind of operation might seem small to the point of preciousness, an RIAA spokesman said, but he urged the public to consider the output. The man could turn out five tapes every forty minutes and fifty tapes a day.113 When a record shop bought pirate recordings at $2 apiece, such a small-scale business could gross $700 a week. By comparison, a professionally run pirate venture with printing presses, warehouses, and a large staff could make a better product and pull in $500,000 during the same time.114

  Bootleggers, of course, were not alone in skirting the law. They could make a better product when they used a record company’s own original recording rather than copying the mass-produced consumer LP. The availability of these masters hinted that some pirates had links to both the Mafia and the industry itself. The allegation of mob involvement in piracy was nothing new; in 1959 organized crime was held responsible for flooding the market with illicit 45s of Bobby Rydell’s hit “Ding-A-Ling,” and many observers had cited the use of pirated records in jukeboxes, through which the Mafia laundered funds.115 In 1973 a grand jury in Los Angeles looked into accusations that record labels used drugs to bribe radio DJs and retailers, shook down artists for prized bookings in Mafia-linked clubs and casinos, and even collaborated with pirates. Meanwhile, warehouses and other buildings owned by record companies in Los Angeles were going up in flames; FBI investigators suggested darkly that someone was “trying to bring people into line.”116 Two years later the Chicago Tribune reported bombings at bootleg facilities in Michigan.117