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

by Alex Sayf Cummings

  Such measures reflect a conviction that more copyright is always better copyright, since tough rules protect vital industries. The 1976 act adopted a standard term of the life of the author plus fifty years, and the Sonny Bono Copyright Term Extension Act of 1998 added an extra twenty years onto all copyrights. Representative Mary Bono recalled that her late husband wanted copyright to last forever, although such a law would violate the constitutional requirement of protection for “limited times.” Movie industry spokesman Jack Valenti was willing to compromise—he suggested a copyright term of one day less than forever.14 The additional two decades may seem arbitrary, unless you happened to own the copyright on a profitable work that was about to enter the public domain in the late 1990s. Critics called the bill “the Mickey Mouse Protection Act,” since it prevented copyrights for the earliest Mickey cartoons (created in 1928) from lapsing.15

  The shift can also be seen in the rise of this very critique. Whereas only a few pirates spoke out against copyright reform in the 1970s, a diverse movement among scholars and activists emerged to counter the perceived excesses of intellectual property law in the early twenty-first century. Groups such as the Electronic Frontier Foundation and Creative Commons have fought against overzealous copyright claims and proposed alternatives to traditional property rights, while a raft of critics from academia, such as the musicologist Joanna Demers, legal scholar Lawrence Lessig, and cultural historian Siva Vaidhyanathan, have offered intellectual heft to the movement to curb copyright.16

  Both the push for stronger rights and the pushback against intellectual property originated in the social world of music itself, in the emergence of a wide array of copying practices that transformed music into a terrain for new kinds of political conflict. From the mixing of sounds by DJs on a turntable or laptop, to the personal mixtape or playlist; from the reproduction of live recordings to the sharing of files and links through social media, music has been the stuff of exchange, the currency of social discourse. These practices are not unique to the late twentieth or early twenty-first centuries. Early recording artists found their works pirated in the 1890s, while Lionel Mapleson made some of the first concert bootlegs at the Met in 1901. Fan communities took up the task of copying and curating the recorded legacy of jazz in the 1930s, prompting battles in the courts and Congress over who should control music in subsequent decades. These early struggles not only foretold the larger conflicts over copyright that would follow in the late twentieth century; they also remind us of an era when the prerogatives of property were not so readily accepted in American political culture.

  Piracy as Aesthetics

  Copying and property have always functioned in dynamic tension. The music or movie industry may like people to believe that the morality of copyright is absolute and self-evident—“You wouldn’t steal a car,” they say, so why would you steal a movie?—but history tells us that what is acceptable one day may be wrong the next.17 What is “free as the air” today, as Justice Louis Brandeis put it in 1918, may be property tomorrow.18 A vendor may sell t-shirts featuring 50 Cent’s face at a flea market in North Carolina without expecting reprisal for using the photographer’s intellectual property or the rapper’s likeness. The same vendor may run afoul of the law for selling bootleg CDs of his music, even though “Fiddy” himself rose to prominence by hawking borrowed sounds on the streets of Queens and Manhattan.

  A degree of copying will always be permissible, within certain limits. As Vaidhyanathan, Demers, and others have taken pains to point out, all creativity involves referencing or riffing off of the ideas of others, whether it means quoting a line or borrowing a chord progression or incorporating a sample from another work. Just as importantly, some uses will always fly under the radar, failing to attract the interest of intellectual property owners who are too busy litigating against more lucrative offenders. The record industry paid little attention to jazz bootleggers until their success revealed the commercial viability of reissues, while hip-hop labels tolerated the use of unauthorized samples on DJ mixtapes as long as the free publicity seemed to justify a policy of benign neglect.

  Such skirmishes tend to muddy the lines between the sanctity of property rights and the moral turpitude of piracy. Some copiers are profiteers, but others are not. Businesses and rights owners often seek to squelch unauthorized use of their works, but sometimes they look to piracy for cues about new sources of value and even potential benefits from the circulation of sound. These ambiguities, say critics, mean that intellectual property law itself is fundamentally flawed. Demers, among others, has pressed the case for “transformative appropriation,” suggesting that some uses of recorded sound should be permitted under the law as recontextualizing or otherwise changing the works they draw upon, unlike the commercial pirate who merely counterfeits a work that is already widely available. Lee Marshall has argued that bootlegging—meaning, in this case, copying live recordings—should be viewed differently than outright piracy, since bootlegs cater to fans and supplement the market for music with a product that does not already exist. They do no harm, in this view, and they arguably do good by documenting music that would otherwise never be heard again.

  Both arguments have their merits, but they ignore conceptual and technical difficulties that resist easy resolution. Should judges—or even worse, lawmakers—get to decide which uses are creative and which are merely exploitative? When rapper Biz Markie sampled Gilbert O’Sullivan’s 1970s hit “Alone Again, Naturally,” the Southern District Court of New York held him liable for copyright infringement, while 2 Live Crew found that their use of Roy Orbison’s “Pretty Woman” in a raunchy rap song qualified as a creative form of parody in a landmark 1994 Supreme Court case. Is one a “transformative appropriation,” and the other theft? The difference between the two cases shows the sometimes arbitrary nature of copyright. Markie used the actual sounds of O’Sullivan’s recording, whereas the music publisher Acuff-Rose targeted 2 Live Crew only for infringing Orbison’s written composition. Lifting the signature melody and riff from “Pretty Woman” for the purposes of parody was more acceptable than copying sounds directly from a recording—a distinction that reflects, in part, the less privileged status of written music in copyright law.19

  Critics of intellectual property law see both examples as “transformative,” suggesting that musicians should be no more limited in quoting from other recording artists than I am from quoting another author in this text. But where does transformation begin and end, and how can the demands of rights owners and sound users be reconciled? A mixtape or pirate record may reveal the unique touch of the person who chose the track sequence, picked a title, and designed a cover, without necessarily transforming the sounds contained on the CD, LP, or tape to a great extent. The history of bootlegging contains many examples of pirates who imprinted their own sense of humor or critical perspective on records that contained live performances or merely rearranged previously released tracks in a new context. Does this creativity deserve respect, as well as legal sanction?

  The satirical newspaper the Onion ribbed defenders of sampling in 1997, when it reported a bogus story about rapper Sean “Puffy” Combs sampling Michael Jackson’s “Billie Jean” for a song called “Tha Kidd (Is Not My Song).” The joke was that Puffy did not simply use part of the Jackson hit in his new song. “When I was in the studio mixing and recording, I decided ‘Tha Kidd’ would work best if I kept all the music and vocals from the original version and then didn’t rap over it,” Combs said. “So what I did is put in a tape with ‘Billie Jean’ on it, and then I hit record. The thing turned out great.”20 The article, of course, poked fun at the rapper’s penchant for lifting famous bits from artists like Diana Ross and the Police to make his own hits. Would he have been more of a pirate if he copied “Billie Jean” note for note? Appropriation artists like Sherrie Levine and Kenneth Goldsmith have made a name for themselves by copying works as different as the photographs of Walker Evans and an issue of the New York Times to c
reate “new” works that are nearly identical to the originals, receiving praise for “recontextualizing” the works of others. Why not Puffy?21

  Piracy as Economics

  These examples merely go to show that distinctions between transformative and exploitative copying are highly subjective, defying easy categorization. The culture of piracy has been too protean, too varied, and too multifaceted for critics of copyright to easily define some uses as good (sampling in hip-hop) or bad (commercial piracy), or for supporters of property rights to defend their preferred position that all copying is always bad. Battles over piracy have polarized businesses, musicians, politicians, and listeners into camps that admit little in the way of mutual recognition, diminishing the potential for a discussion about how copying and copyright have historically constituted each other. If, as the anarchist philosopher Pierre-Joseph Proudhon said, “property is theft,” it may be true that theft is also property—or rather that theft produces the need for property rights. Property only exists as a creature of the contests over resources that produce law and legislation. Piracy prompted record companies, musicians, and music publishers to push for new rights, and its persistence continues to shape how the intellectual property regime evolves, for good and ill.

  Piracy also shows the demand for products that the market might not otherwise produce, while pioneering new ways in which music can be distributed and experienced by listeners. Playing records on the radio was, after all, a kind of unauthorized reproduction of sound. The medium not only offered new outlets for sound to be reproduced and heard for “free,” it also provided musicians a means for finding audiences and record labels for promoting their recordings, although the industry at first feared that the medium would substitute for record sales, rather than supporting them.

  Unauthorized reproduction expanded in the early twenty-first century on a scale that equaled or surpassed even the potential of radio to mass produce sound. Whether in the form of MP3s attached to e-mails, torrents on file-sharing networks, or uploads to YouTube, this ceaseless churning of sound reveals two key points: music is more abundant than ever before, and the demand for it remains huge, despite the flagging fortunes of the record industry. The thirteen labels that filed suit in 2010 for $75 trillion based their figure on collecting damages for every infringement—that is, counting every time someone downloaded or uploaded a file from Limewire as an offense, just as an earlier pirate might have paid damages for every copy of an unauthorized record pressed and sold. The figure, of course, far outstrips the number of legitimate record sales during the same period, or any period in the history of the record industry. It reflects not just the industry’s penchant for exaggerating figures, but the power of new media to make a wider variety of music available at a greater order of magnitude than earlier technologies. Compared to the solitary efforts of a musician and the mass production of the record-pressing plant, this new media infrastructure is even more prolific.

  Piracy, then, heralded a move from mass production to mass reproduction. Pirates always multiplied the offerings of the market, whether they used home disc engravers in the 1930s, custom-pressing services in the 1940s, or a battery of tape decks in the 1970s. Listeners captured opera and jazz performances from the radio and shared them with friends, creating new “products” that neither the radio station nor the performers intended to produce. Sound engineers could make money on the side by leaking tapes of unreleased recordings from sessions with popular performers, and these outtakes—alternative renditions of songs officially released or new compositions that the artist or company chose not to market, for whatever reason—went into circulation, held under the counter at record stores or sold out of the backs of vans next to college campuses. Concert performances became recorded documents and new commodities. These records often took on a plain, unadorned quality that resembled “burnt” CDs, the homemade discs labeled by listeners with Sharpie pens.

  Bob Dylan’s Great White Wonder was the quintessential model of the blank, homemade bootleg aesthetic, and his “output” in the 1960s tells the story. In 1968 the following Bob Dylan albums were on the market: Bob Dylan, The Freewheeling Bob Dylan, The Times They Are A-Changin’, Another Side of Bob Dylan, Bringing It All Back Home, Highway 61 Revisited, Blonde on Blonde, and John Wesley Harding. With the bootleg boom of 1969, these eight records were joined by Great White Wonder, Flower, Stealin’, The Gaslight Tapes, and numerous other samizdat works. There were literally more records on the market than before, more than a single profit-maximizing label would release in so short a time. Record companies believed that the value of their official releases was diminished by competition from cheaper, pirated versions, and they worried that the availability of additional works (such as live bootlegs) would dilute the value of their contracts with artists.

  By exploiting the productive capacities of new media, pirates and bootleggers threatened to swamp the market with more music, lowering prices and lessening the incentive for labels to sign the stars and hype the hits. The perennial business model of the music industry—scoring one hit for every nine flops—depended on heavily promoting the popular artist to the public, by means both legal (advertising) and illegal (payola). In 1971, the industry seriously worried that the practice of spending over $500,000 to record and market an album could not survive in the face of widespread unauthorized reproduction by consumers and pirate competitors.22

  Record labels and pirates presented two very different ways of making and distributing music, and scholars have attempted to describe this difference in terms of a broader change in economic production since the 1970s. The twentieth-century recording industry was a perfect example of a Fordist mode of production that relied on economies of scale to provide a standardized product to a mass audience. Advertising was key to creating the celebrity performer with the giant following and platinum record sales. In contrast, piracy exemplifies the new forms of production that emerged in the late twentieth century, organized around small batches of goods that were often customized to fit demand. Toyota, for instance, introduced its just-in-time system that eschewed mass-producing parts ahead of time in favor of a leaner, faster system that only produced goods as they were needed.23

  File-sharing networks function in much the same way—particular, customizable, and flexible, affording greater choice and diversity than is available on the established market for music. Research by Big Champagne, a company that monitors online file sharing, shows that most users have only a few songs by each artist on their computers, but the range of artists runs the gamut from old to new, from Led Zeppelin to Lil Wayne and TI to Tim McGraw. Some users have dozens or hundreds of songs by a particular artist, while dabbling in the catalogs of numerous musicians who would rarely be heard on the same radio station or found on the same store shelves. The US Government Accountability Office estimated in 2010 that only one in five illegal downloads actually substituted for a potential record sale, which suggests that as many as 80 percent of downloads involved music that users would not otherwise purchase. The system suits both the casual listener, with a broad but shallow interest in many artists, as well as the “completist” who seeks every single work by a particular artist.24

  Piracy actually anticipated these innovations in production and distribution. Bootlegging in the 1930s and 1940s demonstrated some of the qualities that theorists later attributed to the post-Fordist economy, yet these practices occurred in the heyday of mass media and standardized factory production. Enterprises like the Hot Record Society and Jolly Roger offered consumers more-specialized products, produced in smaller runs than RCA-Victor, a large, vertically integrated firm considered profitable in the 1950s. In this sense, bootlegging prefigured the “Long Tail” concept that former Wired editor-in-chief Chris Anderson introduced in 2004. Anderson pointed out how online retailers Amazon and iTunes could afford to make books and music available that would appeal to only a very small number of consumers; whereas traditional stores maximized profit by allocating scarce i
nventory and shelf space to the biggest selling goods, the lower costs of stocking and distribution enjoyed by iTunes permitted its parent corporation, Apple, to reap additional income by catering to a wide array of small niche interests. Each additional audio file hosted or sold on iTunes poses little marginal cost to the company.25

  These new business models are only new in the sense that the established music industry has begun only recently—and reluctantly—to embrace them. Businesses such as iTunes provide a greater variety of choices than a Target or Tower Records could manage to stock on their shelves by exploiting economies of scope, answering the complaints long voiced by collectors and other enthusiasts that record labels and retailers saw little to be gained by providing the obscure music that they desired. For much of the twentieth century, piracy fulfilled this demand, making up for the inadequacies of the legitimate market. Similarly, pirates made music and other goods available in the developing world to consumers who otherwise could not obtain them. In both instances, piracy filled in the cracks between official supply and real demand.

  The Politics of Information

  The record industry has, of course, more often attempted to squelch this demand rather than cater to it. It won political support for punitive antipiracy measures by arguing that government had to protect sectors such as music and film in the interest of promoting economic growth, at a time when manufacturing was beginning to decline in the United States. Judith Stein and other scholars have examined the political ascendance of post-industrial interests in the 1970s and 1980s, documenting how policy makers embraced tax reforms, deregulation, and other programs that benefited industries in the FIRE (finance, insurance, and real estate) sector. The rise of an important political coalition behind intellectual property rights was but one part of this ideological and rhetorical shift toward an “information society” that favored certain kinds of businesses to the diminution of manufacturing.26