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

by Alex Sayf Cummings

  The Dead also served as a link between the rebellious cultural milieu in which pop bootlegging first flourished in the 1960s and the stable pattern of underground collecting that developed in the following decade. The band emerged in 1965 in the midst of the countercultural fervor in San Francisco, embracing an antiestablishment ethos that advocated both hedonism and collectivism. Band members described their followers as “a community, tribe, family, and traveling circus,” in which “the audience is as much the band as the band is the audience.”23 The recording and trading of concert tapes rapidly became a part of this shared experience, beginning in the late 1960s but becoming truly widespread in the following decade.24

  When the band issued an official policy on taping in 1985, it codified and regulated activities that had long occurred (literally) under the performers’ noses.

  Taper David Cooks recalled hauling his reel-to-reel tape machine into concerts by the Quicksilver Messenger Service, one of the Dead’s psychedelic contemporaries, starting in 1968, and no one tried to stop him. “Occasionally they’d question me,” he said, “then they figured I was just recording them [for personal use] and let it go at that.”25 Cooks did not run into another taper, though, until 1972. Tape trading did not take off until the early 1970s, when fans began to organize clubs to share their recordings.26 New advances in consumer electronics sped the development of this hobby, exemplified by the shift from Cooks’s reel-to-reel set-up in 1968 to cassettes as the currency of trading in the 1970s. When Harvey Lubar and Jerry Moore made a pivotal early bootleg in 1970, they still used a small Uher open-reel tape deck.27 By 1974, taping experts were recommending Sony’s 152 SD cassette recorder to beginning bootleggers.28

  Interest in taping grew as seven high-quality tapes recorded by the Grateful Dead’s technical support during a series of shows in 1968 and 1970 made the rounds among fans. Unlike the live bootlegs of Rubber Dubber, which captured the likes of Jimi Hendrix and Elton John on tape but distributed the sounds of vinyl, these recordings remained in tape form and reached listeners in samizdat fashion. The tapes also contributed to the growing lore about the Dead’s prowess in live performance. “Listening to the Dead’s albums is fine, but the studio cuts are to their live sets as hamburger is to steak,” Charlie Rosen wrote in the early 1970s. “They are theoretically composed of the same ingredients, but a sirloin is juicier, more delicious, more nutricious [sic] and far more filling than a Big Mac. There are also several bootleg albums to be had, but the quality of sound is so inconsistent that forking over all that bread is almost like playing the ponies.”29 Rosen proposed that the document of a live performance contained a value that could be found nowhere else, qualities that no one who missed the concert could access unless the sound was recorded and preserved. The paucity of recorded live material in the early 1970s inspired many concertgoers to start making their own recordings and assist in the project of documentation.

  The launch of Les Kippel’s fanzine Dead Relix in 1974 also spurred interest in recording among fans. The writers in Relix sang the praises of the Grateful Dead and tirelessly discussed the minutiae of recording—how to sneak recording equipment into concert venues, what kind of tape to use, the etiquette of copying and distributing tapes to other fans, and so on. Just as the band itself did not oppose audience recording, the management of most venues did not seem especially concerned about taping either. “Hiding it [recording equipment] under your coat or a girl’s skirt is out,” one fan explained, “because it will bulge and bouncers are always suspicious of bulges. What they are looking for, however, is bottles. As long as you can convince a heavy that what you are carrying is not a glass container, your [sic] O.K. Because, while heavies are supposed to confiscate recording equipment, they seldom see it and are not looking for it.”30 In 1974, the smuggling of alcohol—the original inspiration for the term “bootlegging”—still mattered more than smuggling a tape recorder. The author even suggested that one could get a device past a bouncer by saying that it was only a tape player, not a recorder. “They are usually dumb,” he said.31

  Relix offered a forum for nascent tape-trading networks to connect with other potential participants. In a handwritten advertisement, Jerry Moore promised “the finest tapes available,” but added “trade only, no sales” and “quality recording a must!” The tapers embraced a number of artists who shared the Dead’s propensity for improvisational and experimental music, particularly those who blended folk with psychedelic rock. For example, Harvey Lubar of the Bronx invited readers to join his Hell’s Honkies Tape Club, announcing both the recordings he had to offer and the ones he was seeking. “We got Dead (lots), NRPS, Q.M.S., Airplane, Zappa, Floyd, and much, much more!!!” he wrote. “We want more of the same—and any OLD Frisco music.”32 Similarly, Mike Tannehill of Fort Worth, Texas, advertised recordings by a similar range of taper’s favorites, including King Crimson, Bob Dylan, New Riders of the Purple Sage, Traffic, Frank Zappa, and, of course, the Grateful Dead. Although these preferences reflect the taste of a generation weaned on sixties rock, they also show how bootleggers and collectors continued to favor music that emphasizes improvisation (like jazz) and the virtuosity of live performance (like opera).

  In 1985 the Dead took a new approach to the great number of tapers who showed up at their performances. They explicitly condoned audience recording—as long as the tapes were used for strictly noncommercial purposes—and they set aside a section of each venue near the stage for tapers, who could order special tickets for this area through the mail. The decision brought some order to the bustle of recorders jockeying for the best positions at shows and introduced a degree of quality control by granting tapers an advantageous place to do their work. Bootleggers made copies available to other fans, often through a tape-trading “tree”; the possessor of a sought-after bootleg was a “branch,” who would mail copies of the original recording to other fans, the “leaves,” who supplied a blank tape and paid postage. The system was meant to maintain the sound quality of copies and operated on the basis of good will and reciprocity, rather than profit.33

  The Dead’s policy attempted to square the circle of music copying by fans—an ethical puzzle that lawmakers, listeners, and labels had never been able to solve. Collectors in the 1960s had urged the New York legislature to provide an exception in new antipiracy laws that excluded the “antiquarians” who copied and traded rare recordings in obscurity. However, no one had ever explained how bootleggers who catered to a small group with esoteric tastes could be distinguished from pirates who copied and sold the hits. Was it not necessary to bar the sale and distribution of unauthorized copies across the board? What if the small-scale collector’s bootlegger made a profit? The Grateful Dead and its loyal following of Deadheads, however, presented a case of fans individually recording, copying, and trading music, with an avowed commitment to noncommercialism.

  For the trading market to work, participants had to police their behavior themselves. “To mention or believe in a large-scale for-profit ‘bootleg tape industry’ is to seriously offend any true Deadhead and show yourself to be an outsider,” Melissa McCray Pattacini learned when she interviewed the band’s followers.34 In its maiden issue, Relix declared in no uncertain terms that taping and trading would be permitted, but for-profit piracy would not: “The publisher and the editor of this magazine in no way advocate the duplication of live recordings for purposes other than free exchange. We do not condone unauthorized duplication for sale. We will not accept subscriptions or take advertizing [sic] from known bootleggers.”35 The magazine even had a feature called the “Shit List,” devoted to shaming errant members of the trading community who took music from others without reciprocating. “Lets say you record five tapes for Dale Crook … and you mail them off to him (insured mail),” the column proposed. “Eagerly you await the return of five tapes from Dale.”36 The victim in this scenario goes to great lengths to get in touch with the rogue, who never sends the tapes back. Relix presented itself as a means
of recourse:

  We will try to locate him and find out what happened. If we cannot locate him, we will print a note in this magazine asking him to get in contact with us. If we get no reply, we will print your letter, outline our efforts to contact him, and his reply, if any.… It will be up to each reader to make his own opinion whether or not he wants to trade with Dale Crook of Seattle.37

  Relix also offered to chastise traders who continually supplied others with tapes of inferior quality. “Let’s hope for honesty,” they concluded. “After all, tape trading is based upon HONESTY!”

  By regulating the mores that underpinned exchange, the Deadheads anticipated the development of mechanisms like seller ratings on eBay, Amazon, and similar websites. Anyone can try to sell a car on eBay, but potential purchasers have to determine whether they can trust the seller to describe the condition of the car honestly and provide the agreed-upon goods upon the completion of a sale. “Remarkably, eBay offers no warranties or guarantees for any of the goods that are auctioned off,” sociologist Peter Kollock observed in 2008. “Buyers and sellers assume all risks from the transaction, with eBay serving as a listing agency. It would seem to be a market ripe with the possibility of large-scale fraud and deceit, and yet the default rate for trades conducted through eBay is remarkably small.” Kollock attributes this level of cooperation to “an institutionalized reputation system” called the Feedback Forum, in which participants can evaluate the trustworthiness of buyers and sellers for the benefit of others. Whether in a tape-trading network or online auction, each individual is potentially a producer, seller, and buyer, and mutual understandings must prevail for the participants to convey goods to each other in a peer-to-peer fashion.38

  The legal scholar Mark Schultz cites a tradition of reciprocity as the basis for the voluntary adherence of almost all Deadheads to the social norms—sharing and noncommercialism—that the band mandated. Pointing to political scientist Robert Axelrod’s work on “tit-for-tat” situations in game theory, Schultz argues that a latent human tendency for cooperation can be fostered under the right conditions, namely, “the possibility for mutually beneficial exchange, repeat interactions among actors, knowledge of how actors behaved in the past, and the ability to withhold cooperation from actors who had failed to cooperate in the past.”39 The Deadhead subculture fulfilled each of these conditions, as trading allowed each participant to get a desired good and the practice of fans touring with the band made “repeat interactions” possible. Moreover, the 1985 taping policy merely endorsed the practices of sharing that listeners had cultivated in the preceding decade—the self-monitoring networks of tapers and traders had already established their own norms and expectations when the Grateful Dead officially incorporated such activities into their live performances.

  The arrangement worked out well for the Grateful Dead. Fan John R. Dwork recalls that the band’s concert audience multiplied after the 1985 decision. “More tapers meant more tapes and more tapes mean more folks getting turned on to the Dead,” he said.40 In Schultz’s words, the pro-taping policy “let the fans do some of the work”—a practice that the legal thinker Yochai Benkler calls “peer production.”41 The Dead allowed recordings of their music to circulate for free, while fans paid ticket prices for an endless series of shows that permitted them to record, manufacture, and distribute copies of the music to other followers of the band. In return for serving as the Dead’s unofficial distribution system, the tapers reaped the “symbolic capital,” in anthropologist Mark Jamieson’s phrase, of knowing the most about the band and having the fullest tape collection. Lawyer and collector Cason Moore noted the upside of this voluntary mode of production: although the Dead never sold many albums, they were still recorded and listened to a great deal. “The Grateful Dead rarely received much radio play, and they only had one Top Ten hit in 1987 with ‘Touch of Grey,’” he observed. “Yet by the time ‘Touch of Grey’ climbed into the top five of the singles chart, the Grateful Dead had already attracted tens of thousands of loyal fans and had gone on some of the highest grossing tours of all time.”42 Lyricist John Perry Barlow remarked that the taping policy was a major source of the band’s success, “one of the most enlightened, practical, smart things that anybody ever did.”43

  From Counterculture to Free Culture

  Barlow eventually became a gadfly of the burgeoning anti-copyright movement. In 1990 he co-founded the Electronic Frontier Foundation, a group that has opposed new copyright restrictions and eventually defended online file sharers, and in 1994 he wrote an influential piece for Wired magazine entitled “The Economy of Ideas.” In it he quoted the slogan “Information wants to be free,” which was coined by hippie impresario Stewart Brand in the 1980s. This mantra sums up an approach to intellectual property shared by jambands and computer hackers alike.44 Journalist John Markoff credits the late 1960s counterculture for indirectly inspiring innovations such as the personal computer and the iPod, as well as the open-source software movement, which advocates the free distribution and modification of software, unencumbered by copyright concerns. Scientists in the San Francisco area challenged the idea that computing had to be centrally controlled by corporations and governments; they proposed that computers could be easily manipulated and freely available for the public’s benefit. These pioneers dabbled in the region’s radical politics, its heady atmosphere of experimentation and, indeed, its drugs. Apple founder Steve Jobs long maintained that taking LSD was one of the key events of his life; the psychedelic pulses and swirls on the iTunes music player’s Visualizer function certainly attest to this influence.45

  The Grateful Dead provided the soundtrack of the California cultural milieu that shaped such entrepreneurs as Brand and Jobs. That scene prompted not just new ways of thinking about computers, but a broader rethinking of the relationship between property rights and creativity. Indeed, the Dead’s support for bootlegging reveals how the 1960s counterculture helped spawn a new politics, at once communal (with an emphasis on sharing and a suspicion of property rights) and libertarian (an opposition to bureaucracy and any limits on creativity or individual expression). In its subterranean form, that politics has expressed itself as piracy—a diffuse and often unarticulated resistance to copyright committed by anyone who copies, shares, and sells culture without asking permission, for fun or profit. Its ideological offshoots include the copyright-skeptic groups the Free Software Foundation and the Creative Commons movement, as well as the “cyberlibertarianism” that imagines innovation and the free market as the solution for all problems, an ethos best exemplified by Wired. For some of the counterculture’s heirs, liberty meant freedom from the legal restrictions of copyright as well as any other kind of government regulation.46

  The techno-utopianism of Wired was congenial to big business in many ways, but the legacy of the 1960s contained other, more radical impulses. Corporations, of course, found it easy to repackage nonconformity and individualism to sell soap, and former radicals like Jerry Rubin were more than willing to accommodate themselves to a hip new capitalism by the 1980s. However, real ideological affinities existed among bootleggers and hackers, reflecting a shared desire for a free or communal approach to culture. For example, the Dead formally endorsed copying and sharing by fans in 1985, the same year that programmer and activist Richard Stallman founded the Free Software Foundation. The band’s policy on concert recordings resembles Stallman’s own concept of a “general public license,” or GPL. Stallman introduced the GPL in 1989 to permit software developers to distribute programs outside the bounds of copyright law, mandating that anyone could use, copy, and alter the software as long as they agreed to adhere to certain limitations defined by the original creator. Most often, these mandates forbade using the software for commercial purposes and placing copyright restrictions on any new, modified versions of the program made by subsequent users. In the early 2000s, this open and noncommercial spirit inspired the founding of Creative Commons, an organization that encouraged artists, mus
icians, and other creators to adopt such qualified licenses for their own work, in the hope of reducing the barriers to remixes, sampling, and other forms of appropriation.47

  The Grateful Dead created a model that anticipated the ideas and strategies of Creative Commons, the Electronic Frontier Foundation, and other copyright activists. The band’s vast and interconnected following of traders formed its own kind of information-sharing network, employing cassettes, zines, and the postal service to do what the Internet would later make much easier. The tape-trading system shares some of the economic qualities of a decentralized network such as the World Wide Web. Broadcast television and other types of mass media cater to a large, passive audience, while a website or a tape-trading network relies on a higher level of engagement from a smaller number of participants. Music distribution through a freewheeling gift economy favors artists who can sustain the commitment of their audience, rather than a star whose label can drive up CD sales through advertising and hype.48

  At the same time, not every artist can inspire the intense devotion of such a large number of listeners as the Grateful Dead or Bob Dylan, nor can each performer be equally adept at exploiting multiple revenue streams. A DJ may play live sets, but other types of electronic musicians and composers may be less likely to succeed through performing. Such a business model would almost certainly disadvantage some artists. Some musicians may prefer to earn their income by selling recorded works, rather than hawking t-shirts or touring. Others simply may not desire to see every sound they make documented, replicated, and distributed far and wide.