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

by Alex Sayf Cummings

  The idea of an information revolution first appeared in the early 1960s, soon after journalists and scholars began to speculate about a post-industrial society. Promoted by Madison Avenue, the revolution was eventually embraced by academics, policy makers, and technology giants such as IBM. The future of the American economy did not lie in heavy industry and mass production, but, rather, in automation, computers, and the production of information—the copyrights, patents, and other forms of knowledge that made it all possible. While some optimists looked forward to a day when automation allowed Americans to create more with less labor, and thus enjoy greater leisure, the central premise of information politics was the greater importance of information over labor, manufacturing, or any other concerns. This assumption—widely accepted yet rarely questioned—has become an article of faith among academic theorists, as in Manuel Castells’s influential formula of the information society as “a specific form of social organization in which information generation, processing, and transmission become the fundamental sources of productivity and power.” In an oft-cited 1977 study, economist Marc Uri Porat estimated that 53 percent of Americans already worked in information jobs (according, of course, to his own categorization). If one accepts the premise that information is the key to the entire economy and that a majority of workers’ jobs depend on it, then taking measures to protect information or intellectual property makes plain sense.27

  Only in the 1960s, though, did lawmakers and jurists at every level begin to view the economic imperative of protecting investments made by record labels and other entertainment companies as paramount. A few politicians, such as Rep. Abner Mikva (D-IL) and Sen. Philip Hart (D-MI), questioned whether stronger copyright would actually favor consumers, but skepticism about copyright was much scarcer in the 1970s than before. The change in attitudes occurred as rock music, magnetic tape, and the counterculture set off the bootleg boom of the late 1960s. It was also the result of a subtle shift in the understanding of property rights that had evolved during the long period when sound recordings were not protected by copyright, as jurists sought an alternative rationale for protecting records that focused on the value companies had already invested in producing and popularizing records. The argument for protecting recordings depended on the investment of time, labor, and money into the product itself, not on the concept of a limited incentive that had traditionally shaped copyright. It committed the state to preserving what later generations would call “brand value.”28

  Representatives of a so-called copyright industry pitched stronger property rights as a vital tool for economic development. Movie studios and record labels, in particular, have routinely pressed Congress for stricter protection of their goods. For example, in 1982 Congress considered a bill to stiffen the penalties against piracy of music and movies. The deliberations over copyright infringement occurred against the backdrop of a wrenching recession in 1982, when jobs involving services and information technology were among the only sectors showing signs of growth.29 Copyright interests positioned their own businesses as vital to the nation’s economic well-being. Disney’s Peter F. Nolan argued to Congressman Barney Frank (D-MA) that his company depended on a long-term return on its investment in animated films, which it re-released for new audiences of children every few years. Piracy threatened this business strategy. “You can see that a lot of jobs and a lot of investment capital are riding on your bill,” he concluded.30 Politicians increasingly linked strong enforcement of intellectual property rights to the economic health of an emergent information economy, and in the 1990s Bill Clinton made growing “information-based jobs” a key priority of his administration.31

  The ascendance of intellectual property coincided, ironically, with the success of politicians like Clinton and Ronald Reagan, who decried “Big Government,” as well as a substantial expansion of government intrusion into the lives of Americans. This twist in American political culture reflects the strange heritage of the 1960s—a continued tension between the emerging New Right, with its focus on the economic prerogatives of business, and the anarchistic, hedonistic idea of liberation that germinated in the era’s counterculture, of which piracy was one exuberant part. The rhetoric of the “free-market” imagined freedom as low taxes and deregulation, while a distinct subculture flourished in Silicon Valley that emphasized liberation through technology, championed by boomer activists such as Richard Stallman and John Perry Barlow, the former Grateful Dead lyricist who helped popularize the slogan “Information wants to be free.” Although the conservative freedom agenda has experienced greater legislative success, the free-information movement has found expression through influential outlets like Wired magazine and political vehicles such as the Electronic Frontier Foundation (EFF).32

  In fact, the conservative economic program—known to scholars as “neoliberalism”—has been misunderstood by many of its critics as being fundamentally antistatist. Intellectual property law was only one dimension of an American state that increasingly intervened in citizen’s lives during the 1980s and 1990s. In theory, neoliberalism represents the small-government platform of Reagan, Thatcher, and Bush, politicians who espoused the greater virtue and efficiency of the private sector over the state. In practice, neoliberalism has become a catch-all category for all things opposed by the Left, even as “neoliberal” leaders pursue a jumble of policies seemingly unrelated by a central theme; consider, for example, the administration of President George W. Bush, which endorsed “small-government” policies like tax cuts and privatization while expanding military spending, government surveillance, and federal intervention in education. Neoliberalism often represents “a further blurring of the line between the state and the economy rather than a rolling back of the public sector,” journalist Daniel Ben-Ami observed in 2011. “Indeed, in some respects it involves an extension of state involvement in businesses.”33

  Ben-Ami is right not to take rhetoric of small government and free markets at face value. Far from ushering in the death of the state, the neoliberalism of the late twentieth and early twenty-first century pruned the functions of government in some ways, such as social welfare, but bolstered them in others—providing subsidies for favored taxpayers and businesses, protecting sectors such as finance and entertainment, and controlling the bodies of workers and consumers in newly invasive ways. Its policy prescription amounted to “state protection and public subsidy for the rich, market discipline for poor,” as Noam Chomsky observed in 1995. Lawmakers passed more stringent penalties for copyright infringement at the same time that laws regulating drugs and immigration became vastly more punitive. People who trafficked in certain goods and services could expect to face years in prison, thanks to mandatory minimum sentencing and other measures designed to “get tough” on crime. Congress considered one of the earliest mandatory minimum bills the same year it passed the seminal Copyright Act of 1976.34

  Drug dealers and pirates, of course, were likely not the people politicians had in mind when they lauded small business. Indeed, poor communities and people of color have borne the brunt of the push for more aggressive law enforcement, yet few scholars have looked at the intensification of intellectual property law as part of the same repressive zeitgeist.35 One need look no further than the case of Ousame Zongo, an immigrant from Burkina Faso who in 2003 was shot dead in New York after being wrongly suspected of hiding pirate CDs in a Chelsea storage locker, for confirmation of how real the regime of copyright enforcement has become.36

  Zongo’s murder was remarkable, even atypical of the war on piracy—more the result of racism and a culture of police violence than of overzealous copyright enforcement, perhaps. Yet it speaks to the tragic futility of a debate that has raged from the days of piano rolls and wax cylinders to global struggles over trade, the Internet, and intellectual property rights. Political action put the state squarely behind the protection of copyright by the 1970s, and law enforcement has labored to curb piracy without ever fully stopping it. Unauthorized reproduction
continues—not just online or in Pakistan or Nigeria, but on the counter of an Atlanta gas station that sells clearly bootlegged copies of Nicki Minaj CDs for $3.99 a piece, in full view of the police officers who frequent the store. When a friend tells me about some new music she has, she says I can “steal” it from her, meaning I can connect a USB drive to her laptop and transfer the files to my own computer. “Stealing” has taken on a humorous and altogether ordinary connotation in the context of music. Piracy is, of course, less amusing when a man senselessly loses his life in the quest to protect the record industry’s property rights and revenue.

  Like the War on Drugs, the war on piracy has fallen far short of its goals. The gap between laws and norms is especially disquieting, as Lawrence Lessig has argued.37 Despite strong legal sanctions against drug use, studies suggest that Americans are more likely to smoke marijuana than citizens of the Netherlands, with its notoriously permissive drug laws.38 The behavior lacks the social stigma that policy makers might have wished for when they passed laws forbidding the production and sale of cannabis. Similarly, strict intellectual property laws did not deter millions of Americans from copying music, file sharing, or buying bootleg CDs. Cynicism about the music industry lingered with the public, as some users of online file sharing continue to express little guilt about piracy, seeing it as a way of “getting back” at record companies.39 Piracy is a problem that may not be solved by law or moral exhortation.

  A compromise remains possible between the desires of listeners and the interests of rights owners, particularly artists. Since 2001 the organization Creative Commons has promoted the use of alternative licenses, which allow artists and companies to opt out of copyright law by permitting others to use their work in any number of carefully defined commercial and noncommercial ways. Another opt-out system prevails on sites such as YouTube, which contain numerous creative works that have not been cleared for use by copyright owners. Rights owners can ask the site’s managers to remove their material if they wish. A good deal of live concert footage, TV clips, music videos, and other work remains online in any case, since some artists may not oppose their performances being available and some companies may not notice or care that the material is posted.

  Fittingly, the innovations of social media arise, at least in part, from the world of music. Piracy prefigured the emergence of online social networking, as evidenced by the web of relationships through which Grateful Dead fans have recorded, copied, and exchanged tapes since the 1970s. These practices are rooted in an ancient, yet oft-forgotten, dimension of musical experience that is primarily social. People see musicians as part of an audience, sing as part of a choir, listen to records or the radio together, and share music to forge relationships and signify their own tastes and identities.40 In some ways, the rise of recording diminished these social, interactive aspects of music, in much the same way that recording made individual musicianship less essential for people to be able to experience music. Music becomes private; one can sit and listen to a record in a room alone, with no presence other than the sound of the absent musicians. Music historian William Howland Kenney argued that this private aspect of recorded music should not be overemphasized, though, as people continued to encounter music as part of a group experience through radio, jukeboxes, and other media.41

  Yet the music industry has long wished to control how consumers used its products, preferring an ideal relationship in which the purchaser is the only one licensed to enjoy the written or recorded music he purchased. As a congressman summed up the industry’s viewpoint in 1906, “The property itself does not carry the right to use it.”42 Music publishers lobbied to deny churches the right to share sheet music with each other in the early twentieth century; labels sought to bar the playing of records on the radio in the 1930s; and the industry later warned consumers that copying and sharing tapes was illegal, even when it was not. If nothing else, piracy has catered to a desire to connect with others through music—a desire that swelled and broke out into the open in the age of Napster and YouTube.

  Such networks showed that people could produce, distribute, and consume creative works without the traditional intermediaries of talent scouts, record executives, or broadcasters. Without the help of a label and its promotional budget, obscure artists could cultivate followings by presenting their music online as individual tracks or videos, which circulated through music blogs, social networks, and video hosting sites. These developments undercut much of the rationale for record companies’ ownership of recordings, which was based on the notion that money spent on production and promotion created a value that the companies alone deserved to exploit. Songwriters, musicians, radio stations, and other interests had long contested the right of labels to own recordings and act as arbiters of access to music, and they only acquiesced to this right in the face of rising piracy in the 1960s and 1970s. As new forms of music distribution supplant the role of labels, unauthorized reproduction may yet prove to be the undoing of those rights.

  Not all artists view sharing as bad. They may want their music to be heard, like the music publishers of the early twentieth century who paid pluggers and vaudeville artists to familiarize audiences with their songs by playing them.43 Hip-hop DJs sometimes saw bootleggers as the unofficial manufacturers of their work, ensuring that mixtapes ended up on the streets and in the hands of retailers, radio stations, and other important audiences. When the Supreme Court considered the case against the file-sharing network Grokster in 2005, numerous artists on small labels expressed concern that they would lose an outlet for their music. “I look at it as a library,” Jeff Tweedy of the band Wilco said, “I look at it as our version of the radio.”44 Wilco freely offered recordings on its website for months before releasing a new album, and, like the Grateful Dead, the band favored taping of concerts by fans. A 2007 study of file sharing tentatively suggested that such networks helped independent musicians overcome their lack of promotion and distribution by making their music more easily accessible. The result was more recordings from independent labels making it onto the charts.45 “If anecdotal evidence is correct in suggesting that minor labels have utilized file-sharing networks to popularize their albums,” the study’s authors surmised, “then the majors have an added incentive to fight file sharing.”46 For a small artist or firm, “piracy” could be just another word for “distribution” or “promotion.”

  Early in the twenty-first century, the record industry sought to quash competitors such as Limewire, MP3.com, and the maker of the first MP3 player, Diamond Multimedia, each of which offered different vehicles for bringing music to listeners. Some of these firms worked out deals with independent artists and labels, offering free MP3 downloads to curious listeners and valuable exposure to little-known performers. In 1999, MP3.com even began working with the group Emerging Artists and Talent on a deal that would give musicians a 50 percent royalty on any CDs sold through the site, a much higher rate than most artists received from the major labels. However, litigation soon ended these experiments as MP3.com and the file-sharing networks that followed it were steadily dismantled.47

  A subsequent wave of new enterprises emerged to resolve the conflict between rights owners and file-sharing networks. Online streaming services such as Pandora and Spotify create the same sensation of free music—choosing anything you want, the surprise of getting something for nothing—that Napster once provided, except with the consent of record labels. In Spotify’s case, it took two years for the service to clear legal hurdles in the United States after becoming available in Europe.48 Such services offer a diverse supply of music to listeners as an ad-supported free service or without ads for a monthly fee. If the music industry is the thesis and piracy is the antithesis, social media and online streaming sites offer a kind of synthesis—driven by user choices, and based on a model that does not necessarily involve the sale of a good but instead the provision of a service that makes music readily and widely accessible. The idea of the information economy, as advanced by b
usinesses and politicians, maintained that sound must be protected from theft just as a book on a bookstore shelf is, whether by antipiracy mechanisms or the threat of prosecution. In the emerging media environment of the early twenty-first century, however, selling a disc or even an MP3 may not be the dominant way that people receive and experience music or that artists make money. A new model may look more like radio, offering free access to sound, than the traditional recording industry that manufactured and sold sound as a scarce good.49

  Such a reorganization of the industry has profound implications not only for how music is produced and distributed, but what kinds of music survive and prosper. For much of the last century, conventional wisdom held that nine out of ten records failed to make a profit. This arrangement meant debt and oblivion for many artists and, for labels, pandering to the lowest common denominator in the hope of scoring a hit. Some independent artists could make a living by setting up their own miniature version of a major label, as folk singer Ani Difranco did with her Righteous Babe Records in the 1990s, yet they still faced the same barriers of access to reaching radio listeners and consumers. A service-oriented music business at least holds the potential for a broader, more diverse array of musicians to find an audience, without relying as much on record labels and hype to survive.50

  Yet nothing is assured. The likes of Spotify may fail in the marketplace or the courts, and new middlemen may emerge to take advantage of artists in new, innovative ways. Jazz polymath Herbie Hancock expressed this worry amid the Napster controversy in 2001, when the outcome of the RIAA’s lawsuits remained unknown. “Excuse me,” he declared, “but just because record executives give artists a bad deal doesn’t mean everyone else can then go and do worse [emphasis in original].”51 Music blogs that review and distribute free MP3s may exploit the free labor of emerging artists for profit, and companies such as Pandora may take the place of record labels and radio stations as the gatekeepers of popular culture.52