Whatever shape the industry itself takes, the history of recorded sound suggests that unauthorized copying and sharing will persist in its own unpredictable and shifting ways. In 1995 the Clinton administration hoped to stop copying entirely, worrying that “just one unauthorized uploading of a work onto a bulletin board … could have devastating effects on the market for the work,” yet the idea of preventing any item from ever being shared is unrealistic in the context of a culture and an economy that thrive on the unencumbered communication of ideas and expression.53
Legal scholar James Boyle has described the expansion of intellectual property rights in the twentieth century as a “second enclosure movement,” comparing new laws to the privatization of the countryside in early modern England that denied peasants their traditional right to share and use the land as a commons.54 Indeed, when corporations asserted new kinds of property rights, they resembled the politicians, foresters, and landowners who fenced in the backwoods of the American South in the late nineteenth and early twentieth centuries—land that rural people previously used as an open territory for grazing hogs and cutting timber to support their modest, isolated homesteads. Felling a tree did not constitute stealing when the land under it belonged to no one in particular, and the land became property only when others saw a potential value there and put a fence around it. In his work on the Southern countryside, historian Jack Temple Kirby showed how law ultimately extinguished a whole social world of shared resources, mutual aid, and self-sufficiency.55 The way of life of many rural Southerners was gone, supplanted for the prerogatives of those who desired orderly, efficient production for the market.
Like any analogy, a comparison between the fencing in of the countryside and the growth of intellectual property is neither perfect nor exact. A creative work “belongs” to an artist more plainly than a patch of land belongs to any interested party—the artist made the song but the property owner did not make the land. But the battle over piracy does resemble historic examples of enclosure in the sense that it placed a logic of economic utility and property rights against an array of spontaneous and organic relations of production, exchange, and consumption. In the case of recorded sound, anti-piracy efforts attempted to curtail the web of social relations through which so much of the meaning and value of music emerges—the desire for it, the sharing of it, and the surprises piped through illicit and unofficial channels of sound. Fighting piracy, home taping, and file sharing means fighting demand, rather than satisfying it.
Such an outcome is not just an instance of market failure. It is also a failure of political imagination. Uncritical support for intellectual property rights places private interests high above those of the public. When an individual’s or corporation’s right to maximize profit becomes the only goal of public policy, any stake the broader community may hold in the vast store of human creativity, whether music, art, writing, or technology, disappears from view. Hence the odd argument that copyright should last forever, or almost forever—a rightful inheritance that should endure like a family heirloom or estate. In such a scenario, we would have to seek out the descendants of Shakespeare for permission to perform All’s Well that Ends Well.56 The value that culture holds for other artists, seeking inspiration and borrowing ideas, for students seeking affordable access to music and literature, or for any citizens to draw on the legacy of the past appears irrelevant. Copyright interests in the late twentieth century supposed that people should not learn, feel, or experience any expression without money changing hands. Pirates suggested otherwise.
Piracy was present throughout the history of the record industry, a fact of life that was ignored, accepted, or resisted, depending on the circumstances. In its various permutations, from the jazz era to the heyday of rock and the rise of hip-hop, unauthorized reproduction pointed the way to different ways of making and enjoying sound, a nascent set of productive relations that grew in tension with mass culture and copyright law. Lawmakers and judges recast copyright as a bulwark against a rising tide of piracy since the 1950s, yet stronger property rights failed to thwart the industry’s pirate nemesis—and the traditional sectors of the music business stumbled into an unprecedented decline in the early years of the twenty-first century. Music remains as abundant as ever, as file sharing and new businesses provide access to a broader range of music than was available to most people for most of the industry’s history. Piracy might not kill music, but history may record that it killed the twentieth-century record industry.
NOTES
Introduction
1. J. Cole, Friday Night Lights, November 12, 2010, http://www.jcolemusic.com/us/music/friday-night-lights-mixtape, accessed May 12, 2011.
2. Lorenza Munoz, “Anti-Piracy Swords Drawn in Theaters,” Los Angeles Times, March 3, 2003, http://articles.latimes.com/2003/mar/03/entertainment/et-munoz3, accessed February 3, 2011; Jason Silverman, “Anti-Piracy Campaign Gets a Laugh,” Wired, February 9, 2004, http://www.wired.com/entertainment/music/news/2004/02/62197, accessed February 3, 2011. House Committee on the Judiciary, Prohibiting Piracy of Sound Recordings: Hearings on S. 646 and H.R. 6927, 92 Cong., 1 sess., 1971, 53.
3. Adrian Johns, The Nature of the Book: Print and Knowledge in the Making (Chicago: University of Chicago Press, 1998), 622; Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001), 37.
4. Edward Samuels, The Illustrated Story of Copyright (New York: Thomas Dunne Books, 2000), 31.
5. Aubert J. Clark, “The Movement for International Copyright in Nineteenth Century America” (PhD diss., Catholic University of America, 1960); Lisa Gitelman, “Reading Music, Reading Records, Reading Race: Musical Copyright and the U.S. Copyright Act of 1909,” Musical Quarterly 81 (1997): 272; Mildred Hall, “Copyright Revision Passage Unlikely in Current Session,” Billboard, May 13, 1967, 12.
6. Gitelman, “Reading Race,” 265–79. On the problem of dividing up rights among composers and various performers, see House Committee on the Judiciary, Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 88th Cong., 1st sess., 1963, Committee Print, 11–12.
7. For a look at the post-industrial paradigm, see Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2000), 280–9; and Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, CT: Yale University Press, 2006), 2–7.
8. Benkler, Wealth of Networks, 31–2; Ernest Mandel, An Introduction to Marxist Economic Theory (Chippendale, Australia: Resistance Books, 2002), 41.
9. William Howland Kenney, Recorded Music in American Life: The Phonograph and Popular Memory, 1890–1945 (New York: Oxford University Press, 1999), 3; Benkler, Wealth of Networks, 369. For one example of music as a medium of mutual exchange, see the study of tape trading among “metalheads” in the Middle East in Pierre Hecker, “Heavy Metal in the Middle East: New Urban Spaces in a Translocal Underground,” in Being Young and Muslim: New Cultural Politics in the Global South and North, ed. Asef Bayat and Linda Herrera (New York: Oxford University Press, 2010), 338.
10. For academic and popular typologies of piracy, see Mark Jamieson, “The Place of Counterfeits in Regimes of Value: An Anthropological Approach,” Journal of the Royal Anthropological Institute 5 (1999): 1–2; and Pamela G. Hollie, “Piracy Costly Plague in Record Industry,” New York Times, March 10, 1980, D5.
11. Lee Marshall, Bootlegging: Romanticism and Copyright in the Music Industry (Thousand Oaks, CA: Sage, 2005), 81.
12. Grace Lichtenstein, “Tape ‘Bootleggers’ Still Active,” New York Times, June 5, 1971, 3; Peter Goodman, “Your New Tape May Be Phony,” Newsday, December 8, 1978.
13. “Bittorrent Goes to Hollywood,” Infoworld, January 1, 2007, 11.
14. John D. Zelezny, Communications Law: Liberties, Restraints, and the Modern Media (Boston: Wadsworth, 2011), 357–9;
Rob Arcamona, “What the Viacom v. YouTube Verdict Means for Copyright Law,” Mediashift, July 2, 2010, http://www.pbs.org/mediashift/2010/07/what-the-viacom-vs-youtube-verdict-means-for-copyright-law183.html, accessed February 6, 2011.
15. David Lowery, “Meet the New Boss, Worse Than the Old Boss? Part 1,” The Trichordist, April 8, 2012, http://thetrichordist.wordpress.com/2012/04/08/meet-the-new-boss-worse-than-the-old-boss-part-1/, accessed June 20, 2012.
16. AmericanCountryMan, “‘taliban song’—toby keith,” http://www.youtube.com/watch?v=7hPjatgRjL4, accessed December 29, 2010.
17. RABOD, “Ben Folds Five—Mitchell Lane,” http://www.youtube.com/watch?v=fVhZPbyn3is, accessed December 31, 2010.
Chapter 1
1. “Stenographic Report of the Proceedings of the Librarian’s Conference on Copyright 1st Session, in New York City, May 31-June 2, 1905,” in E. Fulton Brylawski and Abe Goldman, eds., Legislative History of the 1909 Copyright Act, Volume 1 (South Hackensack, NJ: Fred B. Rothman & Co., 1976), 12.
2. Griffin Hall, The Bogus Talking Machine; or The Puzzled Dutchman, arr. by Charles White (Chicago: Dramatic Publishing Company, 1876), 3.
3. Hall, Bogus Talking Machine, 5–6.
4. Reebee Garofalo, “From Music Publishing to MP3: Music and Industry in the Twentieth Century,” American Music 17 (1999): 325; Geoffrey Jones, “The Gramophone Company: An Anglo-American Multinational, 1898–1931,” Business History Review 59 (spring 1985): 79.
5. Allan Sutton and Kurt Nauck, American Record Labels and Companies: An Encyclopedia (1891–1943) (Denver, CO: Mainspring Press, 2000), 228–9.
6. David Morton, Off the Record: The Technology and Culture of Sound Recording in America (New Brunswick, NJ: Rutgers University Press, 2000), 1. Ironically, AT&T later suppressed the development of magnetic recording by Bell Labs in the 1930s because of fears that the ability to record telephone conversations easily would raise public suspicion about the company and damage its image. See Mark Clark, “Suppressing Innovation: Bell Laboratories and Magnetic Recording,” Technology and Culture 34 (July 1993): 516–38.
7. H. S. Maraniss, “A Dog Has Nine Lives: The Story of the Phonograph,” Annals of the American Academy of Political and Social Science 193 (September 1937), 8–13; William Howland Kenney, Recorded Music in American Life: The Phonograph and Popular Memory, 1890–1945 (New York: Oxford University Press, 1999), 54–5; Charles Bernstein, “Making Audio Visible: The Lessons of Visual Language and the Visualization of Sound” Text 16 (2006): 279.
8. Lynn Bilton, “The Talk of Ohio,” April 1991, http://www.intertique.com/The%20talk%20of%20Ohio.htm, accessed March 3, 2007, 1; Allan Sutton, “The Leeds & Catlin Story,” http://www.mainspringpress.com/leeds.html, accessed February 26, 2007, 1.
9. Allan Sutton, “Early American Record Piracy,” Mainspring Press, http://www.mainspringpress.com/pirates.html, accessed February 11, 2009. For example, Arthur Collins and Byron G. Harlan, Alexander’s Ragtime Band (Universal Talking Machine Copy, c. 1911).
10. “High Standard Records (ad),” Phonoscope, October 1897, 2 (all caps in original).
11. “The Original ‘Michael Casey’ (ad),” Phonoscope, November 1896, 3.
12. “A Little Spice Now and Then Is Relished by the Wisest Men (ad),” Phonoscope, October 1897, 2.
13. “General News,” Phonoscope, April 1897, 9.
14. “The Globe Phonograph Record Co. (ad),” Phonoscope, December 1896, 17.
15. Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity (Athens: University of Georgia Press, 2006), 19; Edward Samuels, The Illustrated Story of Copyright (New York: Thomas Dunne Books, 2000), 168–9.
16. “Letters,” Phonoscope, May 1897, 14.
17. “Original ‘Michael Casey’ (ad),” Phonoscope, 3.
18. “Notice,” Phonoscope, 17.
19. Walter Leslie Welch, Leah Brodbeck Stenzel Burt, and Oliver Read, From Tinfoil to Stereo: The Acoustic Years of the Recording Industry, 1877–1929 (Gainesville: University Press of Florida, 1994), 74.
20. Fred Gaisberg, The Music Goes Round (New York: Macmillan, 1942), 19.
21. “Original ‘Michael Casey’ (ad),” 3.
22. R. R. Bowker, Copyright, Its History and Its Law: Being a Summary of the Principles and Practices of Copyright with Special Reference to the American Code of 1909 and the British Act of 1911 (Boston: Houghton Mifflin, 1912), viii.
23. Bowker, Copyright, Its History and Its Law, x. On the quest to universalize copyright law, see Aubert J. Clark, “The Movement for International Copyright in Nineteenth Century America” (PhD diss., Catholic University of America, 1960).
24. Samuels, Illustrated Story of Copyright, 34–5.
25. White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. at 2 (1908).
26. Victor Herbert, “Canned Music,” New York Times, December 19, 1907, 8.
27. “Music Test Case Argued,” Washington Post, January 17, 1908, 2.
28. David L. Morton, Jr., Sound Recording: The Life Story of a Technology (Baltimore, MD: Johns Hopkins University, 2006), 18.
29. Ibid., 25, 35.
30. Ibid., 31.
31. “Music Test Case Argued,” 2.
32. White-Smith, 209 U.S. at 17; Lisa Gitelman, “Reading Music, Reading Records, Reading Race: Musical Copyright and the U.S. Copyright Act of 1909,” Musical Quarterly 81 (1997): 265. In 1978 author John Hersey dissented in the decision of the Commission on New Technological Uses of Copyrighted Works, appointed by Congress, that computer code should be covered by copyright. Hershey argued that a series of ones and zeroes in a computer program could not convey any meaning to a human reader, as traditional artworks do. See John C. Lautsch, American Standard Handbook of Software Law (Reston, VA: Reston Publishing Company, 1985), 109–10.
33. “Music Test Case Argued,” 2.
34. White-Smith, 209 U.S. at 19; Nicholas Henry, Copyright—Information Technology—Public Policy (New York: Marcel Dekker, 1975), 53.
35. John H. Wigmore described Day’s assertion that the “musical tones are not a copy that appeals to the eye” as “philistine and unimaginative,” in Wigmore, “Justice Holmes and the Law of Torts,” Harvard Law Review 29 (1916): 610. At the time, though, the Harvard Law Review said “the decision reached by the court is logical, and is supported both in England and in this country,” in “Recent Cases,” Harvard Law Review 19 (1905): 134; see also “Perforated Music Rolls Not Sheet Music within Meaning of Copyright Law,” Yale Law Journal 15 (1906): 141.
36. White-Smith, 209 U.S. at 2.
37. “Stenographic Report,” vii.
38. Ibid., 7.
39. Ibid., 46.
40. Ibid.
41. Adrian Johns, “Pop Music Pirate Hunters,” Daedalus 131 (spring 2002): 68.
42. “Stenographic Report,” 12.
43. Johns, “Pop Music Pirate Hunters,” 68.
44. “Stenographic Report,” 12.
45. “Hearings before the (Joint) Committees on Patents, June 6–9, 1906,” in E. Fulton Brylawski and Abe Goldman, eds., Legislative History of the 1909 Copyright Act, Volume 4 (South Hackensack, NJ: Fred B. Rothman, 1976), 26.
46. Ibid., 28–9.
47. Ibid., 28.
48. Ibid., 27.
49. Ibid., 28.
50. Andre Millard, America on Record: A History of Recorded Sound (New York: Cambridge University Press, 2005), 37.
51. “Hearings Before the (Joint) Committees on Patents, June 6–9, 1906,” 27.
52. Ibid., 27.
53. Ibid., 25.
54. Kenney, Recorded Music in American Life, 52–3.
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