Copying and property have always functioned in dynamic tension. The music and movie industries 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. What is “free as the air” today, as Justice Louis Brandeis put it in 1918, may be property tomorrow. 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 50 Cent’s 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 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.
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.”
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 create “new” works that are nearly identical to the originals, receiving praise for “recontextualizing” the works of others. Why not Puffy?
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 21st 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 emails, 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 13 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.
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 20th century recording industry was a perfect example of a Henry Ford-ist 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 20th 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.
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 U.S. 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.
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 inventory and shelf space to the best-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.
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 20th 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.
The idea of an information revolution first appeared in the early 1960s, soon after journalists and scholars began to speculate about a postindustrial 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 reside 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.
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-Ill.) and Sen. Philip Hart (D-Mich.), 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.”
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. 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-Mass.) that his company depended on a longterm 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. 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.
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).
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.”
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 20th and early 21st 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.
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. 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.
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. 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. 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. 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. 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.
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.” Music publishers lobbied to deny churches the right to share sheet music with each other in the early 20th 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 20th century who paid pluggers and vaudeville artists to familiarize audiences with their songs by playing them. 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.” 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. “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.” For a small artist or firm, “piracy” could be just another word for “distribution” or “promotion.”
Early in the 21st 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.
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. 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 businesses 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 21st 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.
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.
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.” 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.
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.
Legal scholar James Boyle has described the expansion of intellectual property rights in the 20th 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. 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 19th and early 20th 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. 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.” 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 20th 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 21st 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 20th century record industry.
Reprinted from “Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century” by Alex Sayf Cummings, with permission from Oxford University Press USA. © 2013 Oxford University Press.