Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century
(Oxford University Press)
US: Apr 2013
Though Napster is a dead entity its specter haunts the piracy conversation as fans and some artists claim that the recording industry didn’t respond fast enough or fair enough or wisely enough to file sharing; some cite the arrival of Napster and other such sites as the final nail in the coffin of an industry that had been on a decline since the ‘80s. David Lowery (Camper Van Beethoven, Cracker) responded to an NPR intern’s 2012 blog entry with a powerful and compelling public letter that shed light on the real damage that file sharing, free culture, and streaming sites have done to the industry. (“Letter to Emily White at NPR All Songs Considered”, The Trichordist.com, 18 June 2012) Others––many of whom Lowery referenced in his letter–––continued to argue that these fans were only toppling a corrupt business that needed to be dismantled long ago.
Although the technologies with which “fans” pirated music were new, the arguments were not. Even in the early days of the file sharing debate, elder music fans argued that some had once said that home taping would also topple the industry. Others could have pointed out the threat that photocopy machines once presented to writers and publishers who feared that the proliferation of these gadgets would adversely and permanently impact the publishing industry.
Piracy victims had legitimate complaints but, as Alex Say Cummings notes in this brilliantly written and researched volume, those complaints were hardly new in 1985 or even 1999. Cummings acknowledges that ethical concerns about copying date back to at least the advent of the printing press. Early on, the rights to the work did not belong to the author but instead to the printer, though some of the tides have turned in favor of a work’s creator. Asurvey of rock ‘n’ roll history alone reveals myriad examples of composers and artists who do not own the rights to their own work. Cummings offers that “Copyright, in short, has always been the creature of shifting political interests and cultural aspirations––always incomplete, always subject to change”. He adds that new technologies––or platforms––created new questions about the regulation of materials. Would songs that were available on jukeboxes, for example, be subject to different standards than those heard on the radio?
The very intangibility of sound created several vexing questions. Yes, there was a composer, but his composition could be performed by countless other musicians in seemingly countless ways. Today, some argue that even though a producer or engineer may not have had a hand in writing a song they are, by their nature, authors of a sound recording. Without their expertise, the argument goes, that song or album may not have sounded as it does and would therefore not be as successful. Are they to be compensated in exactly the same fashion as the artist who saw the composition from inspirational spark to finished work?
Cummings seeks to answer “how American society dealt with the prospect of uncontrolled copying in a century when culture industries rose to new prominence in the nation’s economy”. He begins his examination circa 1877––in fact one year before that, “One year before Edison first etched a sound pattern on tinfoil in his New Jersey lab”, with the arrival of the skit The Bogus Talking Machine, or the Puzzled Dutchman. The story, he writes, reminds us that recording was initially “a vehicle for human speech”, adding “Edison initially conceived of his invention as a tool for capturing ordinary voices as much as singers or musicians; the original impetus for the phonograph had been his desire to record messages sent over the telephone”.
Music and composers entered the picture in a different way and even early on there were voices arguing from different corners––that of the artist and that of the craftsman. Cummings notes that those who made piano rolls and phonographs were convinced that they should also “receive a copyright for their unique reproduction”. By 1909, the wisdom was that “copyright was a privilege granted by the government, not a moral right possessed by creators”, though that would change with later generations.
Subsequent years would present several challenges not only for consumers but lawmakers and artists, as well. Collecting artifacts of culture in the ‘20s in particular raised several questions that would remain unresolved nearly a century later. Jazz aficionados were often interested in records that had been made in small numbers and specifically marketed to African American listeners. Records that were not especially successful on the commercial front would slip out of print, although word of mouth and demand for them would remain or resurge.
Collectors then as now believed that there was music that fell well outside the ears of the mainstream that deserved to be heard. In a sense, bootlegging culture and collector culture overlapped as obsessives assumed that “if large companies could not make a profit by keeping [such] recordings in circulation, individual fans and entrepreneurs would copy and distribute the music themselves”. Cummings adds, “By buying, selling, and copying the out-of-print discs of yesteryear, collectors showed that recordings did have an enduring value that the original producers––artists and record companies––would have an incentive to protect”. At the same time, “bootleggers tested the limits of how listeners could legitimately use the products of modern culture industries, while provoking a reconsideration of the meaning of recorded sound as both art and property”.
Continued advancements in technology have made the world of the collector perhaps even more diverse and easy answers to complex moral questions more difficult to come by. These days, one can find numerous blogs that offer downloads of works by obscure international or local/regional acts. If you missed out on, say, the second wave of Israeli psychedelic music or moment in the early ‘80s when bands in Bowling Green, Ohio began crossing British synth pop with Lithuanian free jazz, you can probably find a site that offers you one or two or even ten chances to download such material. In some cases, this culture of sharing leads to legitimate reissues, and the reissue market, especially that which caters specifically to such rarified acts, remains lucrative. Some would argue that what matters is that the music is finally being heard and appreciated, that it’s finally finding an audience.
New media and the ebbs and flows of the industry have given rise to other types of online sharing that some would greet with more caution. Fans of progressive rock, for example, can attest to certain reissue campaigns being less successful than others. One might find that the first CD issue of a band’s second 1972 album omits a 30 second spoken word introduction that was available on the vinyl version, or that the bass on that same album but in a different reissue campaign is entirely too loud. A fan digitizes a pristine vinyl copy for fellow enthusiasts so that they can appreciate the record as it was initially heard. The music finds an audience but the band––and the label that reissued the material that sparked this debate––doesn’t make money in the process.
But then any medium in which sound can or could be presented in the last century, and this one as well, has presented its own series of complexities, whether they be the rise of bootleg recordings, the popularity of radio, or the cassette tape and the car stereo. One of the more intriguing chapters on the history of recorded music and rock ‘n’ roll chronicles the rise of bootleg albums as happened in the late ‘60s, with appearance of records such as Great White Wonder, an issuing of Bob Dylan’s “basement tapes”. Made public several years before he and The Band would touch up, re-record and generally augment and re-imagine tunes conceived during his “lost” period in the Woodstock woods and release that material with the bootleg-sounding name The Basement Tapes, Great White Wonder represented much of what there was for fans to love about bootlegs, and what the record industry would only slowly adopt in the coming decades.
Bootlegs could offer fans alternate versions of their favorite tunes––be it liberated studio or demo versions or in-concert recordings. In the decades before pricey multi-version anniversary editions of classic albums began appearing in the market, this was a window into the creative process, a glimpse at what might have been. Labels that focused entirely on these recordings sprouted up, offering their own style with sleeve art (or lack thereof) or even song selections. In addition to the aforementioned appeal of a glimpse at an alternate reality, it was also a way to chronicle moments that would never be captured on record.
Cummings cites the classic cassette only release, The Shit Hits the Fans by The Replacements, which captured the band’s classic lineup in all its ragged glory on the stage in Oklahoma just before leaving the indie label Twin/Tone for the major leagues. Anyone who has ever read more than a paragraph about The Replacements would know that any record company would see the prospect of a live release from the band as a sucking chest wound of a business proposition. Yet this recording, which was only pressed in a limited edition, and has never been officially reissued, is now impossible to find in its initial form.
Not even artists were sure whether to be flattered or outraged. In the case of Bruce Springsteen, we learn, one could vacillate between the former and the latter without much warning. Even Frank Zappa, who complained to the FBI on the problem of bootleggers and was obsessive in chronicling his own live shows, eventually acknowledged that fans wanted to hear certain live recordings and allowed, albeit with great reluctance, the release of two Beat the Boots box sets that were alternately everything one could love: blistering guitar solos not heard on any of his official releases, moments of historical importance such as the burning of a Swiss venue that inspired the Deep Purple classic “Smoke On the Water”. Alas, fans would hate the poor sound quality and incomplete shows.
The Grateful Dead gave the OK to fans that wanted to trade tapes of live shows and probably grew its considerable live audience as a result. Though the Grateful Dead would eventually put its collective foot down on trading in the digital age, it has released numerous archival recordings in beautiful packages that chronicle the shifting nature of its compositions and the magic of a good night on the stage—two of the many reasons that Deadheads began collecting gig tapes with abandon.
Cummings also dedicates a healthy portion of the book to the culture of the mixtape inside the hip-hop community, noting, “Scholars have sometimes romanticized the idea of sampling and mixing as natural responses to conditions of poverty, yet DJing and producing hip-hop tracks were hardly cheap enterprises”. He cites hip-hop musicians who point to the general expenses of DJ and sampling equipment, but suggests that as in many other cases inside the music industry there was a kind of symbiotic relationship at play—mixtapes offered artists exposure that could lead to legitimate sales. “When Def Jam and other labels leaked MP3s of vocal and instrumental tracks before an album’s release, they implicitly encouraged DJs to circulate the music… The labels also benefited from DJs doing the work of their own artist and repertoire (A&R) agents, who traditionally found and signed promising new talent”.
One of Cummings’ great gifts is his ability to convey the importance and complexity of copyright reform and other legal concerns––and the discussion of both in these pages is lengthy and weighty––with the same clarity he uses to explain relatively simple concepts such as the bootleg album or the hip-hop mixtape. A lesser writer might have emerged with a narrative that was uneven, erring too much on the intellectual side one moment or too much on the artistic. Cummings, though, doesn’t exactly find a middle way. Instead, he marries the two concerns seamlessly with intelligence and respect.
Cummings seems to be of the mind that music will ultimately be free. Although this is an unfortunate point of view, it takes nothing away from his scholarship. In Democracy of Sound, he ably conveys complex legal concepts and delivers a thoroughly readable account of a most fascinating area of history, one that will likely be debated so long as humankind is able to capture and experience sound.