The Long, Fruitful History of Music Piracy

Music and intellectual property law.


Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century, by Alex Sayf Cummings, Oxford University Press, 272 pages, $29.95.

Piracy is bleeding the music industry is to death. The rise of the Internet, with the widespread sharing of mp3 files and the ease of finding music on YouTube, has destroyed the record companies' business model. Music, once tied down by vinyl and copyright law, has been liberated—for the greater good and/or at the expense of its rightful owners, depending on your perspective. Either way, the last couple of decades have seen a monumental, unprecedented change in the way we interact with music, and in the way we possess, or don't possess, it.

Or that's the story promoted, for different reasons, by both record companies and file-sharing tech-utopians. The reality is both less strident and more interesting, as Alex Sayf Cummings documents in Democracy of Sound. Cummings traces the history of music piracy from the wax cylinders of the 1870s to the present day. In the process, he shows that today's debates around copyright and piracy are not new. They were present at the inception of sound recording.

Music has been compact and easy to reproduce since the days of sheet music. It is, moreover, intensely social: People want to share it with each other, whether by sending a YouTube URL in the 21st century, trading Grateful Dead tapes in the 20th, or copying sheet music for other singers in the church choir in the 19th.

Perhaps even more importantly, music is, and has long been, hard to pin down. A book or a painting is a physical object—but where is a song? Is it notes on paper that tell you how to sing it? Is it a live performance? Is it the recorded notes? Is a singer singing someone else's song copying that song, or is she making a new artistic work? Turning music into property is, in other words, conceptually complicated—which is why, Cummings, suggests, struggles over intellectual property have often started, or been worked out first, in struggles over ownership of music.

The fact that music is widely seen as "intellectual property" is itself a product of that struggle. For a long time, the U.S. worked to separate intellect and property. In the early 1900s when copyright issues around sound recording were first being negotiated, the law "protected the tangible expression of an idea and not the idea itself," Cummings writes. Lawmakers struggled to figure out where sound recordings fit into that framework. Was the recording a tangible expression of a new idea? Or was it simply a copy of an idea? Congress initially leaned towards the second interpretation—and, as a result, sound recordings could not be copyrighted. For decades, pirates had to be prosecuted under common law or statutory bans on unfair competition. It was only in the 1970s that copyright was extended to sound recordings.

The reason lawmakers were once reluctant to copyright ideas was because they worried that doing so would stifle, rather than encourage, creativity. Unrestricted property rights in music, they feared, could create monopolies, harm consumers, and throttle innovation and competition. This was the rationale, in part, for giving songwriters only limited rights over the use of their songs.  Under the law, licensing was compulsory: Songwriters received a fee from recordings, but could not refuse the use of their work. You can thank this system for America's long history of cover versions. Indeed, in the years before it was common to play records on the radio, these remakes were central to the record labels' business model: Re-recordings of hit songs by different artists were a major source of income. A whole subset of artistic production and commerce, in other words, was enabled not by the expansion but by the limitation of intellectual property rights.

This apparent contradiction surfaces again and again throughout Cummings' book. Property rights in music are supposed to promote creativity, but often they seem to either be irrelevant, or else actively retard it. Early collectors began to copy and preserve hot jazz recordings in the 1930s, for example, at a time when larger record labels were uninterested in keeping them in print. Decades later, in the late 1970s and early 1980s, mix tapes in which artists spoke rhythmically over samples of music they didn't own were crucial in the development of rap. The critical reassessment of early jazz and the creation of hip hop were two of the most important movements in 20th century music, and both occurred not because of music copyright but despite it.

Towards the end of the book Cummings makes a quiet case for moving towards a less repressive intellectual property regime in the Creative Commons vein. But he's not an ideologue, and the his main contribution is not to propose a particular legislative path for copyright. Rather the book is valuable because it shows how long, and how thoroughly, the history of recorded music has been the history of "pirated" music. It turns out that the Internet isn't apocalyptically transformative. It's just a new extension of an old dynamic. And that means that rather than creating apocalyptically transformative new legislative solutions, we could instead perhaps look to the past for ideas. The compulsory licensing of songs that enabled cover versions, for example, could serve as a model not just for the treatment of samples in hip hop, but more generally for the use of digital content.

Whatever rules are established, Cummings' book makes clear that piracy will continue—and that that is far from being a bad thing. Certainly, some copiers are rip-off artists. But others are fans, or even creators. People will always share music with one another. That's a feature, not a bug. One of the things people love about music, or any art, is the way that you don't have to own it for it to be yours.