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.

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  1. The reason lawmakers were once reluctant to copyright ideas was because they worried that doing so would stifle, rather than encourage, creativity.

    And then the RIAA’s dump trucks full of money rolled into D.C.

    1. William J. Jefferson requested his be delivered in a refrigerated trailer.

    2. Ashlyn. I see what you mean… Earn 10 to 60$/hr working from home with Google! I work two shifts 2 hours in the day and 2 in the evening. And whats awesome is Im working from home so I get more time with my kids I follow this great link,

      1. 60$/hr seems a low wage in exchange for having dudes cover you with goo jobs all day.

  2. I am always reminded of the late Karl Edward Wagner’s Kane series, which was sort of an evil (well, eviler) version of Conan, and also inspired by the bible story, of a man who murdered his brother and was cursed by Jehovah (who in this case was more a Great Old One in the Lovecraft style) to be immortal.

    When he makes it to the modern era, he becomes a record company executive.

  3. Dual cassette tape players destroyed the music industry, which was then destroyed even more by DATs, which was then even more destroyeder by burnable CDs and finally was totally destroyedenated by Napster.

    I can’t believe there’s anything left to destroy.

    1. exactly. Back in the 80s – making tapes for friends was pretty SOP.

      1. Record Execs couldn’t afford extra ivory back scratchers because of you! YOU MONSTER!!!

      2. For many of us, it was how we started learning a whole skill set.

    2. No problem, commercial music blows anyway.

  4. That is the folly of man. Now look in this window. [they are at another mansion, and they look inside a picture window] Here you see the loving family of Master P. [He’s shown tossing a basketball to his wife while his kid tries to catch it] Next week is his son’s birthday and, all he’s ever wanted was an island in French Polynesia. [his mom lowers the ball and gives it to the boy, who smiles, picks it up and drops it. It rolls away and he goes after it]

  5. Its all about keepin it free man!

  6. I’d love to read this recorded work for free.

  7. Ironically enough, the best merchandise item an independent artist can sell now is vinyl; people like how it sounds, and they have an intrinsic sense of its value.

  8. Hopefully, the Wenzel/Kinsella induced IP war can overflow here as well!

    1. Bring it on, dotCommunist! 🙂

  9. If you think Denise`s story is impossible,, in the last-month my friends mom basically also made the small fortune of $5316 grafting a fourteen hour week in their apartment and their friend’s sister`s neighbour was doing this for seven months and errned more than $5316 part-time on there mac. apply the guidelines from this address,

  10. “mix tapes in which artists individuals with no discernible talent spoke rhythmically over samples of music they didn’t own were crucial in the development of rap.”


  11. Fuck that shit, pay me for my music bitches!

  12. compulsory licensing of songs… could serve as a model… for the use of digital content.

    Uhhh, how about no. How about you shove compulsory licensing up your ass and let the artists and their audiences and the artists and their record companies work out pricing and rights and distribution themselves, in a market? The word “compulsory” should have been your first clue that the scheme you’re supporting is not libertarian.

    1. Nonsense. Art belongs to the world. To be relevant it has to be something that other artists will want to reference (e.g. by sampling). Artists should be compensated for their first sale and that’s it.

  13. The RIAA deserves no sympathy. The way they manipulated politicians and copyright law to destroy the public domain just so they can keep on milking KISS and Beatles albums is deplorable. They hide behind politicians just so they don’t have to update their business model.

    I haven’t bought a music album since 2003, when they started extorting the masses with threats of john doe lawsuits. Anyone with a basic knowledge of networking can tell you that an IP address given to you by your ISP doesn’t necessarily point to a particular person when the network is using a router or switch. This is why many people have gotten off when they mention they use a unsecured wireless router, because then it could literally be anyone in the neighborhood that downloaded those songs.

    I’m actually surprised it hasn’t gotten to a point where the RIAA lobbied to require router manufacturers to keep mandatory logs within every router so they can use it when they bust down your door and confiscate it.

  14. Cameron. I just agree… Nicholas`s comment is unimaginable, on wednesday I bought a brand new opel sincee geting a check for $9646 this last five weeks and over ten grand last month. without a question it is my favourite-work I have ever had. I began this 6 months ago and pretty much immediately earned more than $69, per-hour. I work through this website,

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