The (Limited) Historiography of Music Piracy in the US

The historical literature on music piracy encompasses works on both intellectual property and media technology — not simply because the latter enables the appropriation of the former, but because these two factors have mutually constituted each other through the social practices of bootleggers, listeners, musicians, and record companies. Taking the long view, Siva Vaidhynathan's Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity examines how concepts of copyright related to an array of cultural practices, especially as different media fostered new types of expression. Copyrights and Copywrongs traces the evolution of American law from its roots in the earliest British printing regulations in 1557, touching on the Constitution's mandate for copyright and Mark Twain's crusade for better protection of authors. Not long after Twain succeeded in his efforts, though, challenges to the regulation of copyright proliferated, as “photocopy machines, cheap cameras, film, video tape, and digital and computer technology… allowed almost any person to distribute a facsimile of almost anything to almost anyone almost anywhere.” However, Vaidhyanathan is more interested in how people think about the ownership of ideas and expressions, and how borrowing and copying function in musical traditions such as blues, rock & roll and hip-hop. His book does not dwell long on the use of new media for distributing unauthorized copies of recordings in the market; piracy merits a few mentions, and bootlegging none.

A resource that deals with the illicit market for recordings is Clinton Heylin's Bootleg: A History of the Other Recording Industry, which charts the fortunes of the music-lovers who brought numerous unreleased and live recordings to the fans of artists who might have preferred their music stay in the vault – or the basement, in Dylan's case. A useful and engaging work, Bootleg is far from academic in tone and format, openly avowing its support for bootlegging as a worthwhile cultural practice. Heylin does not seek to fit the upstart labels of the late 1960s and early 1970s into a wider-ranging historical analysis, nor does he address the history of the other "other recording industry" – that of outright pirates, who were guided primarily by commercial motivations and made more or less exact copies of the hits. This business existed alongside the fan-oriented bootleggers, but Bootleg sticks to a common distinction between the two. In my view, both kinds of enterprises reproduced the creative works of others without permission and should be analyzed together. At the same time, a historian must take seriously the terms that were widely used at the time and understand why journalists and so many others insisted on the differences among bootlegging, counterfeiting and piracy.

Barring any direct commentary on piracy in America, one must turn to general works on intellectual property. Edward Samuels's The Illustrated History of Copyright provides the most accessible guide to a subject that often leads authors into impenetrable pedantry. Like Vaidhyanathan, Samuels begins at the beginning, taking the reader from the invention of the printing press and the 1710 Statute of Anne through the Internet and digital technology. The book treats each medium and its related court cases and legislation separately, with a chapter for "Books and Literary Works," "Music and Sound Recordings," "Movies and Television" and "The Computer.” Samuels treats each case and Congressional debate as a pragmatic compromise between different economic interests. In the process, the reader does not learn much about alternatives to the conclusion judges and politicians eventually settled on, as the complexities of decision-making disappear into a Panglossian take on copyright law. For instance, one of the key questions this dissertation seeks to answer is muffled in Samuels's history: "Although the record companies had lobbied for protection of recordings as early as the 1906 hearings, for various reasons Congress did not act." Why recordings went unprotected goes unexplained, although Samuels does have an idea of why the law changed in the early 1970s. "The technological advance that reintroduced urgency was the development of the relatively inexpensive and efficient tape recorder," he observes. Indeed, he notes that the following years saw an unprecedented flurry of revisions to copyright, such as the Copyright Act of 1976, the Trademark Counterfeiting Act of 1984, and the Digital Millennium Copyright Act of 1998, among others. “Whether by amendment or otherwise,” he writes, “copyright has hardly stood still, and indeed may have changed more in the past few decades than it had in the previous two centuries.”

Whether the advent of the tape recorder as a popular consumer good touched off this new round of technological and legal innovation remains unclear. The essential contradiction can be found in the 1969 Bob Dylan bootleg Great White Wonder: the recordings have been known as "the basement tapes," and Dylan even released them officially under this name in 1975, but the actual copies of Wonder that circulated in 1969 were vinyl albums. Indeed, Heylin's work and my own search for actual recordings affirms that most of the first wave of bootlegs did not appear on cassette, at least not at first. Tape recorders certainly helped people capture music at concerts, and perhaps cassettes made it easier to sneak unreleased recordings out of the studio. In any case, the role of technology in prompting both the expansion of the illicit market and the legislative response to piracy will be clarified by this dissertation.

The history of media technology is another body of literature that bears on the topic of piracy. Historians have produced a vast literature about the ways that media like radio and television changed American politics, culture, social habits, and so on, and more recent developments like the personal computer and the Internet have attracted considerable attention since their introduction. Many authors have written about the long-term evolution of telecommunications, as in Brian Winston's Media Technology and Society, a sweeping view of radio, television, phonograms, cable, the Internet and many other media. In the grand sweep, though, cassettes warrant only a few pages, and nowhere is piracy a topic of concern. Winston does provide some crucial historical background about how magnetic tape was first invented in 1930s Germany, pilfered by victorious Americans after World War II, incorporated into radio broadcasting in the 1950s and eventually popularized in cassette form as a consumer good in the 1960s and 1970s. Jonathan Sterne’s The Audible Past seeks to investigate the “origins of sound reproduction,” but does not deal directly with the tape recorder. (In fairness, as a work on “origins,” the book tends to focus more on the earlier years of cultural and technological change.) Vaidhyanathan, for one, discusses the significance of sampling – using digital technology to incorporate part of an existing recording into a new one – as a form of unauthorized reproduction. However, he sees this practice as having more in common with the borrowing of chord patterns from other artists in blues and rock & roll than with bootlegging or piracy.

Strictly technical works do not provide much more help. Since companies like Sony and TDK were instrumental in developing the new media that fostered piracy, one would expect that studies of Japanese technology would provide some insight into the development of cassettes and tape recorders. Gene Gregory's Japanese Electronics Technology: Enterprise and Innovation focuses almost exclusively on advances in television, semiconductors and other high-tech fields. Akio Morita's memoir, Made in Japan: Akio Morita and Sony, provides some insight into the technical background of new media developed by his company. In her intriguing work, The Culture of the Copy: Striking Likenesses, Unreasonable Facsimiles, Hillel Schwartz remarks that some Western observers in the 1950s and 1960s attributed Japanese success in developing recording and copying technologies to their alleged tendency to imitate others, as monkeys are said to do. This same racist attitude recurred in the case of the videocassette recorder, and the resulting hullaballoo has attracted more attention from scholars than the earlier audiocassette. When Sony released the Betamax recorder in the mid 1970s, the US entertainment industry responded with a major lawsuit, alleging that the device would destroy the television and movie businesses by permitting unrestrained copying of their products. Jack Valenti, the voice of the Motion Pictures Association of America, best captured the xenophobic fervor when he told Congress, “It is… a piece of sardonic irony that while the Japanese are unable to duplicate the American films by a flank assault, they can destroy it by this video cassette recorder.” The extravagant rhetoric and the high-stakes Supreme Court case over the Betamax have drawn the attention of James Lardner, whose 1987 work Fast Forward: Hollywood, the Japanese and the Onslaught of the VCR examines the widespread anxiety over Japanese competition in this period and, specifically, the entertainment industry's fear of technological annihilation. Joshua Greenberg, in an unpublished dissertation called “From Betamax to Blockbuster,” addresses many of the same issues, with more emphasis on the social uses of videotapes. For whatever reason, the development of the VCR and its use for illicit reproduction have been widely discussed, even though music piracy emerged earlier and arguably had a greater legal impact.

Sound recording has a literature of its own, apart from the broader history of media. Most works on audio technology devote a good deal of attention to the music industry, especially after experimental early days of the phonograph, while books focused on music often gloss over the technical aspects of sound recording in order to focus on artistic evolution or business history. David and Russell Sanjek's Pennies from Heaven fits into this category: organized in chronological sections, the book offers a deal-by-deal chronicle of the antics and travails of the music industry, as entrepreneurs lurched from lawsuit to labor dispute and endlessly undercut each other. Perpetual squabbles seem to have prevented the songwriters' organization, ASCAP, jukebox operators, broadcasters and record companies from agreeing to a set of copyright revisions, attempted in the 1950s but passed only in 1972.

In their attention for detail, the Sanjeks also describe key phases of technological change in sound recording, including the introduction of compact cassettes by Philips in 1963 and Lear's invention of the eight-track tape the following year. As Andre Millard observes in America on Record: A History of Recorded Sound, a portable form of recorded music had long been sought, as experiments with putting phonograph disc players in cars had yielded no success. If anything, one gets the impression from Sanjek that the music business was too distracted by the transition from the 78 records to 33s in the 1950s to come up with a viable solution to this problem. Philips's compact cassette offered too low a sound quality to take off at first; however, since the company chose not to protect its patent for the cassette, companies such as Matsushita, Nakamichi and Sony were able to improve the design significantly over the next few years. In the meantime, the Lear jet company arranged with Ford to install eight-track players in cars and with RCA to provide the “software” (music) for the new accessory. Millard observes that, since the tape could be started with one hand, it was ideal for driving, although the eight-track lacked the recording function that would make Philips's compact cassette more attractive in the long run.

These authors argue that the cassette had numerous effects on practices of sound recording, not the least of which was piracy. Millard offers two very different applications of tape: businessmen used cassettes to record meetings and conversations, while the pioneers of rap music, unable to afford recording in a studio or obtain support from any major labels, used the same double-cassette tape decks that were employed in piracy to manufacture their own works. Similarly, in Repeated Takes: A Short History of Recording and Its Effects on Music, Michael Chanan notes that electronics firms marketed their cassettes and recorders as an alternative to working with studios or labels. "The claim was not beyond the bounds of imagination," Chanan points out. "Some artists have recorded hit singles and even LPs in their bedrooms." Indeed, these technologies facilitated not only the emergence of hip-hop, but also subsequent genres like punk, indie rock, and lo-fi, which often embraced the technical limitations of low-budget recording as an aesthetic device.

Such applications of the new media reflect the restructuring of the music industry in the late twentieth century, as the production of music diversified while control of distribution and marketing consolidated in a handful of international conglomerates. Even though the 1960s saw a round of mergers between big and small record companies, Millard points out that numerous musicians and industry veterans set out to start their own labels and recording studios, while producers such as George Martin freed themselves from the major labels and started freelancing. This trend toward the creation of independent production units in the recording process may help explain why bootleggers in the late 1960s were able to find pressing plants that would manufacture their records. Robert Burnett, in The Global Jukebox, argues that a two-tiered system developed on an international level: starting in the 1960s, the five or six major record companies developed a symbiotic (or perhaps parasitic) relationship with smaller labels, which would take chances on new styles that the majors would eventually adopt. This relationship prevails for both independents in the US and local record companies in foreign countries, which serve the multinational companies in much the same way. Both Millard and Burnett concur that an actual takeover was hardly necessary, as independent companies depended on the marketing muscle of vast conglomerates like MCA to get their records on the shelves.

Chanan observed the irony of this new situation: “The market is highly volatile and the costs of innovation are ever increasing, with the result that innovation is driven less by the manufacturers of software than those who produce hardware. The former, if they fall behind, are liable to be swallowed up, like Decca,” which was acquired by a subsidiary of Philips. To be successful, a record company must fit into the network of a megacorporation that not only sells stereos and tape players, but might also run funeral parlors and supermarkets. These firms are in the position of pushing the hardware that permits the easy appropriation of their software – one of the perils of “synergy.” This overlapping of interests could explain why the US entertainment industry launched a frontal assault on the videocassette recorder and not the audio recorder: the VCR was introduced by a Japanese company, Sony, that had no substantial holdings in music, movies or television at the time, while the electronics companies that introduced audio cassettes also had stakes in the music industry.

The international angle on piracy has not been limited to the work of Schwarz, Lardner and Burnett. Peter Manuel has examined the broad impact of the “cassette culture” in India, which restructured the music industry, gave means of expression to the political fringes, allowed an explosion of folk music, and bedeviled producers of all kinds with a booming pirate trade. Until the 1970s, one could get a feel for the music business in India by looking at the name of the dominant British firm: His Master’s Voice. Given the high cost of entry into the vinyl market, popular music tended toward homogeneous film songs that could reach the widest possible audience and suited the state’s goal of national unity. When cassettes and tape recorders began circulating in India, entrepreneurs started making music that could appeal to regional tastes and niche markets, such as classical music or bhajan or qawwali traditions that had rarely been recorded before. The new businesses ranged from tax-paying firms to massive pirate networks to small-time shops that would record a mix of selected songs for the consumer. In any case, the option to avoid central control, whether by a corporation or the state, remained open. Such new outlets, Manuel warned, could inhibit indigenous development by providing foreign music at artificially low cost and poaching on the small profit margins of local producers. Still, the unpredictable environment offered the possibility of greater creativity. “Cassettes have further blurred the already oversimplistic distinction between producers and consumers of music,” Manuel wrote, “highlighting the existence of various intermediate agents, who imitate, recycle, recreate, and freely appropriate elements of mass culture.”

Brian Larkin has looked more closely at the ramifications of piracy by examining the use of video and audio cassettes in Nigeria. He argues that illegal reproduction works as an integral part of the greater circulation of goods and ideas on the world market, as part of the “infrastructure” or “architecture” of globalization. For Larkin, piracy “represents the potential of technologies of reproduction – the supple ability to store, reproduce, and retrieve data – when shorn from the legal frameworks that limit their application.” Indeed, he sees the black market as a site where hybrids develop and unexpected possibilities may result from the constraints of production. The noise in an illegal copy may reveal whole new subjective and aesthetic experiences, as colors break down and outlines fade into a delirious light. The physical infrastructure of piracy, he argues, also gives rise to indigenous industries and genres, like Nigeria’s “videofilm” business, manufactured on the same machines that make pirate prints.

This discussion of historiography shows that few have directly analyzed music piracy in the United States, nor has the history of media technologies that contributed to the growth of unauthorized reproduction been well developed. Recent works have attempted to remedy this shortcoming of the literature. These studies include music critic Greg Kot's excellent Ripped: How the Wired Generation Revolutionized Music, which focuses primarily on how mp3 technology has upset a corrupt and ossified record industry; Lucas Hilderbrand's Inherent Vice, which focuses on the legal dimensions and material culture of video bootlegging; and the collection Sound in the Age of Mechanical Reproduction, edited by David Suisman and Susan Strasser.

Alex Cummings

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