Democracy of Sound

Democracy of Sound

Democracy of Sound

Music Piracy and the Remaking of American
Copyright in the Twentieth Century

ALEX SAYF CUMMINGS

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Library of Congress Cataloging-in-Publication Data
Cummings, Alex Sayf.
Democracy of sound : music piracy and the remaking of American copyright in the twentieth century /
Alex Sayf Cummings.
pages cm
Includes bibliographical references and index.
ISBN 978–0–19–985822–4
1. Copyright—Music—United States—History—20th century. 2. Piracy (Copyright)—United
States—History—20th century. I. Title.
KF3035.C86 2013
346.7304′82—dc23
2012041759

1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper

For Sandy, Barbara, and Darrell

CONTENTS

Acknowledgments

Introduction

PART ONE THE BIRTH AND GROWTH OF PIRACY
, 1877–1955

1. Music, Machines, and Monopoly

2. Collectors, Con Men, and the Struggle for Property Rights

3. Piracy and the Rise of New Media

PART TWO THE LEGAL BACKLASH
, 1945–1998

4. Counterculture, Popular Music, and the Bootleg Boom

5. The Criminalization of Piracy

6. Deadheads, Hip-Hop, and the Possibility of Compromise

7. The Global War on Piracy

Conclusion: Piracy as Social Media

Notes

Index

ACKNOWLEDGMENTS

This project has come a long way since Joshua Wright, Antonio Del Toro, and I discussed the possibilities of file sharing and free media in the summer of 2004. For most of our lives, access to knowledge had been largely circumscribed by the ability to pay for it. I remembered how my mother, a single parent on a tight budget, had purchased volumes of an encyclopedia series at the grocery store when I was young, in the hope of providing me with a valuable resource; we only made it through the letter D, but I still spent hours thumbing through the volumes we had and learned a lot about Buddhism anyway. The idea that music, history, science, and so many other things of value and merit could be freely available to almost everyone all the time was a remarkable prospect. Wikipedia represented this new world as much as Napster, the music file-sharing network; to me, learning from a free encyclopedia did not seem so different from downloading free songs. This book is a product of its time, a moment in the early twenty-first century when all the structures of publishing, recording, and broadcasting were in flux. Its strengths belong to the many brilliant people who helped me write it; its shortcomings derive from the limits of my own historical vision.

Anyone who writes a book, especially a first one, probably feels like it took a cast of thousands to do so. This volume is no exception. First and foremost, Betsy Blackmar contributed to the doctoral thesis with her tirelessly inquisitive nature. She loved to give me “a hard time,” as she put it, and she did so with a smile. Whatever depth or insight this work might possess owes in large part to her. My other mentor was Barbara Fields—a fierce critic, kindred spirit, and valued ally since I first came to New York from Charlotte. I could always turn to her as a fellow Southerner in the big city. Her impatience with pompous, unreflective jargon dissuaded me from the temptation to lean on fuzzy language, while her intellectual honesty and defiance of conventional wisdom will always be an inspiration. The dissertation also benefited from the perceptive input of Sarah
Phillips, who encouraged me through the first seminar paper that launched the project, as well as Brian Larkin, Andie Tucher, and Eric Foner. And none of it might have been written if not for the inspiring scholars I encountered at the University of North Carolina at Charlotte, including Julie Hicks, Sam Watson, Jeffrey Meyer, John Flower, Kathleen Donohue, and Cynthia Kierner.

No historian can succeed without the generosity and good will of numerous archivists, librarians, and other knowledgeable and helpful professionals. Throughout this project, I have turned to the incomparable Dan Morgenstern of the Institute of Jazz Studies in Newark, who regaled me with stories of his rich life experiences with the musicians, collectors, and other colorful characters who populate the history of music in the twentieth century. At Middle Tennessee State University’s Center for Popular Music, I was privileged to receive invaluable assistance from Lucinda Cockrell, Martin Fisher, and Grover Baker, and Mary Lynn Cargill of Columbia University’s Butler Library initiated me into the mysteries of congressional committee reports. The boundless enthusiasm of Bill Schurk led to the discovery of a treasure trove of bootlegs at the Music Library and Sound Recordings Archive of Bowling Green State University, while Susannah Cleveland and the rest of the staff have helped me time and time again.

I would also like to thank the many institutions that provided material support for my research. Columbia University’s Department of History and Graduate School of Arts and Sciences gave me the opportunity to live in one of the world’s great cities and enjoy access to the finest intellectual resources for five years, and a fellowship from the Consortium for Faculty Diversity allowed me to continue this work for two years as I finished the dissertation. I was fortunate to receive yet another year of support from the American Council of Learned Societies as a postdoctoral fellow, which freed me from the pressures of teaching as I made the most crucial revisions to the manuscript. Several sections of this book have previously appeared in print; I would like to thank the reviewers and editors for their insightful feedback as well as Oxford University Press and the University of Pennsylvania Press for granting permission to reprint them here. Portions of
Chapters 1
and
5
appeared in the
Journal of American History
in a December 2010 essay entitled “From Monopoly to Intellectual Property: Music Piracy and the Remaking of American Copyright, 1909–1971,” and part of
Chapter 2
appeared as “Collectors, Bootleggers, and the Value of Jazz, 1930–1952” in Susan Strasser and David Suisman, eds.,
Sound in the Age of Mechanical Reproduction
(Philadelphia: University of Pennsylvania Press, 2009).

Finally, a number of individuals have pushed this project from dissertation to book. Siva Vaidhyanathan, Charlie McGovern, and a third reviewer gave rich, suggestive, and enlightening comments on the manuscript, and my editor Susan
Ferber has been a terrific partner in the complex and challenging enterprise of publishing a first book. Elaine Rose kindly took time to discuss the life of her father Boris, a fabled yet little-understood figure, and I cannot stress enough how much I appreciate her sharing her stories and records with me. I would also like to extend my thanks to Bill Golden, Francis Pinckney, George Stephanopoulos, and others who enriched this book by sharing their personal experiences. My friends and fellow scholars have contributed enormously by reading the manuscript and offering insightful suggestions; most notably, Ryan Reft and Joel Suarez have been great friends who endured a series of periodic panics and freakouts with good cheer. I owe a debt of gratitude as well to the wonderful coworkers who have advised and guided me through the early stages of my career, particularly Tom Ellman at Vassar College and Rob Baker at Georgia State. Last but far from least are my family—my mother and stepfather, Sandy and Andy Shepherd, and my grandparents, Barbara and Darrell Cummings, who always encouraged learning and creativity from the earliest age and instilled the belief that a working-class kid could go anywhere and accomplish anything. I would also like to thank my father Taher, stepmother Crystal, and brother Jamaal for all their love and support. Saira Mazhar has been my dearest friend since long before this project began to take shape, and her love has sustained both me and the book as life took us from Karachi to Queens and beyond. I hope she some day gets that nictitating membrane she always wanted.

Democracy of Sound

Introduction

Shout out to the bootleggers who supply my shit
the fans online trying to find my shit
and to the niggas listening but won’t buy my shit
and catch me in the street and wanna ride my dick
y’all niggas is the worst, see me like
“J. Cole homie, can you sign my burnt CD”
nigga please, an album ten dollars
you act like it’s ten g’s
this food for thought cost the same as 2 number three’s
so at ease with that broke shit
we all tryna get a dollar boy, no shit

—J. Cole, “The Autograph” (2010)

Like many people, rapper J. Cole is not sure how he feels about music piracy. He praises the bootleggers who copy and sell his mixtapes on the street, but he is impatient with fans who copy his music without paying a dime. As of this writing, “The Autograph” had not been formally put on the market. It was unavailable for sale on iTunes, but one could download it as part of the
Friday Night Lights
“mixtape,” a set of electronic files available for free on his website; hear it on college radio; and listen to it on YouTube. The people who distribute his music make it possible for fans to hear him, yet Cole is irked by fans who ask for his autograph on discs they copied themselves. Is it just a matter of disrespect?
¹

Cole is not the first person to have mixed feelings about piracy. Americans have struggled with the problem of unauthorized reproduction—called “piracy,” “bootlegging,” or “counterfeiting,” among other terms, depending on the circumstances—ever since Thomas Edison etched the first sound waves onto tinfoil in his New Jersey lab. Sound recording opened up a variety of new questions about art, economics, and law. Would a wax cylinder or shellac disc
be treated, in legal terms, the same way as a novel or photograph? For much of the last century, the answer was no. Who would own the rights to sound waves—the musicians, singers, or speakers who made the sounds? The producers and engineers who captured the sound and shaped it in the studio? The record label that paid everyone involved? And who was allowed to copy what, and under what circumstances?

Copyright interests are prone to paint copying as a cut-and-dried matter of morality. The Motion Picture Association of America runs an ad before movies showing how pirates take food out of the mouths of set painters and other working-class members of the film industry. Record labels say that listeners, through their wanton copying and file sharing, threaten to kill the goose that lays the golden eggs—the creative artist. It is not surprising that these arguments resonate with much of the public. Copying evokes cheating, plagiarism, and unoriginality. Many people, familiar with the ordinary injustices of everyday life, see piracy as just another example of someone getting rich off another person’s work. The artist is a worker, “tryna get a dollar,” like anyone else.
²

Such moral convictions may help to explain the hard shift toward stronger copyright laws in America during the last forty years, but they do not account for the many ways in which people copy and use each other’s work every day. American law has long recognized, first informally and later by statute, that a certain degree of copying, categorized as “fair use,” is acceptable. A teacher can make copies of a poem to discuss in class. I can cite a verse from J. Cole in this book, just as a film critic can quote lines from a movie in a review. And, of course, copyright in the United States has never been an immortal right. The public domain makes freely available all works produced before a certain date, although the ever-expanding scope of property rights has begun to threaten the existence of such a commons of creativity from the past.