Democracy of Sound (28 page)

The passage of the Sound Recording Act marked a turning point in American thought about culture, technology, and property. The Senate passed a bill providing the first US copyright for sound recordings by voice vote on April 29, 1971, and the measure passed the House with similar ease on October 4. President Richard Nixon signed the bill into law on October 15.
⁸²
Courts had long struggled with the problem of how to protect a business’s legitimate investment in making a good or desirable product when copyright law technically did not provide any exclusive right to sell a recording. The idea of a quasi-property right gradually emerged to recognize and protect that investment in the absence of copyright, and the growth of piracy in the late 1960s pushed lawmakers to encode this view of the purpose and nature of copyright into federal law.

The traditional American preference for limiting copyright as much as possible had begun to ebb. American copyright had always been utilitarian in nature, designed to “promote the Progress of Science and useful Arts” by giving creators an incentive to make their works known to the world. The new way of thinking emphasized protection of capital outlays, of established businesses like record labels, rather than incentives. By reinterpreting copyright in this way, Congress showed a willingness to view whatever was good for business as being good for copyright and the public in general. This could mean strengthening penalties, extending the term of protection, or adding other products, such as software, computer games, and genetic code, to the list of protected works.

Indeed, the reform was merely part of a broader shift toward stronger property rights in the late twentieth century. Trademark law also grew stronger and more expansive during this period; whereas courts had traditionally focused on deception, penalizing firms that tried to pass off their own products as those of a competitor and unfairly profit from another firm’s good name, they increasingly condemned any activity that could
dilute
the value of a trademark.
⁸³
Defendants could be held responsible for infringing when their names or logos vaguely resembled those of a competitor, not just when they plainly copied. Similarly, a record company did not want the capital it had invested in signing Bob Dylan to a contract and promoting his records to be freely exploited by someone else, even
if the bootlegs did not directly compete with any of Dylan’s officially released records. The law had long forbade firms from freeloading on the “good will” that a competitor generated by providing a quality product or service. By the 1970s, however, the notion of good will had mutated into popularity, as the doctrines of unfair competition and trademark law provided the intellectual basis for protection of the social value of a hit.

Goldstein
and Beyond

The Sound Recording Act only protected records made after the law went into effect on February 15, 1972. Congress did not wish to interfere with existing contracts or state laws, which meant that antipiracy statutes would remain in effect in the seven states that had already passed them—Arkansas, California, Florida, New York, Pennsylvania, Tennessee, and Texas. Before passage of the federal reform, three tape pirates in North Hollywood, California, faced 140 counts of tape piracy under the state law. Among the trio were Donald and Ruth Koven, whose disgruntled employees tipped off the police about their pirate enterprise, as well as Donald Goldstein, whose name became synonymous with a landmark court decision on copyright.
⁸⁴
The pirates were convicted and appealed through the California courts without success, but the US Supreme Court agreed to hear their case in 1972.

To the pirates, the state’s antipiracy law violated the Constitution. Copyright was a responsibility of the federal government, and the historical record showed that Congressmen had consciously excluded “mechanical reproductions” (i.e., sound recordings) from protection under the 1909 act. Moreover, the California law indefinitely barred the unauthorized reproduction of a sound recording, providing the presumed owners of the recordings—record companies—an open-ended monopoly that surpassed the rights enjoyed by creators or owners of works under federal copyright law. This permanent property right, the pirates argued, violated the Constitution’s mandate that ownership should last only for “limited times.” Though bankrupt, Goldstein enlisted the help of attorney Arthur Leeds, who had persuaded several veterans of pirate defense to help him argue the case in California. Leeds believed that fighting a criminal prosecution would be the best strategy to undermine the antipiracy laws, since a jury might shy away from imposing so severe a penalty (prison) for the act of copying tapes.
⁸⁵

The court ultimately endorsed a capacious view of states’ rights in a 5–4 ruling. Citing Alexander Hamilton, Chief Justice Warren Burger argued that the states could only be constrained from doing something under three conditions: first, if the Constitution gave that power exclusively to the federal
government, as in matters of foreign policy. Second, an action would be illegitimate if Congress specifically forbade the state governments from taking it—for instance, if Congress had stated that mechanical reproductions of music were
ineligible
for copyright in the 1909 law, rather than simply leaving them out. Third, a state could not act in a way that was “contradictory and repugnant” to a similar federal policy. Burger admitted that the California antipiracy law might fall into this category, but he reasoned that the Constitution had not specifically barred the states from writing their own copyright laws.
⁸⁶
The chief justice pointed to states such as Massachusetts and South Carolina that had granted their own patents in the late eighteenth century. He also dismissed Leeds’s argument that the open-ended, unlimited property right created by California was contrary to the constitutional requirement of copyright “for limited times.” That restriction only applied to federal copyright, Burger said.
⁸⁷

The majority also rejected the notion that
Sears
,
Compco
, or any other precedents should stand in California’s way. Decisions such as
White-Smith
and
RCA v. Whiteman
specifically refused to turn sound recordings into intellectual property, but Burger and his allies sided with the line of cases, such as
Metropolitan
, that protected a company’s investment. In fact, with the important exception of
Sears
and
Compco
, American courts had drifted in this direction for some time, given the reversal of
Whiteman
and the series of rulings against tape piracy in the late 1960s. Burger argued that
Sears
and
Compco
involved potentially patentable objects (light fixtures) that failed to qualify for patent, while sound recordings had been out of the federally defined ambit of copyright altogether. Therefore, the states were free to protect these goods in whatever way they saw fit. The chief justice brought up Louis Brandeis’s dissent in the 1919
Associated Press v. International News Service
decision, in which the progressive jurist suggested that “the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.”
⁸⁸

Burger disagreed. “There is no fixed, immutable line to tell us which ‘human productions’ are private property and which are so general as to become ‘free as the air,’” he said.
⁸⁹
Lacking such a line, the court preferred to err on the side of property.
Goldstein v. California
came down on the side of property rights and state power, to the detriment of the public domain and federal supremacy. Better to give property the benefit of the doubt, Burger seemed to say, unless such rights were explicitly denied by Congress or the Constitution. A Los Angeles record company enjoyed stronger rights than a songwriter in Little Rock, and the investment of capital got surer protection from the state and federal governments than the labor of a writer or inventor.
Goldstein
can in part be attributed to the conservative shift of the Burger court; it followed soon after the departure of Earl Warren, whose judiciary had favored federal power over the state
and local governments in cases such as
Brown v. Board of Education
,
Griswold v
.
Connecticut
, or, for that matter,
Sears
and
Compco
.
⁹⁰

The dissenters—Harry Blackmun, William Brennan, William Douglas, and Thurgood Marshall—believed that the creation of quasi-copyrights by the states would undermine “national uniformity,” which they considered a top priority of federal policy. In his dissent, Douglas sounded the once-familiar cry of monopoly, which moved the Supreme Court in 1973 no more than it had Congress in 1971. The justice, an appointee of Franklin Roosevelt, pointed out that federal law may create a monopoly in the form of copyright, but it was a limited one, quite unlike the right created by California law.
⁹¹
Meanwhile, three Nixon appointees—Burger, Lewis Powell, and William Rehnquist—sided with the state of California, joined by Potter Stewart and Byron White.

The
Los Angeles Times
reported approvingly of the court’s move to protect the performers and composers of California’s “vast record industry.”
⁹²
Chief Justice Burger argued in his opinion that states had a legitimate interest in protecting their local businesses that other states (and the federal government) might not share. If piracy deterred record companies—“a large industry in California,” as Burger pointed out—from making new recordings, then the state had every right to pass laws to stop it.
⁹³
In such a way did the Supreme Court understand its treatment of music and property in 1973. Congress had considered a ban on pirate recordings to be unworkable little more than ten years earlier. In that short span of time, ensuring the recording industry could recoup its investments became accepted as a matter of economic necessity for local and federal authorities. Copyright became a safeguard and a symbol for the capital invested in creative works, and the lines between copyright and other property rights, formerly stark, became increasingly blurred in the move toward stronger, longer forms of protection. The recording industry accomplished this political feat through a decade of intense lobbying and litigation, but persuading law enforcement to enforce these measures posed even greater challenges in the decades that followed.

The Politics of Enforcement

The Sound Recording Act took effect on February 15, 1972, but tangible results did not materialize right away. Offenders had to have the opportunity to break the new law, and it took time for federal law enforcement to track the offenders and build cases against them. In the meantime, the RIAA took advantage of the Supreme Court’s mandate in
Goldstein
to press state and local authorities to enforce existing antipiracy laws and to pass them where they did not exist. Twenty-seven states had passed such statutes by 1975, but the coverage was
patchy. In the Midwest, for instance, Indiana and Nebraska had barred unauthorized copying of sound recordings, but Illinois, Iowa, Michigan, and Wisconsin had not, making it easy for pirates to evade criminal prosecution or civil suits.
⁹⁴

Pirates of pop hits carried on much as before, retailing their tapes in outlets where music was not conventionally sold. As Max Arons of the American Federation of Musicians observed, “In New York State every garage and everywhere else, every drug store they can get it.”
⁹⁵
The
Chicago Tribune
found them in “gas stations, laundromats, convenience food stores, and the like.”
⁹⁶
Mom-and-pop pirates relied on mom-and-pop outfits such as the local drug store to sell their products without anyone important noticing; the small business also represented a poor target for an industry lawsuit, unlike a record store chain like Sam Goody.
⁹⁷

RIAA agents had to explain to many policemen that pirates were actually violating the law. Francis once spent several hours at a precinct in downtown Manhattan, explaining to the secretary that he had found several stores around town selling pirate tapes. She eventually decided to transfer him upstairs, where he explained to two detectives that New York had a state law against piracy. “One of the detectives was willing to listen and the other fellow felt it was too much trouble to pursue an obscure misdemeanor and suggested some other bureau handle it,” Francis said. Following a call to the assistant district attorney’s office, he ended up recounting the story twice more to several other detectives that afternoon.
⁹⁸

If police in downtown Manhattan had not been informed of the antipiracy law, how much easier would it be to violate the statute in some remote hamlet upstate? Unless the FBI stepped in to enforce federal copyright, record companies had to rely on state laws that were carried out by city, county, and state police. Where states had only made record copying a misdemeanor, police departments seldom placed a high priority on seeking out pirates or following up on complaints.

The case of Jack and Julius Kessler suggests that pirates had begun to coordinate such operations nationwide, consciously choosing production sites they believed were beyond the reach and attention of law enforcement.
⁹⁹
From 1971 to 1972, the Kesslers worked with Leonard Lockhart, owner of a dress manufacturing company called Playgirl Industries, to produce tape anthologies of pop music such as
Janis Joplin’s Greatest Hits
and
The Best of Rock, 1970
. They did attempt to meet their obligations under the compulsory license system, sending out $95,578.65 in checks to publishers and songwriters, of which $53,000 were not cashed. (At least some songwriters were accepting the payments.) The business operated out of a “windowless white concrete building in a secluded area in Elk Mills,” according to the Maryland Supreme Court. Piracy was not yet a criminal offense in Maryland.
¹⁰⁰