Democracy of Sound (44 page)

Like the War on Drugs, the war on piracy has fallen far short of its goals. The gap between laws and norms is especially disquieting, as Lawrence Lessig has argued.
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Despite strong legal sanctions against drug use, studies suggest that Americans are more likely to smoke marijuana than citizens of the Netherlands, with its notoriously permissive drug laws.
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The behavior lacks the social stigma that policy makers might have wished for when they passed laws forbidding the production and sale of cannabis. Similarly, strict intellectual property laws did not deter millions of Americans from copying music, file sharing, or buying bootleg CDs. Cynicism about the music industry lingered with the public, as some users of online file sharing continue to express little guilt about piracy, seeing it as a way of “getting back” at record companies.
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Piracy is a problem that may not be solved by law or moral exhortation.

A compromise remains possible between the desires of listeners and the interests of rights owners, particularly artists. Since 2001 the organization Creative Commons has promoted the use of alternative licenses, which allow artists and companies to opt out of copyright law by permitting others to use their work in any number of carefully defined commercial and noncommercial ways. Another opt-out system prevails on sites such as YouTube, which contain numerous creative works that have not been cleared for use by copyright owners. Rights owners can ask the site’s managers to remove their material if they wish. A good deal of live concert footage, TV clips, music videos, and other work remains online in any case, since some artists may not oppose their performances being available and some companies may not notice or care that the material is posted.

Fittingly, the innovations of social media arise, at least in part, from the world of music. Piracy prefigured the emergence of online social networking, as evidenced by the web of relationships through which Grateful Dead fans have recorded, copied, and exchanged tapes since the 1970s. These practices are rooted in an ancient, yet oft-forgotten, dimension of musical experience that is primarily social. People see musicians as part of an audience, sing as part of a choir, listen to records or the radio together, and share music to forge relationships and signify their own tastes and identities.
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In some ways, the rise of recording diminished these social, interactive aspects of music, in much the same way that recording made individual musicianship less essential for people
to be able to experience music. Music becomes private; one can sit and listen to a record in a room alone, with no presence other than the sound of the absent musicians. Music historian William Howland Kenney argued that this private aspect of recorded music should not be overemphasized, though, as people continued to encounter music as part of a group experience through radio, jukeboxes, and other media.
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Yet the music industry has long wished to control how consumers used its products, preferring an ideal relationship in which the purchaser is the only one licensed to enjoy the written or recorded music he purchased. As a congressman summed up the industry’s viewpoint in 1906, “The property itself does not carry the right to use it.”
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Music publishers lobbied to deny churches the right to share sheet music with each other in the early twentieth century; labels sought to bar the playing of records on the radio in the 1930s; and the industry later warned consumers that copying and sharing tapes was illegal, even when it was not. If nothing else, piracy has catered to a desire to connect with others through music—a desire that swelled and broke out into the open in the age of Napster and YouTube.

Such networks showed that people could produce, distribute, and consume creative works without the traditional intermediaries of talent scouts, record executives, or broadcasters. Without the help of a label and its promotional budget, obscure artists could cultivate followings by presenting their music online as individual tracks or videos, which circulated through music blogs, social networks, and video hosting sites. These developments undercut much of the rationale for record companies’ ownership of recordings, which was based on the notion that money spent on production and promotion created a value that the companies alone deserved to exploit. Songwriters, musicians, radio stations, and other interests had long contested the right of labels to own recordings and act as arbiters of access to music, and they only acquiesced to this right in the face of rising piracy in the 1960s and 1970s. As new forms of music distribution supplant the role of labels, unauthorized reproduction may yet prove to be the undoing of those rights.

Not all artists view sharing as bad. They may want their music to be heard, like the music publishers of the early twentieth century who paid pluggers and vaudeville artists to familiarize audiences with their songs by playing them.
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Hip-hop DJs sometimes saw bootleggers as the unofficial manufacturers of their work, ensuring that mixtapes ended up on the streets and in the hands of retailers, radio stations, and other important audiences. When the Supreme Court considered the case against the file-sharing network Grokster in 2005, numerous artists on small labels expressed concern that they would lose an outlet for their music. “I look at it as a library,” Jeff Tweedy of the band Wilco said, “I look at it as our version of the radio.”
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Wilco freely offered recordings
on its website for months before releasing a new album, and, like the Grateful Dead, the band favored taping of concerts by fans. A 2007 study of file sharing tentatively suggested that such networks helped independent musicians overcome their lack of promotion and distribution by making their music more easily accessible. The result was more recordings from independent labels making it onto the charts.
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“If anecdotal evidence is correct in suggesting that minor labels have utilized file-sharing networks to popularize their albums,” the study’s authors surmised, “then the majors have an added incentive to fight file sharing.”
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For a small artist or firm, “piracy” could be just another word for “distribution” or “promotion.”

Early in the twenty-first century, the record industry sought to quash competitors such as Limewire, MP3.com, and the maker of the first MP3 player, Diamond Multimedia, each of which offered different vehicles for bringing music to listeners. Some of these firms worked out deals with independent artists and labels, offering free MP3 downloads to curious listeners and valuable exposure to little-known performers. In 1999,
MP3.com
even began working with the group Emerging Artists and Talent on a deal that would give musicians a 50 percent royalty on any CDs sold through the site, a much higher rate than most artists received from the major labels. However, litigation soon ended these experiments as
MP3.com
and the file-sharing networks that followed it were steadily dismantled.
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A subsequent wave of new enterprises emerged to resolve the conflict between rights owners and file-sharing networks. Online streaming services such as Pandora and Spotify create the same sensation of free music—choosing anything you want, the surprise of getting something for nothing—that Napster once provided, except with the consent of record labels. In Spotify’s case, it took two years for the service to clear legal hurdles in the United States after becoming available in Europe.
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Such services offer a diverse supply of music to listeners as an ad-supported free service or without ads for a monthly fee. If the music industry is the thesis and piracy is the antithesis, social media and online streaming sites offer a kind of synthesis—driven by user choices, and based on a model that does not necessarily involve the sale of a good but instead the provision of a service that makes music readily and widely accessible. The idea of the information economy, as advanced by businesses and politicians, maintained that sound must be protected from theft just as a book on a bookstore shelf is, whether by antipiracy mechanisms or the threat of prosecution. In the emerging media environment of the early twenty-first century, however, selling a disc or even an MP3 may not be the dominant way that people receive and experience music or that artists make money. A new model may look more like radio, offering free access to sound, than the traditional recording industry that manufactured and sold sound as a scarce good.
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Such a reorganization of the industry has profound implications not only for how music is produced and distributed, but what kinds of music survive and prosper. For much of the last century, conventional wisdom held that nine out of ten records failed to make a profit. This arrangement meant debt and oblivion for many artists and, for labels, pandering to the lowest common denominator in the hope of scoring a hit. Some independent artists could make a living by setting up their own miniature version of a major label, as folk singer Ani Difranco did with her Righteous Babe Records in the 1990s, yet they still faced the same barriers of access to reaching radio listeners and consumers. A service-oriented music business at least holds the potential for a broader, more diverse array of musicians to find an audience, without relying as much on record labels and hype to survive.
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Yet nothing is assured. The likes of Spotify may fail in the marketplace or the courts, and new middlemen may emerge to take advantage of artists in new, innovative ways. Jazz polymath Herbie Hancock expressed this worry amid the Napster controversy in 2001, when the outcome of the RIAA’s lawsuits remained unknown. “
Excuse me
,” he declared, “
but
just because record executives give artists a bad deal doesn’t mean everyone else can then go and do worse [emphasis in original].”
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Music blogs that review and distribute free MP3s may exploit the free labor of emerging artists for profit, and companies such as Pandora may take the place of record labels and radio stations as the gatekeepers of popular culture.
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Whatever shape the industry itself takes, the history of recorded sound suggests that unauthorized copying and sharing will persist in its own unpredictable and shifting ways. In 1995 the Clinton administration hoped to stop copying entirely, worrying that “just one unauthorized uploading of a work onto a bulletin board … could have devastating effects on the market for the work,” yet the idea of preventing any item from ever being shared is unrealistic in the context of a culture and an economy that thrive on the unencumbered communication of ideas and expression.
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Legal scholar James Boyle has described the expansion of intellectual property rights in the twentieth century as a “second enclosure movement,” comparing new laws to the privatization of the countryside in early modern England that denied peasants their traditional right to share and use the land as a commons.
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Indeed, when corporations asserted new kinds of property rights, they resembled the politicians, foresters, and landowners who fenced in the backwoods of the American South in the late nineteenth and early twentieth centuries—land that rural people previously used as an open territory for grazing hogs and cutting timber to support their modest, isolated homesteads. Felling a tree did not constitute stealing when the land under it belonged to no one in
particular, and the land became property only when others saw a potential value there and put a fence around it. In his work on the Southern countryside, historian Jack Temple Kirby showed how law ultimately extinguished a whole social world of shared resources, mutual aid, and self-sufficiency.
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The way of life of many rural Southerners was gone, supplanted for the prerogatives of those who desired orderly, efficient production for the market.

Like any analogy, a comparison between the fencing in of the countryside and the growth of intellectual property is neither perfect nor exact. A creative work “belongs” to an artist more plainly than a patch of land belongs to any interested party—the artist made the song but the property owner did not make the land. But the battle over piracy does resemble historic examples of enclosure in the sense that it placed a logic of economic utility and property rights against an array of spontaneous and organic relations of production, exchange, and consumption. In the case of recorded sound, antipiracy efforts attempted to curtail the web of social relations through which so much of the meaning and value of music emerges—the desire for it, the sharing of it, and the surprises piped through illicit and unofficial channels of sound. Fighting piracy, home taping, and file sharing means fighting demand, rather than satisfying it.

Such an outcome is not just an instance of market failure. It is also a failure of political imagination. Uncritical support for intellectual property rights places private interests high above those of the public. When an individual’s or corporation’s right to maximize profit becomes the only goal of public policy, any stake the broader community may hold in the vast store of human creativity, whether music, art, writing, or technology, disappears from view. Hence the odd argument that copyright should last forever, or almost forever—a rightful inheritance that should endure like a family heirloom or estate. In such a scenario, we would have to seek out the descendants of Shakespeare for permission to perform
All’s Well that Ends Well
.
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The value that culture holds for other artists, seeking inspiration and borrowing ideas, for students seeking affordable access to music and literature, or for any citizens to draw on the legacy of the past appears irrelevant. Copyright interests in the late twentieth century supposed that people should not learn, feel, or experience any expression without money changing hands. Pirates suggested otherwise.