Democracy of Sound (36 page)

The partial tolerance of jamband tape trading and the mixtape market suggests a modus vivendi could exist among artists, fans, pirates, and the record industry. So long as it did not directly cross the path of the established labels, music copying was a peripheral—sometimes even helpful—nuisance. Record companies had looked on with indifference when the Hot Record Society copied and distributed out-of-print jazz recordings in the 1930s, yet the greater popularity of Jolly Roger and other labels elicited legal retaliation in the early 1950s. Likewise, mixtapes have served as a practical adjunct to the official industry, at least until the trade gets too big. Concert bootlegs and mixtapes can stimulate sales of officially released products for rock bands, rappers, and their labels. Devoted fans with disposable income will buy the “real” CD, concert tickets, and merchandise while illegally downloading unreleased tracks or buying a DJ’s remix on the street.

The mainstream industry reaped the benefits of the buzz generated by mixtapes for its artists, but it did not hesitate to crush competition from petty capitalists like DJ Drama, who was arrested in Atlanta on racketeering charges for selling his Gangsta Grillz mixtapes in 2005. At the time, the trade publication
Billboard Biz
acknowledged the industry’s dilemma in a throwaway line, noting that the arrest “calls into question whether major labels will continue to utilize mixtapes as promotional tools.”
⁹⁹
The mainstream record companies could not decide whether mixtape DJs were their competitors or informal partners. When Def Jam and other labels leaked MP3s of vocal and instrumental tracks before an album’s release, they implicitly encouraged DJs to circulate the music. The labels also benefited from DJs doing the work of their own artist and repertoire (A&R) agents, who traditionally found and signed promising new talent. Mixtape success signaled which rappers and DJs would be successful in the mainstream. As one rapper put it, for music to succeed, “You gotta get some opinion from the streets.”
¹⁰⁰
The mixtape trade thus became a valuable source of the “collective intelligence” described by Italian autonomist thinkers such as Franco “Bifo”
Berardi and Tiziana Terranova, because companies could exploit street buzz as a type of market research.
¹⁰¹

Although the industry still turned often enough to the copyright cudgels it had won since the 1970s, some artists and businesses accepted unauthorized reproduction as a fact of life, especially where profit could be made from the publicity generated by a popular mixtape, file sharing, or word-of-mouth.
Spell My Name Right
, the title of a 2008 official release by the rapper Statik Selektah, an alum of numerous mixtapes, hinted at the underlying principle, evoking a classic saying by Broadway impresario George M. Cohan: “I don’t care what you say about me, as long as you say something about me, and as long as you spell my name right.”
¹⁰²
Distributing mixtapes was not unlike plugging in the early twentieth century music industry, when song publishers
wanted
their tunes to be widely and freely performed in public to drive up sales of sheet music.
¹⁰³

Such a model does not work so well when piracy in developing countries is concerned. With a few exceptions, American artists and businesses cannot expect to piggyback profitably on the unauthorized copying of their products abroad. Poor consumers who buy bootleg CDs and DVDs in Asia do not necessarily have the ability or the opportunity to buy a concert ticket or officially licensed merchandise; they buy the recording at a price they can afford, perhaps a tenth of the price charged in the United States. Global piracy served as the latest intellectual property panic in the 1980s and 1990s, presenting an adversary that seemed even more intractable and potentially fatal for America’s entertainment, fashion, and technology industries than the homegrown pirate.

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The Global War on Piracy

Reporter: What do you think of secret recordings?
Cynthia Hawkins: It’s a theft, a rape. I despise them.

—
Diva
(1981)

A celebrated opera singer, Cynthia Hawkins was notorious for her refusal to allow herself to be recorded. “Music comes and goes,” she told a gaggle of reporters. “You don’t try to keep it.… Commerce should adapt to art.” However, commerce was about to force the artist to adapt instead. An earnest young fan, Jules, managed to sneak a tape recorder into Hawkins’s Paris performance, creating a bootleg for his own personal pleasure, but a shadowy syndicate of Taiwanese record pirates was bent on obtaining the tape. They planned to use it to blackmail Hawkins into signing an exclusive recording contract; otherwise, they would pirate the performance and break the singer’s career-long embargo against the market. Hawkins’s manager, Mr. Weinstadt, had tolerated the unusual path she had chosen to take in her career, but his patience was running out. Since Taiwan had not signed on to international copyright agreements, there was nothing Hawkins could do to stop them. “They have us by the throat,” Weinstadt said. “They use the recording to print a record in their country. They flood the market, with no guarantees on the quality and no profits for us.” He understood her “scruples,” but he also demanded that she act like a “responsible artist” and start recording.
¹

Though fictional, the story of Jean-Jacques Beineix’s 1981 film
Diva
perfectly encapsulates the conflicts of art, technology, law, and commerce that characterized the world economy in the early 1980s. Hawkins stood against the forces of new media, clinging to the conviction that a performer should be able to set the terms of how her work was experienced. She refused to let any record company, bootlegging fan, or pirate take advantage of her voice, yet the film suggests that such control was nearly impossible.

Beineix presented a world in which almost any cultural good was free for the taking, and he contrasted various types of theft to make the point. In one scene, a young woman slips an LP into her art portfolio and evades the watchful eye of a record store clerk. Later, she gives Jules a pilfered Rolex watch, prompting him to ask, “Do you steal a lot?”—even as the bootleg recording that he, in a sense, stole from Hawkins plays in the background. Is taking an LP from the record store shelf worse than taking the singer’s voice from the concert hall without her permission? Given the technological capabilities of tape recorders and personal computers, is there any way to prevent someone on the other side of the world from copying one’s work, and is there any limit to the amount of that work in circulation? As Weinstadt suggested, the market resisted any regulation of quality or quantity; it enforced its own will upon artist and listener alike.

So far, the story of music piracy in the United States has involved a variety of individuals and groups who advanced different rationales for how recorded music ought to be produced and regulated. Record collectors wanted to distribute copies of old and out-of-print recordings, and fans of opera and rock and roll captured concert sounds that otherwise would never have been fixed in a physical form. In decade after decade, record companies lobbied to pay the lowest possible royalties for the songs they recorded, while seeking protection from slippery enterprises that copied and sold their recordings without permission. Meanwhile, those enterprises devised ingenious legal strategies to justify repackaging another company’s sounds as their own—whether Wynant Van Zant Pearce Bradley’s off-brand arias in the early twentieth century or David Heilman’s mixtapes in the 1970s.

Throughout, judges had to wrestle with these competing claims. Like Learned Hand, they had to identify the elements of value in a sound recording; like the Supreme Court of Warren Burger, they had to determine the economic importance of music and the degree of control a record company could exert over its products. Musicians might follow the path of jazzman Clarence Williams, who collaborated with the Hot Record Society when it prepared a reissue of his music in the 1940s. In contrast, artists as different as Louis Armstrong and Metallica chose to pursue legal action against their copiers. All the while, consumers bought live bootlegs, copied records for their friends, sought out unreleased music leaked from the studio, and opted for cheap pirate editions of hit records.

The worldwide proliferation of piracy broke from these patterns in the 1970s. In the two preceding decades, bootleggers in Sweden, Argentina, and other countries had satisfied much the same demand as the Dante Bolletinos or Boris Roses of the United States, copying blues, folk, jazz, and classical music for a small, scattered minority of fans. The global boom of piracy that followed looked much more like the profit-driven reproduction of popular recordings
like
Saturday Night Fever
or
Grease
in the United States, both of which were also smash hits abroad. Moreover, illicit copying of American goods multiplied at a moment when business and political leaders in the United States noted with growing unease the economic competition of the Third World.

It was no coincidence: piracy in developing nations piggybacked on industrialization, as expanding markets made it possible for consumers to gain access to equipment for recording and playing music, while many people remained too poor to pay the price for the legitimate copies of recordings sold by American and European companies. As musicologist Peter Manuel observed, piracy often disadvantaged local music companies at least as much as their Western competitors, if not more so.
²
At a certain stage of development, governments had little incentive to deny their citizens cheap access to books, movies, and music; unlike the United States, which was becoming increasingly protective of its domestic “information industries,” these countries had not yet cultivated entertainment or publishing sectors that were large enough to warrant energetic enforcement of intellectual property rights.

In the cast of characters in this new world economy, one could find a left-wing Pakistani leader with a demagogic streak telling his countrymen to copy Western textbooks freely, on the grounds that a too-high price deterred education and development.
³
Poorly paid policeman in many countries could be “persuaded” not to enforce whatever copyright law was on the books, and judges were reluctant to impose serious penalties on local businessmen for selling pirated music. The representatives of Western corporations and trade groups could be found investigating pirate markets in Thailand or Singapore, while dodging death threats. Meanwhile, a new generation of political leaders, including Ronald Reagan and Margaret Thatcher, sought to protect exports of copyrighted music, patented medicines, and computer software to the outside world, taking an aggressive stance in trade deals with emerging economies such as South Korea.

US policymakers worried about both the decline of American manufacturing and the ability of the nation’s “post-industrial” industries, such as entertainment and information technology, to sell goods and services in the developing world. While multinational corporations either built or contracted with factories in places like Taiwan and Thailand, entrepreneurs in these countries took advantage of new media to copy sounds, images, texts, codes, and formulas.
⁴
“Movies, computer programs and recordings can be stolen by merely copying, in ways that a shipment of logs or soybeans cannot,” the
Journal of Commerce
warned Western businesspeople in 1990. “Continued losses in the long run undermine the incentive to invest capital in research and the ability to develop new products.”
⁵
Piracy threatened to dilute demand for the goods that the most technologically advanced nations exported to the rest of the
world, creating an imbalance between the manufactured goods that countries such as the United States imported and the compact discs and videotapes they attempted to export.

The threat was real enough. The United States had benefited from exploiting foreign culture and technology as it developed its own manufacturing capacity in the nineteenth century, eventually surpassing the nations whose copyrights and patents it had pirated.
⁶
By the 1970s, American hegemony was no longer unquestioned; Western Europe and Japan had recovered from the devastation of World War II, and less developed nations throughout Asia, the Middle East, and Africa began to industrialize in earnest. In 1971 the United States began buying more goods from other countries than it sold, and this trade deficit has, with very few exceptions, expanded ever since.
⁷
In the remainder of the twentieth century, business and political leaders, both in the United States and Europe, worked hard to develop the rest of the world on their own terms, encouraging export-led manufacturing in poor countries while attempting to lay the groundwork for the authorized sale of Western goods and services in these markets.

New media sped the growth of trade—licit and illicit—throughout the world, raising the twin specters of deindustrialization and piracy as the causes of economic woe in the United States and other wealthy countries. Nations such as Taiwan, the United Arab Emirates, and Liberia might have broadly differed in their degree of development and influence in the emerging global economy, but they formed ties with each other as entrepôts within complex networks of trade. In response to the global spread of piracy, a variety of business interests, ranging from software companies to record labels, coalesced behind the idea of “intellectual property,” which became a priority in US trade negotiations for the first time in the 1980s. The antipiracy movement won significant legal and diplomatic victories in the ensuing years, yet piracy remained nearly as common as ever in many parts of the world.