I did a presentation a few months ago music piracy, and some interesting historical facts came up that I think are pertinent to the endless debate on the subject. Typically, this conflict is understood to be a highly adversarial one between the music industry and its consumers. In our research, we decided to take a transitions theory approach to the problem; specifically to see what lawbreaking can mean for innovation. The historical evidence on this is surprising, and it reveals some important facts about copyright infringement that have not been adequately considered.
It turns out that music copyright is actually a very novel institution, relative to the history of music generally. Up until the 1770s, artists could expect to have their music copied, re-arranged, shipped across the pond, performed, copied again, shipped back home, and re-arranged once more. They had no right to any recompense from this, and it was understood to simply be a part of the music business that they had to deal with. Romantic notions of authorial genius made such practices illegitimate with the first copyright laws, but these laws were usually ineffective. Near the turn of the twentieth century, home pianos created a massive demand for cheap sheet music, which certain individuals were more than happy to dater to, thanks in part to the invention of lithography. To combat this, sheet music companies had to resort to extra-legal measures including raiding the pirates’ houses while police looked the other way. Their findings in these raids eventually allowed them to frame piracy as a criminal conspiracy, facilitating the passage of harsher anti-piracy legislation. But this still had a limited impact and the sheet music companies were eventually forced to reduce their prices to compete with the pirates.
Since that early conflict, piracy has been pretty much a constant presence in the music business, as have the recording industry’s quixotic attempts to eliminate it. While pirates were generally able to get away with their piracy at almost every turn, the recording companies did score one important victory, namely the gradual development of the legal system around music copyright, which turned a legal structure that didn’t even exist at the turn of the century into something quite coercive. Widespread bootlegging of records during the 1960s and 1970s, for example, prompted the music industry to lobby for the Rome Convention, which made unauthorized copying of music illegal. Later, the invention of the easily copyable cassette tape lead to the passage of even stronger anti-music piracy laws in the United States, but these explicitly allowed for home copying so as to preserve the legality of mix-tapes. In 1992, the record industry actually managed to completely block a new innovation-the Digital Audiotape-due to its ease of creating high-fidelity copies of music.
With our 20/20 hindsight, we might dismiss the blocking of digital audio-tape appears as a half-measure which would be completely ineffective in the face of the massive disruption represented by the internet. For all its importance, however, the internet took a while to get itself noticed by the record industry. In fact, a stream of dot-com boom entrepreneurs looking to set up digital music services in the 1990s were nearly all rebuffed by the record companies whose intellectual property they needed. One quote from Sony Music executive Al Smith, addressed to one such entrepreneur, is particularly telling of the labels’ attitude: “Look, Kearby. My job is to keep you down. We don’t want you to succeed”. Smith’s message is clear: Sony and the other recording companies were comfortable with the music distribution system they had set up, and were not interested in adapting to new technology.
And then Napster happened. In the midst of today’s heavy-handed approach towards piracy, it is easy to forget that the illegality of piracy was far from a sure thing at the turn of the millennium. Remember: existing American law explicitly made non-commercial copying legal and while Napster did intend to be a commercial enterprise. While it provided the infrastructure, Napster itself never copied any music. Napster expected to win the lawsuit, and to establish themselves as a legitimate business making money off of merchandising and concert advertising.
Of course, this all collapsed when they eventually lost. While Napster was succeeded by a veritable parade of imitation services, such as Kazaa, Limewire and Bittorrent, another major development was in the works that would expand Napster’s legacy beyond piracy into the very structure of legitimate music distribution channels. That development was iTunes. Today, Steve Jobs gets a lot of credit for being the impetus behind the technical aspects of iTunes and the iPod, but he still needed access to the intellectual property held by the record labels in order to establish the service. It turns out that Napster had considerably softened the labels’ position on online music from the blunt dimissals of Al Smith a decade earlier. In fact, the music industry was so desperate to get some kind of cut from online activity that they actually gave Jobs a very favorable good deal on royalties. And that negotiation opened the floodgates for online services such as iTunes, Spotify, Pandora, CDBaby, and YouTube. It occurred at the turn of the twenty-first century almost exactly as it had at the turn of the twentieth: illegal copying forced powerful industrial interests to *ahem* face the music.
This history tells us three important things about music piracy. The first is that by forcing sheet music producers to lower their prices, piracy at the turn of the twentieth century actually assisted in the realization of market efficiency. The second is that the laws that support the recording industry against pirates were, perhaps unsurprisingly, largely the creations of that same recording industry. This implies that they were intrinsically tied to a music distribution system based on the sale of physical objects such as LPs, cassettes, and CDs. Thirdly and perhaps more importantly for my case, without online piracy there was no economic incentive for the recording industry to embrace the internet.
Does this mean that the music industry has no genuine ethical right to defend their intellectual property against pirates? Not necessarily. In fact, it depends on what you believe to be the real legislative purpose of music copyright. If you think copyright is an absolute and inalienable right afforded to artists and the companies representing them, then none of this history matters; criminals who violate the absolute rights of citizens should be punished. Alternatively, however, you might see music copyright as a strategic policy tool designed to incentive creativity. If this is the case, then piracy may very well be justified on the grounds that it has on multiple occasions forced the record industry to adapt to new innovations, both technological and musical, when they might not otherwise have done so.
The nature of copyright is a philosophical question on which this post will remain agnostic, but there is one further point to be made from this history. The history of piracy and the recording industry has implications for technological transitions of all sorts. If the law is understood to be a part of a socio-technical regime as this case suggests it should be, then law-breaking can be a crucial means by which new technologies succeed in the market and transform systems and societies. To put it more bluntly, we may well be indebted to criminals for more than just our online music services. And that’s a fascinating thought.
Borfe, L., 2004. Where have all the good times gone? The rise and fall of the record industry. London: Atlantic Books.
Gronow, P., and Saunoi, I., trans. C. Morley., 1988. An International History of the Recording Industry. London: Cassell.
Johns, A., 2009. Piracy: The Intellectual Property Wars from Gutenberg to Gates. London: The University of Chicago Press.
Tehranian, J., 2011. Infringement Nation: Copyright 2.0 and You. London: Oxford.