Record profits

In Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century, Alex Sayf Cummings traces churning tides of freedom in the business of distributing music

The following review has been posted on the Books page of the History News Network.   

It seems like it was so much easier in aristocratic societies: artists had patrons to support them, and those who paid the fiddlers called, paid for, and owned the tunes. But in capitalist societies, there is apparently no end to the complications of who owns what and what those on the receiving end of art can and cannot do. Nowhere have the issues been more complicated than in music. Copyright was essentially an invention of print culture, and for most of modern history, the written word was a physical object. Not so music. For a while, it seemed its essence could be captured as sheet music. But the advent of recorded sound raised nettlesome -- and, at times, profound -- questions about what the essence of music really is. In Democracy of Sound, Alex Sayf offers a detailed narrative account of how the issues became so complicated -- and how, in the face of corporate pressure, they're becoming brutally simple.

Cummings begins his story with the wax cylinders and tin foil of early recording in the late nineteenth century (some sound innovations date back to earlier in the century, but their inventors were not in a position to commercially exploit them). The first major piece of legislation to affect recorded music dates from the Copyright Act of 1909, signed by Theodore Roosevelt on his last day in office. Under the law, musical compositions could be copyrighted. But recordings could not. Moreover, anyone could record and sell a rival version of a musical composition, as long as a flat-rate royalty was paid to the composer.

Naturally, record companies were unhappy about this. But they found other things to be unhappy about as well. Bootleggers recorded live shows they sold to the public, which jostled alongside commercially released recordings. Pirates reproduced cheaper copies (in multiple senses of term) of contractually sanctioned recordings and undercut their sales. Collectors resurrected out-of-print titles and sold them to devotees. Exactly how much damage such practices caused is impossible to calculate. Whatever the estimate, one can also make a decent case that they actually fostered sales by introducing (or re-introducing) music to buyers in ways that might otherwise not  have happened.

That said, it became increasingly clear by the second half of the twentieth century that a musical recording was more than a mechanical process and indeed was a source of artistry in its own right. As a piece of songwriting (i.e. a set of chords, a melody, and some hokey lyrics), "Sgt. Pepper's Lonely Hearts Club Band" is not all that remarkable a piece of music. But executed in two versions that bookend a suite of songs whose whole is greater than the sum of its parts, and rendered as an aural experience marked by any number of sound effects, the song forms the core of a landmark work in the history of popular music. By the early 1970s, Congress and the courts were increasingly receptive to such logic, a tendency that crystallized with the passage of the Copyright Act 1976, which established a new benchmark of protection for records.

This legal turn signaled some ominous developments, however. "American copyright had always been utilitarian in nature, designed to 'promote the Progress of Science and useful Arts," Cummings writes, citing the Constitution. "The new way of thinking emphasized protection of capital outlays, of established businesses like like record labels, rather than incentives." Earning back investment, not sustaining innovation, was now the point. Corporations needed to exploit hits in order to finance the misses; those who tried to make money any other way were skimming the cream. And amid the strong libertarian currents running through the U.S. and global economy generally, this profit imperative became increasingly insistent.

But it also ran headlong into what may be termed the file-sharing sensibility of the early 21st century. Nowhere has the conflict been more evident than in the world of hip-hop, a quintessentially postmodern idiom whose signal artistic strategy is sampling other musical works. The more the record industry has tries to clamp down on this -- notwithstanding the way it often serves as a kind of farm system for up-and-coming talent -- the more it has strained credibility among its customers. The people caught in the middle are artists, who tend to react ambivalently: they like the exposure, but they'd like money, too. Given the fact that it's the big behemoths, not the little guys, who actually own the rights to most of this music, it's hard to feel that honoring record company wishes is truly the most honorable thing.

Cummings's own sympathies in this conflict are clear enough: he recognizes there are dilemmas, but tends to side with those who think music wants to be free. "Piracy may not kill music," he notes, "but history may record that it killed the twentieth-century music industry." If so, there will clearly be some losers, not all of them big business. But there will always be people around who are willing and able to make sound investments. For such people, Cummings has provided a usable, musical past.

Common Sense

In Common as Air: Revolution, Art and Ownership, essayist Lewis Hyde makes a compelling case for the public domain, grounded in history -- and real estate

The following review was posted recently on the Books page of the History News Network site.
 

Back in the Reagan era, a group of historians ranging from J.G.A. Pocock to Sean Wilentz ransacked U.S. history in a quest to find some model of American society that could furnish an alternative to the free-market industrial capitalism that had so evidently triumphed over its domestic and international rivals. The varied explorations of this counter-tradition went under a general rubric of civic republicanism, usefully surveyed in a 1992 article on the career of the concept by Daniel Rodgers in the Journal of American History. Other historians, notably John Patrick Diggins in his book The Lost Soul of American Politics (1984), regarded the attempt to locate an alternative to liberalism -- in the laissez faire sense of the term -- as quixotic at best, and the overall historiographic project went into eclipse, though scholars in related fields, like Michael Sandel and Robert Putnam, have continued to trace, and argue, for the reality and necessity of a strong civic tradition in American life.

Lewis Hyde is not an academic historian, and a rearticulation of the civic republican synthesis is not his primary agenda in Common as Air. But in the process of arguing for the expansion and production of a public domain in the realm of intellectual property -- a point of view associated most prominently with law professor Lawrence Lessig -- Hyde offers a stalwart defense of the public domain strongly grounded in history, particularly that of the Founding Fathers. In so doing, he offers a fresh set of reasons for thinking about the reality, viability, and necessity for a civic republican vision of national life.

Hyde has two core strategies for making his case. The first is to make a distinction between property that is material and finite, and intellectual property that is infinitely reproducible with no reduction in content. Hyde quotes Thomas Jefferson's famous formulation that "he who lites his taper at mine, receives light without darkening mine." He draws on examples from Jefferson's own work as an inventor, John Adams's work as a pamphleteer, and the remarkable career of Benjamin Franklin to show that all these people created works with the unmistakable (and often explicit) intention of collective use without financial remuneration. As Hyde notes, these people were familiar with the idea that creators of content needed some recognition for their work as a matter of incentive and support. But he also notes they were resolutely consistent in their belief that a monopoly over such content should always be temporary, typified by the 14 years of copyright stipulated in the U.S. Constitution. As a string of figures from James Madison to William Rehnquist have repeatedly affirmed, copyright protection is not something whose primary purpose  is the permanent protection of private property, but rather a means to the more important end of encouraging the production of knowledge that will contribute to the common good.  And yet, as Hyde notes, copyright protection has increasingly been seen a form of patrimonial inheritance, typified by the Sonny Bono Act, which in some cases extends it close to a century beyond the death of its creator and the rapacious behavior of Martin Luther King Jr.'s son Dexter in extracting royalty payments King's likeness and speeches (though using King to sell telephone service is OK if the corporation pays up).  This is not exactly a novel argument, but it's one made with real cogency and novelty in a series of illustrations that extend forward to the musical career of Bob Dylan to the mapping of the human genome.

The other pillar of Hyde's argument, which he makes in tandem with this one, is to point out that   material property has never been entirely private. Beginning with the reciprocal obligations embedded in feudalism and moving through the enclosure acts in Britain, the development of allodial notions of property and the decline of entail as legal means of preserving estates in North America, he notes the very notion of  private property itself has rested on the existence of a commons and notions of responsibility that range from voting to public service. Indeed, private property is worthless without a public infrastructure, whether in roads or regulations to keep it viable. Ironically, many of those who seek patents or copyrights on things that range from songs to genes are very often appropriate big chunks of the public domain in the process of "inventing" things that are very often more accurately described as discoveries. Indeed, it is a measure of how rapacious private interests have become that Hyde should even have to make this case, which he does with notable clarity and grace.

Hyde's preoccupation with creativity and the way it transcends economic considerations can be traced back to his now classic 1983 book The Gift, an extended literary meditation with an anthropological overlay. His output of in the last quarter-century (five books) is small, but beautifully wrought and quietly influential. A former MacArthur fellow who teaches creative writing at Kenyon who is also affiliated with Harvard's Berkman Center for the Internet and Society, Hyde is an essayist in the Thoreau tradition. In his simple, plainspoken wisdom, he is a great American, which is to say he is an excellent democrat. His mere existence is a living demonstration of the civic republican tradition in American life, which we forget or dismiss at our peril. Unless we remember that a society is more than a market, we will soon not only find ourselves at the mercy of large corporations, but even greater powers who have fewer compunctions about deploying, if not seizing, property in the service of interests that are more than merely economic.