A provocatively titled op-ed recently published by the New York Times, “Internet Pirates Will Always Win,” urges content providers to give up the legal fight against online copyright infringement as an exercise in futility, as new technologies make illegal downloading and streaming ever “harder to trace and to stop.”   The piece has prompted predictable responses from representatives of copyright industries, with arguments moral and economic.  May I add a little history, drawn from my book, Unfair to Genius, to the mix?

In 1897 Congress amended the Copyright Act to give owners of copyrights in non-dramatic musical compositions the exclusive right of public performance for profit. Suddenly, copyright infringement was happening everywhere — in theaters, caberets, restaurants, hotels, dance halls, etc. The infringing performances, especially before the arrival of sound pictures and radio, were in the elegant phrase of legendary copyright lawyer Nathan Burkan, “fleeting, emphemeral, and fugitive.” For two decades the public performance right remained essentially a dead letter. Burkan’s solution to the logistical nightmare of enforcing it was to organize America’s first performing rights society, ASCAP, to offer blanket music licenses to commercial establishments, and to pursue vigorously its members’ claims of copyright infringement against those who remained unlicensed.

Only after a long string of legal victories against recalcitrant music users did licensing music for public performance become an accepted business norm. Although infringement of the public performance right remained rampant, the revenues from licensed, professional performances quickly became the most important source of income for songwriters, supplanting sales of sheet music to amateur musicians. As I argue in my book, this was a crucial but often overlooked cause of the death of old Tin Pan Alley and impetus for the great leap forward in popular music that began in the mid-1920s, breathing new life into the music of Berlin and Kern and heralding the arrival of Gershwin, Arlen, Rodgers, Porter, and other contributors to the Great American Songbook.

That is the type of “progress” the copyright law is intended to promote, and a powerful counter-argument to the suggestion that the legal battle against copyright infringement that is difficult to trace and stop is for naught.

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