I still have a Proustian experience every time I take my old vinyl copies of The Who Live at Leeds or The Mothers-Fillmore East June 1971 off the shelf. It is not just fond memories of seeing those bands perform back in the early 70s that come flooding back. The artless covers and handwritten labels on those official releases were Pete Townsend and Frank Zappa’s ironic acknowledgements of the then-raging market in bootleg concert recordings, and they transport me back to a time when there was no bigger thrill than getting an invitation to listen to the latest genuine, sort of speak, bootleg. (As a future respectable representative of copyright owners, I, of course, would not have trafficked in such contraband myself.) I had some of the same rush reading Alex Sayf Cummings’s Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century (Oxford Univ. Press), which places the concert bootleggers of my youth somewhere near the middle of a legal and historical continuum that stretches from jazz buffs of the 1930s who dubbed out-of-print recordings, to the DJs who created hip-hop mix tapes of the 1980s and 90s, to international CD counterfeiting rings of recent years.
Although divided into two parts styled “The Birth and Growth of Piracy” and “The Legal Backlash,” Cummings’s approach is largely chronological and both parts contain material about succeeding generations of those whom Cumming calls, with no perjorative intent, music pirates, and the legal blowback their efforts triggered. By far the most interesting and entertaining portions of the book are the portraits of the pirates, a mix of idealists genuinely concerned with preserving and disseminating a part of our cultural heritage that would otherwise disappear or molder in corporate vaults, to crass commercialists simply out to make a buck. Cummings makes a strong case that, outright counterfeiting aside, most piracy can be seen as an outgrowth of the essential social nature of music and as a response to market demand not being met at any given time by the mainstream recording industry. The evidence that this activity causes a net harm to the recording industry, moreover, is ambiguous at best. The implication, never spelled out with great clarity, is that it is poor policy to sweep such activities under the same legal regime as outright counterfeiting. Surprisingly, Cummings has relatively little to say about how the doctrine of fair use might be used to refine the blunt enforcement tools currently in place (indeed, he does not use the term fair use; his discussion can be found under the index entry “transformative appropriation”).
Cummings is a historian, not a lawyer, and his legal discussions are not the most sure-footed parts of the book. The transformation of copyright that his subtitle refers to, as I understand it, is a shift toward protection of “the investment of time, labor, and money into the product itself, not on the concept of a limited incentive that had traditionally shaped copyright.” Cummings believes that shift this came about during the long period before 1972 that recordings were not protected by federal copyright law, and courts were forced to find other rationales for sanctioning piracy under the common law of unfair competition. That such a transformation occurred I do not dispute, but Cummings has not convinced me that this was originally or primarily a response to piracy of recorded music. The movie industry, for example, which had the benefit of federal copyright protection long before recorded music, was a pioneer in bringing this change of consciousness about. (See, e.g., Peter Decherney’s Hollywood’s Copyright Wars, reviewed here last year.)
Elsewhere, in an otherwise good account of the legislative process that led to recordings finally being recognized as works of authorship under copyright law, but not being granted an exclusive right of public performance (leading to the anomaly that broadcast radio pays royalties to music publishers for use of a musical composition, but not to record labels for use of a particular recorded performance), Cummings refers to this not as a “performance right,” but as a “performer’s right,” and seems to assume, wrongly, that such a right would have necessarily inured to the benefit of performing artists rather than labels. Though Cummings is very good in describing the conceptual problems involved in determining who is the “author” of a recording, he does not address at all the termination right that Congress granted in the 1976 and which is now kicking in.
These are small quibbles. Cummings is to be thanked for his exhaustive research into a important and influential, if legally sketchy, force in American culture.