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Jim Cullen: Review of Alex Sayf Cummings's "Democracy of Sound: Music Piracy and the Remaking of American Copyright in the Twentieth Century" (Oxford, 2013)

Jim Cullen, who teaches at the Ethical Culture Fieldston School in New York, is a book review editor at HNN. His latest book, Sensing the Past: Hollywood Stars and Historical Visions, was recently published by Oxford University Press. Cullen blogs at American History Now.

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 of 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 twenty-first 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.