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How the Music Industry’s War on Sharing Destroys Markets and Erodes Civil Liberties

Growing Industry, Expanding Copyright

1 Leave a comment on paragraph 1 0 From the music industry’s inception through the beginning of the 20th Century, printed scores were the primary commercial music product, and throughout this period, music publishers were the industry’s dominant, and growing, economic power. In the US, most sheet music was imported from Europe during the colonial era, but around the time of the Revolution, a homegrown music publishing industry emerged, initially dedicated to printing sacred anthologies. Many early American publishers, such as Benjamin Carr of Philadelphia, were composers as well, seeking a commercial outlet for their own work.[1] With relatively small catalogs and limited reach, their businesses were in many ways more akin to today’s “DIY” music producers than to the large, established publishing houses that account for most of the compositions we hear on contemporary radio and television programs.

2 Leave a comment on paragraph 2 0 By the turn of the 19th Century, as the young American republic started to establish a coherent sense of its cultural identity, a popular music industry, dedicated to the printing of more secular and socially-oriented scores, began to form. Within the first quarter of the century, these new publishers had released nearly 10,000 secular titles in a broad range of genres and themes,[2] many of them tailored to suit the needs of the country’s growing bourgeoisie, an increasing number of whom boasted pianos and other instruments in their homes.

3 Leave a comment on paragraph 3 0 Although it may seem surprising given the emphasis we place on intellectual property as an incentive for musical creation and distribution, American law did not provide copyright protection for printed scores at this time. Composers and publishers in Europe had the ability to copyright music in the late 18th Century, but only with the Copyright Act of 1831 were musical scores considered eligible for protection in the US.[3]  Ironically, as music historian Richard Crawford suggests, the introduction of copyright may have undermined the domestic market for American composers in the 19th Century because it created an incentive for profit-oriented publishers to distribute European works (for which they didn’t owe a royalty) rather than domestic ones (for which they did). As he writes, “the American appetite for European music owed much to the notion that Old World culture was superior. But the dollars-and-cents advantage to publishers also promoted the circulation of foreign music.”[4] This is as an early, and notable, example of how the financial interests of the music industry, enforced through the mechanism of copyright, can often come into direct conflict with the cultural and economic interests of musicians and audiences.

4 Leave a comment on paragraph 4 0 The American publishing industry continued to grow sharply throughout the 19th Century, in conjunction with the rise of minstrelsy, expanding national borders and accelerating technological change. By the middle of the century, 5,000 titles were being published each year. By the turn of the 20th Century, this number had grown to 25,000 songs per year,[5] and a single hit song from commercial songwriting capital Tin Pan Alley, such as “After the Ball” by Charles Harris, could sell millions of copies. Throughout this era of rapid expansion, the largest music publishers worked to reinforce their industry dominance and economic power on legal fronts, by lobbying to expand the scope and duration of copyright, and strategically, by using “song pluggers,” trade associations and other forms of market leverage to promote their songs among performers, music sellers and potential purchasers.

5 Leave a comment on paragraph 5 0 A thorough accounting of the gradual expansion of copyright, and the role of the music industry in that process, is beyond the scope of this book.[6] Suffice to say that, in the span of a few generations, American copyright law developed from zero statutory protection for music in 1830 to the coverage of scores (1831), public performances (1897), and “mechanical reproduction” (e.g. piano rolls and phonograph records; 1909), while the term of copyright doubled from 14 years (renewable for another 14) to 28 years (renewable for another 28), and statutory penalties for copyright violation expanded from pennies per page to imprisonment.

6 Leave a comment on paragraph 6 0 These changes were brought about, at least in part, by an increasing degree of organization, collaboration, and even collusion between the nation’s largest music publishers. In 1855, the first music industry trade association, dubbed The Board of Music Trade, was founded, with the explicit aim of stemming price-cutting. By 1880, this association had grown to encompass every major publisher, renamed itself the Music Publishers’ Association (MPA), and clarified that its purpose was “the regulation of the music trade by fixing and sustaining a uniform and standard price for all music publishers.”[7] From this point to the present day, music industry trade organizations have played an active role both in the process of regulating industry practices and pricing (sometimes in violation of antitrust law, as I will discuss in Chapter 5), and in lobbying for continual copyright expansion. As early as 1909, for instance, the MPA was actively lobbying for a copyright term of the composer’s life plus 50 years[8] (this ambition would finally be realized in 1976, and surpassed in 1998).

7 Leave a comment on paragraph 7 0 Ironically, the same economic, legal and technological acceleration that helped the music publishers to grow in power throughout the 19th Century would contribute to their relative decline in the 20th Century. Following World War I, the rapidly evolving capabilities of audio recording and broadcasting technology gave rise to two new powers in the music industry – the record labels and radio networks. These sectors exploded in size and power, and before long, they had outstripped music publishing both economically and politically. Following in the footsteps of music publishers, the larger labels and broadcasters consolidated their market share, founded influential trade organizations, and played a central role in the continuing expansion of copyright, placing an ever greater range of musical practices and products into private (primarily corporate) hands, and eliminating them from the freely shared cultural “commons” for a functional eternity.

8 Leave a comment on paragraph 8 0 As the music industry and the legal apparatus that binds it both expanded in the wake of technological advancement, its economic and institutional foundations crystallized around the idiosyncrasies of these particular technologies. Much as molten glass will harden in the form of any mold into which it’s poured, the 20th Century music industry slowly ossified in the form of its own enabling technologies, such as the vinyl record and AM/FM radio. In turn, these newly fixed industrial practices were reinforced by further legal and technological development, in a self-perpetuating cycle.

9 Leave a comment on paragraph 9 0 By the second half of the century, the industry had fully congealed around the broadcasting/label dichotomy, with the former sector based on advertising-supported, over-the-air programming, and the latter based on consumer-supported, over-the-counter retail distribution. Though they both solved essentially the same “problem” – e.g. capitalizing on consumer demand for access to recorded music – the two sectors consisted of entirely different firms, operating according to separate laws and licenses, using totally distinct technologies and deriving income from two entirely separate sources. There was a great degree of symbiosis between these sectors (radio “promoted” the sales of recordings, while recordings provided programming for broadcasters), but there was also friction; for instance, the decades-long debate over whether broadcasters should pay labels a royalty for public performance of their recordings, or whether the promotional value of airtime obviated such a need.

10 Leave a comment on paragraph 10 0 Despite such tensions, this arrangement persisted for the better part of a century, weathering continuing technological innovation and shifting political tides. As 78 RPM records gave way to 45 RPM singles, LPs, cassettes, 8-tracks and CDs, and as stereo FM supplanted mono AM as the dominant broadcast format, radio conglomerates ruled their roost and record labels ruled theirs, while the once-powerful music publishers stood by as largely silent partners to each. As I will argue throughout this book, part of the reason that 21st Century digital communications technologies have proven so disruptive to the music industry is precisely because they undermine the theoretical distinction between broadcasting and retail, thereby upsetting the elaborate ecosystem that has emerged around this distinction, bringing former market allies into greater competition and conflict with one another, and muddying the legal and economic waters.

11 Leave a comment on paragraph 11 0 At the end of the 20th Century, on the cusp of this change, the music industry had reached the apex of its concentrated political and economic power. In 1999, the field was dominated by five major record labels (soon to be three), four large publishers (all of them affiliated with major labels), four major radio groups, and a single music television titan (Viacom), wielding copyright powers that had been extended significantly by two radically expansive pieces of legislation in the prior year,[9] and consolidating rapidly in the wake of recent media deregulation.[10] Collectively, this handful of highly litigious corporations, and their trade associations, controlled more than just the music marketplace; they regulated global musical culture to a degree that is arguably unparalleled in history. In practice, this meant everything from the broadly general (e.g. promoting and censoring different styles, genres and/or artists; shaping and constraining the development of music recording and playback technology) to the minutely specific (e.g. threatening to sue Girl Scout camps for allowing campers to sing Woody Guthrie songs;[11] micromanaging and tracking consumers’ music listening habits through the use of “digital rights management” technology).

12 Leave a comment on paragraph 12 0 In short, the music industry as it existed immediately prior to the introduction of Napster was hardly a timeless, or even a particularly stable, institution. Its economic and legal foundations had accreted around the idiosyncrasies of an outmoded technological system, and its unprecedented cultural power was the result of two centuries of sustained concentration of ownership and successful lobbying for ever greater degrees of copyright protection over a broadening field of musical practices and products. What had once been a public good and a native form of “ritual communication” for our species had been successfully commodified, and then monopolized by a multibillion dollar cartel, but the very rationale for this cartel’s existence was already being called into question.


13 Leave a comment on paragraph 13 0 [1] Music of the colonial and revolutionary era by John Ogasapian

14 Leave a comment on paragraph 14 0 [2] American Music: A Panorama By Lorenzo Candelaria, Daniel Kingman

15 Leave a comment on paragraph 15 0 [3] There were copyrighted musical works in the US prior to this act; some legal scholarship suggests that the language of the law was expanded to include music as a statutory clarification of existing norms. See, for instance, Bracha, O. (2008) ‘Commentary on the U.S. Copyright Act 1831′, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

16 Leave a comment on paragraph 16 0 [4] America’s musical life: a history By Richard Crawford; p. 232.

17 Leave a comment on paragraph 17 0 [5] Need citation for this figure

18 Leave a comment on paragraph 18 0 [6] Happily, this is terrain exhaustively explored in work such as Lessig; Vaidhyanathan; and Patry.

19 Leave a comment on paragraph 19 0 [7] Epstein, Dena J., Music Publishing in the Age of Piracy: The Board of Music Trade and Its Catalogue , Notes, [ser.2]:31:1 (1974:Sept.) p.7

20 Leave a comment on paragraph 20 0 [8] Desai, D. (2011). THE LIFE AND DEATH OF COPYRIGHT

22 Leave a comment on paragraph 22 0 [10] 1996 Telecom Deregulation Act

23 Leave a comment on paragraph 23 0 [11] Bollier, Brand Name Bullies.

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Source: http://mcpress.media-commons.org/piracycrusade/chap1/growing-industry-expanding-copyright/