The Piracy Crusade

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

Aram Sinnreich

• Publisher: University of Massachusetts Press
• Year: 2014
• Print ISBN: 9781625340528, 9781625340511
• eBook ISBN: 9781613763186
• Topic: Social Sciences
• Subtopic: Journalism
• Index: Social Sciences

In the decade and a half since Napster first emerged, forever changing the face of digital culture, the claim that "internet pirates killed the music industry" has become so ubiquitous that it is treated as common knowledge. Piracy is a scourge on legitimate businesses and hard-working artists, we are told, a "cybercrime" similar to identity fraud or even terrorism.

In The Piracy Crusade, Aram Sinnreich critiques the notion of "piracy" as a myth perpetuated by today's cultural cartels—the handful of companies that dominate the film, software, and especially music industries. As digital networks have permeated our social environment, they have offered vast numbers of people the opportunity to experiment with innovative cultural and entrepreneurial ideas predicated on the belief that information should be shared widely. This has left the media cartels, whose power has historically resided in their ability to restrict the flow of cultural information, with difficult choices: adapt to this new environment, fight the changes tooth and nail, or accept obsolescence. Their decision to fight has resulted in ever stronger copyright laws and the aggressive pursuit of accused infringers.

Yet the most dangerous legacy of this "piracy crusade" is not the damage inflicted on promising start-ups or on well-intentioned civilians caught in the crosshairs of file-sharing litigation. Far more troubling, Sinnreich argues, are the broader implications of copyright laws and global treaties that sacrifice free speech and privacy in the name of combating the phantom of piracy—policies that threaten to undermine the foundations of democratic society.

PART I

    Lock and Key: Music as a Scarce Resource

AS RHETORICIANS and communication scholars have long known, the way in which a debate is “framed” is at least as important as the manner in which it is argued. To accept a set of terms and definitions at the outset of a conversation is to accept the worldview that gave rise to those terms and therefore to preclude alternate interpretations of a given object or situation.

My aim in the first part of this book is to reframe the debate surrounding music, technology, copyright, and “piracy” by examining the historical circumstances that gave rise to our current understanding of their meanings and relationships. This is a necessary precondition if we are to have a more nuanced understanding of the complex changes currently taking place within our musical cultures and industries, as well as our legal systems, as digital networked technologies continue to grow in power and scope.

To reduce the staggering diversity of innovative digital music technologies and practices that have emerged over the past fifteen years to a simple permission/theft binary is not only to miss the point of these innovations completely but to ensure that they can never be effectively integrated into our cultural, legal, and commercial systems. Instead, we must take a “first principles” approach to understanding the role that music plays in society, the methods by which it has been commercially exploited and legally categorized, and the reasons for which these decisions were made.

In the chapters that follow, I examine the coevolution of music, technology, law, and industry, from the dawn of movable type, through the era of recording and broadcasting, and, finally, to the emergence of the networked age. Seen from this vantage point, we can understand what is currently referred to as “digital music piracy” as merely one in a long line of innovative disruptions, rather than the death knell of a static and unchanging industry.

CHAPTER 1

Stacking the Deck

The Monopolization of Music

THE EARLY years of the twenty-first century have been a tumultuous time within the music industry and musical culture at large. Many people working throughout the recording, publishing, and broadcasting sectors are legitimately concerned that they may lose their jobs, or even their careers. The new digital communications tools that have changed the way we work, play, and express ourselves have also altered our relationship to music. On the one hand, they have whetted our appetite for making, hearing, and sharing it in greater volume and variety than ever before. On the other, they have underscored the limitations of twentieth-century music technologies, and in so doing have undermined their viability in the marketplace.

To many within the music industry, the problem appears very clear. Enabled by illegal technologies, millions of consumers have turned to “piracy” because the lure of free music is too great to pass up. This renders traditional commerce impossible. Why would anyone pay for something when it’s just sitting there, waiting to be taken? The only possible way forward is to use copyright laws, security technologies, and consumer education to contain the threat and mitigate the damage.

To many outside the industry, the situation seems equally simple, but the blame is reversed. Instead of supporting or embracing exciting new platforms that allow people to enjoy music to the fullest extent possible, the industry has attempted to squelch innovation at every turn, using copyright laws, security technologies, and propaganda as their weapons. The only possible way forward is to move deeper and deeper under ground, using cutting-edge technologies that the industry hasn’t yet learned about or figured out how to kill.

Both arguments appear to have merit, but they originate from such irreconcilable vantage points that they can never generate a meaningful dialogue, let alone come to a satisfying accord. What both viewpoints lack is a degree of historical perspective. Where did this cat-and-mouse game begin? How did the recording industry come to possess the powers it wields? When did music sharers become “pirates”? In this chapter, I argue that music began as a “public good” and trace the course of its gradual propertization, as well as the development of the legal framework that enabled this process. I also examine the history of “music piracy” and discuss some of the ways in which our uses of the term today diverge from those of the past.

Although my own vantage point is largely critical of the music industry’s most powerful organizations, I also sympathize with those who feel threatened by the changes at hand. It is my hope that, by providing a broader context for today’s conflicts both in this chapter and throughout the book, I can help to navigate a better path forward than the stonewalling, violence, and recrimination that have characterized industry-consumer relations thus far.

Music of the People, by the People, for the People

What is music?

For those of us who came of age in late twentieth- or early twenty-first-century America, the answer may seem obvious. It’s a form of entertainment, a packaged product, and a powerful (if sometimes infuriating) industry dedicated to the manufacture and exploitation of that product. Music is what wins Grammys, it’s what the “M” in MTV used to stand for, it’s the stuff that Super Bowl halftime shows are made of. And musical artists—“real” artists, the kind with major label deals and professional-quality videos—are a type of brand. Like our choices in clothing, movies, and computers, the music we buy, watch, and listen to says something about who we are, what groups we belong to, and what kind of values we have.

Theoretically speaking, if I were to amend my Facebook profile tomorrow to delete musicians like Thievery Corporation, Fela Kuti, and Ornette Coleman and replace them with popular acts like Toby Keith, Kelly Clarkson, and Drake, my closest friends and family would think I had gone crazy, was pulling a lame prank, or had entered a desperate phase of midlife crisis (and they’d probably be right). It’s an entirely reasonable assumption that I might enjoy the music recorded by these artists, but as a forty-year-old, northeastern American musician/professor/retired hipster, it would be completely uncharacteristic for me to define myself publicly by affiliating with them.

Music means many things to many people, and it continues to play an important role in churches, parties, and politics. But our primary use for it as a society is arguably as a form of “cultural capital,”¹ a marker of identity acquired through the acts of public consumption and affiliation. Music’s intrinsic power to bond groups and communicate affinities has been adapted to the logic of late capitalism and harnessed to serve its dictates. And the control of this power has been restricted to a dwindling handful of very large corporations with an ever-growing scope of legal authorization to decide what the rest of us do with music. The more normal and inevitable this relationship between music and the market seems, the less likely we are to question the underlying premises of our social and economic systems. Yet, as I discuss in my book Mashed Up,² the long-standing association between modern musical codes and social institutions may be nearing its end, or at least approaching a radical reformulation; our market-based assumptions about music no longer make sense when we look at the increasingly diverse ways in which we use it in our daily lives.

Music and the marketplace haven’t always been so deeply intertwined; in the scope of human history, it’s a relatively new development. In recent years, scholars in a variety of social and biological sciences have begun to converge on the question of why human beings seem uniquely adapted to make and respond to music, and their answers, though still tentative, offer some fascinating clues about its enduring sway over our lives and societies. The neurobiologist Mark Changizi, for instance, makes a compelling argument that music is, neurologically speaking, a kind of sonic code for human motion that hacks into our nervous systems and redirects our interests and energies. Without music, Changizi argues, humans could never have evolved beyond our “wet biology” to become the socially organized, self-aware, culturally immured creatures we are today.³ Similarly, scholars such as Oliver Sacks⁴ and Daniel Levitin⁵ have argued that music is one of the most complex and comprehensive aspects of human consciousness, and that music not only was central to human evolution but remains vital to our cognitive and social processes from infant development to the treatment of age-related dementia. In short, music isn’t just something we manufacture, like cars and shoes; it’s something that shaped us as a species, and continues to shape each of us as individuals throughout our lives.

Of course, we don’t need to invoke prehistory or biology to find musical traditions and applications that fall outside the confines of the marketplace. As a great many cultural historians and ethnomusicologists have demonstrated, music’s current role as a commodity is the exception, rather than the rule. In most societies, for most of the past five thousand years, music has served other functions, and other masters. For nonindustrialized societies such as the Mbuti of Zaire,⁶ the Venda of South Africa,⁷ and the Kaluli of Papua New Guinea,⁸ music’s central role (often in the company of dance) has been to bind together communities and reaffirm the values and philosophies that united them. In feudal and dynastic societies, music served as a kind of public news medium, as well as a vector of oral history; jongleurs, griots, bards, minstrels, skalds, and udgatars, though specialized conveyors of musical information, were hardly its “owners” or monopolists. Even within post industrial societies, a great many uses of music still fall beyond the market’s expanding footprint; from “traditional” music styles such as blues and bluegrass to quotidian musical events like birthday parties and religious ceremonies, music is still sometimes produced without claims to ownership or the promise of remuneration.

Consequently, as many economists and legal scholars have observed,⁹ music outside of its commodity context can be understood as a kind of “public good”—a universally accessible, ubiquitous resource that all members of a society may draw upon to fulfill their individual and collective needs. Similarly, to use a term introduced by the media theorist James Carey, music can be understood as a quintessential form of “ritual communication”—in his words, communication “directed not toward the extension of messages in space but toward the maintenance of society in time; not the act of imparting information but the representation of shared beliefs.”¹⁰ In other words, music today may be a product, an industry, and a talisman of consumer culture, but it has always been, and continues to be, a constituent element of human consciousness and collective social action as well. And in an age marked by the increasing corporate ownership of culture as well as a rapidly evolving person-to-person networked communications infrastructure, these two functions of music have come into an ever greater degree of conflict.

Music and the Marketplace

At what point did music cease to be merely an aspect of human life akin to speaking, dancing and dreaming, and become something that can be bought and sold, shared and stolen, stockpiled and monopolized? When, and how, did music become a commodity?

Despite its historical status as a public good, music has never been completely free. Powerful social institutions have always played a role in regulating musical aesthetics, practices and technologies. From dynastic Egypt and China to present-day America, music’s capacity to influence people’s behavior, opinion, and collective action has always been recognized as a vital tool—and a dangerous weapon—by those holding the reins of power.¹¹ Yet throughout most of history, this power has been exercised politically, militarily, religiously, and ideologically; only with the dawn of modern capitalism did music enter the marketplace and thereby become regulated through economic measures as well.

The French economist Jacques Attali has argued persuasively that, in the Western world, this shift began in the fourteenth century, at the birth of the Renaissance. At this time, he writes, the age of minstrels and jongleurs began to wane, and musicians “became professionals bound to a single master, domestics, producers of spectacles exclusively reserved for a minority.”¹² This was part of a broader trend; throughout the Renaissance, all of the cultural behaviors we now consider “fine arts” were professionalized and separated from more common, craft-oriented, and unmarketable ones, and professional artists were distinguished from mere amateurs and audiences.¹³ In that cultural moment, the music industry was born.

It is no coincidence that, at the very time when control over music and the arts shifted from religious to market mechanisms, the political power of the church was diminishing and that of the bourgeoisie was rising. Not only did the professionalization of music turn musicians themselves into commodities, requiring that people pay for access to something which had hitherto been free, but the new musical modes of production actually served to validate the underlying logic of the market system itself. If access to music could be bought and sold, then what other aspect of the human experience could legitimately be excluded from the marketplace?

Over time, the new focus on professionalization within music crystallized into an emerging set of aesthetics that didn’t just reward professional skills, but demanded them. By the turn of the nineteenth century, the shift was complete; as the music historian Joel Sachs argues, the “modern” music of the time emphasized virtuosity as a way to exclude both amateur musicians and uneducated audiences.¹⁴ These new aesthetics, in turn, paved the way for an even greater set of social transformations, centered around industrialization and massification. As the musicologist Christopher Small writes, the professionalization of music, and the resulting “exclusion of the consumer” from the musical process, can be linked directly to the “homogenization of human relationships brought about by the industrial society of today.”¹⁵

Even as musicians were becoming a commodity through the process of professionalization, musical expression itself was undergoing a simultaneous and parallel transformation. Although systems of musical notation have existed for millennia, it was only with the dawn of movable type in the fifteenth century that the concept of an intrinsically valuable musical score began to take hold. Unlike mere notation, scores can be understood as something logistically prior to, and of equivalent commercial value to, musical performance. In other words, they stand on their own as independent musical commodities, whether they’re used by amateurs or professionals, or merely sit gathering dust on a bookshelf. Also with the increasing capacity for large-scale print reproduction came the standardization of notation, which in the sixteenth century crystallized into the five-line staff system we know today. With standardized notation and cost-effective mechanical reproduction came the growth of an international music community, and a marketplace for the scores that bound that community together. In time, this marketplace led to the development of a printing industry and a professional publishing field. And for centuries, this field has been organized around the mechanism of copyright.

The Origins of Copyright

Countless authors have documented the boggling array of meanings, forms, and functions represented by the word “copyright” from age to age and nation to nation. Put...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction: Piracy Crusades Old and New
• Part I: Lock and Key: Music as a Scarce Resource
• 1 Stacking the Deck: The Monopolization of Music
• 2 Riding the Tiger: Why the Music Industry Loves (and Hates) Technology
• 3 “We’ve Been Talking about This for Years”: The Music Industry’s Five Stages of Grief
• Part II: Who Really Killed the Music Industry?
• 4 Dissecting the Bogeyman: How Bad Is P2P, Anyway?
• 5 Bubbles and Storms: The Story behind the Numbers
• 6 Is the Music Industry Its Own Worst Enemy?
• Part III: Collateral Damage: The Hidden Costs of the Piracy Crusade
• 7 “ This Sounds Way Too Good”: No Good Idea Goes Unpunished
• 8 Guilty until Proven Innocent: Anti-piracy and Civil Liberties
• 9 Is Democracy Piracy?
• Notes
• Index