The Heavenly Jukebox

Rampant music piracy may hurt musicians less than they fear. The real threat—to listeners and, conceivably, democracy itself—is the music industry's reaction to it
Legislation, Litigation, Leg-Breaking

Ulrich, it seemed clear, regarded the widespread dissemination of contraband music as a dangerous new thing, another anxiety-provoking novelty from the electronic age. In fact unauthorized music has been around as long as the music industry itself. Ulrich was not even the first musician to sue a business that he regarded as a cover for intellectual piracy. That honor may belong to Sir Arthur Sullivan, of Gilbert and Sullivan. Indeed, Sullivan's problems were, if anything, worse than Metallica's.

Illustration by Jose CruzLike the members of Metallica, who are unusually independent of their record label, Sullivan was a careful businessman who forced the music industry to accede to his demands. In the last quarter of the nineteenth century, when Sullivan composed his operas, the phonograph was in its infancy and radio broadcasts did not exist; the chief sources of music were churches, theaters, music halls, and the pianos that were prominently featured in most middle-class parlors. All these had to be fed large quantities of sheet music. In consequence the music industry was dominated by a group of big sheet-music companies. Sheet music was immensely popular—hit pieces sold hundreds of thousands of copies. And the industry would have been even more profitable, its leaders believed, if it had not faced rampant international piracy. Bootleg Brahms and Beethoven were openly hawked on the streets of every city in Europe and the Americas. As one of Britain's most popular composers, Sullivan was a favorite target for bootleggers; he and his manager spent years fighting copyright infringement in court.

Technology, law, and culture seemed to conspire against British composers and music publishers. Improvements in printing and shipping methods had made it cheaper and easier for outlaw printers to manufacture and distribute sheet music. Worse, from the publishers' point of view, courts in many countries ruled that piano rolls (the player piano was another new invention) did not infringe composers' copyrights, because the perforations in the rolls did not look like the notes in the original printed music, and hence could not be copies of them. Building on this precedent, phonograph recordings, too, were deemed not to require licenses or payments to composers. When publishers complained, they encountered a distinct lack of popular sympathy for their plight.

One of the biggest sources of illicit sheet music in London was a limited partnership led by James Frederick Willetts, a.k.a. "the London Pirate King." The partnership was known as James Fisher & Co., although there was no James Fisher; the real principals hesitated to do business in their own names. Fisher & Co. had a simple business plan: it sold the scores for musical compositions without paying copyright holders for the right to do so. If customers ordered 500 or more copies, the partners would prepare them to specification. "Piracy while you wait," one publisher's lawyer growled.

Is history repeating itself? At first glance the answer seems to be yes. Once again new technology has encouraged the proliferation of unauthorized music for next to nothing. Once again consumers have eagerly embraced this material. Once again complexities in copyright law seem to provide legal havens for practices detested by publishers—havens used by new businesses to give the public access to contraband music. And once again some voices are arguing that music copyright has done little but create an exploitative oligopoly that feeds on musicians and listeners alike. The way events play out today, however, may well be different from the outcome a century ago.

Sullivan fought British bootleggers but was especially outraged by their American counterparts: legitimate publishers who took advantage of a quirk in U.S. law that denied the protections of copyright to foreign authors. The irate Sullivan filed lawsuit after lawsuit in U.S. courts, but only dented the trade. To prevent the pirating of The Pirates of Penzance, he long refused to publish the score; bouncers prowled every show to stop music thieves from writing down the melodies. Tired of what he regarded as "guerrilla warfare," Sullivan paid American musicians to put their names on the scores of several operas, including The Mikado, and then to hand the rights back to him, thus satisfying the requirements of U.S. copyright law. He sued American theatrical companies when the scores were pirated anyway—and lost. "No Englishman possesses any rights which a true-born American is bound to respect," one judge supposedly said. In 1900, when Sullivan died, his funeral cortege passed through London streets that were still full of scofflaw music-hawkers.

British publishers were fighting back too. "They were losing a lot of money," says James Coover, a music professor at the State University of New York at Buffalo. "What else would you expect them to do?" As he documents in Music Publishing, Copyright and Piracy in Victorian England (1985), the efforts of Britain's Music Publishers' Association were at first scattershot and ineffective. The publishers tried to restrict the length of time during which people could perform sheet music before they were required to buy another copy. They asked the postmaster general to block all music shipments from the United States. They threatened to prosecute musicians who transposed songs into other keys. But eventually the publishers hit on a winning strategy: they persuaded Parliament to pass strong new anti-piracy legislation and then sought to enforce it.

The Musical Copyright Act came into effect on October 1, 1902. That day more than a thousand anti-pirate vigilantes, paid by the Music Publishers' Association, swaggered onto the streets of London, searching for and destroying illegitimate editions of "Stars and Stripes Forever," "Brooklyn Cake Walk," and "Pliny, Come Kiss Yo' Baby!" The goons became violent. Skulls were cracked, doors broken, sheet-music bonfires set. Millions of songs were seized. In addition to vigilantes, the publishers hired lawyers, who sued Fisher & Co. in 1905. Testimony was lopsided. The publishers called more than fifty witnesses, Fisher & Co. zero. Willetts was sentenced to nine months in the clink. The light sentence annoyed the publishers, who had gone to considerable expense to prosecute him. Nonetheless, the trial was successful, Coover told me recently: by showing the teeth in the new copyright law, the publishers "scared off" the great majority of music black-marketeers. The pirate trade quickly collapsed, done in by a determined blend of legislation, litigation, and leg-breaking.

Today's music industry, like yesterday's, initially faced unfavorable laws; like yesterday's industry, it induced the legislature to revamp them and then went after infringers with a legal club. The first attempt to prosecute someone who released copyrighted material on the Internet, in 1994, collapsed embarrassingly when the judge threw out the charges—existing case law said that infringement had to be associated with financial gain, and the material had been given away. The No Electronic Theft Act, passed in 1997, closed this loophole. The Digital Millennium Copyright Act, passed in 1998, further strengthened the industry's hand—it banned attempts to circumvent copy protection. With the help of what Edgar Bronfman, of Universal, recently described as a "Roman legion or two of Wall Street lawyers," the Recording Industry Association of America has for the past two years sued or threatened to sue Web sites that contain copyrighted songs, universities that allow students to trade tunes on their computer networks, consumer-electronics companies that produce digital music players, online-music services that lack proper licenses, and, of course, Napster. A&M Records, et al. v. Napster, an RIAA-backed suit by seventeen record companies, was filed in December, ninety-four years after charges were brought against Fisher & Co.

Some of the lawsuits have been successful, most notably a proceeding against, a site that, among other things, lets people listen through the Internet to music they own on compact discs. (The company did not obtain the requisite licenses to provide this service.) Napster has suffered serious legal setbacks, even though a trial remains at least a month away. Nonetheless, it is widely believed that this time around, laws and lawsuits will not be enough. Although the British were able to preserve their traditional way of selling music at the beginning of the twentieth century, nothing comparable will be possible at the beginning of the twenty-first—the Internet, as the new-economy magazines like to say, has Changed Everything. Hillary Rosen, the president of the RIAA, conceded to me that "there are not enough lawyers in the world to sue all the people we'd have to sue." (As it is, the association sends as many as thirty threatening letters every day.) Stop fighting to preserve the past, Rosen counsels record labels. It can't be done. The costs of manufacturing and distributing online music are so low that record companies will be forced to offer their wares on the Net. Instead of fighting the trend, she says, the industry should "embrace the opportunities" provided by the Internet. Don't try to stop the flow of zeros and ones—rechannel it!

Rosen's advice is predicated on the belief that the labels can find a way to make music files effectively uncopyable—a belief that many Internet-security experts regard as an illusion. "If people think that building higher walls and nastier barbed wire around desirable product [on the Net] is going to prevent people from getting it, they're only fooling themselves," contends Dan Farmer, a computer-security researcher for EarthLink, a big Internet service provider. Farmer strongly believes in protecting artists' copyrights; indeed, he consulted for the plaintiffs in A&M Records, et al. v. Napster. But in a time when a single click can spread a work around the world, he and others ask, how can anyone imagine that it is possible to control distribution?

In an e-mail exchange I asked Farmer what would happen if all content migrated to the Net, as many publishers promise, but none of it could be paid for, as many technophiles promise. Would this mean the collapse of the music labels, the movie studios, and book publishers? (I barely avoided adding The Atlantic Monthly and myself to the list.) Given publishers' past successes, such an apocalyptic resolution seemed unlikely. But watching the lists of song titles on Napster drop down my screen like the slats of a venetian blind made it easy to imagine. Farmer quite properly replied that economics wasn't his field. He restated his belief that there was really not much to be done about it. Then he added, in what I imagined were the apologetic tones of someone forced to give bad news, "I can see why people get worried about this stuff, though."

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Charles C. Mann, an Atlantic contributing editor, has been writing for the magazine since 1984. His recent books include 1491, based on his March 2002 cover story, and 1493.

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