Democracy of Sound

Oxford University Press, normally a reliable source of useful and important books for lawyers, apparently also publishes social histories on legal topics for nonlawyers. In Democracy of Sound, Alex Sayf Cummings, assistant professor of history at Georgia State University, presents a revisionist history of the interplay between copyright law and sound-recording piracy.

In fairness to Cummings, he is not a lawyer or a legal scholar, and despite his book's focus on copyright law, it is not aimed at lawyers. But in his narrative, copyright's complex role as the law that protects the work of the human imagination within the context of the entertainment industry is distorted, with the usual caricature of the music industry as exploiter of copyright law to the detriment of everyone else. Thus pirates and bootleggers become romanticized figures, often portrayed as merely exploiting loopholes in the law in service of bringing music to the masses because the industry itself fails to do so, either by hoarding its unreleased recordings or greedily failing to address economic realities, such as the consumer's preference to pay less.

For example, Cummings describes copyright law as "legal suppression" via "retaliation in the courts." But before federal copyright protection went into effect in 1972 for sound recordings, recorded music was protected under state common law. Cummings characterizes the pre-1972 era as a "legal gray zone," and according to him, piracy then led the music industry to engage in "panic and recrimination" amidst "excesses in intellectual property law." Thus, in his view, the subsequent growth of intellectual property laws is part of a "repressive zeitgeist."

Such views of copyright law left me wondering if I was really getting an objective historical narrative, and whether that narrative had important gaps. For example, it took more than 100 pages before the author even acknowledged that recording artists and songwriters are not paid royalties by pirates and bootleggers, and then the topic was quickly dismissed amidst quotes from bootleggers that artists such as Bob Dylan don't need the money anyway. Cummings also cites examples of artists who willingly encourage their fans to access their music at no charge, which is always the prerogative of a copyright owner should they so choose. The message the book promotes seems to be that when copyright owners allow free access to music, they make the correct, democratic choice, but when they pursue infringement claims, they are misguided about how society works.

The book does attempt a broad narrative scope, discussing not only the bootleggers and pirates who seek money from other's copyrights but also the hip-hop artists and DJs whose creative works are based on sampling of other's copyrighted material. In the former context, much time is spent characterizing bootleggers as simply bringing hidden gems to aficionados. Cummings also asserts that pirates fill an economic niche for providing affordable music to consumers both at home and abroad. Though Cummings appears evenhanded in his descriptions of piracy laws, his real enthusiasm seems to be reserved for depicting copyright law as increasingly "repressive" in the face of piracy's growing use of exciting new technologies, such as file-sharing.

As for creative artists who sample others' works, Cummings mentions Siva Vaidhyanathan's book Copyrights and Copywrongs, which he says documents "how the threat of litigation forced rappers and their labels to obtain costly copyright clearances from rights owners for the sound samples they used in constructing new tracks." Then Cummings quotes music journalist S. H. Fernando Jr.: "The legal implications of sampling has created a subsidiary industry within rap, fattening the pockets of lawyers, older artists, defunct labels, and sample clearinghouses, who conduct the actual busywork of acquiring rights and negotiating fees." But discussion of the topic does not go much further than venting frustration at how licensing works. The real issues - whether copyright law fundamentally hinders or helps creativity and whether there is or is not a new "democracy" in copyright law created by new technologies - is not addressed in any meaningful or balanced way.

I did enjoy the ironically funny story included of an idealistic and naive young couple who enthusiastically took up employment with a pirate vinyl record-pressing plant because they thought it was just exploiting loopholes in the law and engaging in social justice. But thanks to a combination of not getting paid for their work and barely avoiding arrest and incarceration, the couple seemed to sour on their experience with that particular pirate operation, but not necessarily on the "cause" itself.

The book's use of the word democracy in its title implies that music's ability to speak to everyone should cross all economic and legal borders and express the will of the people, whether the creators like it or not. But in a true democracy, everyone's legitimate rights are protected and respected, including performing artists and songwriters (and their business partners), no matter how unpopular or unfashionable that may seem.

Revisionist history can be valuable if it thoughtfully addresses all views and creates historical fairness that was previously lacking. But when it simply switches history's good-guy/bad-guy roles, the irony is that it commits the same sins as the establishment view, just from the opposite position. I hope that Oxford University Press will one day offer the legal community a definitive and balanced story of copyright law and its complex legal and business relationship to humanity's love of music.

Corey Field is of counsel in the Los Angeles office of Ballard Spahr, where he focuses on copyright and entertainment law.

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