Music piracy
Music piracy is the copying and distribution of musical compositions and their associated sound recordings for which the rights owners did not give consent. Unauthorized copies of musical works have taken many forms throughout modern history, including sheet music, perforated piano rolls, and recordings of musical performances made or duplicated without the consent of the performers.
In the contemporary legal environment, music piracy is a form of copyright infringement, which may be a civil wrong or a crime depending on the jurisdiction. In the early 20th century, however, loopholes in copyright laws enabled companies to sell mechanical reproductions of copyrighted music, including piano rolls and phonograph records, without compensating the copyright owners or the performers on the recordings. Two international treaties, the Rome Convention and the Geneva Phonograms Convention, secured protection under national copyright and related rights frameworks to the performers and producers of sound recordings.
The late 20th and early 21st centuries saw much controversy over the ethics of redistributing media content, how much production and distribution companies in the media were losing, and the very scope of what ought to be considered piracy – and cases involving the piracy of music were among the most frequently discussed in the debate.
History
Early 1900s: Sheet music and birth of sound recording
Music piracy was a widespread issue in the United States at the turn of the 20th century. New technologies like photolithography enabled infringers to make highly accurate, unauthorized copies of sheet music at low cost. This led to an asymmetry between pirates and music publishers, as enforcement of copyrights was expensive and often difficult. At a conference in New York City in 1905, music publisher George W. Furniss complained that, while pirates could print illicit copies quickly and for about $10–15, "it will cost several hundred dollars to capture a few pirated copies, with no chance of getting any relief from the individuals in that line of business." Furthermore, the high accuracy of photographic reproduction sometimes made it difficult for investigators to positively identify counterfeits.At the same time, advancements in sound recording and reproduction, like player pianos and phonographs, created new legal quandaries for music publishers and composers as well as the producers of sound recordings. Before the Copyright Act of 1909, the copyright in a musical composition only extended to visually perceptible copies like sheet music; whether mechanical reproductions were considered "copies" under the present law was in doubt. Indeed, in the Supreme Court case White-Smith Music Publishing Co. v. Apollo Co., the Apollo Company argued that paper piano rolls were parts of a machine and therefore in the scope of patent law, "and are not copyrightable merely because of incidentally being able to perform some part of the function of things copyrightable." The Court unanimously sided with Apollo, writing that the copyright law of the time only covered expressions of a work that could be seen by the naked eye. By contrast, the information on piano rolls and phonograph records could only be perceived with the aid of a machine.
The nascent recording industry was also plagued by unauthorized duplication of sound recordings. When record players, then known as phonographs or "talking machines", were introduced in the late 19th century, they were considered novelty goods, valued mostly for their ability to replicate the human voice. Manufacturers sold phonograph cylinders and disks with pre-recorded performances of songs, speeches, and stories, but these recordings served mainly to show off how well their devices reproduced sounds rather than to market the performances themselves. These recordings were often duplicated and resold by competitors, and the makers of original recordings responded by emphasizing their higher sound quality compared to the fakes when marketing them to customers. Cummings argues that the contemporary phonograph market recognized duplicate recordings as distinct products from originals and that listeners "did not necessarily identify one recorded performance as the exclusive product of one record company."
The practice of selling duplicates of sound recordings drew criticism from the recording artists who produced them. Early recording artist Russell Hunting decried this form of record piracy, but his complaint focused on the inferior sound quality of the unauthorized copies rather than the skill and labor that went into the recordings themselves.
In August 1906, the British Parliament passed the Musical Copyright Act 1906, also known as the T.P. O'Connor Bill, following many of the popular music writers at the time dying in poverty due to extensive piracy during the piracy crisis of sheet music in the early 20th century. Sheet music peddlers would often buy a copy of the music at full price, copy it, and resell it, often at half the price of the original. The law provided criminal penalties for unauthorized printing and selling of "pirated copies of any musical work", and allowed for their seizure and destruction by courts, but excluded perforated piano rolls and phonograph records. Music publishing associations hired police officers and former soldiers to raid printing presses and shops, confiscating sheet music from street sellers. The film I'll Be Your Sweetheart, commissioned by the British Ministry of Information, is based on the events of the day.
Three years later, the United States Congress passed the Copyright Act of 1909, which addressed the perceived failure of the prior copyright law to adapt to new technologies. The Act extended the scope of copyright in musical works to mechanical reproductions, whether in piano rolls or in phonograph records, while providing for a compulsory mechanical license to prevent any one company from monopolizing the industry. However, the Act did not grant copyright protection to sound recordings themselves, allowing record piracy to proliferate.
1930s–50s: Rise of record piracy, bootlegging, and radio
Even after the passage of the 1909 Copyright Act in the United States, legal protection for sound recordings and performances was weak, consisting of a patchwork of judge-made doctrines such as unfair competition and misappropriation. Radio stations often broadcast pieces of recorded music without the approval of the recording artists who performed on them. Meanwhile, bootleggers made recordings of live performances or radio broadcasts from opera houses and the like and sold them on the black market.Live musical performances were part of early radio programming and were a lucrative source of income for musicians. But in the 1930s, radio stations started to substitute pre-recorded performances for live ones without the consent of the performers who recorded them. In response, the American Federation of Musicians coordinated recording strikes, and bandleaders sued radio stations for unauthorized broadcasting of their sound recordings, invoking common law copyright and unfair competition. Courts had different responses to these issues: in Waring v. WDAS, the Pennsylvania Supreme Court held that sound recordings were subject to common law copyright because they were still considered "unpublished" even though they had been sold to the public. By contrast, the U.S. Court of Appeals for the Second Circuit held in RCA v. Whiteman that the recordings had been published and so were unprotected by common law copyright.
In the 1950s, recordings of banned Western music were imported into the Soviet Union and pressed on phonograph discs made from discarded X-ray films. These "X-ray records" are credited with introducing record piracy to the USSR.
1960s–70s: Legal protections for sound recordings
The development of magnetic tape recording technology lowered the cost of recording and copying music, leading to an epidemic of tape piracy in the 1960s. "Pirates" took advantage of the compulsory mechanical license under federal copyright law, flooding the U.S. Copyright Office with notices of intention bearing hundreds of song titles, to duplicate existing sound recordings, which were not protected under federal law. However, music publishers refused to accept these notices and any proffered royalty payments, believing that copying of existing sound recordings was outside the scope of the compulsory mechanical license.In response, U.S. states began to pass laws criminalizing the unauthorized duplication and sale of sound recordings. New York became the first state to pass an anti–record piracy statute in 1967; California followed suit in 1968. Congress passed the Sound Recording Amendment in November 15, 1971, bringing sound recordings under federal copyright protection for the first time. The law came into effect on February 15, 1972.
1990s–present: Growth of digital piracy
The invention of the Internet and digital media created music piracy in its modern form. With the invention of newer technology that allowed for the piracy process to become less complicated, it became much more common. Users of the web began adding media files to the internet, and prior potential risks and difficulties to pirating music, such as the physicality of the process, were eliminated. It was much easier for people with little to no knowledge of technology and old piracy methods to gather media files.The first application that demonstrated the implications of music piracy was Napster. Napster enabled users to exchange music files over a common free server without any regard for copyright laws. Napster was quickly shut down after lawsuits filed by Metallica and Dr. Dre and a separate lawsuit in regards to the Digital Millennium Copyright Act. Other music sharing services such as Limewire continued to be a resource to those searching for free music files. These platforms were also removed after a few years of service due to copyright laws and the Digital Millennium Copyright Act. After finding some loopholes, piracy began to exist in more legal forms, an example being Pirate Bay. This technical legality was due to the format of the websites and their country of origin and administration. The websites were set up so that the site itself did not host any of the illegal files, but gave the user a map as to where they could access the files. Additionally, in Pirate Bay's case, the website was hosted under Swedish law, where this "map" was not illegal.