From Monopoly to Intellectual Property: Music Piracy and the Remaking of American Copyright, 1909-1971

Abstract

In the last decade, intellectual property has been the subject of renewed political debate and scholarly engagement in the United States. Americans have divided over issues ranging from online piracy of music to the digitization of books by Google, while movements such as Copyleft and Creative Commons have emerged to challenge what they see as overly restrictive property rights. !e commotion around copyright reflects a real change in the way visual or audio cultural goods have been produced and enjoyed in the late twentieth and early twenty-first centuries. As technologies such as magnetic recording and the Internet made it easier to copy and distribute works, lawmakers responded by strengthening the power of copyright and expanding its scope to cover new kinds of expression.1 But copyright reform was more than a reaction to changing technologies. Lawmakers had to weigh competing definitions of the public good and ideas about the purpose of copyright to determine how citizens should be permitted to use cultural works. Music offers a key barometer of changing attitudes toward property rights, as song and sound have sparked legal wrangling from the days of the wax cylinder to the era of the mixtape. Americans have argued for decades over how—and whether—sound recordings could and should be protected by copyright. !e passage of the 1971 Sound Recording Act opened the way to a series of wide-ranging reforms: Congress lengthened copyright terms in 1976 and 1998, banned the rental of sound recordings in 1984, and criminalized efforts to circumvent antipiracy mechanisms on media such as compact discs; in 2001 the Supreme Court ruled against networks that permitted the exchange of digitally compressed audio files without the permission of copyright owners. Such laws and rulings reflect a broad consensus that federal protection for recordings is not only appropriate but also essential to the health of the U.S. economy. !is article examines how such a consensus emerged in the twentieth-century United States, as the pleas of business for greater protection eclipsed traditional concerns about the monopoly power of copyright. It uses the story of music piracy to trace the arc of American political thought about copyright, showing how jurists and lawmakers gradually accepted a new rationale for property