The Piracy Crusade: How the Music Industry's War on Sharing Destroys Markets and Erodes Civil Liberties

1. Stacking the Deck: The Monopolization of Music

15 PA R T I Lock and Key: Music as a Scarce Resource A  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 16 LOCK AND KEY: MUSIC AS A SCARCE RESOURCE 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. 17 C H A P T E R 1 Stacking the Deck The Monopolization of Music T  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 twentiethcentury 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 underground, using cutting-edge technologies that the industry hasn’t yet learned about or figured out how to kill. 18 CHAPTER 1 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...