Piracy_ The Intellectual Property Wars from Gutenberg to Gates - Adrian Johns [260]
Radio broadcasters were the first to complain of home taping, back in the days of reel-to-reel units in the i95os. It took until the late sixties for the record industry to initiate its long sequence of jeremiads warning that it was a mortal threat to music itself. Of course, as critics like the tapester pointed out, it was more plausible to say that the practice was a threat not to music per se, but to music of a certain kind: that produced in an industrial mode, with a small number of technologically sophisticated and highly capitalized corporations mass-producing "hits." This was a model of culture that dated back to steam printing." As with steam printing, it often proved tempting for critics to focus exclusively on the homogeneity to which it gave rise. In that light home taping-like bootlegging, and, especially in Europe, pirate radio-came to represent the antithesis to this perceived blandness. Its social character-its conviviality and its reliance on sharing and swapping-implied a critique, if not an alternative. Rolling Stone subjected the industry's claims to particularly withering skepticism. Its claim to have lost $i billion to home taping-a claim advanced by Alan Greenspan, then an industry economist- turned out to rest on an assumption that 40 percent of home copies would otherwise have been sales of discs. But in fact home tapers bought more albums than average. Home tapers were not "freeloaders" after all, therefore, but the industry's most dependable customers. Monopoly and mediocritywere to blame for the industry's problems.23
By this time, Congress had yielded to the RIAA's urgings and launched hearings into home taping. It swiftly passed a new law.24 As so often, however, the statute was not exactly what the industry had desired. The new statute did bring audio recordings under the wing of copyright for the first time, rejecting the idea of compulsory licensing. But on the other hand it also explicitly foreswore restricting "home taping." Noncommercial copying was not, after all, to be treated as a transgression. Although this was in large part merely an acknowledgment of the inevitable- to stop home taping was both impractical and impolitic-it was an important statement nevertheless. The measure acknowledged explicitly a distinction between (commercial) piracy and (noncommercial) "home" copying. Later, too, Congress preferred to leave it to the industry to counter the latter by creating an anticopying technology- the effects of which are evident today.25 At any rate, it came to be widely believed that a "home taping exemption" existed in the law. Congress, after all, had discussed precisely this when Representative Edward Biester had evoked "a small pirate in my own home." Biester's son habitually taped records, and the boy became an unwitting proxy for an entire population of home tapers. The assistant registrar of copyrights, Barbara Ringer, had made the obvious explicit. "I do not see anybody going into anyone's home and preventing this sort of thing," she had testified, "or forcing legislation that would engineer a piece of equipment not to allow home taping." Judges tacitly and tactfully cleaved to this principle, and acted as though an exemption for home taping existed. The principle of the home took primacy over the principle of intellectual property.
LIBRARIANS AND TIME BANDITS
The crisis of home taping remained a relatively confined, slow-burn one as long as only audio recordings were at issue. That changed when video came into the home. Hollywood and the television industrywere far larger and richer than the music companies, and enjoyed a global reach. They now saw a threat to their interests. Home piracy was about to become a geopolitical flashpoint.
Videotape had a history several decades long by the time it entered American homes. That history adumbrated many of the coming problems. It involved transnational