Lee Marshall - Bootlegging: Romanticism and Copyright in the Music Industry

I do not think it is too much of an exaggeration to say that intellectual property issues are some of the most important facing the world today: what was once an arcane and confusing area of law appealing to only a few specialists and with little impact outside its immediate specialism has transformed itself into an arcane and confusing area of law that arouses the passions of many and influences virtually all aspects of contemporary life TV shows, genetic structures, celebrity personae, and much more. Following the coming of the information age and, in particular, the new possibilities created by the internet, we appear to be at a crossroads regarding how we should regulate information in the future. On the one hand, information-liberationists such as John Perry Barlow (1994) proclaim that information wants to be free, upholding a vision of the future where intellectual property rights (IPRs) are technologically unenforceable and undesirable. Alternatively, others argue that information will only be created if stronger IPRs are enforced and see the technological capabilities of the internet as facilitating better protection of such rights (e.g. Goldstein, 1994). From the sidelines, critics utter warnings of how securing information in new technological locks threatens earlier democratic goals (e.g. Drahos with Braithwaite, 2002).

Given the contemporary salience of these issues, it is of little surprise that much has been written on the subject of copyright, and IPRs more generally. The best authors in this area have provided insights into the assumptions and aporias that underlie the law (for example, Peter Jaszi, Jessica Litman and James Boyle), illustrated the importance of a historical understanding of copyright (for example, Mark Rose, Lyman Ray Patterson and Martha Woodmansee), and have provided examples of the lived experience of IPRs in contemporary society (for example, Rosemary Coombe and Jane Gaines). This current work owes a debt to all of these writers, but is distinctive in the way that it tries to interpret these phenomena in their relationship to the wider structural features of capitalism. The sources for this work are resolutely inter-disciplinary and normally react against socio-structural explanations, emphasising instead the arbitrary nature of social action things could always have turned out otherwise (for example, Saunders, 1992). They could have, but they didnt and, following Webers suggestion that sociology should seek to understand on the one hand the relationships and the cultural significance of individual events in their contemporary manifestations and on the other the causes of their being historically so and not otherwise (1949: 72), I seek in this book to offer some explanations for why copyright is the way it is and not otherwise. This is not to remove free agency from the equation: everyone in this book from seventeenth-century Stationers, to Wordsworth, to bootleg collectors, to Metallica made or makes choices. The decisions they make, however, form patterns and the patterns are the result of wider structural features that generate vested interests and power inequalities and thus structure the decisions that are made.

The focus of the book is the relationship between authorship and copyright and, in particular, how a historically specific understanding of authorship, labelled Romantic, has become embedded in the text and everyday interpretation of copyright law. The specific argument that copyright contains a Romanticised authorship is not unique it would be ironic indeed if I were claiming it as my own but my interest is in the relationship between Romanticism and copyright rather than the more common arguments of how the Romantic author is a social construction (for example, Stillinger, 1991; Woodmansee, 1994) or the negative impact that this construction has on copyright (for example, Jaszi and Woodmansee, 1996). My argument is that the Romantic author and copyright are both forms of the same social relations and that they combine to provide a way of managing the commodification of culture in capitalist modernity.

This historical relationship between Romantic authorship and copyright is one aspect of the wider relationship between Romanticism and capitalism. Whereas Romanticism is traditionally conceptualised as capitalisms other, rejecting the commercialisation, rationalisation and urbanisation of the world (for example, Lowy and Sayre, 2001), it is more correct to see Romanticism as a part of capitalism and, specifically, as a way of coping with the contradictory experience of art in a social formation dominated by rationalism and utilitarianism. Romanticism is, however, a dialectical phenomena: while providing a way of coping with culture in capitalism, it also emphasises an understanding of subjectivity and aesthetics that exacerbates the apparent schism between capitalist rationalisation and aesthetic experience. It would thus be wrong to understand Romanticism either as wholly complementary to capitalist profit-making practices, or as wholly rebelling against those practices: it does both, and this can be seen in everyday cultural practices. One such example can be seen in the back alley of the music industry known as bootlegging the recording and distribution of live recordings and studio outtakes that have not been released by the artist or their record label.