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Brianna LaHara was 12 years old when the Recording Industry Association of America filed suit against her and her family, seeking damages for illegally downloaded music. She was a serious offender according to the suit, the type of flagrant music pirate who had downloaded in excess of 1000 songs through streaming services.
The international press loved it. LaHara, a pre-teen from an Upper West Side housing project and an honour roll student, had though t that the $29.95 her mother spent downloading Kazaa made the process legal and above board. Better still, she’d downloaded a combination of pop songs and children’s rhymes, a mix of Christina Aguilera and “If You’re Happy and You Know It.” Along with 71-year-old Durwood Pickle of Richardson, Texas, Lahara was the least-threatening, least obviously criminal of all the 261 “major offenders” that the RIAA had come for.
Eventually, they settled the case with LaHara’s family out of court for $2000 and a Soviet apology: “I am sorry for what I have done,” LaHara said in a statement at the time. “I love music and don’t want to hurt the artists I love.” LaHara’s mother, Sylvia Torres, backed down from her initial indignation—“This is a 12-year-old girl, for crying out loud” she’d said when the suit was filed—and released a similarly unbelievable statement. The RIAA were “trying to send a strong message,” according to their CEO Mitch Bainwol. They appeared to have succeeded.
The recording industry had been lashing out and panicking about peer-to-peer downloading for a while already, but the spate of lawsuits around the Brianna LaHara case appeared at the time to be something new. Unlike the much-publicized lawsuit that had bankrupted Napster in 1999, these were individual cases taken against private citizens. The RIAA may have played the role of reluctant parents disciplining unruly kids—“Nobody likes playing the heavy,” said RIAA president Cary Sherman—but their intention here was to shock and intimidate.
The trials continued over next decade and their absurdity was rarely muted. In 2009, a Boston University graduate student was ordered to pay $675,000 to four record labels after admitting to sharing 30 tracks online. Back in 2012, in the first such case to be tried before a jury, the RIAA won $220,000 from a Minnesota woman accused of illegally downloading 24 songs from Kazaa. That’s $9,250 per song.
But none of it had much of an effect. Illegal downloads continued to thrive in the wake of these glorified show trials, and even with the rise of legitimate streaming services, peer-to-peer filesharing remained steady enough today. Last year the Los Angeles Times reported that 20 million people in the US still obtain music through peer-to-peer networks, compared to the 7.7 million that paid for a music subscription service. Though legitimate streaming services might make it easier and cheaper to get hold of music—hell, if you’re lazy, it’s way better than LimeWire ever was—piracy remains alluring.
Being bogged down in thinkpieces about “millennials,” though, means that there has to be a nice, neat narrative for all that somewhere. In that same LA Times piece, Ryan Faughnder offered this: “Part of the problem is getting people who grew up in the age of Napster, LimeWire, and Kazaa to pay anything for music, industry experts say. Many young people don’t see anything wrong with downloading from unauthorized sites or ripping from YouTube.”
Some of which might be true. I still remember the green and white glow of LimeWire and the freedom it offered me as a 13-year-old, the only thing in the world more interesting than porn. Pandora was a door into a new world, too, curated playlists based on something that looked like science. It was mind-blowing and unendingly fun and completely free. I knew it was illegal, I knew people got sued for it, and I kept doing it anyway. We are mostly a generation of people who think that music is free besides exceptional circumstances.
But all that ignores something wider. Long before tech-addled kids started sharing files in their California dorm rooms, music piracy was a thriving industry, one that scared the shit out of major record labels just the same as it did in the Bush years. Bootlegging was the illegitimate, second-born brother of the American recording industry.
The black market got going even before recorded music got up a head of steam. Sheet-music piracy presented its first serious threat to the industry in the 1920s when ornate, copyright protected, and therefore expensive prints of popular hits were set way out of the average earner’s price range. The black market solution was song sheets: unauthorized, cheaply printed copies of the same songs sold at a fraction of the price. They were nothing more than cheap print-ups of lyrics, no music to set it to, no musical score to play it to in the buyer’s head. But by the time the stock market crashed at the end of 1929, they were rife across New York City and the United States.
Barry Kernfeld’s book Pop Song Piracy lays it all out neatly: the entrepreneurial black-marketeers, the fury of the songwriters and copyright holders, the ire it all drew from the FBI and eventually Congress. It was, he writes, “a cat and mouse game of moves and countermoves” between the bootleggers hawking their knock-offs and the authorities trying to shut them down. But the results rarely wavered. The charges would be brought, but “the bootleggers found their way around these charges. Or they managed never to be caught. Or they suffered prosecution, accepted fines or jail terms, and got out of the business, only to be replaced by others.” Better still, some of them went through all that and then “stayed in the business anyway.”
Brianna LaHara was no bootlegger; she wasn’t stealing for profit, selling her ill-gotten music to folks on the street. But the idea was the same. She’d stolen something, compromised the sanctity of copyright, and had to be dealt with accordingly, made an example of. And though her scripted apology said she’d never think of doing such a thing again, it didn’t ripple out to the world around her. Most people stayed in the business anyway.
It wasn’t just opportunistic criminals that drew the ire of the recording industry in the 20th Century, though. The best stuff came from scruffy, sun-ravaged 20-somethings in California in the 60s and 70s when vinyl bootlegging started to boom.
It started with Ken Douglas and “Dub” Taylor’s Trademark of Quality, an inadvertent two-man operation based out of Los Angeles, in 1969. Taylor, a rock ’n’ roll nerd who worked alongside Douglas at Saturn Records, got his hands on a set of scratchy demos that Bob Dylan had recorded in a Minnesota hotel room in 1961, before his electric trip. The two figured it would be fun to release the tracks, see who would bite.
Turned out, a lot of people bit. Within weeks, Douglas and Taylor were pushing thousands of copies of the bootleg through local pressing plants, dishing them out to record store owners, desperately trying to meet demand. The operation grew out of their control: Rolling Stone reviewed their release of the Rolling Stones’ Live’r Than You’ll Ever Be and radio stations across the country lined up to play it. They raked in cash, more than they knew what to do with.
Trademark of Quality became an institution. Over the next five years they put out bootlegged records by The Beatles, Rod Stewart, Frank Zappa, anyone big enough to fill the demand.
Most importantly, they started a trend. The early years of the 70s saw an explosion of kids like Taylor and Douglas, all starting their own labels, taking tape recorders to local shows and printing up cheap copies of the results for whatever audience they could find. Labels like The Amazing Kornyfone Record Label put out live rips from Deep Purple, Queen, Pink Floyd and anyone big enough that rolled through Southern California. Scott Johnson’s Rubber Dubber label had a bright and oddly beautiful two-year stint, putting out Hendrix’s Live at the Los Angeles Forum and soaking up the accolades for his work dodging the industry.
And, again, the industry fought back. In the summer of ’71, Johnson’s public image got the better of him when he gave an interview to Esquire, bragging about his ability to dodge the FBI; agents turned up at his doorstep and raided him a few days later. Rumors swirled around that Rolling Stone had abandoned any coverage of the vibrant bootlegging scene because their advertisers—legitimate record labels—were threatening to pull their cash from the magazine.
It all started to get serious in the fall of ’71 when Ode Records sued a small-time record store owner named Emanuel Aron. The label was far from the majors—their biggest artists were Cheech & Chong and Spirit—but they weren’t afraid of litigation. They sued the store’s owner, Emanuel Aron, for $1.5 million after he sold a bootlegged Carole King record in his store. According to Billboard at the time, the case was “charging unfair competition, interfering with contractual relationship, invasion of privacy and unauthorized commercial use of name and likeness on an album cover.”
From there, the floodgates opened. Warner Bros. and Atlantic filed suit against a host of bootleg companies “unfair competition” over the sales of Jimi Hendrix, Jethro Tull, and Neil Young records, among others, seeking one million dollars in damages. But the Rolling Stone piece from the time gets at the most potent weapon the industry had: The labels threatened to pull every cent of promotional money from the stores and then go on to cease deliveries of records altogether.
“This new tactic by record companies is having a greater effect in stifling bootleg sales than a number of other tactics which have already been tried,” read the piece in Rolling Stone. They scared the life out of the record store owners—and tried to stifle demand from the middlemen. For a while, it worked.
Again, the whole thing had the air of a public execution. Lump a few record owners with an absurd charge for an impossible amount of cash, and their peers will cower and fall back in line. They tried the same with LaHara, announcing at the time of the trial that they would implement an amnesty program for illegal downloaders and “promising not to sue them in exchange for their admission and pledge to delete the songs off their computers.” Of course, “the offer does not apply to people who already are targets of legal action.”
But the bootleggers were no more likely to stop than the kids on their family PCs. None of it worked; the black market thrived for years after those cases against the bootleggers in ’71. There was a demand for the music, previously unheard material from bands who previously had complete control over their work. It was that freedom, a desire to see past the curtain and find out more.
The golden age of bootleggers—the messy Vietnam-era kids with their Grateful Dead records and disdain for authority—moved on eventually. But by the 80s there were cassette tapes and no more need for pressing plants. Bootlegging thrived again, underpinning DIY punk, offering fans yet more chances to hear their idols in a less controlled setting. The system ended up running essentially the same way as peer-to-peer networks: if you ended up with a tape you were expected to copy it for anyone else who’d care. It was an early form of seeding, the downloader simultaneously playing the uploader.
By the time Napster started terrifying the RIAA, the “Home Taping is Killing Music” campaign had already been and gone. Individuals had been threatened and consumers had been warned about the impending death of the industry. History kept on repeating itself. Nothing was new.
Illegal downloads, home tapes, bootlegs and song sheets all had adverse effects on artists. Though South Park famously insisted that the effects of piracy would do little more than stop Britney Spears from getting a bigger private jet, the truth is far more distressing. Free economies within music gut the middle class, not the upper class. They make artists that would ordinarily struggle a little, struggle a lot. The top earners won’t get hit, but the band trying to piece together money to tour will miss the dollars they could’ve earned from record sales. It’s never been the answer.
But reducing the matter to millennial laziness, attributing the impending death of the industry to a generation’s feeling that it should get something for nothing, ignores everything about where we’ve come from.
People have been stealing forever. We just did it from our bedrooms.
Alex Robert Ross is a writer based in Brooklyn. Follow him on Twitter.
