A provocatively titled op-ed recently published by the New York Times, “Internet Pirates Will Always Win,” urges content providers to give up the legal fight against online copyright infringement as an exercise in futility, as new technologies make illegal downloading and streaming ever “harder to trace and to stop.”   The piece has prompted predictable responses from representatives of copyright industries, with arguments moral and economic.  May I add a little history, drawn from my book, Unfair to Genius, to the mix?

In 1897 Congress amended the Copyright Act to give owners of copyrights in non-dramatic musical compositions the exclusive right of public performance for profit. Suddenly, copyright infringement was happening everywhere — in theaters, caberets, restaurants, hotels, dance halls, etc. The infringing performances, especially before the arrival of sound pictures and radio, were in the elegant phrase of legendary copyright lawyer Nathan Burkan, “fleeting, emphemeral, and fugitive.” For two decades the public performance right remained essentially a dead letter. Burkan’s solution to the logistical nightmare of enforcing it was to organize America’s first performing rights society, ASCAP, to offer blanket music licenses to commercial establishments, and to pursue vigorously its members’ claims of copyright infringement against those who remained unlicensed.

Only after a long string of legal victories against recalcitrant music users did licensing music for public performance become an accepted business norm. Although infringement of the public performance right remained rampant, the revenues from licensed, professional performances quickly became the most important source of income for songwriters, supplanting sales of sheet music to amateur musicians. As I argue in my book, this was a crucial but often overlooked cause of the death of old Tin Pan Alley and impetus for the great leap forward in popular music that began in the mid-1920s, breathing new life into the music of Berlin and Kern and heralding the arrival of Gershwin, Arlen, Rodgers, Porter, and other contributors to the Great American Songbook.

That is the type of “progress” the copyright law is intended to promote, and a powerful counter-argument to the suggestion that the legal battle against copyright infringement that is difficult to trace and stop is for naught.

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  • Unfair to Genius

    Unfair to Genius is an enlightening and entertaining romp through 60 tumultuous years of legal, artistic, and economic change in the American popular music industry, as seen through the lens of one of its most prolific copyright litigants and legendary outsiders, Ira B. Arnstein. "I suppose we have to take the bad with the good in our system which gives everyone their day in court," Irving Berlin once said, but "Arnstein is stretching his day into a lifetime."

    "Rosen paints a fascinating portrait of one of history's most fertile creative eras--the rise of Tin Pan Alley, or the 'Age of the Songwriter' as Rosen calls it--and the book brims with history relevant to today's disruptive technology climate."

    -Publishers Weekly

    "There's fun to be found in 'Unfair to Genius' as it leavens legal history with showbiz anecdote, and insight with amusement."

    -The Wall Street Journal

    “Superbly researched and written . . . Rosen deftly plots the rise of the music industry in America."


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  • Gary A. Rosen

    Gary A. Rosen, a lawyer, has litigated copyright, patent, and other intellectual property cases for more than 25 years, and is a Lecturer in Legal Studies at the University of Pennsylvania's Wharton School. Before entering private practice, he served as a law clerk to federal appellate judge and award-winning legal historian A. Leon Higginbotham, Jr. He holds a degree in physics from Haverford College and graduated magna cum laude from the University of Michigan Law School. He and his wife Lisa, a physician, and their two children live outside Philadelphia.
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