Getting Legal Lessons from Radio Tapes

Thanks to “High Fidelity” and John Cusack, the art of mixtape-making has been hammered into each and every one of our music-loving heads. Hours spent alone in front of a fancy tape deck lead to masterpieces that could win hearts or make dance parties rumble.

But does anyone else remember the other tapes you used to make? You know—the ones that were decidedly less high art and more about good luck. The ones over which you had little to no control. The ones that could feature anything from Pavement to the N*SYNC song you were too cheap or embarrassed to buy. You know—the radio tape. Nowadays, it’s in danger.

In the days before Google and Soulseek, radio tapes were an easy way for listeners to cheaply record all of the songs they either didn’t know the names of or were too poor (or stingy) to buy. Listeners could tape a favorite DJ’s entire set or a random hour of air and listen to it later.

Maybe after a couple of listens, the new Proclaimers song would prove just too damn catchy, and the penny-pinching music lover would walk the 500 miles—or drive the 10 blocks—to actually buy the record.

The art of the radio tape has existed since the cassette was first introduced, and, surprisingly, it is one that is protected by the Fair Use doctrine of U.S. copyright law.

Recordings for personal use allow the radio listener to take the fullest advantage of a station’s programming. These recordings also benefit the station and the music labels by encouraging longer listening sessions and subsequent album purchases.

But the times, and the technologies, are a-changing.

Few people own the technology necessary to make a radio tape any more, and many listeners find their new music by listening to their radio stations online or through satellite stations.

However, the art of the Internet-radio-CD seems destined to be a practice that will never be realized.

With the introduction of the Platform Equality and Remedies for Rights Holders in Music Act of 2007 (aka the PERFORM Act) to the Senate, the loss of Fair Use for online and satellite radio is about to become a reality.

If approved, the changes to the Copyright Act would require all streaming media providers to use protected formats for any content on the Internet, satellite radio, or television.

This proposal comes at a time when Steve Jobs, the CEO of Apple, posted an essay on his company’s Web site calling on the largest recording companies to allow online music sales without any anti-piracy software.

Echoing the sentiments of many recording industry officials, Jobs discussed the impossibility of digital rights management (DRM) on all music sold.

Most CDs have no DRM capabilities, meaning users can easily rip them onto their computers and share them on a music downloading Web site. In his “Thoughts on Music,” Jobs outlined three alternatives and ultimately decided that the most feasible option was to remove any encoding software.

Yet recording industry officials are still pursuing the approval of the PERFORM Act in Congress. After the introduction of the bill, Warner Music Group CEO Edgar Bronfman said in a Senate Judiciary Committee hearing, “What is clear to everyone is that these services no longer resemble and will increasingly stray from our collective understanding of what constitutes a traditional radio service.”

He is correct in noting that these new forms of radio are unlike the traditional broadcast system that dominates the radio industry. Internet radio allows for an enormous amount of diverse programming at minimum cost, helping deliver music to listeners in an even more prolific way than the radio wave.

What Bronfman glosses over is the important role that radio plays in the music industry. The PERFORM Act treats all listeners as guilty until proven innocent, limiting the public’s fair use of radio content, which could potentially generate a music purchase.

Plus, since the industry as a whole seems on the verge of moving away from DRM, the PERFORM Act seems to have missed the boat on how best to protect copyrighted material. And as the flames of discontent are fanned, more and more people will continue to flout the strides taken by the music industry to prevent illegal content usage.

As Jobs said, “There are many smart people in the world, some with a lot of time on their hands, who love to discover such secrets and publish a way for everyone to get free (and stolen) music.”

If the story of the radio tape has any meaning, it is that free music is not necessarily stolen music. We taped the radio not only to avoid paying for songs but also to gain exposure to new music that could be purchased later.

If listeners were never punished for their home recording in the days before mp3 software, they should not be prevented from continuing a well-established practice simply because technology has changed.

DRM technology is far from impervious, and just another roadblock in the development of alternative radio markets. And while it may prevent easy digital recording on a home computer, the PERFORM Act and DRM are still no match for a tape deck and a dedicated listener.

—Staff writer Kimberly E. Gittleson and contributing writer Evan L. Hanlon are the president and rock director of WHRB, Harvard’s student-run radio station. Gittleson can be reached at gittles@fas.harvard.edu.