Who owns the sound of history?

“You take our history if you take the thing to sustain our history.” Recordings sustain our history, but “taking the thing” is a little complicated.

District Judge Peter J. Messitte’s riff on the 'Merchant of Venice' (“you take my house when you do take the prop/That doth sustain my house”) closed the 2012 trial of Les Waffen, a 40-year veteran of the National Archives and Records Administration (NARA). Waffen was charged with stealing 955 treasures from NARA's sound repository, including original recordings of the 1948 World Series and landmark radio commentary from the 1937 Hindenburg airship disaster. When the original owner of the World Series recordings found his donation on eBay, he called the cops. Waffen was sentenced to 18 months. He had stolen the original physical blueprints for some historic sounds. An open and shut case.

Let’s prise apart the crime a little, because the physical recording and its contents obey different rules. Footage of the moon landing, for example, because NASA is taxpayer-funded, is in the public domain. Do what you like. But if you recorded it off the TV or radio, that physical copy belongs to you. Not very valuable if your copy is the same as everyone else’s, but Gary George’s copy was different.

In the mid-70s, George supplemented his student income (engineering at Lamar University) by reselling stuff he won at government surplus auctions, which is how he came by 1,150 reels of magnetic tape, marked “Property of NASA”. He paid $217.77 for the lot. He sold some two-inch tapes to local TV stations (a new Ampex reel cost $260 and the tapes could be wiped and reused) and gave some to his local church for recording Sunday service, but his dad held back three boxes marked "APOLLO 11 EVA | July 20, 1969”, which sat untouched in the family garage for 32 years. The tapes held the original sound and vision signal beamed from the Moon to tracking stations in Australia, en route to Houston and a global broadcast audience. We’ve seen and heard the footage before, but these were “the earliest, sharpest, and most accurate surviving” recordings, said Sotheby’s. They sold in 2019 for $1.8M.

But what’s the value of a sound like Martin Luther King Jr.’s “I Have a Dream” speech? More than nothing, which is why it went to court. When CBS refused to pay royalties on an excerpt it used in a documentary, King’s estate sued and, because not many people heard it at the time, they won. A big broadcast audience would have put it into the public domain, but instead the courts awarded King the copyright. Copyright routinely protects sounds (see the $30 billion music industry), and the estate's award will run until 2038 (the 70th anniversary of King’s death).

So, it’s illegal to steal the medium and, sometimes, to use the message without permission. But what if someone takes the thing that writes our history? The thing that cried out “Oh, the humanity!”, “Let freedom ring from every hill and molehill of Mississippi”, and “One giant leap for mankind”. The voice itself. What is the crime when someone uses artificial intelligence to commandeer a voice and dictate a new line in history?

It's too early to say for sure, but it feels a lot like kidnap and coercion.

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