[ Ref. 040605 MMDigest "1899 Pianola Copyright Ruling Cited"
That "Boosey vs. Whight" ruling is interesting, as are Julian Dyer's
thoughts on it. I had not heard of the case before. I suspect that
the Kazaa defense will fail because that ruling seems outdated and
based on faulty premises -- or at least on premises that, if held to
be valid today, will undermine the foundation of modern copyright.
It puts me in mind of the White-Smith vs. Apollo case that was decided
by the U.S. Supreme Court in 1908 and resulted in excluding sound
recordings from U.S. copyright protection for the next 70 years.
(See http://laws.lp.findlaw.com/getcase/US/209/1.html )
The Supreme Court reasoned that the perforated music rolls which were
the subject of the litigation could not be read by a human, and hence
could not be registered with the Copyright Office. That decision
led to endless piracy until modern copyright legislation, notably the
Copyright Act of 1978, made sound recordings copyrightable, regardless
of whether they could be read by a human -- that test no longer being
deemed a valid one for copyright purposes.
We look back at White-Smith vs. Apollo and see flawed and outdated
reasoning that, if applied today, would make many forms of expression
uncopyrightable. Advances in technology require nations to
periodically rethink copyright theory in order to adapt their system
to modern methods of recording human creativity.
For example, a decision had to be made a few years back in the U.S.
on whether the [photo-resist] masks used in creating the circuitry
of computer chips were copyrightable or not. Graphic designs are
copyrightable, so why not computer chip designs? Fortunately, none
of the arguments pro and con harked back to the 1908 notion that
readability by the human eye should be a test of copyrightability.
Matthew Caulfield (Irondequoit, N.Y.)