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MMD > Archives > November 2001 > 2001.11.20 > 06Prev  Next

1908 Copyright Case "White-Smith vs. Apollo"
By Matthew Caulfield

The now-meaningless Supreme Court decision that Ray Finch asks about
in 011119 MMD -- a decision that was once extremely important and has
impacted the recording industry up until the Copyright Act of 1976
slammed the door on piracy, essentially reversing the Court's position
by statute -- is the 1908 case titled "White-Smith Music Publishing
Company, appellant, vs. Apollo Company."   The official report of the
Supreme Court decision can be read by going to any law library and
consulting v. 52 of the U.S. Supreme Court Decisions.

The decision synopsis reads: "Perforated rolls which, when used in
connection with mechanical piano players, reproduce in sound
copyrighted musical compositions, do not infringe the copyright in such
compositions, which ... secures to the composer the sole liberty of
printing and reprinting, publishing, completing, copying, executing,
finishing, and vending the same."

Because the outcome of this case was crucial to the recording industry
(which in 1908 was the music roll industry, but would later become the
recording industry), the suit was joined by the Rudolph Wurlitzer
Company and a few other interested parties.  Essentially the Supreme
Court held that, because even a skilled person cannot read the music
encoded on a perforated roll or on a pinned cylinder, such products
did not infringe copyright and were, in fact, outside the purview of
Federal copyright.  Therefore the Copyright Act of 1909, which was at
the time of the decision being written by Congress, left mechanically
produced music and the mediums encoding such music uncopyrightable.

The whole playing field was changed by a new copyright law in 1976.
One of the major problems that needed to be addressed was record
piracy, which had become rampant, given that phonograph records could
not be copyrighted under Federal law.  Most states had their own laws
governing piracy, but when pursued under those laws, the pirates simply
packed up and moved to another state to continue their operation.

The 1976 act made sound recordings copyrightable and made piracy a
Federal crime.  Moreover, as I wrote in MMD, the new act retroactively
gave copyright protection to pre-existing sound recordings, and that
protection will not expire until some of us are dead -- in 2024.

Matthew Caulfield (ex-librarian, not a lawyer)

(Message sent Tue 20 Nov 2001, 15:00:39 GMT, from time zone GMT-0500.)

Key Words in Subject:  1908, Apollo, Case, Copyright, vs, White-Smith

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