Jody,

     Keeping in mind your very accurate comment that we are
not lawyers, I will give you my thoughts on the interesting
questions you raised in connection with my post of 96.01.05 on
the subject of copyright.  This is pretty swampy territory,
and what follows may need correction or clarification.  Due to
the blizzard I can't get to the office to check some of my
facts, so this is all from memory.

     A basic copyright principle is that nothing can be
copyrighted until it is "fixed," that is put into some
tangible form.  For example, if I tell you a joke, the joke
isn't protected until it is written down or tape recorded or
such.  The 1909 Copyright Act held as a result of Supreme
Court decision that sound recordings--which at the time
chiefly meant music rolls, but later also  phonograph records,
optical movie sound tracks, and tape recordings--didn't
qualify as a medium of fixation because they couldn't be read.
(The background of the Supreme Court case--White vs. Apollo,
if my memory serves--is interesting because the suit was an
attempt by a music roll manufacturer to put competitors out of
business by control of copyrights on music roll "fixations" of
tunes.  But for that decision, the recording business would
have developed quite differently than it did.)

     Copyright of a piece of music under the 1909 act
typically began when a composer's creation was reduced to
staff notation, usually in connection with the printing and
sale of sheet music.  Two copies of the sheet music were sent
to the Copyright Office together with a registration
application and fee.  Thereafter no one could publish or re-
arrange that piece without permission of the copyright holder.
Nor could anyone make a sound recording of the piece without
permission.  But once the copyright holder had permitted one
company to make a recording of the piece, any other company
could do so without getting specific permission by filing a
"Notice of intention to use" with the Copyright Office and
paying a fee of a few cents, as fixed by law, per copy of the
recording to the copyright holder.

     By the 1950's at least, the sheet music market had died
and one finds that most music publishers had switched to
depositing "lead sheets" in lieu of sheet music for securing
copyright.  A lead sheet is an abbreviated version of the
tune, often hand-written, conveying just enough of the tune's
essential melody and character to identify it and secure the
composer's claim to originality.  Much of the music made
famous by Herb Alpert and his Tijuana Brass was registered
only as lead sheets.  Likewise the complete score by Henri
Mancini for the movie "Breakfast at Tiffany's" was deposited
as photocopies of very complete lead sheets, rather than full
orchestral score.

     The mere performance of a musical piece cannot be
copyrighted because it is not fixed; it floats out into the
air and vanishes.  If, however, someone performs (or plays
from a sound recording) a copyrighted piece publicly for
profit--and "for profit" is construed very broadly: a
restaurant using Muzak background music is assumed to be doing
so to increase its profits--he normally compensates the
composer or  whatever entity the composer has assigned his
copyright to for the privilege of playing the composition.
Here is where ASCAP, BMI, SESAC and such royalty-collecting
organizations enter into the equation, being authorized by
composers to collect and distribute royalties.  To this end
ASCAP and the others have devised complex and sophisticated
methods of policing public performances, monitoring or
sampling the music played, collecting royalties in the form of
licenses, and distributing the pool of money thus raised,
minus administrative expenses, to its composer members,
dividing the pool according to their estimates of the play
each member's compositions have enjoyed.

     A composer's right to profit from performances of his
work is rooted in the 1909 Copyright Act, and it continues
under the 1976 act.  I don't think that when performance
occurred through the playing of a sound recording, as
differentiated from live performance, this fact entailed any
obligation to the manufacturer of the recording--at least not
until the 1976 Copyright Act extended protection to the sound
recording itself, in addition to the underlying original
composition or score.  Manufacturers of sound recordings fixed
before January 1, 1978 (regardless of the medium of fixation--
paper, shellac, acetate, oxide coating) are not, as far as I
have been able to ascertain, in any position to assert a right
to profit from the public playing of those recordings.  The
1976 act, however, did introduce juke box licensing and the
Copyright Royalty Tribunal as mechanisms to collect and
distribute to recording manufacturers fees for the right to
play their copyrighted recordings.

     Most of the things your list subscribers are doing don't
involve monetary stakes high enough to warrant the court
litigation which would clarify these questions.  (Remember
that anyone can claim copyright, and even the registration of
a copyright claim by the Copyright Office is not a guarantee
rising to the iron-clad level of reliability that registration
of a patent claim by the Patent Office represents.  The
Copyright Office depends solely on the accuracy and
truthfulness of facts provided by the claimant; the courts are
the ultimate arena for deciding copyright ownership.)  Most
dispute over music roll rights aren't worth the cost of their
adjudication.  I remember, however, being contacted by Artis
Wodehouse early on when she was just beginning her Gershwin
project.  In discussing some of these questions, I remarked
offhandedly to her that, oh well, nobody bothered much about
those complex "rights" questions because so little money was
involved.  Her response was that her Japanese backers had deep
pockets and that she therefore needed to be certain of her
position.  I am sure she or her backers did seek expert legal
counsel in the end.

     If one undertakes not to perform a musical composition
but to make and sell sound recordings of it (including music
rolls), he must deal with the Harry Fox Office, if the
composition is not in the public domain.  The role of the
Harry Fox Office is to collect for composers a fee, based on
the number of copies of a recording made or sold, for the
right to make and sell the recording.  The New Grove
Dictionary of Music and Musicians has an article on the Harry
Fox Office, as well as on ASCAP, etc. (this latter under the
rubric "performance societies," I think).  But its article on
copyright is out of date; for that, see instead the New Grove
Dictionary of American Music.

     One of your questions was, "Is a roll a score or a
performance?"  I think it is neither.  It is the fixation of
a score (musical composition); to the extent that performance
is involved, that happens only when the roll is played on a
machine capable of converting its content to hearable music,
whereupon only ASCAP comes into the picture and only then if
the performance is public and for profit.  The typical
drafting table roll resulted from someone arranging and
reducing to roll fixation someone else's original composition.
If the composition was not public domain, the arranger-fixer
must have permission from the copyright holder to make the
arrangement.  If no re-arrangement at all was involved
(unlikely, I think), the roll could be made by following the
"notice of intention to use" provision of the law.  The rolls
themselves could not be copyrighted, but the arrangements
underlying the rolls could be, IF the arranger took the
trouble of reducing his arrangement to staff notation and
registering it with deposit of two copies of the staff
notation.  Few roll makers did this; Rythmodik is the only one
that comes to mind.  Wurlitzer certainly did not, nor did QRS.

     I would think that EPROM, floppy disks, and FTP files
would fall under the same considerations as rolls do, except
that, being created since 1978, they could be copyrighted to
protect the aspect of their creation which represents
something new and is not just a copy of something that existed
previously.  The principle here is the same principle involved
in copyrighting a translation of John Updike's "Run Rabbit
Run" or of Charles Dickens' "Bleak House."  In both cases the
translation copyright would protect only the recasting into a
different language.  No permission would be needed to publish
the Dickens translation, since he is in the public domain.
The copyright on the translation would cover only the
recasting into the new language; it would give no rights in
the English original.  To translate Updike for publication,
one would first need Updike's permission, since he enjoys a
valid copyright on the original English story; your copyright
in the translation would be a separate copyright, covering
only the recasting into the new language.  Translating Updike
for your personal use would not require permission; indeed how
would he ever know?  But publishing that unauthorized
translation would constitute infringement, exposing you to
certain lawsuit seeking statutory and punitive damages.

     Software is copyrightable.  Do the "proprietary file
formats of music" you ask about fall into this category?

     I think that the question of rights and obligations
involved in what anyone here is doing depends on whether he is
creating an entirely new work or a derivative work.  If it is
a derivative work, is it public domain with regard to original
underlying musical composition, with regard to the particular
arrangement, and with regard to the specific performance or
medium of fixation?  Realistically speaking, if your work is
for your own personal purposes and you don't envision
publication  or profiting from it, it is unlikely that
anyone's attorney will be knocking on your door.  But the
higher the stakes are, the more you need to talk to an
attorney who practices in this specialty and who can interpret
the complex issues involved