The Piano-Scroll Precedent - Industry Trend or Event

Industry Standard, The, August 14, 2000 by Scott Harris

Whenever a new technology appears -- whether it's photocopiers or Napster -- the law has to scramble to catch up.

METALLICA, DR. DRE AND OTHER artists singing the Internet blues might try counting their cosmic blessings. At least they weren't making music before Edison invented the phonograph.

That's not to say that 19th century American composers were not protected by copyright laws. From 1831 on, their sheet music was copyright-protected, and they were legally entitled to royalties from performances of it. Then technologies came along that reproduced sound. In 1908, in the case of White-Smith Music Publishing vs. Apollo, the U.S. Supreme Court decided that Apollo wasn't infringing on White-Smith's music copyrights. Apollo, the justices figured, was making not music but machinery -- scrolls for player pianos. "Sound-reproducing technology," a legal scholar would observe generations later, "apparently baffled the Supreme Court."

What in retrospect may seem quaint and funny "was as deadly serious to them then as Napster is now," says Paul Goldstein, a Stanford Law School professor and copyright expert. It took a new act by Congress in 1909 to extend the copyright law to address technological advances, including the phonograph Edison invented in 1877.

Technology, then and now, takes unexpected twists and turns, and copyright law struggles to keep up. Today, as the 9th U.S. Circuit Court of Appeals ponders the Recording Industry Association of America's complaint against Napster, people trying to cope with the fast-changing Internet might draw some lessons from history. "What we're seeing today in the Napster case and the Napster set of issues is yet another encounter between copyright and a new technology," notes Goldstein. From piano scrolls and photocopiers to VCRs, these encounters, he says, have invariably produced a great deal of litigious sound and fury, with dire exclamations from both sides. "When the dust settles, we have some form of accommodation." As always, the courts and legislatures will have to find the balance between two sides: the rights of artists to control and exploit their work and the notion that the free flow of information benefits the public. The law adapts and business models evolve.

The Napster case is particularly important because its outcome will affect just about every business in entertainment, from movies to book publishing. Musicians and others who profit from their art are legitimately concerned that new technologies have taken a quantum leap from the replicating abilities of, say, VCRs. Digital technology, after all, offers higher quality, lower costs, huge volume and instantaneous, global distribution. But some argue that someday it will be considered a boon to artists.

Beyond its own significance, the Napster case will produce a precedent for the litigation that will follow. The RIAA has already brought suit against file-sharing sites MP3.com and Scour.net, among others. "Maybe the music industry will be able to stop Napster," says Kevin DeBre, a technology lawyer in San Francisco, "but they're just putting a finger in a dike that's about to burst."

Artists and producers may fear Internet advances, but they should remember that technology -- starting with Gutenberg's printing press -- led to authorship protections. Simply put: No copy, no copyright.

American copyright law traces its roots to 15th century England, when the crown gave certain printers exclusive rights to print certain books. It later granted the Company of Stationers of London, a trade guild, a monopoly over printing and book-selling, and the guild developed its own registration system. In 1710, copyright was codified in English law.

Framers of the U.S. Constitution recognized that freedom of the press did not mean the freedom to print a rip-off. The Constitution delegated to Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first congressional copyright statute, adopted in 1790, protected "only maps, charts and books," and gave citizens and residents copyright protection for 14 years -- renewable for another 14 if the author was still alive. Copyright protection was first extended to musical compositions in 1831.

Since then, technological advances have inspired broader copyright protections, but also the "fair use" doctrine that allows reproduction of copyrighted works for certain purposes, including criticism, comment and teaching. Goldstein anticipated much of the current debate in his 1994 book Copyright's Highway: The Law and Lore of Copyright From Gutenberg to the Celestial Jukebox. He wrote in the book that copyright owners who have taken infringement claims to court when facing new technology have often been disappointed. Such was the case when Universal and Disney sued Sony over its introduction of the Betamax videocassette recorder in the mid-1970s, claiming that Sony was culpable for contributory infringement for home-taping of televised movies.