White-Smith Music Publishing Company v. Apollo Company
Encyclopedia
White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1
(1908), was a decision by the Supreme Court of the United States
which ruled that manufacturers of music rolls for player piano
s did not have to pay royalties
to the composers. The ruling was based on a holding that the piano rolls were not copies of the plaintiffs' copyrighted sheet music, but were instead parts of the machine that reproduced the music.
This case was subsequently eclipsed by Congress's intervention in the form of an amendment to the Copyright Act of 1909
, introducing a compulsory license
for the manufacture and distribution of such "mechanical" embodiments of musical works.
Perhaps the greatest relevance of White-Smith, however, is that it foreshadowed the debate over whether object code
(computer program code in the form of 0s and 1s encoded in a magnetic tape or disc or in an EPROM
) was protected by US copyright law. In the early 1980s the issue was in considerable doubt, and initially several lower court decisions held that object code was not a "copy" of a computer program. Two court of appeals decisions involving copying of Apple computers and their software were influential in reversing the tide. They upheld the protectability of object code embodiments of computer programs and rejected the supposed requirement that a candidate for status as a work of authorship must communicate a message to human readers or perceivers. These decisions wrote the human-intelligibility requirement of White-Smith out of copyright law, as a qualification for investiture of copyright, although the "piano-roll amendment" had only established that human-intelligibility was not a requirement for an infringing "copy." In principle, what infringes could be broader than what gives rise to copyright, on the theory that works of authorship need a hedge or moat around them to assure adequate protection. But that does not appear to be the law.
The White-Smith case also appears to be the source of a legal metaphor used in US patent law relating to computer programs. As explained in greater detail in the Wikipedia article Piano Roll Blues
, the legal fiction developed in US patent law that placing a new program in an old general-purpose digital computer creates a new computer and thus a "new machine" for purposes of section 101 of the US patent statute (listing patent-eligible subject matter). Critics of this argument derisively termed it the "Old Piano Roll Blues," meaning that the argument was equivalent to asserting that placing a new piano roll into an old player piano transformed it into a new player piano.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1908), was a decision by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
which ruled that manufacturers of music rolls for player piano
Player piano
A player piano is a self-playing piano, containing a pneumatic or electro-mechanical mechanism that operates the piano action via pre-programmed music perforated paper, or in rare instances, metallic rolls. The rise of the player piano grew with the rise of the mass-produced piano for the home in...
s did not have to pay royalties
Royalties
Royalties are usage-based payments made by one party to another for the right to ongoing use of an asset, sometimes an intellectual property...
to the composers. The ruling was based on a holding that the piano rolls were not copies of the plaintiffs' copyrighted sheet music, but were instead parts of the machine that reproduced the music.
This case was subsequently eclipsed by Congress's intervention in the form of an amendment to the Copyright Act of 1909
Copyright Act of 1909
The Copyright Act of 1909 was a landmark statute in United States statutory copyright law. It became Public Law number 60-349 on March 4, 1909 by the 60th United States Congress, and it went into effect on July 1, 1909...
, introducing a compulsory license
Compulsory license
A compulsory license, also known as statutory license or mandatory collective management, provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration.- Copyright law :In a number of countries...
for the manufacture and distribution of such "mechanical" embodiments of musical works.
Issue and relevance
The main issue was whether or not something had to be directly perceptible (meaning intelligible to an ordinary human being) for it to be a "copy." Naturally, hardly anyone could perceive (read) music by looking at a roll of paper with holes in it. The 1976 Copyright Act later clarified the issue, defining a "copy" as a "material object . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This case remains relevant because the 1976 Copyright Act makes an "otherwise inexplicable distinction between 'copies' and 'phonorecords.'"Perhaps the greatest relevance of White-Smith, however, is that it foreshadowed the debate over whether object code
Object code
Object code, or sometimes object module, is what a computer compiler produces. In a general sense object code is a sequence of statements in a computer language, usually a machine code language....
(computer program code in the form of 0s and 1s encoded in a magnetic tape or disc or in an EPROM
EPROM
An EPROM , or erasable programmable read only memory, is a type of memory chip that retains its data when its power supply is switched off. In other words, it is non-volatile. It is an array of floating-gate transistors individually programmed by an electronic device that supplies higher voltages...
) was protected by US copyright law. In the early 1980s the issue was in considerable doubt, and initially several lower court decisions held that object code was not a "copy" of a computer program. Two court of appeals decisions involving copying of Apple computers and their software were influential in reversing the tide. They upheld the protectability of object code embodiments of computer programs and rejected the supposed requirement that a candidate for status as a work of authorship must communicate a message to human readers or perceivers. These decisions wrote the human-intelligibility requirement of White-Smith out of copyright law, as a qualification for investiture of copyright, although the "piano-roll amendment" had only established that human-intelligibility was not a requirement for an infringing "copy." In principle, what infringes could be broader than what gives rise to copyright, on the theory that works of authorship need a hedge or moat around them to assure adequate protection. But that does not appear to be the law.
The White-Smith case also appears to be the source of a legal metaphor used in US patent law relating to computer programs. As explained in greater detail in the Wikipedia article Piano Roll Blues
Piano roll blues
The Piano Roll Blues or Old Piano Roll Blues is a figure of speech designating a legal argument made in US patent law relating to computer software. The argument is that a newly programmed general-purpose digital computer is a “new” machine and, accordingly, properly the subject of a US...
, the legal fiction developed in US patent law that placing a new program in an old general-purpose digital computer creates a new computer and thus a "new machine" for purposes of section 101 of the US patent statute (listing patent-eligible subject matter). Critics of this argument derisively termed it the "Old Piano Roll Blues," meaning that the argument was equivalent to asserting that placing a new piano roll into an old player piano transformed it into a new player piano.
See also
- List of United States Supreme Court cases, volume 209
- White, Smith & CompanyWhite, Smith & CompanyWhite, Smith & Company was a music publishing firm in Boston, Massachusetts. It issued numerous sheet music titles and a monthly journal, Folio. In 1897 in became the "White-Smith Music Publishing Company."-History:...