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Copyright (c) 2010 Santa Clara Computer & High Technology Law Journal
Santa Clara Computer & High Technology Law Journal


May, 2010

Santa Clara Computer & High Technology Law Journal

26 Santa Clara Computer & High Tech. L.J. 215


Howard B. Abrams+


I. Origins
Why and how did this provision find its way into the 1909 Copyright Act? Turning back the clock to the incubation of the 1909 Copyright Act 9, this was a period of significant growth of both player pianos 10 and the earlier forms of recorded music. 11 Any hope by the music publishers 12 of the day that their copyrights would prevent unauthorized embodiment of a performance of a musical composition in player piano rolls or other mechanical devices, which reproduced a performance of the music, was finally laid to rest by the Supreme Court in White-Smith Music Publishing Co. v. Apollo Co. 13 White-Smith held that the unauthorized embodiment of a song in a player piano roll did not infringe the copyright in the song. 14 The essential rationale of the Supreme Court's decision was that a player piano roll was not a "copy" within the meaning of the then current Copyright Act 15 because it could not be understood by the naked human eye. 16 Because it was not a copy, it did not violate the copyright owner's exclusive right to make copies of the work. 17

It cannot be said this decision was unexpected as prior lower court decisions on the issue had also held against the music publishers on similar grounds. 18 Even before the Supreme Court's decision, the music publishers, much as today's intellectual property owners do when there is a setback, appealed to Congress for a ...
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