''White-Smith Music Publishing Company v. Apollo Company'', 209 U.S. 1 (1908), was a decision by the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

which ruled that manufacturers of music rolls for

player piano A player piano (also known as a pianola) is a self-playing piano containing a pneumatic or electro-mechanical mechanism, that operates the piano action via programmed music recorded on perforated paper or metallic rolls, with more modern i ...

s did not have to pay

royalties A royalty payment is a payment made by one party to another that owns a particular asset, for the right to ongoing use of that asset. Royalties are typically agreed upon as a percentage of gross or net revenues derived from the use of an asset o ...

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 The Copyright Act of 1909 () was a landmark statute in United States statutory copyright law. It went into effect on July 1, 1909. The 1909 Act was repealed and superseded by the Copyright Act of 1976, which went into effect on January 1, 1978; b ...

, introducing a

compulsory license A compulsory license 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 adjudication or arbitration. In essence, under a compulsory license, an i ...

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 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...

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

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 In computing, object code or object module is the product of a compiler. In a general sense object code is a sequence of statements or instructions in a computer language, usually a machine code language (i.e., binary) or an intermediate langua ...

(computer program code in the form of 0s and 1s encoded in a magnetic tape or disc or in an

EPROM An EPROM (rarely EROM), or erasable programmable read-only memory, is a type of programmable read-only memory (PROM) chip that retains its data when its power supply is switched off. Computer memory that can retrieve stored data after a power s ...

) was protected by

US copyright law The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of thei ...

. 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 Piano Roll Blues or Old Piano Roll Blues is a figure of speech designating a legal argument (or the response to that argument) made in US patent law relating to computer software. The argument is that a newly programmed general-purpose digital ...

, 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 Patentable, statutory or patent-eligible subject matter is subject matter which is susceptible of patent protection. The laws or patent practices of many countries provide that certain subject-matter is excluded from patentability, even if the inv ...

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. The 2014 decision of the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

in ''

Alice Corp. v. CLS Bank International ''Alice Corp. v. CLS Bank International'', 573 U.S. 208 (2014), was a 2014 United States Supreme Court decision about patent eligibility. The issue in the case was whether certain patent claims for a computer-implemented, electronic escrow servic ...

'' appears to have extinguished the

Piano roll blues The Piano Roll Blues or Old Piano Roll Blues is a figure of speech designating a legal argument (or the response to that argument) made in US patent law relating to computer software. The argument is that a newly programmed general-purpose digital ...

argument by holding that simply saying “apply it with a computer” will not transform a patent-ineligible claim to an idea into a patent-eligible claim.''Alice'', slip opinion. at 10 (“We conclude that the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent-eligible invention.”), 13 (“These cases demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.”).

References

External links

* *
"Player Pianos and the Origins of Compulsory Licensing – Some Details of its Origins" by Zvi S. Rosen
{{USCopyrightActs United States Supreme Court cases United States copyright case law 1908 in United States case law United States Supreme Court cases of the Fuller Court Abrogated United States Supreme Court decisions

Issue and relevance

See also

References

External links