infringed the copyright owner's exclusive right of "copying" his music under the statute enacted in 1870. Holding that the piano roll was not a "copy" of the musical work within the meaning of the statute, the Supreme Court first referred to the earlier decisions of two lower courts and of an English court so holding, and pointed out that Congress had since amended the copyright law (in other respects) when it must have known of those decisions; from that the Supreme Court reasoned that "the omission of Congress to specifically legislate concerning (sound recordings) might well be taken to be an acquiescence in the judicial construction given to the copyright laws. copyright laws." The Supreme Court continued:

"When we turn to the consideration of the act it seems evident that Congress has dealt with the tangible thing, a copy of which is required to be filed with the Librarian of Congress, and whenever the words are used (copy or copies) they seem to refer to the term in its ordinary sense of indicating reproduction or duplication of the original..."

"The definition of 'copy' which most commends itself to our
judgment is perhaps as clear as can be made, and defines a
copy of a musical composition to be 'a written or printed
record of it in intelligible notation'... The statute has not
provided for the protection of the intellectual conception
apart from the thing produced, however meritorious such con-
ception may be, but has provided for the making and filing of
a tangible thing, against the publication and duplication of
which it is the purpose of the statute to protect the composer."

Finally the Supreme Court observed:

"It may be true that the use of these perforated rolls, in the
absence of statutory protection, enables the manufacturers
thereof to enjoy the use of musical compositions for which they
pay no value. But such considerations properly address them-
selves to the legislative and not to the judicial branch of
the Government."

Inasmuch as this decision of the Supreme Court in the White-Smith case has often been cited for the proposition that a reproduction of a work which is not visible to the human eye is not an infringement, it should be noted here that this proposition has been greatly modified, and eventually negated, by subsequent legislation and later court rulings, as we shall see.

The foregoing pronouncements in the White-Smith decision can be characterized as being not so much a statement of judicial philosophy concerning

the adaptation of the copyright law to new technology, as it is an instance of the general principle of narrow judicial construction of statutes on the premise that new issues not specifically dealt with in a statute should be left for Congress to determine.

A philosophical view of how the copyright law should be adapted to new technology is enunciated in the concurring opinion of Justice Holmes in the White-Smith case. He began by saying:

"In view of the facts and opinions in this country and abroad to which the majority opinion has called attention I do not feel justified in dissenting from the judgment of the court, but the result is to give to copyright less scope than its rational significance and the ground on which it is granted seem to me to demand...

He then went on:

"The ground of this extraordinary right (i.e., copyright) is
that the person to whom it is given has invented some new
collocation of visible or audible points, of lines, colors,
sounds or words. The restraint is directed against repro-
ducing this collocation, although but for the invention and
the statute any one would be free to combine the contents of
the dictionary, the elements of the spectrum, or the notes
of the gamut in any way that he had the wit to devise. The
restriction is confined to the specific form, to the colloca-
tion devised, of course, but one would expect that, if it was
to be protected at all, that collocation would be protected
according to what was its essence. One would expect the
protection to be coextensive not only with the invention,
which, though free to all, only one had the ability to achieve,
but with the possibility of reproducing the result which gives
to the invention its meaning and worth. A musical composition
is a rational collocation of sounds apart from concepts,
reduced to a tangible expression from which the collocation
can be reproduced either with or without continuous human
intervention. On principle, anything that mechanically repro-
duces that collocation of sounds ought to be held a copy, or
if the statute is too narrow ought to be made so by a further
act, except so far as some extraneous consideration of policy
may oppose.

As shown by the later decisions dealing with motion pictures, which were reviewed above, and by those relating to radio broadcasts, to be reviewed below, the philosophical approach of Justice Holmes in the

White-Smith case was to receive greater acceptance thereafter than the principle of narrow construction adopted in the majority opinion.

A.2.3.1.1 Copyright Act of 1909. At the time of the White-Smith decision, Congress was working on legislative proposals that were to become the copyright law revision of 1909. The most hotly disputed issue in the legislative proceedings was a proposal to give copyright owners of musical compositions a new exclusive right to make recordings of their music. (Incidentally, the fact that Congress was considering this proposal may have been a factor in the Supreme Court's pronouncement in White-Smith that the issue of making recordings should be resolved by Congress rather than by the Court.) During the hearings on the revision bills (1906-1908) there was strong and repeated testimony from a number of witnesses that one recording company (Aeolian) had made contracts with most of the major music publishers whereby that company would acquire exclusive licenses to make recordings under the anticipated new law, in all the music controlled by those publishers then and for many years thereafter.

The reaction of Congress to this testimony is shown in the following passage from the House Committee Report (No. 2222, 60th Cong.) on the bill eventually enacted:

"It was at first thought by the committee that the copyright
proprietors of musical compositions should be given the
exclusive right to do what they pleased with the rights it
was proposed to give them to control and dispose of all rights
of mechanical reproduction, but the hearings disclosed that
the probable effect of this would be the establishment of a
mechanical music trust."

Elsewhere in the same Report the House Committee said:

"Your committee have felt that justice and fair dealing, how-
ever, required that when the copyrighted music of a composer
was appropriated for mechanical reproduction the composer
should have some compensation for its use and the composer
should have the further right of forbidding, if he so desired,
the rendition of his copyrighted music by the mechanical
reproducers. How to protect him in these rights without
establishing a great music monopoly was the practical question
the committee had to deal with. The only way to effect both
purposes, as it seemed to the committee, was, after giving
the composer the exclusive right to prohibit the use of his
music by the mechanical reproducers, to provide that if he
used or permitted the use of his music for such purpose then,

upon payment of a reasonable royalty, all who desired might reproduce the music."

So was born the first compulsory license under the copyright law. Section 1(e) of the Copyright Act of 1909 gave the copyright owner of a musical composition the exclusive right "to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced"; but to this was added the condition that "whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduct mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of 2 cents on each part manufactured, to be paid by the manufacturer thereof."

It may also be noted here that the 1909 Act provided that the copyright owner of a dramatic work was to have the exclusive right to make "any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced." (sec. 1(d)); and that the same right was extended to nondramatic literary works by an amendment (of sec. 1(c))

in 1952.

Thus, in the 1909 Act, Congress did not overturn the holding of the Supreme Court in White-Smith that a reproduction of a work which was not visually perceptible was not a "copy" of the work, and did not infringe the right to make "copies"; but it rendered that holding ineffectual with respect to the making of any form of "record" from which a musical, dramatic, or nondramatic literary work may be reproduced in any manner.

A.2.3.1.2 Copyright Act of 1976. The new copyright law revision of 1976 confirms the exclusive right of the copyright owners of all categories of works "to reproduce the copyrighted work in copies or phonorecords" (sec. 106 (1)). The definition of both of these terms is stated broadly (in sec. 101):

"'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

"'Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual

work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

These provisions and definitions in the Act of 1976 seem to wipe out any lingering vestige of the White-Smith decision.

The 1976 Act retains the compulsory license for the making of phonorecords of musical works, with several changes in detail (sec. 115). Thus, the royalty rate for each musical work recorded is increased from the old rate of 2 cents per record manufactured, to the new rate, per record distributed, of two and three-fourth cents, or one-half cent per minute or fraction thereof of playing time, whichever amount is larger.

This history of the copyright law respecting the right to make sound recordings of musical and other works demonstrates the adaptation of that law to new technology by legislative enactment where the courts abstained from effecting a judicial adaptation.

A.2.3.2 Sound Recordings as Copyrightable Works. The technological development of sound recording brought forth another question in the field of copyright: Are sound recordings in themselves (as distinguished from the musical or literary works recorded) works of authorship that should be accorded copyright protection?

Sound recordings, as exemplified by phonograph records or tapes, generally contain more than the musical or literary work reproduced aurally: They embody also the rendition of the musical or literary work by performers (musicians, singers, actors, etc.), as well as the technical skill and esthetic judgment of the director and operators of the various mechanisms that are manipulated to produce the finished record. Performers were long ago regarded as creative artists but their aural performances were evanescent events before the invention of sound recording devices. The advent of those devices, making it possible to preserve souncs in a fixation from which they could be reproduced, raised the possibility of treating recorded performances as works of authorship, and opened up the question of whether the recordings of those performances should be given the protection of copyright.

The first suggestion that sound recordings should be made a category of copyrightable works came in a proposal advanced by producers of such recordings in the early stages of the Congressional proceedings in 1906