It has been established at common law and recognized by our courts that “rules attending property must keep pace with its increase and improvements and must be adapted to every case”, and copyright protection must correspondingly extend.
Though these words were spoken over a century ago, they remain just as relevant today, especially as the US House is expected to introduce a version of the PROTECT IP Act within the next couple of weeks. The bill, which adds narrow, reasonable remedies designed to reduce the financial incentive of websites whose sole purpose is to infringe on the intellectual property of creators and businesses, seeks to keep pace with the increase and improvements of technology.
Opponents of the legislation will no doubt continue to ramp up their criticism of the bill — as a “threat to innovation” or “censorship” — as it makes it way through Congress. Some will suggest that creators are better off if copyright law remains the same, that they are better off figuring out on their own how to capture some of the tremendous value their work creates for others.
Yet, somewhat ironically, for all the talk of “innovation”, these arguments remain strikingly familiar to ones raised time and again for at least a hundred years.
Copyright and New Technologies
In 1909, Congress passed a major revision of the Copyright Act. Among its provisions was the extension of copyright control to mechanical reproductions. Prior to then, the reproduction of a musical composition onto a mechanical device that could automatically play the song back — a piano roll or a phonograph, for example — was not considered a reproduction under copyright law.1
Debate over whether copyright law should encompass mechanical reproduction was contentious. On one side were manufacturers of automatic musical devices, who pushed Congress not to extend copyright law in this area. On the other were musicians and publishers. In December of 1906, the Congressional Committees on Patents heard from both sides.
Nathan Burkan, who was quoted at the beginning of this post, represented the Music Publishers’ Association. At one point, he was responding to the argument that the owners of mechanical music players had “vested rights” to use their technology to reproduce existing songs. This argument is a forerunner of the argument heard today that copyright holders are opposed to innovation and new technology.
You hear multiple variations on this argument, which basically goes like this: Since the law extends to a new technology, or a new use of existing technology, then it is a wholesale attack on the technology itself.2
But as Burkan points out, there is a difference between technology and the use of technology. Concern about the latter is not an attack on the former. And as Burkan progresses, he notes what is as true then as it is now: copyright and technology are not two competing forces but rather depend on each other. Weakening copyright law to accommodate the interest of tech manufacturers benefits nobody in the long run.
The letters-patent granted to the inventors of these perforated rolls and phonograph records, and improvements thereon, secure to them the right to manufacture contrivances adapted to reproduce sound. That is the extent of the right. It does not carry with it the further right to appropriate the copyrighted musical composition of any composer. There is nothing in the letters patent or in the patent laws or in the Constitution from which these rights emanate that can be construed as granting to the owner of a patent the right to deprive any man of his property or to exploit the intellectual productions of that man without fair compensation. Nor is there anything in the section which permits the composer of a musical composition, copyrighted after the act shall have gone into effect, to appropriate without compensation any device protected by patent. The composer would have no right to combine his composition with any patented invention and put the same on the market without the consent of the owner of the patent. Then, why should the owner of a patent have the right to use a copyrighted composition, without the owner’s consent, in connection with his invention?
… The contention that these patent owners have vested rights in the offspring of the brain of American composers is in violation of every principle of ethics, equity, and natural justice. They would not attempt to urge the contention that if in order to make their patents profitable it was necessary to combine therewith ordinary personal property, they would thereby acquire any rights in any such personal property. The great principle on which the author’s right rests is that it is the fruit or product of his own labor, and that the labor of the faculties of the mind establishes a right of property as sacred as that created by the faculties of the body. A literary man is as much entitled to the product of his labor as any other member of society, and the right to literary property is just as sacred as any other property and is entitled to the same protection that the law throws around the possession and enjoyment of other kinds of property.
This industry devoted to the manufacture of perforated rolls and phonograph records is essentially parasitic. It thrives by exploiting the productions of American composers, their names, and reputations. It exercises no productive effort in the art which it exploits. It does not stimulate original work. It waits until the composer and publisher have created and met a popular demand for a piece of music, through the expenditure of money, time, and labor; then it swoops down upon and appropriates that composition for use upon its machines, to its own unjust enrichment. It acquired great wealth, influence, and power by sponging upon the toil, the work, the talent, and genius of American composers.
And carried away by the success of this iniquity, these manufacturers have become imbued with its righteousness to such a degree that they regard the exploitation of American genius and the appropriation of its creations to their own enrichment as their vested right, and this bill which is to secure to the American composer no more than his just due—the full fruits of his labor—as an assault upon an inviolable right.
… But their selfishness is suicidal. It is a fact shown by a comparison of the industries that with the increase of the sale of their mechanical devices the sale of sheet music decreases. The hope of reward, this great incentive to original work, is thus taken away from the composers by the policy of these manufacturers, and the production of original compositions is discouraged. The inevitable result will be that the composers will refuse to give original compositions to the public for the sake of a copyright protection which will no longer protect. Then will the parasite that kills itself be killed.3
Piracy is Promotion?
Earlier in the debates, opponents of the mechanical reproduction provisions raised another argument: copyright owners should be thanking them because piano rolls and phonographs are great advertising for sheet music sales. Sound familiar?4
Below is an excerpt from this portion of the hearings. Speaking first is George W. Pound, representing the De Kleist Musical Instrument Manufacturing Company and Rudolph Wurlitzer Company. He had just finished recounting letters he had received from musicians thanking him for recording their songs. Also speaking is Albert H. Walker, who appeared on behalf of “many inventors and of a few manufacturers,” especially the Auto-Music Perforating Company. Finally, John Philip Sousa, when he finally gets the chance to speak, rebuts Pound and Walker’s arguments.
Mr. Pound. We contend, sir, that that position is not well taken, that as a matter of fact every composer in the land and every music publishing house in the land is glad to get the advertisement following from the mechanical reproduction of their music. It is regarded in the trade as the best assistant to the sales of their music of any form of advertising.
… Mr. Sousa. Can I say a word here?
Mr. Pound. It will have to be very brief, and this will be the last interruption that I shall permit.
Mr. Sousa. Mr. Chairman, I can not understand why the passage of this law will interfere with these gentlemen who want to go to the talking machines. If 99 per cent of the composers are willing to give them their product, all right. I can not understand why I should be robbed in that way. It will not hurt you, and if 99 per cent of them give the music to these people, all they will have to do is to pay me. I can not understand how this law will interfere with them, and I am not standing for any publisher. I am standing for John Philip Sousa, and America.
Mr. Walker. The interest the 99 per cent have in the defeat of the bill resides in the fact that they will sell more music if we continue to advertise their business than they will if the Aeolian Company drives us out of business.
Mr. Sousa. I prefer to be the judge of that myself. I want to select the means of advertising my music.5
- White-Smith Music Publishing Co. v. Apollo Co., 209 US 1 (1908). Note for later that the attorney for the plaintiffs was Nathan Burkan, the attorneys for the defendants were Albert H. Walker and George W. Pound. [↩]
- “The entertainment industry hates new technologies,” Andrew Kantor, It’s the same old song from a short-sighted industry, USA Today, May 26, 2006; “In 1984, the Supreme Court spared Hollywood from its own short-sighted desire to curtail innovation,” Fred von Lohmann, Betamax was a steppingstone, EFF, 2004; “It’s almost a truism in the tech world that copyright owners reflexively oppose new inventions that do (or might) disrupt existing business models,” Nate Anderson, 100 years of Big Content fearing technology — in its own words, Ars Technica, Oct. 11, 2009; “Any time a new service comes along that helps drag the content industries into the present, the industry’s [sic] hit back by trying to kill off or cripple the golden goose,” Mike Masnick, Why does the entertainment industry seek to kill any innovation that’s helping it adapt? TechDirt, April 15, 2011. [↩]
- Pp. 222-23. [↩]
- “An artist’s enemy is obscurity, not piracy,” Cory Doctorow, Scourge of the Corporate Pirates, Brian Bethune, Macleans, April 23, 2008; “The sad fact is that The Lost Country has become a pretty obscure work … Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before,” Keven Smith, An Open Letter to J.R. Salamanca, Scholarly Communications @ Duke, Sept. 16, 2011; “Companies that are cracking down on “piracy” without realizing they may be hurting free promotional activity are doing damage to their own business,” Mike Masnick, Is There a Difference Between Piracy and Promotion? TechDirt, Aug. 10, 2004; “For example, due to file-sharing, people discover a broader range of films than before but cinemas have done nothing to work with this insight,” Magnus Eriksson, Is Online Piracy a Good Thing? CNN, April 17, 2009. [↩]
- Pp. 310-312. [↩]