Facebook Twitter

Player pianos of 1908 like Napster today

It’s an old story in music biz: technology vs. copyrights

SHARE Player pianos of 1908 like Napster today

WASHINGTON — The music industry was in an uproar. In parlors and saloons across the country, people loaded cylinders into player pianos, pumped the pedals, and out came the tunes, without a penny paid to the composers or the sheet music publishers. Something, they screamed, had to be done.

The year was 1908. It was, in a sense, the Ragtime Napster.

Today, Napster is sending shockwaves through the recording industry. But the spasms over the free Internet music service are consistent with other times when copyright law seemed unable to cope with an unanticipated, wildly popular invention.

"Every one of the new technologies, had you been there at the debate, you would have heard that this technology was the killer application," said Marybeth Peters, the register of copyrights for the U.S. Copyright Office. "The debate really happened like you are hearing it today."

A federal judge in San Francisco issued a preliminary injunction Wednesday shutting down Napster at the request of the Recording Industry Association of America, which had sued the online company in December for copyright infringement.

Music has been protected by copyright since 1831. But copyright protection was limited only to a tangible form — such as sheet music — and not reproduction of the sound itself.

"Nobody had ever conceived of a copy of something that you couldn't see in the work," Peters said. A copy, by law, had to be "visually perceptible," and the Supreme Court in 1908 held that player piano rolls were not copies of musical composition. A general revision of the law the next year resolved the problem, Peters said.

In the late 1960s, the introduction of audio cassette recorders led to widespread street piracy of albums, Peters said. That prompted an amendment in 1972 protecting sound recordings — the physical product, and not just the music — for the first time, she said.

The recording and motion picture industries have tried repeatedly since then to stop copying. The motion picture industry sued Sony Corp. over its Betamax videocassette recorder in 1984, claiming the VCR aided piracy of movies, and lost.

"The Supreme Court said, 'No, you can have home VCRs,"' said Steven A. Hetcher, a professor of law at Vanderbilt University. "As long as the technology can be used legally, you can't force the maker to stop making it."

U.S. copyright law includes a "doctrine of fair use" which allows copies to be made and used without permission depending on, among other things, if the copying is for a nonprofit purpose, and the possible effect on the market for the work. The doctrine calls for a case-by-case analysis.

"There has always been a concept that certain uses of copyrighted works will be tolerated when, in fact, there is no economic harm to the copyright owner," Peters said.

Faced with the threat of inexpensive digital recorders capable of creating near-perfect copies of tapes or compact discs, the RIAA collaborated with the consumer electronics industry to push for legislation that became the Audio Home Recording Act of 1992. That set electronic standards for recorders that prevented the serial copying of CDs and cassettes. But, said Cary Sherman, general counsel for the RIAA, it did not cover computers.

"The computer industry was given the option of participating," said Sherman, who worked on the law. "And they made a very clear decision not to, because they don't believe in any legislation that mandates technical standards."

At the time, the World Wide Web was three years from its mainstream debut and use in millions of homes worldwide. The Digital Millennium Copyright Act of 1998 dealt largely with software piracy and posting copyrighted material on Web sites. Napster, however, does not copy the material itself; it merely introduces a user to a copy of a song on another user's hard drive.

"It's reasonable to perceive this as a new level of danger we haven't seen before," said Hetcher, who represented the RIAA from 1992 to 1996. "The reason is all previous technology could not make perfect copies."

But, Hetcher said, the law can cope with it this time.

"The laws are in place already," he said. "It's the technology they can't control. It's not a matter of finding a way to make things illegal that should be. They are already."

Rep. Howard Coble, R-N.C., the chairman of the House Judiciary subcommittee on courts and intellectual property, agreed.

"Hopefully, the court decision will be enough," said Coble, who has pushed for stricter enforcement of intellectual property statutes. "I think there are adequate laws that address this problem."