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Robert Fulton is generally remembered as the inventor of the steamboat. There is some controversy over his debts to previous inventors, but Fulton was the one able to develop a steamboat which was commercially successful, and which led to the rise of steamboat transit. I hadn’t thought about it much, but his patent in his steamboat is one of the key documents in the history of American invention and technology. That changed a bit ago when Adam Mossoff tweeted this out about how the patents Robert Fulton took out in his famous steamboat were lost, and I couldn’t just leave it be.
On this date in #innovation history: Robert Fulton gets a second #patent in 1811 for his #invention of first commercially practical steamboat (unfortunately, his patent was lost in the fire that consumed the US Patent Office in 1836) @uspto #PatentsMatter #IndustrialRevolution pic.twitter.com/Q6fs79kQRl
— Adam Mossoff (@AdamMossoff) February 9, 2018
Perhaps nothing gets my attention more than saying that something is “lost,” so I had to look into it. It turns out that the patents are less lost than has commonly been assumed. Read More
Two years ago last month, I was reading the trial court opinion from White-Smith v. Apollo from 1905 (the player piano case), and I noticed a cite to a 1878 Supreme Court case I hadn’t heard of before, Perris v. Hexamer. I gave the decision a read and found that it was about the copyrightability – or rather lack of copyrightability – of using specific colors and shapes to denote features on a map, where the alleged infringing map was of a different city (and thus obviously not copied). At this time I was about to close out a year as the Abraham L. Kaminstein Scholar in Residence at the U.S. Copyright Office, and I was a bit loathe to admit that I’d never even heard of a Supreme Court case on copyrightability. So, instead, I asked the coterie of IP professors I’m friends with on Facebook “why don’t people talk about Perris v. Hexamer more?” (the story continues after the jump)
Below is a video recorded at the U.S. Copyright Office in early 1987, at an event for staff, where Waldo Moore, who had been at the Office since 1951, provided some history of the Copyright Office, and discussed some of the individuals who had held the position of Register of Copyrights. Moore retired the year before he gave this talk, and William Patry has a nice piece about him on his now-defunct blog. Much of the material Moore includes in his talk has, to my knowledge, not been published.
I will caution, for those seeking details on recent events, the Moore is quite circumspect about events from 1970 on, preferring to speak about earlier eras. Looming in the background of the talk was George Cary’s appointment as Register in 1971, which led Barbara Ringer to sue and that appointment to be vacated, at which point George Cary retired and Barbara Ringer was named Register. George Cary is specifically mentioned as being in the audience for this talk, which would make discussion of the controversy impolitic (it probably would have been even without him in the room).
“Some sheep are being treated like goats and the resulting mélange can satisfy no one except those who happen to profit from the confusion.”
Benjamin Kaplan, Harvard Law Professor, on sound recording copyright, from Publication in Copyright Law: The Question of Phonograph Records, 103 U. Penn. L. Rev. 469 (1955).
To be clear, what follows is solely my opinion, and should not be attributed to any institution, public or private. Much to my chagrin I received no support for writing this post, directly or indirectly.
There’s been a lot of talk lately about the CLASSICS Act, now incorporated into the Music Modernization Act which passed the House and is now pending before the Senate. There’s been a number of posts arguing whether it’s an extension of copyright to 144 years, or a clarification of the status quo. I’ve personally spent a while on the issue of pre-1972 sound recordings and copyright, and my article Common-Law Copyright should be coming out soon, so I figured it might be helpful to explain a bit more why I tend to think this bill is largely a clarification and federalization of the status quo, by way of providing the background for pre-72 sound recordings. This is fairly condensed, and I’d urge folks who want the whole story to read my article. Those interested in the subject should also look at the Copyright Office’s Report from 2011 on pre-1972 sound recordings, as well as its related documents.
When I was at the Copyright Office as Abraham L. Kaminstein Scholar in Residence, I happened to find the video below. Andy Johnson-Laird made it for the U.S. Copyright Office at some point shortly after the Mosaic web browser (the first one) was developed and the web began to take off, I’m estimating either in late 1993 or or early 1994. As far as I can tell it’s the first video demonstrating browsing the web. Andy Johnson-Laird has been kind of enough to give permission to share it further, and the Library of Congress Motion Picture Division gets the credit for transferring the tape to digital.
I know I shared this on Twitter a week or two ago, but not everyone follows me there, and this is too cool not to share again. This is anticipated to be the first of a series.
The Music Modernization Act just passed the House as I’m writing this, and it seemed apropos to look at the origins of mechanical licensing in the 1909 Copyright Act. The story has been told before (although not in a dedicated article or book), but I’ve found a number of aspects of the story that I believe have been largely forgotten, along with a few documents that I’ve scanned which are pretty cool to see. Accordingly I’ve compressed parts of the narrative and expanded the parts where I have something new to add. One of these days I’d like to write a book on the 1909 Act, or at least put this stuff into an article
Music is no longer written on piano rolls and our laws shouldn’t be based on that technology any longer either. The #MusicModernizationAct brings our music laws into the 21st Century digital era.
— Bob Goodlatte (@RepGoodlatte) April 11, 2018
The first sound recordings that could be played back were made in the 1870s, and the technology was commercialized effectively beginning in the 1890s. In these early days the legal aspects of the various early sound reproduction systems were generally lumped in with another technology that developed at around the same time, the player piano,1 and in 1888 Harry Kennedy brought suit in the U.S. Circuit Court in Massachusetts, arguing that the inventor John McTammany had prepared Kennedy’s song Cradle’s Empty, Baby’s Gone, copyrighted in 1880, on a piano roll for use in a player piano (the song is a serious downer, fair warning). The casefile from the National Archives (which I originally shared last year) shows that in 1882 the Automatic Music Paper Company paid Kennedy a license fee, and published an authorized piano roll indicating that the song was used with permission. In fact, although the reported decision does not make it clear, the Automatic Music Paper Company was Kennedy’s co-plaintiff in the case.2 However, in a brief decision the Court held that programming a paper reel with punches for use in a player piano did not infringe the copyright of the musical composition which was played back from that paper reel. The matter was appealed to the U.S. Supreme Court, but in 1892 the Supreme Court dismissed the case without an opinion. 145 U.S. 643 (OT 1891 No. 168)
It would be another decade before another reported decision on mechanical reproduction, but at the beginning of the twentieth century one George Rosey was accused of selling sound recordings of two songs on wax cylinders – “Take Back Your Gold” and “Whisper Your Mother’s Name.” I’ve scanned the appellate case file of the DC Court of Appeals, and the briefs show the conflicting positions taken by the parties to the case, where Rosey based his argument on prior caselaw – the 1888 Kennedy decision and the then-recent English case of Boosey v.Whight, 1 Ch. 836 (1899) and 1 Ch. 122 (1900). By contrast the music publishers of Joseph W. Stern and Edward B. Marks looked to broad principles of copyright to assert that recording a copyrighted song constituted infringement. In 1901 the DC Court of Appeals (now the DC Circuit Court of Appeals) held similarly regarding sound recordings, finding that a sound recording did not infringe the copyright in a musical composition.
As I mentioned (I’m not sure others have noticed this), as early as 1882 the Automatic Music Paper Company was paying royalties to songwriters for mechanical reproduction, in spite of the lack of clear legal precedent saying they had to. Later in that decade the Automatic Music Paper Company merged with the Mechanical Orguinette Company, and the resultant company would be named the Aeolian Company. Aeolian would continue its predecessors practice of compensating songwriters for use of their songs. Its motivation for starting this practice is unknown (at least to me – feel free to educate me in the comments) – was it alruism and a sense of duty, did they believe they had a legal obligation, or, as critics increasingly charged, did they intend to establish such a right once they already held licenses to most popular music, setting themselves up to dominate the player piano market using copyright?
When the White-Smith Music Publishing Company sued the Apollo Company to assert that Apollo had sold piano rolls that infringed their copyright in the musical compositions, it was generally understood that Aeolian was actually behind the litigation.3 The case slowly worked its way through the Courts, and while this was happening, in 1905, the gears began turning on a major revision to the copyright laws. In June of 1906 Congress held hearings, and the transcript shows that Aeolian’s opponents showed up in force to argue that Aeolian was trying to create a monopoly in the player piano using its licenses to musical compositions. Aeolian was not represented at these hearings, but at their behest a young Nathan Burkan published a pamphlet with the unwieldy title of The Charge That The Passage Of The Copyright Bill, Senate Bill 6330, Will Create A Monopoly In The Manufacture Of Automatic Musical Devices Is False. The pamphlet on the one hand acknowledged that Aeolian had, in 1902, made contracts with many of the major music publishers for mechanical rights, assuming a court found such rights existed. Aeolian also agreed to fund the litigation, and according to Burkan they had already expended $50,000 in legal fees, the equivalent of over $1.2 million today. However, they argued that Aeolian had not secured contracts for all popular music, and further that such contracts explicitly did not include rights for sound recordings, which were likewise ascendant. Nonetheless, the response does leave a certain lingering impression that Aeolian acknowledged that they would have at least a dominant position in the player piano market if a law giving the owners of copyrights in musical compositions an exclusive right of mechanical reproduction.
After the case arrived before the Supreme Court, but before argument, the defendants moved to dismiss the case, arguing that the amount in controversy was not significant enough for the Court to have jurisdiction. This motion is found at the end of the case file held by the National Archives, and has not to my knowledge been previously discussed. It’s not clear why Apollo would move to dismiss at this point if the amount in controversy was so minor anyway – they’d come so far, one would think they would want to be vindicated. One possibility is that, if the case was a test case with a willing defendant, Aeolian grew concerned that the winds of the case were blowing against them, and tried to get out before the Supreme Court issued a decision.
Sure enough, in 1908 the Supreme Court affirmed the earlier decisions regarding mechanical reproduction in White-Smith v. Apollo, and held that the 1870 copyright law did not recognize mechanical reproductions as “copies.” However, the Court made clear that Congress could step in and remedy this inequity, and in response the 1909 Copyright Act provided compulsory licensing provisions for “mechanical” reproductions of copyrighted musical compositions, including sound recordings. It was widely understood that the compulsory nature of the licensing was meant to prevent another entity like Aeolian from dominating the market using exclusive licenses.
Roughly ten years later, the Federal Trade Comission investigated Aeolian for various antitrust claims, including price-fixing, leading to a cease and desist order (at pg. 124). However, Aeolian survived far longer, and long after player pianos had left the mainstream, going through a series of mergers and finally declaring bankruptcy in 1985
This post brings together two separate but related topics – a relatively unknown resource about the Supreme Court, and light it shines on what I think were the main schools of thought on copyright in the late nineteenth century. Read on for more, including original scans of archival material.
As part of a symposium on forgotten cases in intellectual property with the Syracuse Law Review, I recently wrote a short history of the US Supreme Court’s 1879 decision in Perris v. Hexamer, entitled How Perris V. Hexamer Was Lost in the Shadow of Baker V. Selden. Perris is essentially forgotten today, but it has somewhat similar facts and holding to Baker v. Selden, decided the following year. The decision is less than 1,000 words, so it’s pretty easy to give it a read, but essentially the Court held that the legend/key to a fire map showing what different symbols meant was not protected by copyright, and that using the same colors and symbols as a competitor’s map did not constitute infringement either. In some ways this decision is even more relevant than Baker (concerning the copyrightability of accounting ledgers) to the copyright questions raised in cases like Google v. Oracle, among others. However, Baker keeps being cited (hundreds of times in the past few decades alone), while a citation in 2016 by the 9th Circuit was the first citation to Perris in 3+ decades. I wanted to figure out why. Given that Perris is a fairly short opinion and Baker is an average-length opinion, I figured perhaps just the length of the opinion led Perris to be ignored, as presumably other short opinions would be ignored.
This question naturally led me to try to answer a broader question than I actually needed to. I assumed that there must be public databases out there of the number of words in an opinion, along with the number of citations to that opinion. However, while there has been some scholarship on the question, no public database of this sort exists.1 Accordingly, with help from my law school classmate Corey Mathers, I decided to try to assemble it. Paid databases like Westlaw and Lexis were not options, but the website Courtlistener.com (a project of the Free Law Project) does have the entire US Reports, along with citation tracking. Accordingly, we decided to build our database from that site.
Accordingly, our data is here (zipped CSV), with data on every Supreme Court decision, including word count, number of citations to authority in the opinion, and number of citations to the opinion (as well as caption and year). We removed cases that have less than 200 words, which are typically not real decisions but are rather summary orders like grants of certiorari.
However, the data has some weaknesses, and should really be considered more of a first step than a definitive resource. By far the most significant weakness stems from the holdings of Courtlistener – while it has many recent decisions and all Supreme Court decisions, it is missing most caselaw from before 1950 or so. Accordingly this creates a bias in favor of more recent cases, but at least the bias is uniform across all cases. Ideally the data could be recreated from a database with more decisions. Also, the word count for pre-1880 decisions frequently includes lengthy arguments of counsel as well as the actual decisions. There are several other smaller issues as well, all of which could be resolved by re-running the query we ran on a database with full coverage of federal and state decisions.
Usually these posts have been a chunk of information, but this one is really more open-ended, since I know the data we created is deeply incomplete – it was acceptable for purposes of my paper but could be improved. What would be good next steps for developing the data? What other data should we be trying to generate (only data that can be done automatically, nothing that would require manual review beyond error-checking)?
Fred Waring and his allies launched a number of lawsuits in the 1930s to prevent radio stations from playing their record; this post presents scans of three such case files, including filings, evidence, transcripts, and legal briefs. Read the rest to learn more!