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White-Smith Music case: A terrible 1908 Supreme Court decision on player pianos.

White-Smith Music case: A terrible 1908 Supreme Court decision on player pianos.


Scales of Justice

Player piano.
The player piano deeply troubled composers at the time of its introduction.

Courtesy of Rama/Musée Baud

Way before Spotify, stereos, or even radio, Americans who wanted to listen to music at home had one choice: They could play it themselves. This changed by the 1890s, when a hot new technology arrived: the player piano. Player pianos were miraculous in their ability to play popular songs and old standards alike while people sang along, danced, or just enjoyed the sounds. But as with a lot of newfangled machines, not everyone loved the player piano.

In particular, the technology deeply troubled composers, such as the famed John Philip Sousa. Sousa worried that the pianos would kill the public’s demand for sheet music, and copyright royalties from the sale of sheet music were what paid composers’ bills. To make matters worse, the player piano companies refused to pay royalties for the songs they put on piano rolls—scrolls of paper with holes punched out in patterns. People couldn’t read the rolls; they spoke only to machines. And on that ground, the player piano companies argued that the rolls did not “copy” songs, and so could be manufactured and distributed without the need to pay royalties.

This was an exceptionally stupid argument. Sheet music and player piano rolls both copy songs; they just use different languages. What matters is what comes out when the language is translated. And for both, the answer is the same: music.

So the issue wasn’t terribly difficult, but apparently it was complicated enough to fool the Supreme Court. In a 1908 case called White-Smith Music Publishing Co. v. Apollo Co., the Supreme Court sided with the player piano companies. The court said that because humans couldn’t read player piano rolls, they were not in fact copies, and as a result, composers like Sousa couldn’t demand any royalties.

The conventional wisdom is that no one will innovate if others can copy freely. Why invest the time to invent a better mousetrap, or write a great song, if someone can just take the fruit of your hard work and sell it themselves? This basic logic—that copying is bad for creativity—is the fundamental reason we have patent and copyright law. These rules exist to make sure that copying is only legal when the creator agrees to it. Unauthorized copying—as anyone who has watched a DVD with an FBI warning at the start knows—is against the law.

So when, more than a century ago, the Supreme Court declared that copying by player piano companies was just fine, we saw the beginning of a process that culminated in the death of American songwriting. Songwriters stopped writing, fearful that the piano roll companies would just steal their new songs and feed the expanding market for player pianos at home. Thanks to the Supreme Court, the golden age of American song essentially ended in 1908.

In creating the cover song, the Congress of a century ago had no idea it would let loose one of the great innovative forces in music.

If something seems wrong about this story, it’s because the last part is completely false. As we all know, the golden age of American songwriting did not end in 1908. In fact, geniuses such as George Gershwin and Cole Porter were still kids when White-Smith Publishing was decided. Nearly all the “great American standards” were written in the decades after White-Smith Publishing. The reason American songwriting not only survived the onslaught of the player piano, but thrived, tells us a lot about how creativity really works.

The first important thing to know is that the actual result in White-Smith Publishing lasted but a year before it was overturned by Congress. The Copyright Act of 1909 extended the law to cover all “mechanical” reproductions of songs, whether read by people or machines. At the same time, however, Congress did a very important thing: It mandated that all songs would be subject to what lawyers called a “compulsory license.” This meant that any musician could copy another’s song without asking permission, so long as they paid a low standardized fee to the songwriter ($0.02 per copy, originally, and quite a bit lower, adjusted for inflation, today). So on the one hand, Congress overthrew the argument that player piano rolls were not songs. But on the other, Congress set everyone free to copy, just so long as a small fee was paid.

So why did Congress create this unusual system of legal copying? Because it was afraid of one company—Aeolian. That firm is long gone. But in the early part of the 20th century, Congress viewed Aeolian as something like the Microsoft or Google of the nascent player piano market.




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