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An article in today’s issue of the Canada’s National Post outlines one legal strategy being pursued by Kazaa in its defense against suits from record companies:

An Australian court has heard a defence against charges of copyright infringement submitted by Kazaa — the wildly successful file-sharing software — relying on a precedent set over 100 years ago.

The 1899 British decision allowed the reproduction of perforated player piano rolls, ruling they did not infringe on copyright law protecting sheet music.

Robert Ellicot, who represents Sharman License Holdings, which controls Kazaa, submitted the argument in response to litigation brought against Sharman by Universal Music Australia and its affiliates.

The controversial legal gambit argues Sharman isn’t infringing on copyright because, like player piano rolls, MP3s are not copies of sound recordings.

…

Boosey v. Whight, the 1899 English case referred to in Mr. Ellicot’s defence, exempted the perforated [player piano] rolls from copyright law because they formed part of the mechanism of the player piano.

“It will be our submission in this case that we are exactly in that position now in relation to sound recordings,” Mr. Ellicot reportedly told the Australian Federal Court this month.

“That is to say that, however you describe an MP3 file on a computer hard drive — it is not a copy of a sound recording.”

This explains why I had to clean coffee off my monitor this morning, after doing a spit-take at that last line.

(The article is not available for free online, but is available through Westlaw at 2004 WL 79303684.)

If presented under U.S. copyright law, this argument would definitely, unequivocally fail. In White-Smith v. Apollo, 209 U.S. 1 (1908), the U.S. Supreme Court came to the same conclusion as the court in Boosey. In fact, the White-Smith opinion quotes Boosey extensively. Here’s the key language from Boosey, as quoted by the Supreme Court:

The plaintiffs are entitled to copyright in three sheets of music. What does this mean? It means that they have the exclusive right of printing or otherwise multiplying copies of those sheets of music, i.e., of the bars, notes, and other printed words and signs on these sheets. But the plaintiffs have no exclusive right to the production of the sounds indicated by or on those sheets of music; nor to the performance in private of the music indicated by such sheets; nor to any mechanism for the production of such sounds or music.
…
But is this the kind of copying which is prohibited by the copyright act; or rather is the perforated sheet made as above mentioned a copy of the sheet of music from which it is made? Is it a copy at all? Is it a copy within the meaning of the copyright act? A sheet of music is treated in the copyright act as if it were a book or sheet of letter press. Any mode of copying such a thing, whether by printing, writing, photography, or by some other method not yet invented, would no doubt be copying. So, perhaps, might a perforated sheet of paper to be sung or played from in the same way as sheets of music are sung or played from. But to play an instrument from a sheet of music which appears to the eye is one thing; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing.

This was all quite true based on the copyright laws in force when the case was decided. Making a piano roll wasn’t copying the sheet music, since it didn’t look anything like the sheet music and wasn’t readable for human performance in the same way as the sheet music. Making a piano was copying the music itself, but, as the court says, there was no independent protection for the music itself apart from the sheet music in which it was fixed.

The United States changed that in the 1909 Copyright Act, in which it struck a compromise between composers and the player piano industry. I describe this compromise and its ramifications in a forthcoming paper for the Future of Music Coalition; what follows is a brief summary of the story. The composers wanted to be able to sell the right to produce piano rolls of their compositions; the player piano industry didn’t want to pay, and convinced Congress that if it allowed an exclusive right to reproduce the music “mechanically” — by piano roll — one piano roll company, Aeolian, would buy up the rights to all of the popular music and would eliminate competition in the industry. Congress gave composers an exclusive right to “mechanical reproduction”, on the condition that they allow anyone to make piano rolls at a rate set by Congress — at that time, two cents a copy. This new law made White-Smith moot.

So let’s say Kazaa brought this defense in the United States. (I know the Kazaa case described in the article is being brought in Australia, but this is bound to come up in the U.S. eventually.) The article is sketchy about the argument, but I suspect it would go like this: Current law says a copy of a sound recording (known in the law as a “phonorecord”) is the “material object” in which the sounds are fixed and from which they can be played back. But there is no separate material object in which the MP3 is embodied; it’s on the hard drive, all jumbled up with other data. This argument is a loser because there’s no requirement that there’s nothing else embodied in the phonorecord, or that it has no other use other than as a phonorecord. Congress recognized this in its definitions of “digital musical recording” in the 1992 AHRA, which is much more restrictive than the definition of “phonorecord”, specifically excluding music stored on the same medium as computer programs. By some standard canons of statutory interpretation, you get pretty quickly to the conclusion that by making a new, more specific definition instead of just saying “phonorecords”, Congress means that an MP3 on a hard drive, commingled with computer programs, is a phonorecord.

So it’s a loser in the U.S. How about Australia? Australian copyright law is governed by the Copyright Act 1968, as amended. The Australian-law analog to the “phonorecord” is the “record”, which is defined as, “a disc, tape, paper or other device in which sounds are embodied”. Copyright holders have the right “to reproduce the work in a material form”. So for the Kazaa argument to work, an MP3 on a hard drive must not be a “matetial form”. “‘[M]aterial form‘”, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage from which the work or adaptation, or a substantial part of the work or adaptation, can be reproduced”. Could they possibly be arguing that a hard drive is not a “form (whether visibe or not) of storage”? This is a losing argument — even more so under Australian law than under U.S. law.

Novel, though.