AuthorDiaz, Gerardo Con


The copyrightability of object code--the strings of zeroes and ones that allow a computer to execute instructions--is not very controversial anymore, even though most people cannot read it. (1) The U.S. Copyright Office's guidelines on the registration of computer programs state that while the Office "strongly prefers" deposits of source code (which normally involves more familiar words, symbols, and syntax), applicants can opt to submit object code instead. The Office would then issue a registration under its Rule of Doubt policy, which resolves uncertain cases in the applicant's favor without granting a presumption of validity. (2) This practice has been in place for decades, and it is a byproduct of a century-old struggle to determine how the U.S. Copyright system should deal with works that are very difficult, if not entirely impossible, for human beings to read without any mechanical or electronic aides. (3)

The Copyright Office today relies on applicants' ability to read and assess the originality of their own object code. Specifically, applicants must "state in writing that the object code contains copyrightable authorship," and the Office accepts these statements at face value. For instance, if I were applying for an object code registration, I would include that statement and highlight the following code:

0100001101101111011100000111100101110010011010010110011101101 0000111010000100000110000101010100100100000001100100011000000 1100100011000100100000011000100111100100100000010001110110010 1011100100110000101110010011001000110111100100000010000110110 1111011011100010000001000100110000111010110101100001011110100 0101110

I would also submit a note saying that this text reads, "Copyright [C] 2021 by Gerardo Con Diaz." This would satisfy the registration requirement of highlighting the portion of object code that corresponds to a copyright notice and presenting it "in words and numbers that an examiner can read." (4) However, the binary string above is not necessarily illegible. It is written in an industry standard language called ASCII (American Standard Code for Information Interchange). Reading from left to right, each 8-digit-long string, called a byte, corresponds to a letter; the copyright sign, [C], is a special character that consists of two bytes. (5) A person fluent in ASCII, perhaps a very diligent computer engineer, would be able to read the text, even if it may take them a few minutes depending on their skill level. (6)

This does not matter at the Copyright Office, which would deem the string illegible even though a person who has basic familiarity with ASCII would be able to translate it. The financial and logistical benefits of this practice are clear; it would be very burdensome for examiners to translate every program they encounter in object code, even if they had automatic translators like the ones freely available on the Internet. (7) At the same time, this practice also offers a bureaucratic solution for a much deeper problem with which the U.S. copyright system has been grappling since the 19th century: many of the creative works that copyright law is meant to protect--including all musical compositions, literary works, and software--can be fully inscribed, reproduced, and transmitted through an infinite variety of binary codes, each one legible only to people familiar with its rules and structure. (8)

This article examines the legibility of binary code in U.S. copyright through a case study of White-Smith v. Apollo (1908), a landmark Supreme Court opinion on the copyright-eligibility of punched rolls for player pianos (which encode music into binary code through the perforation of paper rolls). The White-Smith Court unanimously ruled that the Apollo Company, a distributor of punched rolls for automatic piano players, did not have to pay royalties to a music sheet publisher (White-Smith) because copyright protection does not extend to mechanical parts. (9) The fact that the rolls caused a piano to perform a composer's song was irrelevant in this logic because their status as machine components (which the Court justified by pointing out that human beings couldn't read them) precluded them from qualifying as writings for the purposes of copyright law. (10) The 1909 Copyright Act would overturn much of this reasoning by establishing that the creator of a musical composition has exclusive rights over any mechanical reproductions of the work, including punched rolls. (11) However, even despite this statutory change, White-Smiths emphasis on human legibility as a precondition for the authorship of a writing allowed vestiges of the print-based conceptions of copyright to shape U.S. law and innovation for decades to come. (12)

All this unfolded at a time when courts were reconsidering foundational assumptions about what copyright is and what it is meant to protect. (13) U.S. copyright law at the time was grounded primarily on its late eighteenth-century origins as a means of regulating the book trade by protecting print materials from unauthorized reprinting. Court opinions and legal scholarship in the early nineteenth century revolved tightly around a print-based notion of the "copy"--a legal construct that Oren Bracha characterized as "a semi-materialist object of ownership, at once intangible and endowed with qualities equivalent to those of owned physical objects." (14) For example, novelists could claim copyright over a book, but not its translations. (15) Composers could claim copyrights over the sheet music for their songs, but that didn't give them the right to exclude others from playing the song at a public square or writing down the song in an alternative musical notation and distributing it that way. Conceptions of the "copy" began to expand in the second half of the nineteenth century, as the relentless economic and ideological pressures of corporate liberalism pushed the U.S. Congress and courts to include a broader swath of commercial uses, including translations and dramatizations (1870) and public performances of music (1897). (16) These shifting landscapes of copyright doctrine, along with a growing impulse to mass produce creative works and industrial pressures protect copyright owners from a broad range of unauthorized commercial uses of their works, set the stage for the battle between White-Smith and Apollo. The commercial stakes were very high: had the Court ruled in White-Smith's favor, then a large multinational corporation called the Aeolian Company would have likely been able to leverage control over the punched roll industry to expand and perpetuate its dominance over the market for automatic player pianos.

The story of White-Smith v. Apollo brings together the business history of the U.S. music industry and the technical history of an immensely versatile invention: surfaces (especially paper) with holes on them. (17) I argue that White-Smith was a strategic attempt to resolve the long-term conceptual and sociotechnical tensions born from three simultaneous processes in the history of perforated surfaces in the long nineteenth century: their technological development as storage media, their industrial emergence as mass manufactures, and their commercial transformation into a product that could enable and perpetuate market dominance in the automatic player industry. At the Supreme Court, this effort yielded a framework for copyright eligibility that placed legibility as an essential characteristic of a writing, and which allowed text-based conceptions of the "copy" to influence U.S. copyright law well into the 1980s. (18)

This argument consists of four parts. The first offers an overview of the business history of U.S. music in the late nineteenth century, recounting how its explosive growth propelled the creation and early development of new markets for the mass manufacturing of music sheets and perforated rolls. The second examines the technical history of perforated surfaces to emphasize that a mechanical conception of punched rolls was made possible by a series of inventions that simultaneously embraced and concealed the rolls' potential to be used as an alternative to traditional musical notations. The third highlights early efforts, in England and the United States, to identify the copyright implications of the materiality and uses of perforated surfaces. The final section recounts a key episode from the history of White-Smith to show how music scholars at the time tried, and failed, to decipher melodies from these rolls--that is, to read the rolls.

  1. Manufacturing Music

    The American music industry underwent a series of extraordinary transformations in the late nineteenth century. Pianos and other keyboard instruments had become a centerpiece of middle-class homes, and nurturing a musical life was as much a family activity as it was a sign of social and financial stability. The music played on home pianos, however, was not necessarily drawn from the classical composers whose work might have dominated high-end performance spaces. Vaudeville and blackface minstrelsy were steadily rising in popularity. (19) White composers and publishers incessantly exploited Black people's lives and cultures, mocking them through simple tunes written for the entertainment of white families. (20) Anti-Black racism was rampant in this new, more industrialized music industry. It was perpetuated by publishers' efforts to move away from the traditional model for music publishing--wherein a firm invested heavily in recruiting top composers and marketing their work--and towards a model that relied on publishing as many songs as possible in hopes that one of them would become a hit. (21) Most songs would cause financial losses, but a small group of popular songs could generate enough revenue for...

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