Consider the player piano. When it arrived on the scene in the late 19th century, music publishers were horrified by this new machine that allowed anybody to recreate the performance of a great pianist inside their own home without paying a dime in royalties. By 1906 there were 75,000 player pianos clinking out copyright violations all across this country, using millions of perforated paper rolls that contained, in many cases, note-for-note transcriptions of famous performances.

The music publishers sued and in 1908 the U.S. Supreme Court decided, in White-Smith Publishing v. Apollo, that the player-piano roll was a mere mechanical device, not an unauthorized copy of sheet music. Put a player piano inside a saloon or a performance hall and you???d be liable for performance royalties. But inside the home, the court decided, it was just another type of music box. Justice Oliver Wendell Holmes, in a prescient side note, said Congress needed to update the laws, because ???on principle anything that mechanically reproduces that collocation of sounds ought to be held a copy.??? And indeed, the next year Congress passed a special tax of 2 cents per player-piano roll to help defray the enormous cost to content providers of unauthorized performances in the home. As of 1996 the rate had risen to 6.95 cents.

Plus ??a change plus c’est la m??me chose