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Even Century Old Records Had Restrictive Licensing
natch writes "While rummaging through some old records at an antique store I found some turn-of-the-century Victor Record Company pressings. The label on the back laid out the terms of use, something similar to an EULA. In today's modern world of RIAA lawsuits and DRM, it's interesting to note that similar tactics have been in use by record companies for over a century, restricting your right to use what you purchased. The label clearly states that unless the record was sold for at least one dollar, there is no license to use it."
While the Victrola "EULA" described in TFA is a new one to me, damaging intellectual property disputes are definitely not something that's unique to our time.
Every time an article on IT patents comes up, I immediately think about the Selden Patent, and the effect that dispute had on the development of automobiles at the dawn of the 20th century. It's difficult to say how things would have turned out if the patent hadn't been granted, or if it had been invalidated earlier, but it certainly shaped the landscape dramatically. (Whether for the better or worse is arguable -- probably its biggest effect was the boost it gave one Henry Ford, who challenged the Selden-patent-backed oligopoly.)
But you can see many of the same legal arguments and constructs that occur in modern patent wars in the Selden conflict: the cartel of companies who had the patent tried to use it aggressively to stifle competition, first attacking other producers, then trying to end-run them and threatening customers directly to keep them away from competing products. In response, upstart producers (like Ford) who didn't license the patent agreed to indemnify their customers against the cartel's possible suits. It ground forward, both in the courts and in the public eye, for years, and eventually concluded itself when Ford won a around in court and the Selden/ALAM side couldn't afford to continue the fight. The actual utility of the patent to the public was basically never considered.
What is most interesting out of all this is that we really haven't changed anything. It's almost universally agreed that the Selden Patent was a debacle -- regardless of one's feelings of George Selden, his patent did nothing to encourage the development of automobiles, and it almost certainly resulted in a lot of wasted effort on the part of all concerned -- yet virtually no changes were made to the patent system in response. And now we have similar situations repeating themselves, over and over.
But I suppose that shouldn't really come as any surprise. It's been almost 155 years since Dickens published "Bleak House," and, legal details excepted, you could probably set that story -- its bankruptcy-inducing proceedings, with their grinding slowness and vulturous lawyers -- just as easily in 2007 Delaware as you could in 1842 England.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
The license restricts ripping to wax cylinders or whistling of said tune.
It wasn't until in 1908 that Bobbs-Merrill Co. v. Straus established the first sale doctrine, which ruled that copyright does not give the holder the right to control re-sale of items once sold.
Some angry fists were shaken that day, I'll bet.
Where is it coming from? It's right in the bargain that copyright represents. The creator of the work gets the exclusive rights for a period of time, protected by the law, and after a period of time the work falls into the public domain.
In other words, the sense of "entitlement" exists in the same sense as if I said "If you pay me first, I'll give you something later", or vice-versa. i.e., it's like a contract, and the public deserves to be paid their half after granting a monopoly for a reasonable period of time, in advance.
The way you're talking, it's as if you walked into a restaurant, ate a nice meal, and then act surprised at the request that you pay up. I suppose if you had to sign a contract to eat it might be more obvious, but the bargain does exist.
I wrote my senior thesis in College on a related topic - in part, the development of the 1909 copyright law, which had a big impact on records, phonographs, etc. Prior to 1909, records, piano rolls, and so on actually had no copyright at all. Piano roll and talking machine companies (which is what record companies were known as back then) actually fought to keep records and rolls uncopyright-able as a way of preventing them from having to pay royalties to composers. The idea that composers - the writers of music - would get royalties from records or piano rolls (in addition to sheet music, which is what they traditionally got royalties for) was established in law in 1909 too.
This is interesting in the modern copyright debate, because it was the start of the notion that the producers of derivative works (for example, a recording of a composition) owe royalties to the producer of the original work (sheet music). Furthermore, the 1909 law determined that records and so on would be treated nearly exactly like books (minus the statutory license), in terms of duration, etc. There was an opportunity to set up a totally different copyright system for audio works (which are fundamentally different from the written word), but rather than innovate, Congress established the system that is so abused today.
The 1909 (and 1891, which had to do with recognizing international copyright) copyright laws had very interesting impacts on the development of copyright. Did you know that in 1906, the Aeolian Company (the major producers of player pianos and rolls) was working to set up what was essentially a statutory monopoly based on the exclusive property of traditional copyrights? To put it simply (and oversimplify), they attempted to create a situation very similiar to what the RIAA has been enjoying in American for a while now - exclusive control over most/all popular (money-making) music. It's because of their attempted monopoly that statutory licensing was developed in America.
So in relation to the main topic - if those old records were made before 1909, they actually had no copyright at all - you'll see no copyright notice on it anywhere. However, these kinds of things were thought to be covered in some degree by patents, and the 1909 law also established where patent-rights ended and copyrights began in regards to records.
disclaimer - I studied the political, not legal, aspects of copyright development.