Scales of Justice

[Commentary] 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.

As we all know, the golden age of American songwriting did not end in 1908, when, in a case called White-Smith Music Publishing Co. v. Apollo Co., the Supreme Court sided with the player piano companies.

Has the freedom to copy others’ songs, in exchange for a very low fee that the original songwriter has no power to override, suppressed the incentive to write new songs? There’s no evidence of that. Indeed, the opposite is true. Every day we see a continual outpouring of new songs.

[Raustiala is a professor at UCLA School of Law; Sprigman is a professor at the NYU School of Law]