In White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 ,28 S.Ct. 319 , 52 L.Ed. 655 (1908), the Supreme Court held that a piano roll was not a "copy" of the musical composition recorded thereon and therefore, that the defendant, in making an unauthorized piano roll of plaintiff's musical composition, had not infringed plaintiff's "right to copy". After quoting the definition of copy set forth in Boosey v. Whight, the Supreme Court defined a copy of a musical composition as "a written or printed record of it in intelligible notation". 209 U.S. at 17, 28 S.Ct. at 1069. In reaching this result the Court stated:
"It may be true that in a broad sense a mechanical instrument which reproduces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is reproduced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye. In no sense can musical sounds which reach us through the sense of hearing be said to be copies as that term is generally understood, and as we believe it was intended to be understood in the statutes under consideration. 209 U.S. at 17, 28 S.Ct. at 323.Noting that the perforated rolls were parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they were adopted, produced musical tones in harmonious combination, the Supreme Court concluded that they were not "copies"within the meaning of the copyright act then in existence.Congress in the 1909 Act implicitly adopted the White-Smith definition of"copy".
1 Nimmer on Copyrights 2.03(B), at 2-29 (1979).
"Thus, since the ROM is not in a form which one can see and readí with the naked eye, it is not a copyí within the meaning of the 1909 Act. In its object phase, the ROM, the computer program is a mechanical tool or a machine part but it is not a copy of the source program." Data Cash Systems, Inc. v. JS&A Group, Inc. 480 F. Supp. 1063 . Sept. 26, 1979, where a machine language program in the ROMs of a hand held chess playing computer was found unprotectable under copyright law, on the grounds that the (copied) ROM was not a copy in the relevant sense:
"Both at common law and under the 1909 Act, a "copy" must be in a form which others can see and read." (Judge Flaum, Data Cash Systems).
In Apple Computer, Inc. v. Franklin computer Corp., 545 F. Supp. 812 (E.D. Pa. 1982), the court denied Apple's motion for a preliminary injunction against Franklin, which was producing and selling a computer that included Apple software in its ROMs. In Apple Computer, Inc. v. Franklin computer Corp., 714 F. 2d 1240(3d Cir. 1983) reversed that result, arguing that the Apple software probably was copyrightable.
The current version of the copyright act is available online.