The key point about both the Boosey vs Whight and White-Smith vs.
Apollo court cases was that a piano roll does not hold sheet music
(or a performance), but rather the coding needed to make a machine
produce a performance.  Both cases date to the days where virtually
all rolls were arranged, so only the sheet music component of the
roll was considered.

The famous defence in the Melville Clark case was to produce a
scrambled-up roll to confuse those who had been trained to read music
from the roll, showing that the particular form of the roll was not
significant to the machine.  The UK case of 9 years earlier achieved
the same ruling without the showmanship.  Both ruled that the roll
was not sheet music but a component of the machine.

In 1899 and 1908 there was no concept of programming as a means in
itself, but it's easy to see why the case law about piano rolls gave
the basis for the legal position on computer program copyright.
I wonder these days whether the converse is the case, where the recent
computer-aware law can be applied to rolls?

In the UK piano rolls were brought into mechanical copyright in
(I think) 1913, along with analogue recordings.  Both rolls and discs
carry mechanical rights royalty stamps issued by the music publishers.
However, words for songs were clearly directly the same as the sheet
music, and the UK position was that they had to licensed separately,
making word rolls more expensive (and hence relatively rare).  The
terms of the licensing agreements excluded word rolls from roll
libraries.  It's interesting that the US took so much longer to figure
out what to do with rolls -- but at least it allowed word rolls to
dominate, much more fun for owners then and now!

I assume that the difference in the Kazaa case is that their computer
files are direct storage of the musical performance itself.  Whether
this is the original analogue form (e.g., a disk recording), a direct
digital representation of the waveform (e.g., a CD), or some compressed
form of the wave file (e.g., MPEG) doesn't seem relevant -- it's still
a representation of the sound of an original performance.

The computer equivalent of piano rolls are MIDI files, which store
control commands to operate musical instruments.  I think, these days,
these too are considered to be performances for copyright purposes.
This seems right, as common sense tells us that the only reason for
the file's existence is to represent the music that it will end up
producing, so the music and performance it embodies is the valuable
thing, whatever the technology used to produce the final sound.

This is, of course, precisely the position that was finally arrived at
for piano rolls, and presumably why Kazaa should fail.  I wonder what
the result will be?

Julian Dyer