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."

The problem is our present-day exceptionalism.

[Kadin2048]

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 [wikipedia.org] 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 [wikipedia.org].)

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.

I've seen exactly that kind of license

[hey!]

on the inside covers of books from that period (ca. 1905).

The claims made by the license are that (1) The content of the book is being licensed to the original purchaser and (2) the terms of the license do not allow the purchaser to resell the book.

This sort of thing went out with the recognition of the First Sale Doctrine in 1908. Software appears to be an exception to the First Sale doctrine -- at least depending on which US circuit court district you're in.

Patent, not copyright

[Sir Holo]

IANAL, but that reads like a license to the patents, not to copyright of the recording. Those patents would have long since expired.

There was no copyright protection of audio recordings until 1909.

But since you mention the RIAA, there was an organization of a very similar kind of company called the "Motion Picture Patents Company" in the early 20th century that held all rights to movie recording and projection. They sought to keep audience expectations low, marketing uniformly low-quality and cheap movies. They sued anyone who got near. The MPPC's strategy ended up starving itself to death in 1918, as independent movie makers figured ways to make creative and entertaining movies, while getting around the patents. (Vaidhyanathan, Copyrights and Copywrongs)

Re:The problem is our present-day exceptionalism.

[SirGeek]

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.

What's even worse, is the EULA on an actual victrola. Yes.. I do actually own an RCA victrola and the EULA on it says that you can only play RCA records on it. Now at least our current licenses aren't that bad ( Otherwise, you'd need a different CD player for each different record company ?).

Old magazines

[FuzzyDaddy]

My father has a collection of old magazines dating back a hundred years or so. (I haven't looked at them since I was a kid, so I can't tell you which ones.) I distinctly remember a coupon for toothpaste for some brand that was still in existence. The coupon had no expiration date or any of the legal jargon printed on the back of one now. As a kid, I wondered if it was still valid.

(As an adult, I can say with some confidence that the company would honor the coupon, if only for the PR value of having someone redeem 75 year old coupon!)

RCA was a lot like ...

[Anonymous Coward]

Here's a EULA from the back of a circa 1930 radio.

This looks like an early EULA (End User License Agreement)

It's the text from the bottom of the radio above.

RCA Radiola 33

model AR-784-A

NOTICE

In connection with devices it sells, Radio Corporation of America has rights under patents having claims (A) on the devices themselves and (B) on combinations of the devices with other devices or elements, as for example, in various circuits and hook-ups. The sale of this device carries a license under the patent claims of (A). but only for, (1) talking machine uses, (2) radio amateur uses, (3) radio experimental uses and (4) radio broadcast reception: and only where no business features are involved. The sale does not carry a license under patent claims of (B) except only (1) for legitimate renewals and repairs in apparatus and systems already licensed for use under such patent claims on combinations, (2) for assembling by amateurs and experimenters, and not by others, with other licensed parts or devices or with parts or devices made by themselves, but only for their own amatuer and experimental radio uses where no business features are involved, and not for sale to or for use by others and ???or use with licensed talking machines and licensed radio broadcast receiving devices, and only where no business features are involved.

The RCA Radiola line appears to have been manufactured between 1921 and 1930.

http://www.conestogac.on.ca/eet/museum/museum.html [conestogac.on.ca]

Of course, RCA was quick to assert its rights while ripping off the IP of others; Edwin Howard Armstrong in particular. Armstrong invented and patented several important (FM and Super Hetrodyne for instance). RCA literally lawyered him to death. Once he was dead, RCA gave his widow what they had offered him about thirty years previously. Plus ca change ...
http://en.wikipedia.org/wiki/Edwin_Armstrong [wikipedia.org]

1909 Copyright Act

[Kirijini]

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.

Very difficult to listen to this record.

[Distan]

The EULA only allows "producing sound directly from the record". I don't think that would allow playing it on a record player, as the player is a device that indirectly produces sound.

You could probably wave the record in the air and listen to the wind whistling through the hole.

Lockout chip business model

[tepples]

Yes.. I do actually own an RCA victrola and the EULA on it says that you can only play RCA records on it. Now at least our current licenses aren't that bad ( Otherwise, you'd need a different CD player for each different record company ?)

Which of Nintendo's, Sony's, or Microsoft's video game consoles doesn't have terms like these attached to it?

Re:special pricing

[shark72]

"This is why some stores say "prices too low to print/etc!" in their ads. There is some deal where if you put "acme label" then you have to charge their minimum price. Just like there are clever ways around this, I'm sure that acme label really enjoys the sales no matter how they are generated."

Yup; it's called a MAP program. When Apple and other companies we love do it, it's fine. When Universal does it with Tower Records, it's price fixing. Universal got nailed for this after Best Buy and Wal-Mart complained to the government. A win for Best Buy and Wal-Mart; a loss for Universal and Tower (who have since gone out of business, unable to compete with Best Buy and Wal-Mart). Whether it's a win for Slashdotters depends on whether you appreciated having Tower and other relatively cool alternatives to buying your music at Best Buy or Wal-Mart.

"Why can't the RIAA just enjoy sales as well? Oh yeah, because no one buys an entire record to listen to one track? How is that piracy's fault?"

That was the prevailing argument five years ago.

Then it was "online music selection sucks and is too expensive! I'll keep pirating, thank you.". And then online music stores got cheaper and better.

Then it was "online music stores have DRM! I'll keep pirating, thank you." And then emusic showed up, and EMI dropped their DRM.

Then it was "these DRM-free tracks from the iTunes Store have my email address embedded. I'll keep pirating, thank you."

You know how many P2P enthusiasts claim that if only the music industry would listen to them, they would stop pirating? Many people claiming this are simply full of shit; they'll keep pirating and keep coming up with a new moral justification to do so. Disposable income is the football, the record companies are Charlie Brown, and the pirates are Lucy.

Among the honorable people in my book are the pirates who simply acknowledge that they have no interest in purchasing music, and that they pirate to save money. No need to blame anybody else for having the basic and fundamental desire to save money. If the rights of others don't happen to matter to you, you're cerrtainly not alone.

Re:Books too

[linefeed0]

Still true in other countries, one of a handful of places the US copyright law is actually better than its counterparts elsewhere. If you buy a book in England, it may have this piece of shit on the copyright page:

Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.

The "except in the US" is added because first sale in the US prohibits such a condition from being enforced in any way. It is routine here for university libraries to buy trade paperbacks, especially for replacement books, and have them rebound, sometimes even scanning the cover and reprinting it onto a new hardback cover. More power to them, I say. Where this is not legal it results in a premium on books for libraries (since libraries generally will not lend out paperbacks; they do fall apart).

Re:Lockout chip business model

[tepples]

When was the last time someone was sued for playing XBox games on a Wii?

Not that exact pair of systems, but I do remember Nintendo suing Bung Enterprises [wikipedia.org] for allowing Game Boy Color games to be space-shifted to an IBM PC compatible and played there.