Judicial
constructionto be the real complainant, the representatives of the musical author were, in 1906, denied protection against the mechanical music rolls made by the defendant, by the Circuit Court of Appeals, where the judges considered themselves "constrained" by the necessity of strict construction to decide that "a perforated roll is not a copy in fact of complainant's staff notation," while saying "that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes." It was presumed by many during the copyright campaign that the Supreme Court would make a broad construction of the statute, but that court held, February 24, 1908, in an opinion written by Justice Day, that the considerations adduced "properly address themselves to the legislative and not to the judicial branch of the Government" and that "as the act of Congress now stands, we believe it does not include these records as copies or publications of the copyright music involved in these cases." Justice Holmes, while not dissenting, added a memorandum to the effect that "the result is to give to copyright less scope than its rational significance and the ground on which it is granted seems to me to demand. . . . On principle, anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow, ought to be made so by a further act, except so far as some extraneous consideration of policy may oppose." While the judges thus felt "constrained" to deny relief, their strong language in defense of copyright control doubtless had its effect upon the legislative authorities in the framing and the passage of the new code.
This decision was confirmatory of an earlier decision, in Stern v. Rosey in 1901, of Judge Shepard in the Court of Appeals in the District of Columbia,
