The pianola roll - a precursor to Kazaa?

In 1899, a United Kingdom court ruled in the matter of Boosey v. Whight that the reproduction of perforated player piano rolls did not infringe the copyright protecting sheet music. A century later, in the case of Universal Records v Sharman License Holdings Pty Ltd, the barrister, Robert Ellicot, invoked this precedent in response to allegations that the file-sharing network, Kazaa, was engaged in copyright infringement. The barrister told the Federal Court of Australia: "It will be our submission in this case that we are exactly in that position now in relation to sound recordings." Ellicot argued: "That is to say that, however you describe an MP3 file on a computer hard drive - it is not a copy of a sound recording." The barrister maintained that an "infringing copy has to be a sound recording", and said his clients are further removed from liability by the fact that they are not responsible for uploading the songs. However, some have thought that this historical analogy with the pianola roll to be a contingent one. As journalist Nicholas Kohler comments: "Mr. Ellicot's historical analogy is ironic given the otherwise vast chasm separating the sheet music publishers of yesteryear from today's 'virtual' operations." It has been suggested that the connection between the pianola roll and the peer to peer network is far-fetched and tenuous. This article considers whether the historical precedents dealing with pianola roll are both relevant and pertinent to the litigation over the peer to peer network, Kazaa. How might one interpret this legal stratagem? Is this a flight of fancy? A stretch of the imagination? A legal frolic, if you will? Or should this legal tactic be taken seriously? Should credit be due for the creativity and ingenuity of this case? Moreover, it is worthwhile considering whether this daring act of historical revisionism will be successful.