Patent Instrument and
Reading Machine
When the United States Patent Office received Edison's application
for a patent on the first phonograph, on Christmas Eve, 1877, official
examiners confronted a device Edison and his attorney called an
"Improvement in Phonograph or Speaking Machine." "Improvement
in'l may seem to represent an uncharacteristic modesty on Edison's
part, but the phrase is actually areminder that all granted patents are
as much about old news as they are about new. Patents arise and exist
within a highly regularized textual system of official filings, government
notifications, and legal process.! Their knowledge sources
are doubly the inventor's creativity and the examination of what is
called prior art, an historical inquiry made by inventors, lawyers,
patent office employees, more lawyers, and possibly the courts.
Knowledge about both what is claimed to be new and what is discovered
to be old is processed together, and if evetything works out,
new technology is authored and authorized: the inventor receives the
right to a piece of intellectual property with possible, negotiable
worth. In the case of Edison's "Improvement in Phonograph," Edison
got his patent in mid-February without much trouble.
Preconceptions about technology, so evident between the lines of
idea letters, science fiction, or commercial promotion, form the explicit
method of the patent office. Edison's application, in order to
97
r 98 .--...- PATENT INSTRUMENT AND READING MACHINE
be examined, had to be assigned to a division and class within the
government's system of technological knowledge. At the same time,
it had to do what every successful application for a letters patent
necessarily (i.e., by law) must demonstrate: novelry. Indeed, the inventor
may be naming something that does not yet exist for the examiners,
who will always need to consider it within a taxonomy of
their preexistent and therefore essentially faulty divisions and
classes. For want of a better spot, the patent office put Edison's
phonograph into Division XVI, Class 73, Measuring Instruments.
Undoubtedly, this designation was made in order to avail the government
examiners of Sub-Class 34, Recorders, where the phonograph
ended up. Though not always to such an obvious degree,
every patent application tests the system of knowledge previously
bureaucratically schematized. And every patent grant incrementally
alters the hierarchical structure of knowledge by changing its contents.
The phonograph shifted both the substance and the relative
boundaries of Sub-Class 34. Eventually the patent office has to bend
under the weight of accumulated minute adjustments, revising its
divisions and classes and thereby renewing the grounds of their contrived
obsolescence. Only in r886 would the patent office create a
new class called "Acoustics," intended to include separate subclasses
for the likes of phonographs and ear-trumpets. In r890 the subclass
for phonographs was changed to Graphophones after agitation from
Edison's competitors. This change reveals how the classification of
new inventions is muddied by commercial politics while it negotiates
new technological knowledge.
The government's designation of the phonograph as a scientific
instrument for I~recording" measurements possesses many interesting
implications, some of which I will defer until my next chapter,
which is more explicitly about names and labels. In the present chapter
I continue to address issues of text and evidence, interrogating
these alongside matters of amusement and commerce. By now it will
be obvious that I see the period around the turn of the rwentieth century
as one of particular upheaval and importance in the relations
berween words and things. Books and other printed text-objects be-
PATENT INSTRUMENT AND READING MACHINE r--- 99
came differently produced and acconunodated within the nascent
mass culture. Their becoming had much to do with the economics of
the publishing trades, shifting grounds of authorship, new technologies,
and new marketing means. It also had much to do with a welter
of new inscriptions that had to be contextualized: to be defined
against, and mutually to define the printed word as well as its established
oral, aural, and readerly relations. These new inscriptive forms
were cultural productions, like musical phonograph records and
silent films, but they also included nonaesthetic products such as
X rays and mimeographs. Between the Patent Act of 1870 and the
Copyright Act of 1909 new relations between text and technology
were clumsily negotiated, in particular, in the exercise and defense of
intellectual property rights. The American patent process was one
groundwork from which the new understandings arose; it provided
a baseline, a relatively stable set of assumptions about words and
things that, though they remained unquestioned within the confines
of the U.S. Patent Office, were increasingly taken to task by the culture
at large. Copyright legislation proved a much less stable ground.
Congressional hearings and court decisions questioned the nature of
"reading" in an effort to rearticulate the definition of constitutionally
protected "writings." Generating particular controversy was the
issue of musical copyright. Debate centered around the issue of
whether phonograph records and perforated piano rolls could be
"read." The Same question was raised at the Berne Convention
meetings in Berlin and was litigated in Mexico and across Europe.
Legal case history in America focused on the copyright for a "coon"
song entitled "Little Cotton Dolly"; the phenomenon of the recorded
coon song itself implies some of the complex features of ownership
and authorial identity that emerged as pressing questions of cultural
production during the period. American lobbyists and legislators addressed
the changing requirements of intellectual property statute
within the context of changing technology and tastes, but also
within the politics of the newly global entertainment economy that
was enabled in part by varying social practices of consuming representations
of racial, ethnic, class, and national difference.
100 ---' PATENT INSTRUMENT AND READING MACHINE
Though here addressed consecutively, one of my points is that
patents and copyrights belong together. Not only did the framers of
the Constitution conceive them together, "to promote the progress of
science and the useful arts," but during the first two decades of the
twentieth century these forms of intellectual property were metaphorically
situated and judicially constructed in a manner that drew
them more closely together than before. Their proximity was to a
small degree accidental, due to certain judges sitting on certain
courts and to broad analogies that surfaced in the legislative history
of the new Copyright Act. More so, however, their proximity arose
from the commercial circumstances surrounding consumer goods
such as cameras, phonographs, pianolas, and projectors, all patentable
products reliant upon patentable supplies (films, records, music
rolls) that in turn were reliant upon cultural products, the reproduction
of original creations (the photograph, the musical score). Such
consumer goods coevolved with complimentary elements of corporate
practice, economic organization, and other production values.
These together provoked a reckoning within the public sphere, not
only of the nature and extent of ownership and authorship but also
of identity and perception, of readers and writers.
The word patent derives from the Latin, meaning disclosed or lying
open. In the early English use, letters patent meant an open, public
document granting land rights or similar privileges to an individual
or corporate body for an explicit period of time. Notably, British entrepreneurs
were granted royal letters patent to found colonial American
settlements_in the seventeenth century. Territoriality has always
been an operative metaphor in the rhetoric of patents, particularly in
the articulation of the claims of a patent. Like a miner staking a
claim, a patent applicant must demarcate the boundaries of her or
his invention, seizing a metaphorical topography within a field of
knowledge and an area of expertise. Edison made the point emphatically,
when he instructed his attorneys to file a patent application for
phonograph records; he directed them to "Claim the Solar System."
In another similar instance he advised haste: "Claim the Earth, &
PATENT INSTRUMENT AND READING MACHINE"""" 1 01
before she makes many more revolutions." Territorial metaphors
were a point of legal comparison too. As one standard treatise of the
early twentieth century put it, the patent claim "may be likened to
the description in a deed which marks the bounds of a parcel of
land"; though because the claim "deals not with a tangible thing," it
remains "merely an approximation, more or less remote, to an exact
disclosure of what a certain mind has accomplished."2 Though the
estimable Macomber here admits that "exact disclosure" is impossible,
the rhetoric of patents rests squarely on the opposite assumption.
The patent process assumes a naive relation between words and
things. According to law, any "useful art, manufacture, engine, machine,
or device" may be protected by "describing the said invention
or discovery, clearly, truly, and fully," and undergoing a successful
examination by the patent office.' Any technology can be described
and any invention can be neatly, if not uniquely, divided into individual
claims, that is, bite-sized acts of objective signification for
which language is presumed to be clear, clean, natural, and free from
ambiguity. No symbolic or figurative meanings pertain; the whole is
exactly equal to the sum of its parts. In an age that imagined so
many machines for language, the patent process offered a language
for machines.
Edison's number 200,521 is a happy example of a patent to have
at hand. While the patent office at first conceived the phonograph as
a scientific instrument for recording; the genre of the patent document,
which the patent office maintains so assiduously in its rules of
procedure, was conceived as the textual equivalent of just such an
instrument. Text-as-instrument and genre-as-technology are nothing
new. Legal process requires written instruments. Shorthand,
subsumed within its own technocratic pretensions, tried to be as
much of a technology as possible. And many literary and nonliterary
genres have been profitably considered in similar terms. Steven
Shapin, for instance, has characterized the early printed works of
the British Royal Society as possessing a "literary technology of virtual
witnessing," showing that the genre of the scientific article has
its roots in the need to attest, whether directly or obliquely, to the
102 r--> PATENT INSTRUMENT AND READING MACHINE
FIGURE 5. New knowledge. Edison's first phonograph patent,
no. 200,521 (1878).
veracity of experienced events (Shapin, "Pump and Circumstance,"
490). The article is technological in the sense that it is constructed,
like a good scientific instrument, to lend weight to the findings it offers.
Though the patent may have less to do with witnessing than
the scientific article, the two share a similar intellectual history and
are the authoritative discourses of a technical knowledge.4 Like the
authority of science, the authority of patents relies on objectively describing
what really exists. But as harbingers of commercial advantages
of one sort or another, patents fester with potential threats to
objectivity. This is the "paradox of patenting." The patent system is
supposed to stimulate inventive activity by inhibiting the diffusion
of inventions.5
American technologists have long recognized the
paradox. A few, like Benjamin Franklin, declined to patent; instead,
he published a description of his "Franklin" stove and encouraged
its diffusion. However, as Thomas Fessenden explained in I808, an
inventor is usually "induced to divulge no more of the process than
what might be deemed absolutely necessary to entitle himself to a
PATENT INSTRUMENT AND READING MACHINE .--.. 103
patent; and confine the principles of his invention'to his own workshOp"
(x). What this means for the patent document is a doubleedged
sword of specificity and vagueness. Inventors must "open,"
or disclose, their ideas so that no one can steal them, and in so doing,
must describe their ideas minutely. Yet, they must also withhold
as much as they can get away with and leave themselves covered in
case of many possible unforeseen alterations. This is a pair of contradictions
that may seem more in keeping with symbolist fiction
and romance than with any technical discourse. The patent means
to keep secret the very thing it means to reveal.
The paradoxical nature of patent documents arises separately
from two connected points, the anatomy of the documents themselves
and the activity of readership they imply. Anatomically the
patent is a formulaic combination of three primary parts: a specification,
a drawing, and claims. These primary parts are in addition
to a colophon or preamble identifying the applicant and her or his
nationality, as ,well as the patent number, date, title, and signatures
of the applicant, attorney, and witnesses-features no less important
to the document, but transparent in their rhetoric of pro forma
validation. (Patent models were not required after 1880.) Each of
the three primary parts requires consideration independently, as each
possesses a coexistent and potentially contradictory role in the
rhetoric of the whole. That whole is tempered by a jumble of implied
readers similarly coexistent and similarly at odds.
The term specification occasionally refers to the entire patent
document, but usually it has the more narrow meaning of a detailed
description of the invention that accompanies a patent drawing and
precedes its claims. Statute requires that the specification be prepared
"in such full, clear, concise, and exact terms as to enable any
person skilled in the art or science to which it appertains, or with
which it is most nearly connected, to make, construct, compound
and use" the invention. Macomber instructs his readers that an ideal
specification should not waver from this purpose and "should avoid
all laudation and all attempts to declare the basic character of the invention"
(68). This ideal, Macomber admits, is freely avoided in
104'-'-' PATENT INSTRUMENT AND READING MACHINE
practice. Edison's first phonograph is specified in his patent by three
distinct gestures-an introduction citing the purpose and general nature
of the invention; an explanation of its operation, with reference
to the accompanying Figures I and 2; and an amplification of further
means to the same end, with passing reference to Figures 3 and
4. Within his introduction, Edison even makes himself the subject of
one paragraph, narrating that "after a long series of experiments"
he has discovered that the human voice produces "separate and distinct"
vibrations in a diaphragm "or other body," and "therefore it
becomes possible to record and reproduce the sounds of the human
voice." Such an explicit narrative, an almost autobiographical digression,
is unusual and unnecessary in patent documents; most
patents do not look like the stories of inventions or inventors. It is
this supposed lack of narrative logic that likely accounts for their reputed
dullness. Patents are pretty dry reading. In fact patents do
demonstrate an aggressively narrative logic; they all imply Whiggish
accounts of technology, the gaps and misperceptions of the past cleverly
remedied by the invention at hand, which will be of certain use
in the future.' This underlying narrative is a rhetorical prerequisite
for any patent, a carefully couched assumption that emerges in the
patent specification and claims and to which, in granting any patent,
the United States government accedes.
The specification of Edison's first phonograph patent dilates on
SOme possible alternatives with the phrase, "It is obvious that many
forms of mechanism may be used." Edison describes several alternatives,
but indicates that much more remains undescribed. They
are already manifest, self-evident. The rhetoric of self-evidence is
implicit in all specifications, which frequently revolve around similar
statements. This rhetoric articulates the patent's implied reader,
"skilled in the art," who fully understands the invention and its implications
from the specification given. The implied reader is a qualified
reader, equally expert in reading patent documents and in the
"art" at hand. Even as it posits this qualified reader, the rhetoric of
self-evidence excuses the limits of the text. The author and the implied
reader collude in their acceptance of alternatives and specifics
I
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PATENT INSTRUMENT AND READING MACHINE ---.105
that, because "obvious," remain unwritten or unexplained. Particularly
after the Patent Act of I870, when photo-lithographed drawings
became a standard accouterment to patent documents, the
patent specification typically functions as an elaborate caption to
the drawing, indicating features of the invention by reference to letters
or numerals on the drawing itself. Like the specification, the
drawing is addressed to persons "skilled in the art." It need not be
a working drawing but participates, like the specification, in a
rhetoric of self-evidence. As a representational device, the patent
drawing generally relies on mapping structural features of the represented
object and is thus among the simplest of such devices.' Edison's
drawing does not, for instance, seek to represent the vibrations
of the human voice acting upon the phonograph diaphragm, but
rather satisfies itself with an orthographic projection of the placement
of the diaphragm within one version of the necessary machinery
for recording and reproducing. Drawings are not always so
modest-Emile Berliner's gramophone patent (no. 372,786, issued
I887) also shows no sound vibrations, but it does show an exaggerated
lateral groove in the recording surface (the innovation of the
gramophone), so that the features of his illustration map structural
components of the invention in multiple scales. In figures of various
magnifications the gramophone is disassembled, and in all cases
where the lateral groove is shown, it is greatly exaggerated beyond
the scale of the figure.
In selecting structural features for display and in disassembling
and/or exaggerating them for the eye of the observer, patent drawings
exist within a historical context of technical illustration.
Sixteenth-century authors such as Agostino Ramelli and Georg Agricola
explored perspective and developed "exploded" drawings as
a means of communicating artisanal information. In seventeenthcentury
Britain, William Petty and other members of the Royal Society
proposed a "history of trades," for which illustration became
a necessary component, because, as Petty wrote, "bare words being
not sufficient, all instruments and tools must be pictured, and colours
added, when the descriptions cannot be made intelligible with-
106 ,--.. PATENT INSTRUMENT AND READING MACHINE
FIGURE 6. Emile Berliner's gramophone patent, no. 372,786 (1887).
Gramophones differed from phonographs and graphophones in that sound
waves were incised in lateral, side-to-side, grooves, rather than vertical,
hill-and-dale grooves. These were two distinct operating systems with
incompatible file formats.
out them" (qtd. in Ferguson, "Mind's Eye," 830).' Within this context,
drawings do what language cannot. Today many engineers and
historians of technology would concur that technological knowledge
cannot be "reduced" to words. Technology possesses an essential
component of "visual thought" and remains remote from
language at critical moments of invention and design. Besides sharing
the pejorative sense of shorthand authors' "common" writing,
~'reduction" into words joins with what the patent system calls reduction
into practice in elevating the newly envisioned idea itself,
rather than its written description or pictoral representation. Yet the
American patent system contains no admission of linguistic insufficiency;
drawings are complimentary to the specification's language.
When the required submission of patent models was discontinued in
1880, it was as if to say that language suffices, clarified by and mu-
PATENT INSTRUMENT AND READING MACHINE .......... 107
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cually clarifying the patent illustration. Like so much else about
patents, this linguistic priority was articulated in the courtroom. For
one, Edison Electric Light Co. v. Novelty Incandescent Lamp Co.
tested the relative weight of patent drawings and specifications. An
Edison lamp patent (no. 444,530, granted r89r, reissued as no.
r2,393 in r905) described and claimed a lead-in wire for electric
lamps that contained segments of copper and platinum, joining
them within the glass at the base of the bulb. His arrangement ensured
strength and conserved platinum, a major expense in lamp
manufacture. But a similar joint had been shown by mistake in the
patent drawing for another light bulb (no. 40r,444, granted r889).
The Lemp and Wightman patent did not specify the glass-encased
joint, but their draftsman had mistakenly pictured it. In r909 the
courts upheld the validity of Edison's patent, indicating that the
mistake was just that, a mistake. Anyone "skilled in the art" could
see from their language that Lemp and Wightman had not invented
or patented the invention their draftsman had pictured. A mistaken
drawing would not invalidate a patent because, given a specification
and its qualified reader, language is sufficient to represent technological
knowledge.' Bureaucratic procedures and further litigation
continued to articulate the relative weight of patent drawings.
If the patent document was merely the description of a machine
or mechanical process, then the specification and drawing would be
sufficient. Patents assert property rights, however, and as such they
describe an innovarion, an idea embodied in the machinery detailed
by the specification and drawing. The patent claims enumerate this
idea, dividing it into parts, marking its bounds, and employing a
territorial rhetoric alluded to earlier. In effect, the claims present the
inventor's (or her or his lawyer's) pointed reading of her or his specification,
a reading checked and acquiesced'to by the patent office
during the application and examinationprocess. As readings, patent
claims explicitly identify the patentable features of the specified machinery,
process, or design, frequently identifying them-like Edison's
phonograph patent does-as "substantially as specified" or as
herein "substantially set forth" in the specification. These and sim-
108 ---- PATENT INSTRUMENT AND READING MACHINE
ilar phrases, Albert H. Walker explains in his Text-Book of the
Patent Laws, are "always implied in claims wherein [they are] not
expressed" (171). Claims are always dependent upon specifications.
Specifications offer descriptions necessarily cited by the claims,
which generalize allusively from the particularity of specifications.
In keeping with their territorial rhetoric, the principal characteristic
of patent claims is breadth. Claims are either "broad" or "narrow"
in the parlance of patent seekers and the patent law. Because
his "Improvement in phonograph or speaking machines" was the
first invention of its kind, Edison was allowed four very broad
claims. His first encompassed the most:
The method herein specified of reproducing the human voice or other
sounds by causing the sound vibrations to be recorded, substantially as
specified, and obtaining motion from that record, substantially as set forth,
for the reproduction of the sound vibrations.
Most patents and patent applications hedge the inventor's bets by
including multiple claims, usually giving them in order, like "a set
of boxes each enclosed in the last, each getting more specific" (Myers,
75). Edison's second claim identified his invention:
The combination, with a diaphragm exposed to sound vibrations, of a moving
surface of yielding material-such as metallic foil-upon which marks
are made corresponding to the sound vibrations, and of a character adapted
to use in the reproduction of the sound substantially as set forth.
Here Edison's invention is narrowed to protect his "moving surface
of yieldingmaterial." He identifies such a material, but the example
of metallic foil is not an exclusionary one. By comparison, claims
can be exactingly narrow. In his "Improvement in Type-Writing Machines"
(no. 133,841, issued 1872), for instance, Edison had been
allowed eight claims, the second of which reads:
The rack-bar h and spacing-pins 7, in combination with the spring-pawl 8,
key d, and type-wheel a, substantially as set forth.
This claim, like the patent specification, makes reference to the
patent drawing. Though less clearly a reading of the patent specification,
it does interpret the described machinery, identifying a spe-
PATENT INSTRUMENT AND READING MACHINE r-... 109
feature that Edison and his attorney believed possessed the three
ch'lfacterisltlCs required for a patent-invention, novelty, and utility.
Linguistically, the narrowness of a claim inheres in its specificity, or
rather in the reciprocal specificity of the specification it interprets.
The dependence of claims uponspecifications might suggest they
are more important before the law, but this is not the case. If claims
offer a reading of the specification, then patent law relies upon a
metareading in which attorneys and judges concern themselves with
analyzing the way claims interpret specifications. For instance, in his
kinetographic camera patent of 1897, Edison specified a new and
valuable invention, a combination of elements that constituted the
first practical motion picture camera. Yet Edison v. American Mutoscope
and Biograph Co., known as "the First Mutoscope Case,"
rendered three of Edison's six claims void because they were too
broad. The claims had been miswritten, the specification misinterpreted.
Had he claimed the organization of mechanical parts represented
in his specification, Edison would have been covered; instead
he claimed "an apparatus" that did what his camera did, without
noting the specifics. (Edison's first phonograph patent, which made
similarly broad functional claims, was read with greater largess because
it constituted such a deviation from the prior art.) Fortunately
for him, Edison was granted a reissue of the patent, narrowing its
claims. Even these claims were contested in the courts (the "Second
Mutoscope Case") and another reissue was obtained. Ultimately,
the matter remained in litigation until 1914. Throughour, Edison's
camera was not in question; he had specified a very valuable invention.
That is what all the fuss was about. The litigation concerned
only his claims and the reading of his specification, which he continued
to revise in reissued patents.lO
A sustainable patent necessarily
offers a good reading of itself; a valuable patent can offer an excellent
reading of itself. A patent's self-interpretive value and an
inventor's rhetorical acumen may both appear directly proportional
to the value of the patent generally, though plenty of worthless inventions
have been specified and claimed with exceptional linguistic
dexterity.
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In focusing so specifically on patent claims, the law resembles the
many correspondents who sent "idea letters" to Edison, writing as
if ideas were tangible objects to be bought and sold, transparent in
their extent and implications, the way a coin has shape and worth,
or the way a machine has design and function. It is even possible to
patent a technology that has not yet been constructed. Edison described
and received a fundamental patent on a coiled carbon filament
for his electric lamp before he had figured out how physically
to fashion the filament itself." If the technology has not been built
and the patent "creates nothing" on its own (Macomber, I), then
what exactly is the subject of Edison's patent? It is his idea of the
coiled carbon filament mounted with lampblack putty. Edison's idea
determines his invention in the sense that it is supposed to have existed
prior to his possession or embodiment of it, prior to his identification
of it against the backdrop of all the "prior art." Like an
undiscovered mining property, the idea lay undifferentiated from its
surroundings until claimed. Nothing about claiming involves constructing
new knowledge: patent law avers that "the breadth or the
narrowness of a claim as the case may be, does not depend upon any
artificial rule of interpretation" (Walker, I02). Instead, by implication,
inventions themselves have the inherent quality of breadth Or
narrowness. They exist within a natural landscape of ideas, some
discerned, others yet to be discovered, each taking up its own essential
and appropriate width along the frontier. This is an extreme of
what historians of technology call internalist reasoning; the extent
of an idea's patentable "invention, novelty, and utility" is a natural
(as opposed to Walker's "artificial") quality, inhering to the invention
itself in its relation to the "prior art," rather than a construct,
meted out by contemporary and socially determined parameters of
novelty and usefulness, or, more specifically, by any discursive activity
of the patent document and its readers or by any beneficence of
the government, which grants rights but does not make property.
Much exists to contradict this internalist logic. The implied acts
of writing and reading upon which the genre depends do much to
preclude the notion of a "natural" or essential breadth or narrow-
PATENT INSTRUMENT AND READING MACHINE"""" 111
ness tq ideas, even as they preclude the notion of a natural, straightforward,
unrhetorical discourse in which objects or ideas can be
cleanly, clearly, and fully signified. The whole patent document
takes the form of an oath, addressed "To all whom it may concern"
and sworn to by the inventor, so that in a certain sense the patent
does resemble a scientific article, making public new knowledge ascribed
to an expert or experts. The inventor is not its sale author
however. Rather the "author" figure of a patent document combines
the inventor, her or his attorney, and the patent office that has
examined the application and granted the patent. The "author" of
the patent genre is thus a rhetorical figure quite distinct from the inventor
whose idea gets patented. Authorship is scattered. Meanwhile,
the implied reader of the patent genre is both "whom it may
concern" and the "person skilled in the art," to whom the specification
and drawing are necessarily directed. The patent's title implies
its first reading by the commissioner of patents. The claims attest to
the manner in which the patent document reads itself, propounding
the significance of its own specification in light of the "prior art."
Finally, the patent document implies an additional, authorized
reader, to the extent that the federal courts are its readers of last resort,
turned to for decisions in cases where qualified readers-inventors,
attorneys, and their expert witnesses-disagree on matters
of interpretation. Like its author figure, the implied reader of
patents is polymorphic, nested within the transactional process of
application and examination, publication, and what Carolyn C.
Cooper calls "patent management," or the selling, licensing, litigating,
and reissuing of patents, extending and manipulating properry
rights after the grant and publication of the original document.
Nor are writing and reading mutually exclusive activities when it
comes to patent documents. In particular, the federal courts combine
the functions of reading and authoring. As authorized readers,
the courts can change the texts they read as they read them. This
holds true for the functional parts of patent documents as well as
for the meanings of individual words. The courts author patents by
writing them into the discourse of case law, usually in deciding in-
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fringement suits that patent holders bring to protect their rights. For
example, case law stipulates the relative weight of patent drawings
and specifications in Edison Electric Light v. Novelty Incandescent
Lamp. Case law identifies when vague claims are too vague and
when broad claims are too broad. Court decisions enter a fabric of
citations and an ongoing negotiation of meaning. The First Mutoscope
Case was cited in twenty-four additional court decisions as
well as in legal treatises like Macomber's and textbooks like Walker's.
Judge Wallace's decision erased three claims from Edison's patent
and also indicated for all patents a breadth that was too broad;
such limitation would continue to be tested and negotiated in other
court rooms and in consideration of other patents. This form of authorized
reading is clearest in the definition of individual words.
The meaning of individual words within a patent document can be
specifically identified by the author, or else devolves upon the imagined
interpretive powers of a qualified reader. About these imagined
powers differences frequently occur; the court then renders a decision
that cements the word in question to a particular definition.
The patent for Edison's first phonograph, for instance, turned out
to be of surprisingly little value given the breadth of its claims, all
because it repeatedly uses the word "indentation" to refer to the
grooves made in the recording surface made of foil or other "yielding
materia!." Ensuing legal process determined that later, waxbased
recording surfaces were more properly "engraved" than "indented,"
sincc wax was actually removed and didn't just yield.
Edison's patent lost its value as the technology and attendant discourse
changed.
Reading patent documents is a time-based experience. Patent
rights extend only seventeen years; after that, the meaning and significance
of the patent document change. Though many genres exist
in the climate of their own obsolescence (scientific articles, guide
books, and so forth), few genres short of almanacs and messianic,
prophetic texts have such a sharply defined metamorphosis built in.
After seventeen years a patent's claims no longer mark proprietary
bounds of new technological knowledge. Instead, the patent docu-
PATENT INSTRUMENT AND READING MACHINE .--.. 113
as a whole attests only to old technological knowledge. It loses
performative quality as law and remains only authoritative eviof
the "prior art," turned to, if at all, during the birth pangs
adolescent contests of other claims in other patent documents,
or turned to retrospectively by historians of technological knowledge.
The former provenance of its qualified reader becomes more that of
an interested reader. While the document continues its place with
other documentaty evidence, it is no longer a viable legal instrument.
The patent document is a remarkably formulaic and stable genre
built upon active contradictions. For two hundred years American
patents have declared in their rhetoric, "I am not rhetorical," "I tell
no story," and "I am an expert at representing what exists,I' yet
.they have done this within bureaucratic and litigious wrangling that
attests greatly to the contraty. Their confidence in "what exists" remains
troubled by unreflective definitions of expertise and representation.
Despite its pretensions to render better and better measures
of an inventor's idea-the way that science is supposed to offer increasingly
accurate descriptions of nature-the process of patent
law reveals patent documents to be rhetorical instruments within a
vast system of meaning creation, a "discourse" in the active sense,
operating from the first draft of a patent specification to the decision
of the ultimate court of appeals.
If according to its own rhetoric, the patent document offers a
clear, clean representation of a new invention embodied in the technology
it clearly and cleanly represents, then it is no surprise that
patent documents generally take no special account of technologies
which produce representations. Nor do the patents for representational
products take any special account of what representation consists
of, since the whole work of representing is assumed to be transparent
and objective. Three patent drawings illustrate the limitations
of this assumption: Emile Berliner's gramophone patent pictures an
exaggerated lateral groove, not sound waves or the human voice.
Edison's patent on kinetoscopic film (reissue no. 12,038, granted
I902) pictures a tiny strip of film that purports to show five "uniform
sharply-defined photographs of successive positions of an ob-
114 r-..o PATENT INSTRUMENT AND READING MACHINE
ject in motion/' a gymnast in this case, though the "photographs)'
pictured are so close that they do not convincingly represent "successive
positions" of the tumbler. Finally, Frank Lambert's typewriter
patent pictures his machine typing out the words "I enclose check
for Fifteen Dollars," the necessary patent application fee.12 All three
illustrations are of inscriptive products, ·and in the case of phonograph
records and films (not typescripts), patentable ones. Each of
the three in its own way represents an act of inscription made variously
mechanical and does so with the differing degrees of literalism
necessitated by the experienced aesthetic distinctions between forms.
The printed page cannot represent sound or motion with the same
literal facility that it presents typescript through the device of quotation.
Nor can the patent document. However, the genre's (and the
government's) confidence in its own legibility, which is to say, in the
sufficiency of language, tends to deflect attention from the varieties
and complexities of representational acts and products.
Notwithstanding this generic avoidance, the character and status
of representational products were legally contested in a number of
ways during the early twentieth century. Two of the most hotly contested
points were addressed as matters of intellectual property. Tying
and price-fixing were both strategies used by manufacturers to
control the market and could be defended as natural extensions of
the patent holder's right to "make, sell, or let for hire" the patented
article. Price-fixing could additionally be defended as a natural extension
of copyright. Tying referred to the practice of requiring distributors
and consumers of a patented article to use only the patent
holder's subsidiary products and supplies. Razor blades were tied to
razors; paper and ink to mimeographs; film to cameras; records to
phonographs. In such cases the razors, mimeographs, cameras, and
phonographs were distributed and retailed under explicit license
agreements or bearing explicit notices that required the purchaser
to operate them only with that same manufacturer's supplies. Similar
license agreements stipulated the minimum prices to be charged
for copyrighted books or patented mechanisms and supplies, a
guarantee that was aimed at stabilizing distribution networks (and
PATENT INSTRUMENT AND READING MACHINE .-.J 115
FIGURE 7. Motionless drawing of a moving picture. Edison's film
patent, reissued as no. 12,038 (1902).
profits) by forbidding intrabrand price competition. Anyone violating
these license agreements was held to be infringing the copyright
or the patent. What this meant, in effect, was an additional topography
adding more commercial dimension to intellectual property
that was already, in the case of patents, spatially conceived. Not
only did inventions possess breadth or narrowness but also they extended
into the marketplace to greater or lesser degrees. When it
came to pricing and the supply of subsidiary products, an inventor's
rights might determine the actions of wholesalers, retailers, and
even individual consumers.
To be sure, different kinds of products and different sorts of commercial
arrangements had always possessed the same implied topography.
Network technologies, for instance, offer opportunities for
the inventor or the patent-holding manufacturer and capitalist to extend
themselves into the market, while new forms of networks press
116 .-...> PATENT INSTRUMENT AND READING MACHINE
the same questions in different ways. Systems, whether of the telephone,
telegraph, current distribution, or modem and Web browser,
literally articulate the connections between producers and consumers
that tying and price-fixing were aimed at affirming. Mail order and
subscription sales of books and other items do the same thing,
though these are notably forms of commercial organization rather
than a feature of intellectual property or of network technology. In
the nineteenth century, publishing houses such as Mark Twain's
doomed Webster & Co. sent canvassers to different regions, where
they exhibited a prospectus and tried to sell a book before its publication,
as if they were selling shares in a company.13 Department
stores and "trade" bookstores sold the novels of W. D. Howells,
Henry James, and others, but took up goods like Twain's A Connecticut
Yankee in King Arthur's Court only piratically. Like mail order,
subscription sales accommodated rural markets particularly
well, but suffered a poor reputation and greatly diminished returns
as the nineteenth century closed. They remained attractive as a way
of controlling distribution and pricing, bettered by tying and pricefixing
where intellectual property rights could be used as protection.
The legality of both tying and price-fixing was repeatedly tested.
Neither issue had exclusively to do with representational products,
yet many of the test cases and precedents involved copyrighted
books or the patents for inscriptive devices, their subsidiary products
and supplies. Quite a number of the price-fixing cases had as well
to do with another new feature of the market, department stores,
which aggressively used prices to attract customers and seemed to
have early on realized the value of cultural forms like books and
records as loss leaders, enticing customers through their doors. The
department stores were perceptive; they reoriented retail with regard
to price discounts and recognized the ascendancy of amusements in
the emerging alignment of leisure and consumption. Mark Twain
had fulminated against John Wanamaker's in Philadelphia for selling
his books at a discount. Edison's National Phonograph Company
sued both The Fair in Chicago and Kaufman's in Pittsburgh for cutting
prices. Jobbers and dealers were made to sign elaborate price-
PATENT INSTRUMENT AND READING MACHINE .--.." 117
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maintenance agreements. Columbia Phonograph took on Gimbles
and the Victor Talking Machine Company took on R. H. Macy's in
New York. As it turned out, Macy's became embroiled in three important
price-fixing cases, two that challenged the extension of
copyright to cover pricing and one that challenged the extension of
patent rights for the same purpose.
In I908 and then again in I9I 3, the Supreme Court held that an
author's copyright did not permit her or him to specify the resale
prices of a book. Using these copyright cases as authority, the Court
would later hold that similar prohibitions should extend to patent
holders." The judiciary proved more mercurial on the issue of tying.
In I909 the Supreme Court affirmed the legality of tying unpatented
phonograph records to patented phonographs. In Leeds and Caitlin
v. Victor Talking Machine, the Court decided that Victor could
block the sale of non-Victor records for use on its Victor machines.
The decision was made on the grounds that, even though an unpatented
element in the combination of phonograph and disc, the disc
was an active and durable partner in the combination, each playing
of a record recreating, in effect, Victor's patented invention. In deciding
thus, the Court felt it had to refer to a nearly parallel case
that had been decided differently. In Morgan Envelope v. Albany Paper,
paper supplies, unlike records, had been deemed passive and
perishable or transitory. Similar distinctions between wax and paper
as mediums of inscription were at issue in the legislative tangles taking
place over musical copyright and must be addressed in the next
section of this chapter." Leeds and Caitlin v. Victor is an important
point of contact between patents and copyrights, and its timing coincided
with the new Copyright Act in I909.16 The decision effectively
allowed the Victor Company to block the duplication of its
records by the Leeds and Caitlin Company, which quickly went out
of business. This was a long way from granting copyrights for recorded
sound, but it did draw the recording studio under the aegis
of intellectual property law by implying a distinction between duplicating
and recording.
Firm· precedents establishing the illegality of tying and price-
118 r--.o PATENT INSTRUMENT AND READING MACHINE
fixing were not handed down until I9I7, when the Supreme Court
issued decisions in two important cases on the same day: Motion
Picture Patents Company v. Universal Film Manufacturing Company,
and Straus {Macy's] v. Victor Talking Machine.!' These decisions
have stood, though niceties of the same issues continue in litigation
today, in suits about book distribution and new technological
and corporate developments, like "bundling" computer software
and operating systems with computers. For much of the period in
question, however, products, including representational ones, drew
a large measure of quality as commodities and a substantial measure
of identity from the technological means of their production
and use, from the "interdependence of use-values" escalating within
the culture and economy. IS Tying and price-fixing implicated cultural
productions in the sale and use of their means of production.
On the mechanical level this meant that films and records were defined
by the conditions of their sale and operation with and by
patented and explicitly licensed projectors and phonographs. On a
corporate level the same interrelation of product and producer was
routinely reflected in management structures and was mirrored in
the complex economy of the nascent "star system," which offered
the celebrated producer as a secondary product, as well as in the
distribution networks established between manufacturers and consumers.
Inscription, in this context, emerged as both emphatically
mechanical and implicitly conflicted by the related pressures of antitrust
(procompetition) sentiment and changes to the structures of
wholesale and retail.
The genre of the patent document proved able to avoid all these
complexities surrounding mechanical representation in a way that
the judiciary and legislators could not. Western culture assumes that
the scientific article and the patent document are instrumental genres
par excellence. Both are counted upon to avoid ornament, to
home in objectively on what exists, either by cleanly describing a
true experience of nature or by cleanly describing the exact nature
and extent of an invention. The instrumental status of both as genres
remains curiously unquestioned by the ongoing revisionism of
PATENT INSTRUMENT AND READING MACHINE ---.. 119
scientific practice, on the one hand, and the process of patent law,
on the other, unquestioned because the rhetoric of both necessarily
relies upon a simplified model of representation as clean, untroubled
truth telling. But beneath an unassuming face, the rhetoric of each
genre proves an intricate matter. Patents rely upon an implied, qualified
reader, "skilled in the art," who unifies technological and textual
expertise. Like scientific articles, patents identify new knowledge.
They do so within a context that avers the knowledge itself to
have been preexistent, waiting to be "embodied" in the "art," to be
measured and described in a flexible, interpretive language game
called claiming, in which the patent office plays a hand, federal
judges act as umpires, and a seventeen-year clock ticks on the wall.
I wish to relate an incident which occurred in our store this evening, which
I considered the highest compliment that has ever been paid to a talking
machine. I was exhibiting a Home [phonograph], with a 24-inch silk horn.
Among other Records, I put on No. 8656, The Flogging Scene from "Uncle
Tom's Cabin." When the Record was ended, a man sprang out of his chair,
wiped the tears from his eyes, and said, "I'd give ten dollars for the privilege
of hitting that damned slave driver just once."
-From the Buckeye Music Co., Rudolph, Ohio, in Edison Phonograph
Monthly, February 1905
At the end of the nineteenth century the new technology of recorded
sound helped to challenge the visual habits of musical practice. Audiences
accustomed to watching performers, who might themselves
be eyeing a printed score, could now hear music with nothing to
look at but a piece of machinery. Phonographs, wax records, pianolas,
and paper music rolls were all new commodities troubling
the established musical trade, in part by questioning the visual norms
of intellectual property. The phonograph record and the music roll
had to be contextualized, to be located against the legible, copyrighted
texts of lyrics and notation, which comprised the inviolable
units of protected property under Article One, Section Eight of the
Constitution. Legislative hearings and judicial decisions questioned
the nature of reading in an effort to rearticulate the definition of pro-
120 .--- PATENT INSTRUMENT AND READING MACHINE
tected "writings." Congressional debate centered around the issue of
whether phonograph records and piano rolls could be "read," in
what became an early and elaborate exploration of textuality in the
new age of machine-readable text. While Congress tinkered amid the
essentialism of American copyright law, honing its application to materially
new cultural forms, the shifting optics of popular music
brought pressure to bear on other visual habits, including associations
between racial difference and skin color. By removing the performer
from view, the technology of recorded sound also removed
the most keenly felt representation of the performer's race. American
musical culture engaged difference in new ways, provoked at once by
the enormous popularity of racist coon songs during the late 1890S,
by early attempts to delimit and commodify authenticity in so-called
"Negro" music and by the phonograph itself, a mimetic machine
that had not failed to accumulate its own parcel of racial associations
in the several decades since its invention in 1877.
The above anecdote received from the Buckeye Music Company,
which appeared in an Edison trade publication, provides some access
to the less familiar elements of musical culture at the turn of the century.
Music stores like Buckeye were distribution points for sheet
music, song books, musical instruments and supplies, as well as phonographs
and records. Phonographs occupied an ambiguous position
as "self-playing" musical instruments. Without the benefit of radio
broadcasting, potential customers had to hear phonographs and
records in public in order to know and desire them, so that exhibitions
and demonstrations like the one described were frequent and
necessary even~s in showrooms everywhere. The man who jumped
up and offered ten dollars to hit Simon Legree was paying the"highest
compliment" to the phonograph because he offered to pay a ten
dollar sum so in excess of the thirty-five cents that an Edison record
of "The Flogging" really cost. Embedded in this narrative of paying
compliments and paying ten dollars are a host of implications about
mimesis, culture, and commercialism. The impassioned listener of
"The Flogging" mayor may not be mistaking fiction for reality. He
does seem to know Uncle Tom's Cabin, whether from reading the
PATENT INSTRUMENT AND READING MACHINE ,.--.... 121
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original or from experiencing some of the plethora of adaptations
that had appeared in print and on stage in the half century since
Stowe's novel was published in r 852. Either way, the Buckeye proprietor
feels complimented because his recording provokes such a
powerful emotional response, the way reading the novel might,
while the Home phonograph and its record cylinder remain relatively
unattended components of the listener's experience. The man didn't
hear the phonograph or the record; he heard through them to Simon
Legree whipping Uncle Tom. It is this selective hearing that the Buckeye
proprietor recognizes as the highest compliment that can be paid
to any communicative or inscriptive medium, including the talking
machine.
The proprietor's anecdote plays off of an important trope resident
in Anglo-American constructions of race and class, the familiar
narrative of the alien naif who mistakes mimetic representation
for reality. In the fictions of Dickens and Twain it is the uncultured
bumpkin who takes theatrical production literally. Many "true"
anecdotes of this sort circulated during the nineteenth century.
There was the Baltimore man who objected "to an assault on Coriolanus
because 'three against one' was not a fair fight," and the
man from New Orleans who suggested "to Othello, grieving over
the loss of his handkerchief, 'Why don't you blow your nose with
your fingers and let the play go on.'" The full truth of these anecdotes
cannot be gauged, but the blurring of reality and mimetic action
that the anecdotes relate is likely of equal consequence to the
circulation and persistence of the anecdotes themselves. With each
telling they present and assert culture as an exclusive activity for
those who have it and "get it.,," New technical cultures seem to
have relied upon similar anecdotes in their construction of male,
technocratic expertise. Nineteenth-century telegraph and engineering
publications exhibit a rhetoric of exclusion on the bases of class,
race, and gender. Their pages are filled with anecdotes about bumpkins
who shimmied up telegraph poles to hear messages as they
went by and about women who made other errors with regard to
new communications technology.20
122 .--.... PATENT INSTRUMENT AND READING MACHINE
FIGURE 8. Type scene. The "Little African and the Too Versatile
Phonograph." Edison received this cartoon from an admirer, who
inscribed it, "A great 'ad' for Phonographs-eh?" The "African" destroys
the phonograph only when it plays a coon song.
The same exclusionary trope extends into constructions of racial
difference in exploration literature and ethnographic accounts,
where racially distanced "natives" play the bumpkin's part, fooled
by their own reflections in a mirror or-a type-scene in the same
tradition-by voices emanating from a phonograph. From the 1880s
through the 1920S versions of this type-scene filtered into travel narratives,
trade publications, and newspapers, into cartoons, comic
films, and serious documentaries. The politics of these interracial encounters
was characterized by the self-congratulatory aggression of
Western technological achievement and colonial dominance. They
PATENT INSTRUMENT AND READING MACHINE --... 123
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seem geared to provide an accessible "comic relief" against which
Anglo-American culture could receive the less accessible accounts of
its resolute ethnographers, who bundled up phonographs and motion
picture cameras for journeys to even less accessible climes, to
record the curious natives (in the double, us-and-them, sense of "curious"),
all in the name of science. Phonographic and cinematic inscriptions
fit the logic of ethnography exactly. The recording phonogtaph
and the camera interceded between the ethnographer and his
subject, offering a rhetorically valuable sense of technological impartiality
and receptivity. The resulting records and films concretized
what is now called the ethnographic present tense of anthropological
description, freezing the ethnographic subject in time, providing
"live" recordings as specimens for further study at home." If the
proprietor of the Buckeye Music Company only hinted in these directions,
then the Edison and Victor phonograph companies did too,
making mimetic confusion a matter of kitsch in their respective promotional
images of a well-dressed toddler breaking open a phonogtaph
("Looking for the Band") and the more famous dog listening
to one ("His Master's Voice"). These trademarks tone down and
make "cute" and commercial the exclusionary trope by substituting
children and pets for the aliens who where elsewhere fixtures of distancing
between classes and races. As Michael Taussig explains, the
images succeed because they continue C'to reinstall the mimetic faculty
as mystety in the art of mechanical reproduction, reinvigorating
the primitivism implicit in technology's wildest dreams, therewith
creating a surfeit of mimetic power" (208). Edison's National Phonograph
Company briefly offered its agents multiple electrotype versions
of "Looking for the Band" to promulgate its mimetic surplus;
one was the familiar toddler and another was a pair of bug-eyed,
black-skinned caricatures.
I am suggesting that intimations of class and race politics lie embedded
in the Buckeye proprietor's anecdote as published by the
Edison Phonograph Monthly. Furthermore, similar intimations of
question and conflict over matters of identity and cultural hierarchy
lay buried at different depths in the emergent culture of recorded
124 .--.... PATENT INSTRUMENT AND READING MACHINE
FIGURE 9. Promoting mechanical reproduction. Children, "natives,"
and pets help define the medium. Above, "Looking for the Band." Two
different electrotypes offered to Edison agents for their own advertisements
(1903). Opposite, "His Master's Voice" trademark (1900).
sound in America. This should be an unremarkable claim by now,
the requisite extension of politics differently recognized in popular
music by Adorno and other theorists. At the same time that the
technology of recorded sound provoked a reconsideration of statutory
authors and readers in debates over copyright, recorded sound
helped to ri,odulate the already Gordian politics of popular music.
Recordings further complicated the identities of musical authors
and performers. The new, hungry mimesis of the recording phonograph
itself came to market larded with assumptions about sameness
and difference, about cultural appropriation and assimilation.
Consider the impact of the phonograph, which Dave Laing calls "a
voice without a face," on the tradition of blackface minstrelsy in its
twentieth-century survival, the coon song. What happens to the
"love & theft" of blackface when there is no face?" Questions like
this one never made it into the debates over copyright, but they
PATENT INSTRUMENT AND READING MACHINE ,--., 125
comprise the context within which music, musical authorship, and
reading music had to make sense. In tracing the legislative history of
musical copyright in the pages below, I assume that neither changes
to law nor changes to technology can be isolated from contextual
and reciprocally changeable parameters of identity and perception.
The technology of recorded sound tempered what I call the visuality
of music, the sum of visual experiences that bolster and accompany
musical practice and that extend to the societal norms of visually
apprehending racial and other differences. Changing visuality
meant changing already complex notions of textuality and perforn:ance
at a time when other features of twentieth-century music
were also taking shape, among them the transnational reach of
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American popular culture and the economic structures of the recording
industry.
The impassioned listener in the Buckeye Music Company's store
was eager to do what many Americans had wanted to and what a
few had actually done-stop the sadistic Simon Legree. Stowe's novel
had endured half a century of pillaging by melodramatists, parodists,
even the first film companies, when the Edison Manufacturing Company
tapped it in I903. It had also endured just as many years of
piracy by unauthorized publishing houses and translators, and Stowe
had been battered in the courts when she tried to stop them. More
than a few versions had indeed foiled Simon Legtee, offering their audiences
a happily ending "Tom show." By I905 and Edison record
no. 8656, Stowe had been dead almost ten years and her copyright
(as insufficient as it had proven) had expired. When Stowe's longtime
neighbor from Hartford, Connecticut, Mark Twain, addressed the
joint congressional committee that convened in 1906 to revise the
copyright code, he had Stowe in mind. Twain came representing authors
and had only unkind words for publishers, despite his own
checkered cateer as one. He spoke in favor of extending the term of
copyright to the life of the author plus fifty years. He saved his humor
for the end of his statement, when he alluded to the arts included in
the proposed law, which extended to cover the mechanical reproduction
of sound and images. Twain confessed that he himself had nothing
to do with such matters, but he was willing, he said, to support
copyrights for people in those arts, because he felt for them the same
benign interest as a drunkard who, arriving home after a debauch,
finds "his house weaviug and weaving and weaving around" before
him, and when, after some struggle, he gains entrance, stumbles up,
and tumbles down the stairs, he exclaims, "'God pity a poor sailor
out at sea on a night like this.'" The pious Stowe might have been
nonplussed by Twain's analogy, but she and her novel had tried to
weather just such stormS (Brylawski and Goldman, 4:I20-2I).I'
By I906 the tempest Twain envisioned was particularly intense
for the producers of music and the means of its mechanical reproduction,
since records were increasingly a musical form. The Edison
PATENT INSTRUMENT AND READING MACHINE .......... 127
Company persisted with "The Flogging," with vaudevillian dialogues
and oratory, but I'the industry," as it had now become, grew
more and more musically oriented through the I890S, dominated in
the new century by three patent-holding phonograph companies,
American Graphophone (later consolidated as Columbia), Victor
Talking Machine (later Victor/RCA), and Edison's National Phonograph."
With representatives of all three companies in attendance,
most of the congressional hearings of I906 and I908 were spent
wrangling over Clause G of the proposed copyright bill, which extended
an author's intellectual property to include the rights, "To
make, sell, distribute, or let for hire any device, contrivance, or appliance
especially adapted in any manner whatsoever to reproduce
to the ear the whole or any material part of any work published and
copyrighted after this act shall have gone into effect" (5). Such a
provision would require phonograph record and piano roll manufacturers
to obtain licenses from (and pay royalties to) composers,
or to obtain licenses from the big sheet music publishers, who very
frequently obtained the composer's copyright when they published
her or his music.
Copyright had been extended to new media before and both still
photographs and motion pictures offer points of comparison. Photographs
were first included in the Copyright Act of I865. The
courts importantly affirmed their eligibility for copyright in the socalled
"Sarony case" of I884, on the grounds that photographs "are
representatives of original intellectual conceptions of the author."25
The case had involved a "decorative" photograph by Napoleon Sarony
of Oscar Wilde, about which-or about whom-the men at the
I906 hearings were still giggling.26 As Gaines indicates, the Sarony
decision was important in that it defined authorship's ground zero.
The author was merely the "originator" of some work of authorship;
the act of origination became an inference based on the work produced.
What this meant by extension "is that Oscar Wilde's own
subjecthood in the photograph secures Sarony's copyright in the photograph"
{56, 68-69, 82).27 The original personality that Wilde displayed·
in the photograph vouched for the personal originality of
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Sarony as an author-photographer. The photograph made the photographer.
Wilde responded to this new dynamic in his "Canterville
Ghost" (I887). Published after his return to Britain from his American
tour and after the Sarony decision, Wilde's comic story has the
beleaguered Canterville ghost reduced to "amusing himself by making
satirical remarks on the large Saroni [sic] photographs of the
United States Minister and his wife, which had now taken the place
of the Canterville family pictures" (204). Long a subject in the Canterville
house, the manorial ghost finds himself as decisively displaced
as the Canterville family. The doodling ghost, Sarony, and the Minister's
family all vie for what Gaines calls "subjecthood."
New media did not always inspire new articulations of the author-subject.
Motion picture films were deemed eligible for copyright
by the courts in Edison v. Lubin.28
The reasoning behind the
Lubin decision involved something like Xeno's paradox: because individual
frames on a film of Kaiser Wilhelm's yacht were increasingly
similar as they were positioned on the film closer and closer
together, until adjacent frames were indistinguishable from one another,
the film had to be considered a single photograph, not a new
entity. Hence it was eligible for protection in accordance with the
Sarony precedent and the Act of I865. Authoring a film was the
same as authoring a still photograph. Less straightforward were the
bureaucratic mechanics of obtaining copyrights on new representational
products. Some film producers scratched out the word "author"
on copyright registration forms and substituted the word
"proprietor;" Film companies such as the Edison Manufacturing
Company puzzled over what object to deposit with the Library of
Congress in order to register their rights. Literary authors simply
sent copies of their printed works (200,000 of them in I905 alone);
photographers like Sarony could deposit a photographic print.
Should the Edison studio send a positive print of its films, a photographic
negative, a "paper" or "bromide print," or some other object?"
Did each scene of a film, each new position of the camera, require
its own copyright? If, like books, films had to carry a warning
label indicating their protected status, how and where should such a
PATENT INSTRUMENT AND READING MACHINE ......... 129
be affixed? Did original film "scenarios," as screenplays were
called, require separate copyright protection? Could scenarios
adaptations of copyrighted works? These details took some time
iron out.
Questions of intellectual property rights proved particularly difficult
in the case of music and its mechanical reproduction, in part because
of the complexities of what Jacques Attali calls "noise," or the
"political economy of music," and in part because the legal standards
of intellectual property were written, published works or visually
apprehended works the courts could construe as constitutionally
protected "writings" in a very broad sense. The combination of
pliable uses and new forms made music hard to pin down. The varied
economy of American music at the end of the nineteenth century
was perched on the edge of mass culture: it relied on noninstitutional
as well as institutional means of creating markets for its principal
commodity, printed sheet music, while it proved less able to
conunodify musical performances, phonograph records, and piano
rolls in a rational or universal way." It was a heterogenous and multimillion-dollar
economy challenged by market shifts, by emergent
patterns of consumption, new products, and a changing clientele.
The I890S song "On the Banks of the Wabash" made its composer
Paul Dresser rich when it sold more than 500,000 sheets of
published and copyrighted musical notation and lyrics, for which he
received a royalty. So popular music was "popular" at least in the
sense that people wanted to buy, read, and sing or play it, not because
they wanted to listen to it. When they did listen to it, they saw
it performed in either a public or a domestic setting. Dresser's song,
a ballad with improbably romantic lyrics written with his Naturalist
younger brother, Theodore Dreiser, was popular in the additional
sense that it partook of a musical tradition distinct from conservatory
or "classical" music. Dresser was successful and prolific within
the incipient musical culture of Tin Pan Alley. He was what one
critic called an "all-round song writer," who wrote everything from
coon songs to ballads, though Dresser was recognizably an expert at
"so-called 'mother' songs," conservative and schmaltzy ballads; the
130 r--.> PATENT INSTRUMENT AND READING MACHINE
word "mother" was one he used "in about all his songs."31 "On the
Banks of the Wabash" achieved its popularity in a calculated, if
seemingly haphazard, way. According to Theodore Dreiser, 5,000
copies were probably distributed for free in New York City, aimed
at singers who might elect to perform the work in public. When performed,
free handbills were distributed with the lyrics on them, so
that the audience could read along and learn the song, "the sooner
[to] hum and whistle it on the streets." Rowdies were hired to sing
along or to applaud and cheer wildly in the music hall. Organ
grinders were encouraged to play "On the Banks of the Wabash" all
over the city. And the publisher manipulated a network of music
stores, using discount wholesale/retail agreements and trade advertising
to push sales countrywide." A network of music teachers covered
the same territories, and various commercial relationships, including
"payola," kept the distribution networks in place.33
When anyone purchased a copy of the sheet music, it came with
permission to perform the work before an audience, understood and
every so often made explicit in the form of a notice stamped on the
printed score. Phonograph and player piano companies bought one
copy of the sheet music, ostensibly rendering their royalty unto
Dresser, and manufactured thousands of records and music rolls.
Edison's phonograph company issued two different versions of "On
the Banks of the Wabash" on wax cylinders, both before the turn of
the century, and rerecorded the song on its celluloid "amberol"
cylinder, well after Paul Dresser's untimely death in 1906. Composers
and their publishers naturally decried the situation; the congressional
hearings of r906 included statements by Victor Herbert
and John Philip Sousa arguing for authors' rights. Sousa, a remarkably
durable commodity in the bandstand circuit, depended for part
of his income, as Dresser did, on the royalties that his compositions
earned through sheet music sales. Sousa testified that in using his
"copyrighted copy" to make "what they claim is a noncopyrighted
copy," the record and music roll companies "take my property"
(Brylawski and Goldman, 23). More prescient than most, Sousa also
saw the damage phonographs and pianolas were doing to the whole
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music industry. "You hear these infernal machines going day
night," he said. He also joked that the human vocal chords
soon become vestigial organs and could ultimately disappear
forever, casualties of disuse and natural selection. Fewer and fewer
people read music; fewer and fewer homes contained musical instIllments
other than phonographs and "self-playing" pianos. "Popular"
music was becoming something people listened to, not something
they read, sang, played, or watched. Then Victor Herbert extended
Sousa's corporal fancy. The phonograph and music roll companies,
he accused, "are reproducing part of our brain" (Brylawski and
Goldman, 26). Ironically, Thomas Edison had no quarrel with Herbert's
metaphor; phonograph records did indeed "embody" the composer's
conception, they bodied forth his idea. It was material embodiment,
not the mere conception, that ensured both copyrights
and patent rights. Musicians received copyrights when their conceptions
were embodied in the printed score. Only that material expression
or copytext was protected, Edison argued; as anyone familiar
with patent law knew, "If the conception is carried out by a different
mechanism they lose their monopoly."34 But the question remained
whether phonograph records and music rolls really did constitute
a substantially "different mechanism" as such, or whether
they represented some new sort of copy or performance, an unfair
use, to be taxed by authors according to their rights.
Battle lines were drawn according to the issue of whether records
and music rolls could be construed as copies of (Iwritings" protected
by Article One of the Constitution. Writings in this case meant written
musical scores, copied and distributed as sheet music. Case law
offered a context for the debate. The courts had decided in WhiteSmith
Music Publishing Co. v. Apollo Co. that perforated music rolls
of a song constituted a single performance, not copies or multiple
performances according to the law, so that in buying just one piece
of sheet music, the Apollo Company had paid its due. Despite their
decisions, the lower courts and then the Supreme Court lamented the
letter of the law. In his assenting opinion Justice Holmes chided,
"On principle anything that mechanically reproduces the [original]
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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."35 Rarely was a legislative
mandate so clear. The very terms of the court decisions and
the ensuing copyright debate reveal a tentative reassessment of reading
and writing. Writing was an activity pursued by composers and
publishers, not recording artists or record companies, who were only
readers. The question at hand was whether the production of records
and music rolls created any nonwritten, readable copy. The courts,
Congress, composers, and publishers all wanted to sever writing
from reading in a new way. By implication they allowed that machinery-phonographs
and pianolas-could read.
In the course of the debate representatives of phonograph companies
and music roll manufacturers assured members of Congress
that their products were not copies of "writings" because they could
not be "read," urging no damage to the present law. Frank L. Dyer,
Edison's patent attorney, CEO, and sometime-biographer, testified
to this effect in 1906 and again in 1908. According to Dyer, Edison
himself had once spent many long hours in his laboratory trying to
read phonograph records. After recording the letter a, "He examined
with a microscope each particular indentation and made a
drawing of it, so that at the end of two or three days he had what
he thought was a picture of the letter 'a.'" But when he compared
two records of the letter a, he found that "the two pictures were absolutely
dissimilar" (Brylawski and Goldman, 286). Dyer needed to
assume that reading was a human activity, not a mechanical one. If
even Edison, their illustrious inventor, could not read phonograph
records, then they couldn't be read. Dyer argued that what Congress
proposed was to copyright sound itself, leaving behind the visual
nature of all previous copyrights. By analogy, Dyer asked, why
not make it possible to copyright perfumes, extending to the nose
the same privilege as the ear and the eye (Brylawski and Goldman,
288)? Dyer insisted that changing the nature of reading meant
changing the nature of writing.
Musical culture at large continued to wrestle with similar issues,
if not exactly in these terms. The White-Smith v. Apollo case had
PATENT INSTRUMENT AND READING MACHINE .-.., 133
involved the sheet music for a coon song entitled "Little Cotton
Dolly," and like the anecdotal account of the Buckeye Music Company,
the recorded coon song offers a point of access to some of the
more neglected features of the emerging industry. With its increasing
diffusion, recorded sound destabilized the connections between
hearing music and seeing it performed." "Seeing music" extended
to a wide range of social practices, including parlor piano playing,
amateur and professional concerts, vaudeville and music hall performances,
church singing, and revival meetings. The experienced
terms of this destabilization must have differed according to these
practices and are notoriously hard to pin down. But the most acute
destabilization took place around the recorded coon song, since it
was a complex, late-nineteenth-century survival of an already intricate
and naggingly visual experience, the midcentury minstrel show.
As if a harbinger of all copyright quarrels to come, blackface minstrelsy
was rooted in a confusion of origins. Minstrelsy had real and
mythic antecedents in the antebellum slave culture of the southern
plantation, yet was by definition a northern, urban form. As Eric
Lott explains, it functioned in part by offering audiences commodified
"blackness" as a way to engage-subliminally and not-the
conjunctive class and race politics of the nation." The white construction
of minstrelsy's "blackness" possessed inherent contradictions:
it played off a contrived sense of authenticity while it also relied
upon counterfeiting. The form reenforced racial boundaries by
denigrating black Americans, yet it also defiantly transgressed those
boundaries for pleasure and profit in what had become marked as a
lowbrow, "popular" form of entertainment for the white working
class. Minstrelsy subverted the questions of racial essentialism on
which it fed, providing a raucous catharsis for matters that seemed
so pressing elsewhere in the American national scene: slavery, abolition,
and Dred Scott helped form the context and complexion of
the minstrel shows; Plessy v. Ferguson (1896) would be context for
the recorded coon song."
The orientation of blackface minstrelsy was visual and performative,
eveil if a large measure of its dubious authenticity was its sup-
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134 ,....-.. PATENT INSTRUMENT AND READING MACHINE
posed appropriation of an oral culture it constructed as "blackness."
Seeing a white man with his face smeared in burnt cotk was the perceptual
and visceral centet of blackface fot fans and ctitics alike,
though thete were black minstrel troops too. Yet just as developments
within the music industry tested the persistently visual orientation of
copyright law, similar developments long challenged the visual orientation
of minstrelsy. One challenge came in the popular, free-standing
coon song, performed outside the minstrel show, though well within
the minstrel tradition. Another challenge arrived with the player piano
and the phonograph. According to the publishers of sheet music,
the coon song reached the height of its populariry in the late 1890S,
when large numbers of songwriters such as Paul Dresser (who had
once been a minstrel) churned out more than six hundred coon songs
to cash in on the vogue.39
By then the immense populariry of minstrelsy
had passed; the minstrel show had proved to be an antebellum
form that lasted only through Reconstruction and lingered into
vaudeville. What this meant is that the sound of white-constructed
"blackness" survived without the sight of minsttel blackface, as performers
of coon songs could go without burnt cork, particularly as
recognizable "coon" elements were incorporated into a variety of different
songs and formats. Some unblackened white performers were
seen to "sound 'black.'" Finally, when music roll and record companies
set out to record coon songs, sounding "black" went colorblind.
Whereas minstrelsy had been an acknowledged white, working-class
form, the coon song allowed middle-class penetration of its tradition.
Coon songs were played in middle-class parlors, concerts, syndicated
vaudeville, and the other bourgeois venues where sheet music was increasingly
consumed. Class lines were doubly enforced and transgressed
in the same manner that racial boundaries were, as middleclass
musical practices picked up and dusted off the threads of a
working-class form. Like Frank Dyer insisting that the Commitree on
Patents and Copyrights was trying to protect sound itself, records and
music rolls of "Little Cotton Dolly" seemed to assert that whiteconstructed
"blackness" was a matter of sound, not skin color. On
the heels of the Plessy decision, which had detetmined "blackness" to
PATENT INSTRUMENT AND READING MACHINE r--.> 135
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be a matter of blood, not skin color, the meaning of music thickened.
(The American judiciary deemed white-skinned Homer Plessy black
by dint of his Mrican blood.) Now popular culture interrogated music
as another possible substance of intrinsic racial difference. Music
rolls even seemed to make "sounding 'black'" an instrumental matter
more than a vocal one, depending more upon the sound of a piano
than the sound of any singer. The same aural associations were
affirmed with· the contemporary ascendance of syncopation as a
black-identified musical feature." Of course the sound of "blackness"
was not monolithic; it was never wholly white-constructed and
was complicated by other black sounds, by recorded black spirituals,
the works of well-known black songwriters and performers, a long
ttadition of black musical theater, ragtime, the stirrings of jazz, and
by the long-standing tradition of ethnic and racist dialect humor in
America. In the same month that Edison's phonograph company
recorded its third version of Dresser's "On the Banks of the Wabash,"
its other selections included a "romping coon song" and two
"Negro dialect poems," one by the late Paul Lawrence Dunbar.
Earlier record catalogues had been this varied. While major record
companies kept white groups on hand for minstrel-influenced
burlesques and coon songs, between them Victor and Columbia recorded
nearly eighty songs by the African American vocalist Bert
Williams, who broke the color barrier at Ziegfeld's Follies during
his tenure with Columbia. All of this recorded "blackness" without
the sight of black, white, or blackened skins was new and uncomfortable,
at least for record producers. Furthermore, it comprised an
unadmitted counterpart to the legislative debate over separating visible
"writings" from the sounds of reading. In both contexts the
technology of recorded sound helped to displace the visuality of music.
Musical composition, reading, and the creative agency of performance
became complicated within new and less visually rooted
features of the entertainment industry.
A few months after publishing its anecdote from the Buckeye
Music Company, the Edison Phonograph Monthly signaled some of
the trade's discomfort in another anecdotal compliment submitted
136'""'--' PATENT INSTRUMENT AND READING MACHINE
to jobbets and dealets, this item under the headline "Mr. Collins Is
Not a Negro":
Possibly because of his great success in singing coon and rag-time songs for
the Edison Phonograph some people seem to have gained the impression
that Arthur Collins is a colored man. Such an impression is naturally amusing
to Mr. Collins. It is complimentary, however, to imitate the colored race
so closely as to be mistaken for the real article.ofl
This paragraph resuscitates a well-worn trope, one resident in anecdotes
about audience members who mistook blackface for blackness.
This mistake had been part fulcrum and part safety valve
within minstrelsy (as well as imaginably part fact and part fiction)
ridden with the racial anxieties, namely regarding supposed risks of
racial contiguity, passing, and miscegenation, that it helped diffuse
theatrically. Music publishers, apparently fearing the same mistake,
had sometimes published minstrel songs with pictures of their
blackface performers both in and out of makeup.42 The Edison
Phonograph Monthly was doing the same thing in vouching for the
distinction between "close" imitation and "the real article." Yet in
"Mr. Collins Is Not a Negro," the quickest safety valve proved
more elusive than it had before. Unlike the Buckeye Music Company
anecdote, this could not be trumpeted as a compliment to the
talking machine, only as an "amusing" compliment to the performer
Arthur Collins, all because the talking machine had redoubled
the problem (part horror, part delight) of identifying "the real
article." In this sense race, like racism, differs according to its aural
and visual forms." Like Thomas Edison intently trying to discern
the letter a within the grooves of a record, listeners who tried to discern
skin color in Arthur Collins's records were up against something
new. Edison had been interrogating the essential nature of
records as inscribed texts, while popular audiences were now confronting
an incomplete, aural essentialism to the degree that they interrogated
records as racialized performances. There was no single,
uncomplicated sound for skin color.
It was an interesting historical moment for what is now debated
as "black music." Clearly if the crassest technological determinism
PATENT INSTRUMENT AND READING MACHINE .-.... 137
ad pertained, or ever could pertain, the phonograph and then radio
"'",auld have been colorblind media. But technology does not drive
liistory or culture that hard. The observation that the early recording
industry was nondiscriminatory because trade publications seem
to have paid black musicians their due" needs to include the caveat
that the politics of defining and policing racial distinctions has always
been a lot more involved than the related now-you-see-it/nowyou-don't
of discrimination. Paying black musicians their due carried
the baggage of needing to tell which musicians were black, in
whichever order and for whatever matrix of reasons, good and ill,
paying and needing to tell became conscious desires and cultural
necessities.
To emphasize the changing visuality of music, phonograph advertisements
from the I890S to the "920S picture listeners watching
the machine. Listeners stare vacantly at unseen- and newly reracialized
performers, as if by some collective premonition, keeping their
gaze steady for radio then television. The gaze itself is oddly communal,
fraught with unlikely assumptions about the democratic
power of mass media even as it dampens participation. One National
Phonograph Company advertisement from I908 has a mixedrace
group of servants staring appreciatively at their employers'
phonograph. Below, the caption simultaneously enrolls Western music
and the phonograph in the cause of democracy: "One touch of
harmony makes the whole world kin." Such rhetoric coincided with
Edison's personal expectations for the phonograph, an instrument
of social leveling in his ken, since it would allow poor and rural audiences
to hear opera. The inventor seems not to have appreciated
the anarchic potential of the device as a means for class-crashing or
racial ventriloquism.4S
But Edison and many of his contemporaries
were sure that they lived in a world of visible certainties when it
came to human identity: the inventor interviewed prospective employees
while taking notes on the shapes of their heads. And the author
Henry James remarked pointedly at Edison's "street boy" face
after the two men met in 19 I 1.46
A different sort of essentialism was at stake in legislative cham-
138,---- PATENT INSTRUMENT AND READING MACHINE
"One louell 01 barmony 1IIaku !he
whole world /cill."
T
.HE Phonograph would never have become the great
•• popular entertainer it is but for Edison. He made it
desirable by making it good; he made it popular by
making it inexpensive.
The EDISON PHONOGRAPH
has brought within reach of all, entertainment which formerly
only people of means could afford. It has evell displaced
more expensive amusements in homes where expense is not
considered.
FIGURE 10. "One Touch of Harmony Makes the Whole World Kin."
The Edison phonograph addresses class and racial difference in this
advertisement (1908).
bers during 1906-1908, where congressmen and witnesses debated
how to handle recorded music. Defining and policing authorship,
though certainly less inflammatory, proved almost as nettlesome as
defining and policing race or class, all because similarly visual habits
of definition did not apply as they had before. American copyright
law remained dependant upon material forms, so that new forms
always caused new problems. And constitutionally protected "writ-
PATENT INSTRUMENT AND READING MACHINE .-..., 139
ings" were going to be something altogether different if they could
be copied out into purely audible forms, without some sort of visible
expression. To members of Congress and many other participants
in the hearings, it simply seemed intuitive that phonograph
records and music rolls-the latter even inscriptions of a sort on
paper-were copied writings and could be read. As for visible expression,
anyone could see the grooves on a record or the holes in a
music roll, even if seeing them did not mean anything musically.
Witnesses made analogy to hieroglyphics, which resisted reading for
a long time, yet were certainly legible. "It is a curious fact," one
witness pointed out, "that the earliest known writing, the Assyrian
hieroglyphic, was made by an instrumentality very similar to the
phonographic needle of to-day impressing itself upon plastic material"
(Brylawski and Goldman, 78). Edison would probably have regretted
this tum in the debate if he had been following it closely.
The analogy to hieroglyphics was unhelpful to his cause, yet he himself
had made the same comparison with great satisfaction back in
r888. In an essay entitled "The Perfected Phonograph," which appeared
in the North American Review, he gloried in his work:
It is curious to reflect that the Assyrians and Babylonians, 2,500 years ago,
chose baked clay cylinders inscribed with cuneiform characters, as their
medium for perpetuating records; while this recent result of modern science,
the phonograph, uses cylinders of wax for a similar purpose, but with
the great and progressive difference that our wax cylinders speak for themselves,
and will not have to wait dumbly for centuries to be deciphered.47
Here the inventor has at once co-opted ancient tradition and assumed
the mantle of modern science. The symbolist, nineteenthcentury
context of his hieroglyph metaphor made using the metaphor
in discussions of recorded sound both familiar and extremely
powerful. Edison's essay immodestly boosted the inventor to God's
place and hinted at the profound centrality of technology in American
relations with nature. When the same figure surfaced in the congressional
debates over copyright, its appeal was slightly different.
Invoking the example of cuneiform meant acknowledging that
phonograph records could be read without actually having to read
140 r--o PATENT INSTRUMENT AND READING MACHINE
them. The complimentary acts of writing and reading could
retically be separated by centuries. There was no need to admit
hastily that phonograph records and music rolls could not be deci.
phered. Meanwhile the traditional object of the hieroglyph metaphor,
Nature, jibed well with contemporary appeals to music as a
natural, universal language, the spiritual residuum of pre-Babel
days. Laden with this metaphorical weight records could be celebrated
as what Theodor Adorno would later call "delicately scribbled,
utterly illegible writing." The precision and the delicacy with
which they were scribbled vouched for the meaning they contained;
proof positive emerged from the mouth of a phonograph horn.
Members of the joint committees of Congress were only less keenly
aware than Adorno would be of the cultural implications of such a
mouth.'" The illegibility of recorded music troubled them as little as
the dual nature of patent documents did-both actively concealing
the very thing they reveal.
Sensing that the day was lost, opponents of Clause G marshaled
every argument they could think of to show the ill-advised, even unconstitutional,
nature of the musical copyright provision. Inventors
argued that the wording of Clause G directly transgressed their
rights "to make, sell, distribute, or let for hire" the devices and
processes they had patented. Albert H. Walker, the patent expert
who had appeared as an attorney in White-Smith v. Apollo, assured
the committee that the bill was unconstitutional for a long list of rea-
sons.49
Many witnesses raised the specter of unfettered monopoly, alleging
that the Aeolian Music Company, ever since its early involvement
in White-Smith v. Apollo, had executed exclusive agreements
with almost every publisher of sheet music in America, so that in the
event of the copyright bill passing, Aeolian would control all new
American music ("a complete monopolistic octopus," rBrylawski
and Goldman, 98J). Defending against the accusation that they
formed a "phonograph trust" themselves, other witnesses pointed
out that composers and sheet music publishers actually benefited
from current conditions. Letters were produced to show the way that
phonograph companies were solicited by composers and publishers,
PATENT INSTRUMENT AND READING MACHINE """'"-' 141
who sought to stimulate sheet music sales by having records made.
A number of witnesses invoked international competitiveness, noting
the fact that musical copyright provisions had not succeeded fully in
any European country but Italy, where as of March 1908 the matter
still had not reached the court of last resort.50
In France musical
copyright provisions had been advocated by composers, only to be
overturned in the courts. In England Edison's lawyers had embarrassed
one copyright holder in court by asking him under oath if he
could understand or read what was on a phonograph record; "He
answered, 'Of course not."'51 None of the witnesses mentioned
Mexico, where all three major American phonograph companies had
become embroiled in copyright suits, which had led a participating
lawyer for the American Graphophone Company to complain, "It is
exceedingly difficult for the American and English mind to foretell
how the foreign mind (and particularly a Latin American mind) will
work; and it is also difficult to forecast satisfactorily the outcome
of litigation in a foreign country."52 Not surprisingly American record
companies were trying to forge or maintain the qualities of statutory
authorship abroad with a racialist paternalism not unrelated to
their domestic capitalization of coon songs. Lobbyists appealed to
Western European models, while developments in Mexico vouched
for the newly global and frequently colonialist entertainment economy
as well as the precocity of cultural capital in breaching national
boundaries.
Even in Western Europe, however, the matter of musical copyright
was far from settled. Representatives of the Berne Convention
countries met in Berlin during the autumn of 1908 with the mechanical
reproduction of music on their agenda. In an early and important
instance of such internationalism, Victor Talking Machine,
Columbia, and Edison's National Phonograph Companies, all of
whom variously possessed shares of European markets and relied
upon European composers and performers, joined British and German
record companies in trying to stymie any change in the articles
of the convention. Paul H. Cromelin, a Columbia executive who
had already appeared in the Washington hearings, struggled to draw
142.--. PATENT INSTRUMENT AND READING MACHINE
the three American competitors into cooperation with each other
and then with theit European rivals. The three American companies
urged the secretary of state to press their case, even though America
was not a member of the Berne Convention. After this victory
Cromelin had limited success coordinating other efforts, and his
work behind the scenes in Berlin was to no avail. On November 13,
1908, revised articles of the Berne Convention were signed in Berlin
and sent back to member nations for consideration and the emendation
of domestic statues. The new Article 13 extended a composer's
authorial rights to cover mechanical reproductions. Frank
Dyer would testify once more, this time before the copyright committee
of the British Parliament, but Britain would go along with
the Berne Convention.
The U.S. Copyright Act of 1909 passed a few months after the
new Berne Convention; it was signed by outgoing President Theodore
Roosevelt and went into effect that July. The earlier Article G,
now Article E, protected composers against unlicensed mechanical
reproductions. The new law applied only to musical compositions
published after the act, so that it enforced an already emerging distinction
in the industry between new music (which cost money to
record) and old music (which could be recorded for free), with the
resulting, ironic split between "the popular domain" and "the popular."
From between the two peeked the modern consumer, with
changing appetites and mercurial tastes, with resident notions of
race, class, gender, and nationality as (some of) the data of culture.
Another provision of Article E was called the Compulsory License
Clause, which ensured that once a composer licensed one mechanical
reproduction, she or he was compelled to license all other proposed
mechanical reproductions for a guaranteed royalty fee of twO
cents per copy. In the abstract, this clause was a reminder that authors'
rights in the market were not a matter of natural law as Herbert
and Sousa would have it; rather, they were meted out by statute
to protect the public interest and, in this case, free-market competition.
Practically speaking, this arrangement vitiated the exclusive
contracts held by the Aeolian Music Company and added another
PATENT INSTRUMENT AND READING MACHINE""""" 143
The music ofVictor
l~rber&.()~under
Jisrersonal direction
~~~wiI be·reproduced ex-
~e1usiyeI1"~ft£diSOfl
iRecords f t
: "".~ ~,
.lJr::·
FIGURE II. Talent as commodity: Victor Herbert on Edison Records
(1909). Victor Herbert's recorded compositions were available to any record
company, but Victor Herbert himself would only perform for Edison.
shade of meaning to the "mass" in "mass culture," since mechanical
reproduction became in some sense self-perpetuating. When Columbia
recorded a song that did well, the other record companies
could cut the same record right away. One recording opened the
floodgates for multiple recordings as mechanical rereproduction foI-
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lowed any potentially successful record or music roll. Compulsory
license provided only for musical compositions, not musical performances;
the result was an even more heightened sense of "the talent"
as a commodity. The record companies intensified their battles'
for exclusive contracts with celebrated performers. Anyone could
record Victor Herbert's compositions after they had been recorded
once, but Victor Herbert's Orchestra performed only on Edison
records after Herbert signed his exclusive contract with National
Phonograph in the summer of 1909. Sousa's band signed an Edison
contract one month later. Far from showing Edison's approval of
musical copyright,53 Herbert's contract demonstrates that National
Phonograph and other record companies could not afford to be sore
losers. They quietly opened composers' royalty accounts in their
corporate ledgers.
Clause E had been rewritten to avoid any direct conflict with
patent rights, but the two forms of intellectual property were closer
in 1909 and 1910 than they had been, or likely ever would be again.
The context and the content of the 1906 and 1908 hearings accounted
for some of their proximity, as did current commercial
practices of tying and price-fixing. The Supreme Court decision in
Leeds and Caitlin v. Victor Talking Machine was nearly simultaneous
with the new act and drew the differing logics of patents and
copyrights onto the same plane for the eight years that it stood. The
compulsory license provision made musical compositions available
to record companies without exclusion; in its Leeds and Caitlin decision
the Supreme Court regulated what that availability meant,
deciding that Victor's patent rights extended to cover which records
were played on Victor machines. Leeds and Caitlin, notorious record
pirates, had been duplicating Victor records and then competing
to supply Victrola owners. The Court now made duplicating illegal
by allowing Victor to dictate (to "tie") which records were
played on its patented phonographs. So while the compulsory license
provision allowed any recording to be remade, Leeds and
Caitlin assured that remaking would entail live performance, not
just "duping" from one record to another. Copyright law made rec-
PATENT INSTRUMENT AND READING MACHINE .--.... 145
ords into special copies of protected writings; patent law briefly protected
those copies against duplication. Mechanical reproduction of
sound was one thing, mechanical duplication of the same sound was
another. Still further contiguity between patent and copyright was
established in a decision handed down by Learned Hand early in his
career. In 19to Hand found in Hein v. Harris that the copyright for
the composition, "The Arab Love Song," had been infringed by "I
Think I Hear a Woodpecker Knocking at My Family Tree." Infringement
existed, according to Hand, "whether or not the defendant,
as he alleges, had never heard the complainant's song, when
he wrote his chorus." What this meant was that novelty, not origination
or authoring, was the substantial requirement for musical
copyright, just as it had always been for patent rights.54 Sounding
the same meant copying in music. This alliance of patents and copyrights
was fleeting. In later interpretations of the law, Learned Hand
reversed himself, and copyrights diverged from patents accordingly.
In 1909 and 19to the renegotiated boundary between things and
texts had stretched a little thinner. The very lateral groove on a
gramophone record, or the up and down engravings of a phonograph
needle, were patentable inventions that contained, in some
hieroglyphic and as yet undecipherable way, performances of copyrighted
sheet music. By extension phonographs and gramophones
were "reading machines" more properly than they were "talking
machines." For the first time reading aloud was explicitly severed
from the human subject. Humans could not read wax cylinders or
discs, but machinery could. The reader was less replaced than displaced,
pushed aside to make room for the new apparatus that at
once shared and complicated human subjectivity. While it is impossible
to say for sure how much this new, mechanical kind of reading
changed the American experience of reading type or music, mechanical
reading did possess some broad implications, both for the
emerging culture industries and America's ongoing reconnaissance
of the machine in modern life. The legislative construction of reading
machines acknowledged continuous reformulation of the "popular"
and of popularity in music. For example, the two related skills
146,-..., PATENT INSTRUMENT AND READING MACHINE
of reading music and playing an instrument were indeed under assault,
as Sousa recognized, in part because reading and playing
could now be done mechanically. Mechanical process extended to
yet more human functions. In so doing, it continued the oftenremarked
colonization of the body by the machine. As instruments
too, recording phonographs and musical roll perforators could not
be authors in the sense that musical composers like Sousa and Herbert
were. The machines produced aural copies of writings, performances,
and did so until the copyright code was revised again in the
r970s. Then, largely under the pressure of new market conditions
surrounding cassette tapes, copyright was extended to cover recordings.
Readings under the 1909 Act were made into writings. If human
readers seemed newly displaced in 1909, then authorship too
had shifted, becoming still more bureaucratic in its relation to the
marketplace. Now musical authors had their two cents (literally)
riding on every recording, the oversight and collection of which
would inspire ASCAP and other societies of authors, along with a
torrent of paperwork. The judicial distinction between making mechanical
reproductions and duplications further complicated the author's
position in relation to the market, by suggesting that the
sounds of a composer's work might matter less, in some circumstances,
than the means of their production. The distinction between
"live" reproductions and other recordings will be examined
further in the next chapter.
Nineteenth-century Americans and Europeans had taken phonographs
into the jungle and into the arctic. Not only did recording
phonographs promise the collection of "live," "native" speech and
music but also the reproducing phonograph, as Taussig explains,
"proved an easy way for making an intercultural nexus," after dinner,
"a new cultural zone ... for [mutually] discovering strangeness
and confirming sameness" (195), as Western travelers and indigenous
people could each marvel and be amused at different aspects
of their shared experience. American culture, economy, and law in
the years around the turn of the century demonstrate that mechanical
reproduction at home remained decisively charged with the com-
PATENT INSTRUMENT AND READING MACHINE r--> 147
plexities of that intercultural nexus, a site for participating in experiences
of self, identity, and difference. Not only could consumers
purchase the recorded hits that "everybody" liked but also they
could negotiate difference in the varying cultural valences of Italian
opera, "classical" music, "exotic" records from around the world,
ethnic records for immigrant niche markets, Simon Legree, coon
songs, and burlesques. Differences of class, nation, and race were
maintained: phonographs became instruments of "sacralization,"
helping to distinguish culture as such, and they also became instruments
for the maintenance of ethnic identity in the face of assimilationist
pressures.55
The phonograph disrupted identity, in the ways
that minstrelsy and popular music had long suggested and in new
ways that questioned habits of discerning difference. The technology
of recorded sound and the surrounding legal debate challenged
existing visual receptor sites within culture, including elaborate
practices of experiencing difference. These receptor sites survived in
modified form, colored by a new inscrutability, their visual orientation
challenged by the prevailing politics of racial essentialism,
tested by technologically mediated performances, and, ironically,
adapted within a tired nineteenth-century metaphor for nature.
America's new hieroglyphics, the visible grooves on a record, were
the works of Man and Machine, not God and Nature. The universality
that these potent new symbolic actions supposedly possessed
did not derive from any transcendental truths or divine omnipotence.
Rather they emerged from the questionable universality of
music, the penchant of Westerners for lugging their machinery
around the globe, and the eage~ adaptability of cultural capital inserting
itself abroad into new markets on every continent. In this
spirit, the American phonograph industry established commercial
outposts and sent recording engineers to Europe, Asia, and South
and Central America.
Paperwork and
Performance
The U.S. Patent Office's initial designation of Edison's first phonograph
as a measuring instrument is a telling point of departure for
the exploration of ideas central to the narratives of Foucault, Shapin,
Schaffer, and others. These authors have all variously described earlymodern
science as having purged itself of the human body in favor
of what Schaffer calls "self-registering instruments." Experimenters
stopped experimenting on themselves and their hapless servants and,
instead, began to invoke the objectivity of instruments within a Cartesian
polity of professionalized science. The autobiographer dropped
out of the scientific article; or, more properly, he learned to cloak
himself in an instrumental rhetoric, like the later rhetoric of patents,
which was accepted as objective within a community of like-minded
male bourgeois., When the phonograph was introduced it harkened
back to this purge. At the same time, it showed that the shift in authority
from body to instrument, so accomplished in the discourse of
professional science, remained relevant and (happily) less determined
in Western culture. Shorthand reporters still make history; live performance
by musicians is still considered best. Phonograph recordings
emerged from the lyceum demonstrations of nineteenth-century
culture in much the same way that modern science emerged from the
staged experiments of seventeenth- and eighteenth-century natural
148
242 ..--... NOTES TO CHAPTER 3
25. See Crary; a good compliment to Crary is Brodhead's Chap. 2, entitled
"Veiled Ladies: Toward a History of Antebellum Entertainment."
26. Cheape, 6-7; see also Table 4 in Bureau of the Census, Special Reports,
Street and Electric Railways, I9D2 (Washington, D.C.: Government
Printing Office, 19°5).
27. This is from Dreiser's "From New York to Boston by Trolley,"
reprinted in Hakutani, 2:91-IOO.
28. Fourteenth Census of the United States Taken in the Year I920.
Volume 1. Population I920 (Washington, D.C.: Government Printing Office,
1921).
29. Particularly helpful on the American culture of reading is the work
of Zboray. On the effect of illumination, see Stewart, On Longing, 9; on
the fountain pen, Strasser, 109; and on Russia, Coopersmith, 48.
30. No title, Harpers Magazine, Aug. 1992, 19-20. The most popular
suggestion in 1996 was reportedly to tie up the boulder and drag it into to
sea with ships! (Associated Press reports, Feb. 14, 1996).
CHAPTER 3, Patent Instrument and Reading Machine
Portions of the chapter have appeared previously as "Reading Music,
Reading Records, Reading Race: Musical Copyright and the U.S. Copyright
Act of '909," The Musical Quarterly 81 (1997): ,65-90.
1. On "textual systems," see Bazerman, "Electrical Connections"; on
patents, see Myers; and also Bowker; on wanting to look old and new at
the same time, see Bowker, 62.
2. See Edison drafts of Feb. 17, 1888, and Aug. 7, 1897; Edison,
Thomas A. Edison Papers: A Selective Microfilm Edition, I14:308, 835.
Macomber, 14. The legal authorities used in this chapter (therefore my present-tense
readings of them) were relevant to the period in question, but
they are not reliable sources for intellectual property law today.,
3. Patent ACt of I790. Patent acts and statutes are quoted from Walker.
4. The relations_of technical knowledge and writing are in particularly
sharp focus along the science/technology divide, since scholars have long
distinguished science' from technology in part by identifying the differing relations
each has with discursive networks (see Cutcliffe and Post). To some,
science and technology are mirror-image twins (see Layton, "Mirror-Image
Twins"): the scientist publishes new findings as soon as possible, making
public knowledge. In contrast, the technologist hides new knowledge, protecting
and keeping it private. The successful scientific article is supposed to
encourage reproducibility (but see Collins, 55, 130); the successful patent
document only offers reproducibility as it asserts monopoly. Further dis-
NOTES TO CHAPTER 3 ........ 243
tinctions between science and technology traditionally rest on the assumption
that while science is smart, technology is "only" applied science. AIR
bert Einstein the patent clerk was the quaint impediment to Albert Einstein
the physicist.
5. See Macleod; other articles that appear in this same special
"Patents" issue of Technology and Culture 32 (1991) with Macleod's work
are also helpful.
6. See Bowker, 53; Myers, 92.
7. See Tibbetts. Other essays in the same collection (edited by lynch
and Woolgar) are similarly helpful.
8. See also Ferguson's f,ngineering and the Mind's Eye.
9· I67 F. 977 (I909)·
10. II4 F. 926 (1902). See also 214 F. 787 (1914), which gives a sumR
mary of the application-and litigation history of Edison's claims. Patent no.
589,168 (1897) was reissued as no. 12,037 (1902) and then as no. 13,329
(I9II ).
II. See Israel and Rosenberg. An invention can be "reduced to practice,"
as the patent office puts it, only after it is invented. Because a true invention
can always be reduced to practice, the inventor doesn't always have
to reduce it, although any reduction to practice weighs in an inventor's favor
as a way of proving the chronology and accomplishment of invention.
12. Patent no. 640,208, granted 1900. Allen Koenigsberg and Aaron
Cramer were both generous with their knowledge of lambert
13. The Adventures of Huckleberry Finn and A Connecticut Yankee
were sold this way; The American Claimant was not; the Edison phonograph
frequently was. Regional subscription sales were used for all manner
of goods and had been used in the book trade at least since the seventeenth
century. Subscription sales of books have survived in the different guise of
mail order, book or product-of-the-month clubs-yet another articulation
of the distance between producer and consumer. See Feather, 62-63, for a
word on the different logic (and law) of price-fixing in the British book
trade.
I4- Bobbs-Merrill Co. v. Straus, 2IO U.S. 339 (I908); Straus v. American
Publisher's Association, 231 U.S. 222 (1913); and Straus v. Victor Talking
Machine Co., 243 U.S. 490, 494-95 (1917). Victor was a final affirmation
of the Court's decision in "the Santogen case:' Bauer v. O'Donnell, 229
U.S. I, 8-9 (I9I3). See Vaughan, I27-33; also Hower, 352-57.
IS. There is an echo here of nineteenth-century debates surrounding paper
money. See O'Malley. The essentialism that he finds coincidental in economic
and racial discourse of the late century is exploded in different ways
by the technology of recorded sound. See below.
244 ,-...., NOTES TO CHAPTER 3
16. 213 U.S. 325 (1909); and 152 U.S. 425,432-33 (1894), respectively.
See Vaughan, 173-74, 178.
17· 243 U.S. 502, 5IO-n; and 243 U.S. 490, 494-95, respectively.
18. Vaughan, 127-33, 174-77; on use-values, Attali, 96.
19. Alexandra Mullen pointed me toward many such anecdotes; these
are from Grimsted, 60. See also L. W. Levine, Highbrow/Lowbrow, 30. On
a related blurring, see Davidson on the real grave of fictional Charlotte
Temple.
20. See Carolyn Marvin on the anecdotes and constructed expertise of
telegraphy and engineering publications. Of course, popular culture fed
and reinforced the same exclusionary rhetoric; recall the spectacularly
racist second verse to Stephen Foster's "Oh! Susanna" (1848), performed
by the African American troupe, Christy'S Minstrels: "I jumped aboard de
telegr[a]ph / And trabbelled down de river, / De Lectric fluid magnified /
And Killed five Hundred Nigger" (Democratic Souvenirs, 104).
21. On the ethnographic present, see Fabian, Time and the Other; and
Clifford and Marcus. Examples of the type-scene appear in the Music Trade
Review (Dec. 21, 1907), in Robert Flaherty's Nanook of the North (1922),
and elsewhere. For a discussion of type-scenes as such, see Pratt. See also
Peitz, for a poststructuralist meditation on the phonograph and its colonialist
relations. The whole, varied history of ethnicity and the phonograph
has yet to be written; I am grateful to Jerry Fabris for sharing his thoughts
on the phonograph and ethnomusicology.
22. See Laing. "Love & Theft" is Eric Lott's title; my debt to Lott on
minstrelsy will be clear below.
23. This cite refers to Arguments Before the Committees on Patents . ..
December 7, 8, 10 and II; 59th Congress. Brylawski and Goldman's work
will be cited by page number in the text below; the different sets of hearings
are paginated individually in Volume 4.
24. Like early motion pictures, phonograph records partook of the culture
of vaudeville, thriving on the same heterogeneity of participants and a
similar variety of acts, rooted in the dynamics of performance and a tumult
of oral forms. Edison's National Phonograph established its New York offices
on Union Square, in the heart of the vaudeville district. See Snyder,
58-59, on the class and racial heterogeneity of the vaudeville; and on variety
experience, see Snyder, 106. For a corporate genealogy of Columbia,
RCA, and other companies, see Read and Welch.
25· Burrow-Giles Lithographic Co. v. Sarony, III U.S. 53 (1884)'
26. Hearing on June 6; see "laughter," Brylawski and Goldman, 165.
Attendance was all male; Oscar Wilde was by then disgraced and dead.
27. See also Edelman, Pt. 2. The analogy between music and photo-
NOTES TO CHAPTER 3 --.., 245
graphs came up at the hearings in part because the complications of locating
authorship and subjecthood in a copyrightable form. American copyright
law has reqlrned repeatedly (and never with great satisfaction) to issues
of personality.
28. 122 F. 240 (1902); Edison won On appeal in 1903, the same year another
important precedent was set in one of the Edison v. American Mutoscope
and Biograph Co. cases; see Musser, Before the Nickelodeon, 238.
29. See registration form for Thomas Crahan's "Artistic Glimpses of the
Wonder World" (I900), Edison Document File copy, ENHS. On the matter
of deposits, see "Copyright" folders, 19°8-1910, Edison Document File
record group, ENHS; as well as Loughney, 60 and following. The number
of deposits in 1905 was given by the librarian of Congress, Herbert Putnam,
during his statement in Arguments before the Committees on Patents
(Brylawski and Goldman, 14).
30. The U.S. Census reported in 1905 that the annual value of American
sheet music had risen from $1.68 million in 1890 to $2.27 million in
1900 and to $4.15 million in 1905. In the same scheme, American pianos
produced for 1905 were valued at $69.6 million, while the annual value of
phonographs and supplies had surged to $10.2 million in their two decades
on the market. These figures were repeated into the record of the congressional
copyright hearings as evidence of the vigor that different segments of
the music industry possessed.
31. This from an Edison record catalogue for blue-amberol record no.
2147, "On the Banks of the Wabash, Far Away," performed by baritone
and chorus with orchestra.
32. See Dreiser's "Birth and Growth of a Popular Song," Metropolitan
8 (1898): 497-502, reprinted in Hakutani, 2:19-22. See also Dreiser.
33. See Sanjek, Chap. II. .Middleton's methodological reflections on
popular music were helpful to these several pages, particularly regarding
the varied meaning of "popular" in studies of popular music; of related interest
is Lewis's article on popular music as "symbolic communication."
34. Edison undated memoranda, covered by Frank L. Dyer letter of
Feb. 26, 1908; Edison Document File, ENHS. For a cultural history of
Sousa as well as Sousa and "The Culture of Reassurance," see Harris.
35. 209 U.S. I (I908); see also 147 F. 226 (I902).
36. See Laing, 7-8.
37. See Lott. In the postminstrelsy age, popular music in general seems
to fulfill this role in another way; I am thinking of Paul Gilroy's sensitive
polemic, Chap. 3, entitled "'Jewels Brought from Bondage': Black Music
and the Politics of Authenticity."
38. On contemporary questions of essentialism, I have been particularly
246 .--..... NOTES TO CHAPTER 3
influenced by Michael O'Malley and Nell Irvin Painter's succinct contributions
to the American Historical Review Forum on race, money, and "intrinsic
value" in nineteenth-century America. O'Malley wrote, "Facing the
possibility that [white-skinned "black"] men such as Plessy could renegotiate
racial value ... the court responded with irrational theories of intrinsic
racial difference" (395).
39. See Dorman; see also Sanjek, Chap. 9·
40. According to Riis, in the period "just before jazz," Black music
"seems to have meant syncopated tunes or dialect songs on a nostalgic, Old
Sonth theme" (154)·
4L Edison Phonograph Monthly 3, no. 5 (July 1905): ro.
42. See Lott, 20.
43. See Turner, Ceramic Uncles & Celluloid Mammies, 20, 22, e.g., for
an observation of the differing modes of aural and visual racism in popular
culture.
44. See Sanjek, 297·
45. Here I am indebted to conversations with Miranda Paton regarding
her in-progress work on the iconography of the phonograph and to an email
exchange with David W. Stowe about what he calls "racial ventriloM
quism." Interestingly enough, phonographs and records remain tenaciously
visual artifacts for collectors; see Schwartzman. The "Whole World Kin"
advertisement appeared widely; copy in Primary Printed collection, ENHS.
46. Edison's phrenological notes are in "Employment" folders, Edison
Document File, ENHS. James and Edison met on a steamer for Europe;
Edel and Powers, 329.
4? "Perfected Phonograph," North American Review (I888): 64I-50,
quote on 645. Also see Irwin's extended analysis of the hieroglyph metaphor.
In one technical note from November I877, before the phonograph
had been realized, Edison even dilated on its musical potential in textual
terms: "Reprol;iuce from [tinfoil] sheets music both orchestral instrumental
& vocal the idea being to use a plat machine with perfect registration &
stamp the music out in a press from a die or punch previously prepared by
cutting in steel orform an electrotype or cast from the original on tin foil"
(Edison, The Papers ofThomas Edison, 3:629; punctuation added).
48. Levin, 56. Levin's "For the Record" includes translations of
Adorno's "The Curves of the Needle," "The Form of the Phonograph
Record" (quoted here), and "Opera and the Long-Playing Record." The
imagined universality of (usually Western) music jibed with other attempts
at universal language. Esperanto (I88?) had a grand launch during the Paris
exposition of I900 (Mandell, 68), and there were other stabs at the same
thing: IDO (described by L. De Beaufront); rhe Master Language (described
NOTES TO CHAPTER 4 ......... 247
by Stephen Chase Houghton); Word-English (by Alexander Melville Bell);
and Tutonish (Elias Molee). All examples come from NYPL, General Collections.
See also Eco, esp. Chap. 16., on international auxillary languages.
49. See Brylawski and Goldman, ro6.
50. Ibid., 157.
5I. Some European developments are documented in the records of the
National Phonograph Company, ENHS. The British case, Neumark v. National
Phonograph Ltd., is described in a letter from G. Croyden Marks to
William E. Gilmore, Apr. 10, 1907, Legal Department Records, ENHS. On
France, see Attali, 97-98.
52. Letter from C. A. L. Massie to H. C. Kennedy, July 19, 1907, regarding
Jose Elizondo v. Jorge Alcade, located in Legal Department
Records, ENHS. The copyright in question was a selection from a comic
opera entitled "El Chin Chun Chan.)l
53. See Read and Welch, 393.
54. 175 F. 875 (1910). See Kaplan, 41; on Hand, see Cracas.
55. See L. Cohen, 105.
C HAP T E R 4, Paperwork and Performance
I. See Garbit, 7; Edison, The Papers of Thomas Edison, 3:656, notebook
entry by Charles Batchelor; and Atkinson's edition of Ganot's Physics.
2. Two qualifications: electric lighting may be a bad contrast in this illustration,
since, as Carolyn Marvin argues, electricity shared some of the
features of communications media. Electric light is McLuhan's medium
as/without message (8). Similarly, the biological bases of language acquisition
may be too aggressive a comparison: it should be clear that I am not
proposing that media fully make our experience, that recorded sound itself
constructed the ears that heard it. I'd like to thank Dave Heitz for demonstrating
his replica of the tinfoil phonograph, and Jerry Fabris of the National
Park Service for his demonstrations of later machines.
3. This "tailored" material culture is clearly related to Banta's "taylored"
lives, though I don't want to fudge the chronology or the influence
of scientific management as it was later conceived. My thinking about inscriptions
in the laboratory and the marketplace has been influenced most
by the work of sociologists of science; see Latour, "Drawing Things Together."
See also Latour's Science in Action; and Latour and Woolgar's Laboratory
Life for amplifications of this perspective.
4. Doheny-Farina (3, 30) is my source for technology transfer. Technological
imperative is a necessary term I've adopted from Hoke, in particular.
5. See Cooper for a good example of product revision. If producerR