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Re: [ARSCLIST] Aren't recordings original sources?

On Wed, Oct 15, 2008 at 1:14 AM, Mike Richter <mrichter@xxxxxxx> wrote:

>   It may be irrelevant, but one should remember that until 1975 a recording
> was not considered sufficient to "fix" the sound for the purposes of
> copyright in the U.S. An attorney in an appropriate field may have an
> opinion on whether the law recognized a sound recording as evidentiary
> earlier than that.

I'm no attorney, but the earliest successful use of a sound recording in
this sense appears to have been George Gouraud's introduction of a
phonograph cylinder into an international trademark dispute in November
1888 on behalf of the Jackson Manufacturing Company of Nassau, New
Hampshire.  According to the *London Times *and other papers, the
cylinder was accepted by Mr. Justice Kay in the London High Court of
Justice as establishing a point of fact: the Chippewa pronunciation of
"Ko'-ko-ko," which had a bearing on the trademark.  (Kay did finally end up
ruling against the Jackson company even so.)  As far as the U.S. goes,
a precedent was set for the admissibility of phonograph recordings
of industrial noises as evidence by a case in Michigan -- Boyne City, G. and
R. Co. vs. Anderson (1906) -- discussed in the *Michigan Law Review *that

However, there also seems to be a hint in the discussion Mike Biel
quoted that the problem isn't that the Colbert blowup evidence is a
"recording" rather than something "written," but that it's a primary source,
so that referencing it would be forbidden "original research."  In fact, I
see that they explicitly define all "audio and video recordings" as "primary
sources" -- http://en.wikipedia.org/wiki/Wikipedia:No_original_research.  Even
a recording of an ARSC conference presentation would be a "primary
source" according to them.  That's problematic too, but in a different way
than Milo Ryan's horror story.  Other sources unacceptable for Wikipedia,
according to the above URL, include patent texts, official census reports,
and published experimental data.

 - Patrick Feaster

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