(dissenting):
Plaintiffs sued as composition copyright holders. They did not, and could not, sue as manufacturers, because the 1909 Act created no copyright interest in sound recordings of musical compositions, and the protection extended to manufacturers by the 1971 amendments to the Act does not reach the recordings in question.1 The precise question before us concerns the scope of protection afforded by the 1909 Copyright Act to persons in the position of plaintiffs.
*673The Congressional purpose in 1909 was twofold, protection of the composer, and at the same time, encouragement of artistic expression by curbing music monopolies.
Congress feared the creation of a giant music monopoly in which the big publishing houses, which owned most musical copyrights, would negotiate with the great recording companies for exclusive recording contracts.
To avoid a music trust injurious to public and composer alike, and to still protect the composer in his work was the problem Congress faced.
Miller v. Goody, 139 F.Supp. 176, 182 (S.D.N.Y., 1956), rev’d. on other grounds sub nom. Shapiro, Bernstein & Co. v. Goody, 248 F.2d 260 (CA2, 1957).
The composition copyright holder is granted an exclusive performance right by 17 U.S.C. § 1, but its exclusivity is of limited life. Once he records or permits others to record his composition he thereby licenses others to record, and such others must pay him under the “compulsory license” arrangement of subsection (e). These rights were designed to prevent two distinct abuses: (1) mechanical reproduction where the composer does not yet want any permanent recording of his composition, and (2) use of the composition without compensation. H.R.Rep.No.2222, 60th Cong., 2d Sess. (1909), reprinted in S. Rothen-berg, Copyright Law, C.l § 9 at 51 — 52 (1956).
The interests impinged upon by the first abuse are the artist’s privacy and integrity, his right to credit for his own work, and his desire that there not be premature performances of his incomplete or unsatisfactory work. These protected interests have been fully vindicated once the copyright holder records or permits another to record the composition. Recording exemplifies that the piece is ready for public consumption and prevents others from usurping credit for its creation.
The second abuse, use of the composition without compensation, is protected against initially by the composition copyright holder’s right to negotiate such terms as he wishes with his authorized licensee. Once the composer’s interests of protection against invasion of his privacy and against prematurity have been vindicated the antimonopoly purpose of the Act is then implemented by the compulsory licensing scheme. Copies are made available to the world at large at lower royalty prices than the composer might be willing to offer and lower overall prices than the composer’s licensee might offer. In addition compulsory licensees may be the sole means through which the public can obtain ancient, exotic and otherwise unprofitable recordings which other manufacturers and producers withdraw from production and sale.
The underpinning of the majority opinion is the concept that the 1909 Act created in the composition copyright holder a protectible interest in the underlying musical composition, the life of which interest extends beyond the original recording. This judicially-confected interest is the response of judges to copying activities which they find distasteful — i. e., in our free enterprise system one ought to be able to “own” what he composes and be able to “sell” it on terms that he can negotiate, and it looks almost like condemnation of property for private use or taking of property without due process to put the fruits of the composer’s labor in the hands of copiers for a small statutory fee. These evisceral reactions are at times not even concealed, and the pejorative terms “pirates” and “parasites” become substitutes for analysis of the scope of the protectible interests accorded ' by the 1909 Act.
The continuing protectible interest which the majority find was not perceived by Congress when it was considering the Sound Recording Amendments of 1971 (Pub.L. No. 92-140, 85 Stat. 391). In their discussions members of Congress stated that the new legislation was necessary because of a loophole in the 1909 Act allowing pirates to function without *674Violation of federal law so long as the compulsory licensing provisions are met:
If the unauthorized producers pay the statutory mechanical royalty required by the Copyright Act for the use of copyrighted music, there is no Federal remedy currently available to combat the unauthorized reproduction of the recording .
S.R. 92-72, p. 4; H.R. 92-487, p. 2; U.S. Code Cong. & Admin.News, 1971, p. 1567.
[Persons who] satisfy the (statutory) clam (sic) of the owner of the music copyright, can and do engage in widespread unauthorized reproduction of phonographic records and tapes without violating Federal copyright law.
H.R. 92-487, p. 2; U.S.Code Cong.' & Admin.News, 1971, p. 1567.
Courts upholding the composition copyright owner’s claim of infringement by “pirates” have based their analyses on the phrase “similar use” employed in the 1909 Act. These courts have held that “pirate” duplication is an “identical” rather than a “similar” use, and as such is not within the statutory exception. Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285 (CA10) (petition for cert. filed 43 U.S.L.W. 3017 (U.S. July 10, 1974) (No. 73-2006)); Duchess Music Corp. v. Stern, 458 F.2d 1305 (CA9), cert. denied sub nom. Rosner v. Duchess Music Corp., 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972). This exceedingly technical analysis has been subject to criticism by many commentators. See, e.g., J. Nimmer, The Law of Copyright, §§ 108.46 — 108.4621 at 429— 434.1 (1972).
Suppose a compulsory licensee engages in record piracy. That is, he does not assemble his own performers and technicians to make a new “similar” record based upon the same copyrighted work. Instead he simply duplicates or re-records the previously authorized recording thus saving most of the costs attendant to the manufacture of records. Assuming such a record pirate duly serves a notice of intent to use, and pays the compulsory license royalties, the somewhat astounding result is that as to those sound recordings fixed prior to February 15, 1972, he is not an infringer under the Copyright Act. The only portion of that which he has recorded which is protectible under the Copyright Act, with respect to sound recordings fixed prior to February 15, 1972, is the musical composition itself, and that he is authorized to use for recording purposes upon payment of the statutory royalties. All of the other elements contained in the original record which he has without authority duplicated are not copyrightable, and hence his use of such other elements does not give rise to an action for copyright infringement. (footnotes omitted).
Id. at 431-433.
The “identical”-“similar” distinction seems to me only a semantical implementation of the judicial distaste which I have described. It gives to the composer a better statutory monopoly than Congress gave him and erodes the statutory scheme. Additionally, it indirectly confers upon the licensee what amounts to an exclusive right to his mechanical recording, a right which Congress acted to confer in 1971 on the ground it was non-existent.
I agree with Professor Nimmer. . I would follow the reasoning used by several courts that have denied or wished to deny relief to composition copyright holders. See Jondora Music Publishing Co. v. Melody Recordings, Inc., 351 F.Supp. 572 (D.N.J., 1972), 362 F.Supp. 488 (D.N.J., 1973), 362 F.Supp. 494 (D.N.J., 1973); International Tape Mfgs. Ass’n. v. Gerstein, 344 F.Supp. 38 (S.D. Fla., 1972), vacated on other grounds, 494 F.2d 25 (CA5, 1974). See also Judge Byrne’s dissenting opinion in Duchess Music Corp. v. Stern, 458 F.2d 1305, 1311—1313 (CA9), cert. denied, sub nom., Rosner Duchess Music Corp., 409 U.S. 847, 93 S.Ct. 52, 34 L.Ed.2d 88 (1972), and the dissent of Chief Judge Lewis in Edward B. Marks Music Corp. v. Colorado Magnetics, Inc., 497 F.2d 285, 291—292 *6752006)). Jondora relies on a broad reading of Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), to support its conclusions. In Goldstein the Court upheld a California anti-piracy statute covering recordings made before the 1971 Amendments’ effective date. Jondora correctly reasoned that , the absence of federal preemption could result only if no federal legislation had been enacted to provide a remedy against pirates.
Thus, under pre-February 15, 1972, law, where the States are free to grant what is the equivalent of state copyright protection, it is clear that Congress has not exercised its copyright powers. . . . [I]f plaintiffs’ view — and the view of the Duchess Court — were sound, that is, that mechanical recordings enjoyed federal copyright protection before February 15, 1972, not only would there be no need for state action, state action would be barred, since Congress would have indicated its felt view that a national uniform policy was necessary, and not a piecemeal state-by-state approach.
362 F.Supp. at 493.
The ultimate result of my view is that plaintiffs have not established standing to sue, a prerequisite to relief.2 A plaintiff must allege facts showing that he is adversely affected by defendant’s acts. Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636, 645 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). So long as defendants tender the statutory compulsory license fee, plaintiffs do not show any judicially cognizable injury. Although the copiers’ actions may be offensive to plaintiffs, and plaintiffs might earn higher royalties but for the copying, the plaintiffs are receiving all to which they are entitled. Their complaint is to Congress for not giving them a broader statutory monopoly.
Plaintiffs argue that piracy may harm the public through discouragement of artistic expression and encouragement of monopolies by causing small record companies to collapse as profits are sapped by pirates. Even if these allegations were supported by evidence, plaintiffs’ position would not be improved, for they allege no harm to themselves. This is the very flaw which barred consideration of the complaint in Sierra Club. A private party cannot seek redress for a public injury absent an allegation of private and individuated harm.
Thus I conclude that plaintiffs have no standing. But if they do have standing, they are not entitled to relief.3
. The 1971 amendments, effective February 15, 1972, were prospective only. No protection is given by any federal legislation to the manufacturer of records which were “fixed” prior to February 15, 1972.
. I have been unable to find a discussion of standing in any reported opinion of a case such as this. The parties have made no reference to standing, but since it is a jurisdictional prerequisite the court may inquire into it on its own motion. United States v. Storer Broadcasting Co., 351 U.S. 192, 197, 76 S.C.t. 763, 100 L.Ed. 1081, 1088 (1956).
. Since this dissent was prepared the Third Circuit in a two-one decision has reversed Jondora Music Publishing Co. v. Melody Recordings, Inc., 506 F.2d 392, CA3, 1974, No. 74—1241. Judge Gibbons’ dissent expresses more ably than I the position which I espouse.