Two years ago, the North Carolina Journal of Law and Technology published an article which was extremely critical of the NLRB’s decision against the virtual orchestra machine and Local 802’s zero-tolerance policy.

The article alleged that the V.O. machine is a viable musical instrument in its own right with its own creative properties and there are legitimate uses for this “instrument” in the theatrical community.

Because of the importance of this issue to all professional musicians, I think that the article’s criticisms now warrant a rebuttal, especially in light of the state labor board’s recent decision in favor of 802.

First, we must ask whether the V.O. machine truly is a musical instrument.

Simply because it does not fit within a woodwind, string, brass or percussion family does not mean that it is not an instrument.

After all, the law review article does make a valid point by claiming that all musical instruments are, in some respect, mechanical devices. And most people would agree that a synthesizer is a legitimate musical instrument.

Nonetheless, the fact that the V.O. machine reproduces sound through electronic or digital means is not the critical issue.

What is critical to the inquiry is who is ultimately responsible for the creation of the sound. Is it a human or is it a mechanical device? That is the question which must be asked.

All musical instruments require a human to play them at the time of the performance. A trumpeter vibrates air through a column of brass. A keyboard or synth player presses notes on a keyboard. A violinist vibrates a string through use of a bow. All of this requires years of training and talent.

On the other hand, no one actually “plays” the V.O. machine. It is a pre-programmed digital playback device.

The machine does have a faux keyboard to make it look like a musical instrument. However, these keys actually do not play notes. They merely mark the tempo and any one of the keys may be tapped to do this. Technical computer programming skills are required to be able to operate this device, not musical ability. To put it simply: being able to tap a steady beat does not make you a musician!

There is a larger point to this whole controversy. The machine’s primary function is to replace live musicians. Even if it is used to “enhance” an orchestra, it is still replacing living, breathing musicians. The significance of the V.O. ban is that it represents our determination to protect the art form of live musical performance and our unwillingness to permit any further elimination of live musicians by mechanical devices.