ARGUMENTS BEFORE THE COMMITTEE ON PATENTS OF THE HOUSE OF REPRESENTATIVES, CONJOINTLY WITH THE SENATE COMMITTEE ON PATENTS, ON H.R. 19853, TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT. (continued 5)

Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith;

Now, therefore, the publisher, for and in consideration of the premises and the sum of $1 lawful money of the United States, to him by the Æolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Æolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall be hereafter owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user, other than the Æolian Company, of such perforated music sheets, for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid.

And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time forward the Æolian Company will keep books of account, render statements, and pay royalties as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past.

And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any other provisions of this agreement, or of the aforesaid agreement of even date herewith, until the Æolian Company shall notify the publisher that a number of copyright owners satisfactory to the Æolian Company have made similar agreements with said company.

And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and enure to the successors, executors, administrators, and personal representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized.

Clayton F. Summy Co. [seal.]

The Æolian Co. [seal.]

By E. S. Votey, Director.

Witnessed by—

J. P. Bowers. Theodore Wild.

Both of those contracts are dated April 30, 1902. After the making of those contracts, the action known as the White-Smith suit against the Apollo Company was commenced in the circuit court of the United States for the southern district of New York. That case went to a hearing before Judge Hazel. Right at this point I may interpolate that I now ask the chairman and the members of this committee to investigate, if they feel they have the power, into those contracts, to summon witnesses, if necessary, to determine what contracts have been made, with what music-publishing houses, by this particular concern, so that the committees may be able to determine for themselves whether this concern and the publishing houses with which they are affiliated can, in the event that this bill becomes a law, have an absolute monopoly of the vast majority of the publications, in so far as they may be reproduced into perforated music rolls or other mechanical devices for reproducing the sounds.

Mr. Currier. I want to ask you the question that I asked Mr. Davis a moment ago: Would the people whom you represent object to paying a reasonable royalty to the author or proprietor of the musical composition if that right was given to all upon the same terms?

Mr. O'Connell. Primarily, I appear, sir, for the independent manufacturers of automatic piano players. Here, to-day, as I understand, I am expected to speak for the interests of the independent cutters of music rolls as well. Speaking for the clients that I originally and personally represent, I answer that provided you have the power to pass such a law we have no objection to paying a reasonable royalty to the composers, provided we are put on an equal basis with everybody else and provided our business interests are protected. That is our attitude. We do not wish to be unfair to anybody.

The Chairman. Protection in what way? How far do you wish that protection to extend?

Mr. O'Connell. In this way: It is difficult to devise a plan—in answer to the question of Mr. Currier—which will protect us, and for this reason——

Mr. Currier. I realize the difficulties.

Senator Smoot. You have no idea of being protected any more than any other concern?

Mr. O'Connell. No, sir; we want to have only the same rights as anybody else.

You must understand, Mr. Chairman, that the Æolian Company is by far the largest manufacturer of automatic piano players. If they control the output of the device, without which those players can not be operated, it is perfectly clear that it is the easiest thing on earth for them to put one after the other of the independent manufacturers down and out. I have not thought up a plan which could be devised to protect them, because that is a very difficult thing to do, and the time given for preparation has been extremely brief.

In line with what Mr. Herbert said a few moments ago, we are perfectly clear that neither Mr. Herbert nor Mr. Sousa can be controlled by this combination. They are too big. But they are the only composers in the United States to-day of whom that can be said.

Mr. Burkan. How about De Koven, and how about Julian Edwards; and how about——

Mr. O'Connell. That being so, it seems strange to me that those eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been put forward here as advocates of this bill, when the very men who will be the greatest gainers by it have sedulously kept themselves in the background, and do not appear to be represented here, even nominally.

What will be the result if these features of the bill are put through? Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine per cent of the composers will get absolutely nothing from it. The Æolian Company and the concerns affiliated with it will have millions of dollars turned into their coffers. And the net result is that the public will pay and the independent manufacturers whom we represent will either go out of business, or will have to transact business in such a way that it will be without any profit to themselves, or entirely on sufferance. That is the broad, general question that is before you, gentlemen, of these committees. We only want a square deal. We want no rights that anybody else does not get.

But we do not want to have others put in a position where they can take away our right to do business on a reasonable basis. That being the broad general proposition, I shall expect during the summer vacation to supply your committees with as much information as I possibly can on these various matters, and I ask the committees to do what they can toward investigating how far I am right in this matter. I can say that those charges have been made in the White-Smith suits in the circuit court and circuit court of appeals, and they have not been answered in anyway by the representatives of the monopoly to which I refer, nor have they been denied.

On the bill itself——

Mr. Chaney. What section?

Mr. O'Connell. I will take it from the beginning, if you please.

The Chairman. Before you proceed with the bill: Have the companies that you represent made any effort to secure contracts with Mr. Sousa and Mr. Herbert and the other composers that have been mentioned?

M. O'Connell. The companies that I represent do not make contracts with composers. The companies that I represent primarily, the 10 manufacturers, do not cut perforated music. They buy it. They buy it either from the Æolian Company, or from one of the many independent manufacturers of such rolls. So that we are not brought into direct contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be in a position where the independents will not be forced out of the field, or where we can be forced to buy this perforated music at an exorbitant figure, or where they can be in the position of refusing to give it to us at any price.

The Chairman. These companies, as I understand, under existing law simply go to the store offering the music for sale, which is music, and then put it upon the rolls. Is that right?

Mr. O'Connell. I do not know what the particular arrangements are that the composers have with the publishers, or the publishers with the music companies.

The Chairman. Under existing law, is it necessary for the manufacturer to do more than I have stated?

Mr. O'Connell. Under the existing law, as it has been decided in the White-Smith suit, the cutter of music rolls can go anywhere and take a piece of music, copyrighted or uncopyrighted, and cut the roll from it. That is my understanding of it, without paying any royalty to anybody.

The Chairman. And the gentlemen and concerns you represent desire the law to remain in that condition?

Mr. O'Connell. I have not said that, sir. What we say is this: We want to be able to go out in the open market and buy our music rolls. We will not be in that position if this bill goes through, because with these contracts that I speak of we can not go into the open market, as there will be no open market whatever. The distribution of these music rolls will be in the hands of one house, and that house can put its own price on them, or refuse to sell them to us at all at any price. In other words, in passing this bill in its present shape, you are fostering too great a centralization of power, or putting an absolute monopoly into the hands of one group of men. That is our objection. If some means can be devised whereby we get in on the same basis, whereby we can buy our records or our perforated music sheets as Mr. Currier said, on the same terms as anybody else, we have no fault to find, then.

The Chairman. How can law prevent Mr. Sousa from making a contract with the Æolian people or any other concern that he may desire to deal with?

Mr. O'Connell. The law can not prevent him from making any contracts he chooses with them, provided he does not contravene the law of the land itself. He can make any contract he chooses for any price he chooses. But there is the unfortunate situation: Mr. Sousa and Mr. Herbert, and gentlemen situated as they are, naturally ought to be in a position, I suppose, where they have liberty of contract; but in passing a law the greatest good to the greatest number must always be considered. If you pass this bill you do some good to these gentlemen, you do a great deal of good to the monopoly, you do absolutely no good to the vast majority of the authors, and you do a great deal of damage to a great many millions of dollars interested and invested in manufacturing industries in this country, even if you leave the purchasing public out of consideration altogether. It is a question of which you will take, unless some means can be devised to eliminate those particular features.

Taking the bill itself, it was stated here by Mr. Putnam the other day that the object of this bill was to give a copyright on music rolls as to musical compositions composed after the passage of this act. That was my understanding of what he said.

Mr. Putnam. Copyrighted afterwards, I think I said.

Mr. O'Connell. Then I assumed, from the remarks made by some members of the committee, that they considered the act to apply only to compositions originally composed after the passage of this act, and originally copyrighted after the passage of this act. I do not believe, therefore, that the members of the committee are aware of the very many peculiar features of the bill in that regard.

Mr. Chaney. The bill is only submitted as a tentative proposition, to get at the right thing. It is not the result of our genius at all. It belongs to some of the rest of you fellows.

Mr. O'Connell. It does not belong, Mr. Chaney, to me or the rest of my fellows; and we are here trying to oppose the genius of the other men, the specially interested ones who did submit it to your committee. [Laughter.]

Mr. Chaney. Well, we fellows are not trying to shut out you fellows.

Mr. O'Connell. I know that you are not, and all we want is a fair, full, and complete hearing.

Taking first, Mr. Chairman and gentlemen of the committees, subdivision F of the first paragraph. There is still a subdivision B in that subdivision F:

To make any arrangement or setting of such work, or of the melody thereof, In any system of notation.

Mr. Chaney. On page 2?

Mr. O'Connell. I am reading from the House bill.

Mr. Chaney. We have the Senate bill here. What is the section?

Mr. O'Connell. Section 1, subdivision F.

Senator Smoot. It is on page 2.

Mr. O'Connell. It gives the right—

to make any arrangement or setting of such work, or of the melody thereof, in any system of notation.

Then it goes on (subdivision G):

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 the work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.

Mr. Webb. Before you leave that, do you not think that section G prohibits the sale of the instrument itself, rather than the reproduction of the music or the work? You are a lawyer.

Mr. O'Connell. It would seem that it prohibits both, sir.

Mr. Burkan. We will submit an amendment to cover that.

Mr. Webb. It seems that that is a prohibition of the sale of any instrument.

Mr. Currier. Clearly so.

Mr. O'Connell. I have not seen the proposed amendment, because it was only handed in this morning after we got here.

Turning to section 6, it says—and this is very important:

That additions to copyrighted works and alterations, revisions, abridgments, dramatizations, translations, compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works, subject to copyright under the provisions of this act.

Now, if you please, turn to section 18, subdivision B. It gives a copyright for fifty years after the first publication, and you will find at line 13 of the House bill, which I hold, that it gives a copyright for fifty years after the date of the first publication, in "any arrangement or reproduction in some new form of a musical composition." Then, you will find further down, in subsection C of that section 18, where it gives a copyright for the lifetime of the author and for fifty years afterwards in the case of an original musical composition, thus making it clear, from a reading of all those sections together, that first, where there is an original composition, say of Mr. Sousa or Mr. Herbert, which has been already copyrighted under the present act, under the provisions of this new act they have the right to prohibit the cutting of music rolls for the period of fifty years from those original compositions which they have already copyrighted; and, secondly, the most dangerous provision of the bill, that any music-cutting establishment—this monopoly, for instance—can take any old work, that has never been cut to this day into a music roll, which is in the public domain—one of Beethoven's sonatas, or the Star Spangled Banner, if that has not already been done—and they can cut a music roll and can copyright that, and they can get the exclusive right because of such cutting, notwithstanding that everybody is free to perform that particular piece in every other way. This bill gives the right to cut it into a music roll and get a copyright for fifty years after the first publication in the form of a perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is a very iniquitous provision—very iniquitous.

Mr. Chaney. That starts in on page 4 and concludes on page 14?

Mr. O'Connell. Yes.

Mr. Chaney. I think you are right about that.

Mr. O'Connell. Thank you for agreeing with me.

Then, there is another provision of section 19, which was covered yesterday by Mr. Ogilvie, in regard to book publishing, to which I have the same objection, and that is that where the author dies his family can not get the continued copyright for fifty years unless the assignee or licensee shall join in the application for such renewal and extension. Some provision ought to be made there so that in case the licensee or assignee refuses, at the instance of the widow or orphans of the author, to apply for an extension of the contract, the widow and orphans shall have the right to proceed independently of the assignee or licensee. As Mr. Ogilvie very well said, where the publisher has the right to reproduce on the payment of a royalty of 20 per cent he may very well say now, after the author dies, "I will not apply with you for this extension unless you permit me to pay you merely a royalty of 2 per cent."

I simply point that out as one of the injustices of the act, as showing that only special interests apparently seem to have been considered in the framing of the bill.

There is another question there, which will probably be covered by Mr. Walker in what he has to say to the committee afterwards, and that is as to the constitutionality of these provisions as a whole. I will merely point out what the Constitution provides in that respect.

Article 1, section 8, subdivision 8, gives the right to Congress—

to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

It has been held, in the case of the Lithograph Company v. Sarony, 111 U.S., 53, at page 58, that the only thing which appears to infringe upon copyrighted matter would be—

some visible form of writing, printing, engraving, etching, by which the ideas in the mind of the author are given visible expression.

Mr. Sousa pointed out the ordinary system of notation with the various notes, and he also held up to you a music roll with the perforations, slits, dots, and dashes, and he claimed, apparently, that those slits, dots, and dashes are visible and can be read. I doubt very much if Mr. Sousa can tell one note from another there.

Mr. Currier. I could tell the notes on that sheet just as well as I could on the other. [Laughter.]

Mr. O'Connell. All I have to say then is that apparently music is not one of your many accomplishments. [Laughter.] Some of us can not read Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that we can not read at all, nor that such languages can not be read. There are many of us that do understand the ordinary diatonic notation of music, and many of us that do not. The fact that the vast majority of people can not read music does not prevent it from being a writing.

The Chairman. Do you contend that it is beyond the power of Congress to make that roll copyrightable?

Mr. O'Connell. My contention is, sir, that it is absolutely beyond the power of Congress to make that roll copyrightable.

Senator Smoot. Are there people that can read that roll—that is, the same as Mr. Sousa can pick up that piece of music there [indicating] and read that music? In other words, every slit or cut or dash in that paper represents a note, does it not, just the same as the notes are differently represented upon the paper that Mr. Sousa exhibited—or a musical tone is represented?

Mr. O'Connell. It may be, but I do not think that there is a person, firm, or corporation in the United States or elsewhere to-day that can take that music roll and tell you what particular note any particular slit or dot or dash represents. If I am wrong, I want to be corrected.

Mr. Chaney. It is a notation of tone, then?

Mr. O'Connell. It is simply by relation to what is called the tracker board. This roll goes over a tracker board in which there are little holes. Each hole in the tracker board is connected with a little tube which carries the air through a bellows and to a device which strikes a hammer. As this roll goes over the tracker board of the instrument, when it strikes a hole corresponding to any particular one of those slits there is an ingress of air, because there is a vacuum underneath. That little tube is connected with a hammer which strikes the note A, B, C, and so forth, whatever it might be. They are differently arranged in different rolls. The roll that will play in one instrument will not play in another; and you can see, gentlemen, that there is a different-sized roll, different-sized slits [exhibiting sample rolls] notwithstanding that they are both the same piece of music, composed by Mr. Sousa. [Laughter.]

Senator Smoot. In looking at those two rolls, there is no question but what anybody can tell that they are the same piece of music.

Mr. O'Connell. But look at the difference across——

Senator Smoot. That is only as to the size. You can take that same sheet of music that Mr. Sousa exhibited and have it four inches wide or you can have it eight inches wide, and it would be just the same music.

Mr. O'Connell. But can anybody tell me, if you please, sir, or will anybody tell us, what those notes are?

Senator Smoot. That is the question that I asked you.

Mr. Bowker. I can, by taking a scale corresponding to that instrument and putting it on the paper. By doing that you can tell what the note is.

Mr. Walker. I was counsel in the Apollo case, and the question whether those rolls could be read by inspection was litigated at great expense in that case, and the circuit court of appeals for the second circuit decided, a week ago last Friday, that the overwhelming preponderance of the evidence was that they could not be read.

Mr. Webb. And further, that that is not a copy of the music from which it is taken.

Mr. Walker. They so decided. Judge Colt decided in 1888 that these perforated rolls are not copies of music filed in the office of the Librarian of Congress. That decision was always acquiesced in until the Æolian Company invented its ingenious scheme to monopolize the business of mechanical musical instruments; and in pursuance of that event they endeavored to secure from the circuit court of appeals in the southern district of New York a reversal of Judge Colt's decision. After years of litigation the circuit court of appeals for the second circuit affirmed Judge Colt's decision, and held that these do not infringe the copyright on the sheet music, and, as the foundation for that holding, they stated the overwhelming preponderance of evidence was that they could not be read by anybody; and they stated for that reason that they were not copies, and were not infringements.

Mr. O'Connell. I have been informed, while Mr. Walker was speaking, in response to what Mr. Bowker said, that in this White-Smith suit the complainants tried in every possible way to prove the truth of the assertion which Mr. Bowker has just made, and that they utterly and totally failed to sustain that assertion that those sheets could be read, even with the use of any kind of a scale. That has just been stated to me by a gentleman who is interested.

If you please, Mr. Chairman, the portion of the decision relating to that particular point has been handed to me, and here it is——

Mr. Chaney. We have that decision.

Mr. O'Connell. I want to call attention briefly to just this point in it:

It is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if it were true, would establish merely a theory of possibility of use as distinguished from an actual use.

In deciding those cases, courts and committees of Congress do not act on possibilities.

Here is another method of reproduction [exhibiting disk] of the same march of Mr. Sousa's. It is for use in a music box. I do not know what the name of the music box is. The disk was only handed to me this morning. That shows another method of reproducing, and I do not suppose that even Mr. Bowker, with the aid of a scale, can read the notes on it. [Laughter.]

Again, there is still another one here [exhibiting cylinder], which has been handed to me by Mr. Walker, a phonograph record, which he unfortunately says he broke, and which contains the same march by Mr. Sousa. And I do not believe that even Mr. Bowker, with the aid of any kind of a scale, can read that.

Mr. Bowker. My name has been mentioned, and may I say that the character of the phonograph record which uses the very word "graph," meaning "writing," represents the earliest form of writing, that of incised character writing.

Mr. Chaney. Of the time of Rameses.

Mr. Davis. May I state that it remained for the inventor to first devise that scale to which that perforated music was made, and, second, to devise a machine which would interpret that music to Mr. Currier, or all of the other members of the public, as a medium by which any music could be read. That is the only practicable way of reading it, and that was left to the inventor. A mere reversal of that scale, to read backwards, would not be requisite.

Mr. Sousa. I would like to ask the gentleman a question. What value would these various records have if my march was not on them—if I had never written that march?

Mr. O'Connell. I will say to Mr. Sousa with perfect frankness that the only object of that particular record is to produce his march. [Laughter.]

Mr. Sousa. Without my consent.

Mr. O'Connell. I shall not try to hedge. I merely state facts.

Mr. Chaney. Do you think you should do that without compensating him for the genius he displayed?

Mr. O'Connell. Very early in my remarks I disavowed any such intention. I did say that we were in the position—the independent manufacturers that I represent—where we could be forced to the wall because of these contracts, and that the resulting benefits to Mr. Sousa and Mr. Herbert, if Congress had power to and did pass such an act, would be vastly offset by the great detriment to our manufacturing interests and to the public.

While I am on that point I would ask leave to digress and to submit also a copy of a letter from the Æolian Company to the Chicago Music Company, dated the 5th of May, 1902, and offer it in evidence here.

(The letter referred to is as follows:)

The Æolian Company, New York, May 5, 1902.

The Chicago Music Company, Music Publishers, Chicago, Ill.

Dear Sirs: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect.

Looking forward to profitable and pleasant business relations, we remain,

Yours, truly,

The Æolian Company, E. R. Perkins, General Manager.

I now ask you, Mr. Chairman and gentlemen, to turn to section 15 of the bill, found at page 11 of the House bill, which would seem to me to be rather ambiguous. It provides that the owner of the copyright may commence proceedings and so forth within thirty days, but that he has a whole year within which to complete his copyright. Now, that means that he does not have to put his mark on it, I suppose, and perhaps an independent manufacturer may go ahead for a year, or, rather, for three hundred and sixty-four days, believing that he has the right to do so, and then, on the three hundred and sixty-fifth day the owner of the copyright completes his record, and he is promptly sued for all that he has done for the past year. True, the act says that in such case no action shall be brought for infringement of the copyright until the requirements have been fully complied with; but that merely says that he can not commence the action until he has complied with the act. It does not say that after he has finally complied he can not recover for the infringement during the full year within which he practically permitted his copyright to lapse.

Mr. Putnam. Do you understand that he is not obliged to give notice during the intervening period?

Mr. O'Connell. I am speaking of the one-year provision.

Mr. Putnam. The works that are issued carry a notice, do they not? You did not understand that it was supposed that the works issued were to be exempt from the notice upon them of copyright, did you?

Mr. O'Connell. I would like to know what is the reason for the provision in question, then. If there is no reason for it, it should not be there.

Mr. Chaney. Then you would strike out all of section 15?

Mr. O'Connell. Why not leave the act as it is, and provide that everything must be done before publication, instead of giving them a year in which they might possibly deceive the public?

Mr. Putnam. Mr. O'Connell has asked what is the reason for this section. I will ask you, Mr. O'Connell, if you have observed that the section reads, this section 15, that "if, by reason of any error or omission the requirements prescribed above in section 11 have not been complied with," etc. Now, notice that section 11 does not refer to the requirement of notice upon the published works, but of the requirement of deposit and registration in the copyright office.

Mr. O'Connell. In answer to that I will say that the Patent Committees of both Houses are probably aware of the fact that there have been means found and adopted for many, many years to keep applications for patents pending in the Patent Office and still not have them outlawed. It would be the easiest thing in the world for an applicant for a copyright to commit irregularities for that very purpose.

Another point: In section 18, subdivision C, there may be a copyright obtained under an assumed name. I confess that I do not see the reason for that.

Mr. Chaney. Mark Twain, for instance, instead of Samuel L. Clemens? Is there objection to that?

Mr. O'Connell. I do not see the reason for it, while it might be all right in the particular instance which you suggest. Of course if it is limited to giving a copyright to a man under his pen name, that might be all right.

Mr. Chaney. Is not that the purpose of it?

Mr. O'Connell. It may be the particular purpose of it, but I think the section is so broad that it might include almost anything from Genesis to Revelations.

Mr. Putnam. Where is that in section 18, that you may copyright under an assumed name? Will you state where you find that in that section?

Mr. O'Connell. On page 15:

The copyright in a work published anonymously or under an assumed name shall subsist for the same period as if the work had been produced bearing the author's true name.

It is at the end of section 18. That would seem to me to give the right to copyright under an assumed name.

Mr. Putnam. Oh, yes.

Mr. O'Connell. As to the penalties, Mr. Chairman, I think there never has been an act passed where the penalties have been so severe. I will ask you, Mr. Chairman and gentlemen, to turn to section 23, on page 17, of the bill and I will point out as far as I may where it differs from the old act. In the first place, subdivision A gives the right to an injunction restraining such infringement. As to the damages, in addition to the injunction, it gives the copyright proprietor such damages as he may have suffered. In addition to the injunction and the damages, it gives him the right to all the profits which the infringer may have made from such infringement. And now comes the extraordinary provision. It says: "And in proving profits the plaintiff shall be required to prove sales only"—gross sales, I suppose it meant thereby—"and defendant shall be required to prove every element of cost which he claims."

That provision is revolutionary. In every case, both at law and in equity, where the plaintiff has to prove either damages or loss of profits, it is absolutely essential that he prove the actual damages or the actual profits. By that is not meant gross profits, but the net profits which the infringer has made. Under this act all that the plaintiff is required to do would be to prove that the alleged infringer sold so many goods for such and such a price, and the onus or burden of proof is entirely on the defendant to establish all the items of the expense incurred in producing the infringing article. The old act has no such provision.

Next it says that in lieu of damages and profits the court——

Mr. Chaney. It says "actual damages."

Mr. O'Connell. It says that the court, instead of actual damages and profits, may award an arbitrary sum, not less than $250 nor more than $5,000, and it says that that sum shall be made up in this way: For every copy of a music roll or a phonograph record, $10. The old act provided for practically the same kind of a record, the same genesis of things, $1. Why, Mr. Chairman and gentlemen, should you impose a penalty of $10? The old act has it that paintings, statues, or sculptures should pay a penalty of $10. It also has it that prints, etc., should pay $1. Why should you put a music roll into the category of paintings, statues, or sculptures at $10, rather than into the other category?

Mr. Burkan. We will submit an amendment making that $1. The music publishers will submit an amendment making that $1.

Mr. O'Connell. I thank the music publishers for considering us, even in the very slightest degree.

Five thousand dollars would seem to be the limit in any one suit, but suppose the complainant brings 20 or 50 different suits in different jurisdictions, which he would be permitted to do under other sections of the act, which I will point out presently.

Subdivision third of that section 23, says: "In the case of a dramatic or musical composition not less than $100 for the first and not less than $50 for every subsequent infringing performance."

I submit, Mr. Chairman and gentlemen, that we are also liable to that penalty as well as the $10 a roll, because these very astute gentlemen who are back of this bill, on the very first infringement will claim that any performance on an automatic piano player whereby Mr. Sousa's march or Mr. Herbert's composition is played on a pianola or one of the independent pianos, is a musical performance, and that for the first performance, in addition to the $10 a roll, we are liable to be fined $100, and for each subsequent performance $50. I think that this section, if the other provisions of the bill are to remain in, should be amended so as to say that this shall not include a performance on a perforated music roll or on phonograph or music machine disks.

Some other extraordinary provisions of the penalties are, first, this subdivision C of the fourth paragraph of section 23 provides that the infringer is—

to deliver up on oath to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright.

That is an extraordinary provision. They get an injunction pendente lite, and not alone that, but we have to deliver up to them everything pendente lite. The injunction is not good enough, and we have to give the goods to them.

Next, it says (subsection D):

To deliver up, on oath, for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies.

It may be proper, as in the old act, to direct the infringer to deliver up the copies or the plates from which they are made, but it is absolutely revolutionary to direct that the machinery be delivered up, because that machinery may be useful for perfectly legitimate purposes, and yet it must be delivered up for destruction.

It also provides that all those results can be obtained in a single action.

As to the jurisdiction of courts in suits of this kind, here is the provision of the bill:

Sec. 32. That all actions arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.

Actions arising under this act may be instituted in the district of which the defendant is an inhabitant, or in the district where the violation of any provision of this act has occurred.

Let us assume that my client, a manufacturer of an automatic piano player in the city of New York, ships one of these with a box of music rolls to Manila or some inland town in the Philippines. If it is an infringement, the infringement has occurred in the Philippines, because the music roll is not published until it is taken out of the box. According to this act they have a right to commence an action in the Philippine Islands. According to another subsection of section 32 they can send the process to the marshal in the southern district of New York, and that marshal serves the process, and thereupon the court of first instance in the Philippine Islands has jurisdiction, and the defendant has to go to the Philippine Islands to defend the case. And a still greater objection is that the complainant in such an action may commence a hundred concurrent suits and distribute them in every court in the United States, the Territories, Porto Rico, and the Philippines.

Mr. Chaney. The idea, of course, is to put it within the reach of these people who are injured.

Mr. O'Connell. Does that put it within the reach of the New York corporation, or is it part of their proper proceedings to get damages or redress that they should go to the Philippine Islands to sue my clients who are domiciled in New York, where the Æolian Company is domiciled, and make us go over there to defend the suit?

Mr. Chaney. No; but suppose the person injured lives in the Philippine Islands?

Mr. O'Connell. If that is the conclusion, if you simply want the plaintiff to sue in the jurisdiction where either the real plaintiff or the defendant is an inhabitant, then that raises another question.

Mr. Chaney. Evidently that is what has been intended. There was no purpose of anybody to take all the fellows out of New York, because that is a splendid place to live, you know. [Laughter.]

Mr. O'Connell. But we have to come to the fountainhead occasionally. [Laughter.]

Mr. Webb. The act distinctly says "In the district where any violation of this act has occurred."

Mr. O'Connell. Under the old provision with regard to infringement, you could only sue a defendant where you found him, in the district where he resided. That is the provision in relation to patents, and the provision of the bill as the old act stands. Why should this new provision be inserted? Perhaps the members of this committee will be able to determine.

Mr. Chaney. I take it that that was for the purpose of making it convenient to the person injured, or the parties injured.

Mr. O'Connell. That might be all right, if the party injured was a resident of the Philippines.

Mr. Chaney. Yes.

Mr. O'Connell. Or of the Sandwich Islands, or Porto Rico?

Mr. Chaney. That is the idea.

Mr. O'Connell. I think you will find that there are none of the owners of any of these copyrights living in any of those districts; none of them. I do not suppose that Mr. Sousa intends to change his residence just at present, or Mr. Herbert either. I think they will be found doing business here right along. [Laughter.]

Section 34 provides—

That no action shall be maintained under the provisions of this act unless the same is commenced within three years after the cause of action arose.

Why not leave that the old two-year limit? What is the necessity for three years? There is no reason for that.

Then, look at the provision in section 35.

Mr. Chaney. Is there a disadvantage in putting it three years?

Mr. O'Connell. Why should it be extended to three years?

Mr. Putnam. Is it not true that the present limitation is only for actions for penalties or forfeitures, whereas this is a general limitation on all actions, including civil actions for infringement, so that although it enlarges by one year the criminal action, it reduces the term that the complainant at present has in his civil action? This now applies to all actions. Did you notice that, Mr. O'Connell?

Mr. O'Connell. I think that the present provision relating to kindred actions of this kind is a two-year statute of limitations, and it has been found ample for a great many years, for all purposes, to protect patentees, inventors, and everybody else.

Look at section 35:

That in all recoveries under this act full costs shall be allowed.

That is to say, where the complainant recovers he must get from the defendant, and the court must allow the complainant, full costs. Let us assume a case where the defendant gets the bill dismissed. That is not a recovery. He does not get a recovery, but there is no provision giving the defendant in that case full costs. Oh, no. They are only careful of the complainant where he recovers; but where his action fails there is no provision giving the defendant full costs.

Mr. Webb. You would strike out "recoveries" and insert "suits?"

Mr. O'Connell. If you want to do it that way. You will not be then giving one side any more than the other. But I think that provision should not be in there at all. I think the court should have full discretion in the award of costs, these actions being mostly equitable actions, and the general rule being that in a court of equity the awarding or denial of costs is in the discretion of the court.

I see no reason why the jurisdiction of the courts should be limited by a provision of this kind. I think it should be left to the courts to say in all cases whether costs should be awarded or withheld, and how much costs should be awarded; although I think there should be a provision to the effect that in the case of an action wilfully brought, and where there is no recovery—brought simply for the purpose of intimidation, where there is no reasonable ground for recovery, simply to get hold of the man's business and keep him from doing business—that there should be some provision in there giving a penalty against the complainant in such an action as that. I have only thought of that at this moment, but I think it is a good suggestion to make to the committee.

Gentlemen, I thank you for the time you have given me, and I have no more to say on the subject. I again ask, however, as I did at the outset, that on these contracts and on the question of the monopoly in the hands of this concern and its associates, the committee should take proofs such as may be necessary to determine what the situation is. All I ask on behalf of the independent manufacturers of automatic musical instruments in the United States is that we should have a fair show, that our business should have the same protection as any other business has, and that you gentlemen may not do anything which will help this great centralization and put it in the power or a monopoly to ruin our business.

Mr. Putnam. I understand that Mr. H. N. Low is by agreement to speak next.

STATEMENT OF H. N. LOW, ESQ., OF WASHINGTON, D.C.

Mr. Low. I appear for the manufacturers of the music rolls and of instruments operated by such rolls.

Mr. Currier. I understood that the music-roll people had had over two hours now.

Mr. Low. Pardon me. My remarks will be very brief.

Mr. Currier. The talking-machine people are to have thirty minutes, and the committee can not sit here a very great while.

Mr. Low. My suggestions will be very brief.

The Acting Chairman. We have to adjourn in a little while, and the gentleman who preceded you exceeded his time.

Mr. Low. Then to merely supplement the remarks of the gentleman who has preceded me, I ask leave of the committee to submit two more contracts, similar to the ones that he has submitted, with the Æolian Company in the carrying out of the agreement that we allege. My information is that that agreement now embraces practically the whole music-publishing trade, and those outside of that agreement are very small manufacturers, and the trust or combination is just about complete and ready for this legislation. I submit that this legislation is most dangerous, and that this pretended revision of the copyright law is a cloak for something that is very wrong.

[The contracts referred to by Mr. Low are as follows:]

Memorandum of agreement made and entered into this 30th day of April, 1902, by and between Chicago Music Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth:

That whereas the publisher is the proprietor of certain copyrights for musical compositions and the owner of rights in copyrights for other musical compositions; and

Whereas the Æolian Company is engaged in the business of manufacturing and selling automatic musical instruments controlled by perforated music sheets, and in manufacturing and selling machines for playing keyboard musical instruments, which machines are controlled by perforated music sheets, and in manufacturing and selling perforated music sheets for such automatic musical instruments and machines; and

Whereas the Æolian Company is desirous of acquiring the exclusive right for such perforated music sheets in and to all the copyrighted musical compositions of which the publisher is the proprietor, or as to which he is the owner of any rights, and of all those other musical compositions which may hereafter be protected by copyright, and the copyrights for which or rights in which may be acquired by him;

Now, therefore, the publisher, for and in consideration of the premises, and of the sum of $1, lawful money of the United States, to him paid by the Æolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Æolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Æolian Company the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted musical compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher, except that if the Æolian Company do not accept any price offered them within three months after said offer, then the publisher may be at liberty to dispose of the same otherwise.

And the publisher, for the consideration aforesaid, hereby covenants and agrees, so far as it may be reasonably in his power, to protect the Æolian Company against any claim of any third person in respect to any and all copyrighted musical compositions which may be involved in this agreement, and the copyright of which may be owned by the publisher.

And the Æolian Company, for and in consideration of the premises, hereby agrees that it will keep correct and true books of account in which it will set down or cause to be set down entries of all perforated music sheets made by it for playing the copyrighted musical compositions owned or controlled by the publisher; that it will on the 20th day of each and every January and July, during the continuance of the manufacture and sale by it of the perforated music sheets for playing such musical compositions, render unto the publisher a correct and true statement of the number, names, and other designations of such perforated music sheets sold by it during the six preceding calendar months, and that at the time of rendering each and every such statement it will well and truly pay unto the publisher a license fee or royalty of 10 per cent of the list prices made by the United States publishers of the printed scores or copies of such musical compositions, but never more than 50 cents for any one of such perforated music sheets.

And the parties hereto mutually covenant and agree that nothing herein contained is to obligate the Æolian Company to pay any license fee or royalty upon such perforated music sheets as shall be made by it in the United States and sold or shipped to any other country, unless it shall have been decided by a court of competent jurisdiction of such other country that the copyright laws of that country shall be applicable to perforated music sheets of the kinds herein mentioned.

And the parties hereto mutually agree and covenant that the term "perforated music sheets" is not to be construed as covering the controllers of those musical instruments which are generally known as phonographs, or music boxes, or hand organs.

Anything herein to the contrary notwithstanding, at the expiration of thirty-five years from the payment of the first license fee hereinbefore provided, the Æolian Company shall not be entitled to licenses under the copyrights thereafter acquired by the publisher, but all licenses existing under copyrights theretofore acquired by him shall remain in force until the expiration of the terms of the copyrights under the terms hereinbefore provided.

During the existence of this contract, after the payment of the license fee hereunder, the Æolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company.

And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized.

Chicago Music Company, [seal.]

Platt P. Gibbs.

The Æolian Company. [seal.]

By E. S. Votey, Director.

Signature of publisher witnessed by—

J. F. Bowers, Pauline Flaherty.

Memorandum of agreement made and entered into this 30th day of April, 1902, by and between Chicago Music Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Æolian Company, witnesseth:

That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the Æolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and

Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith;

Now, therefore, the publisher, for and in consideration of the premises and the sum of $1, lawful money of the United States, to him by the Æolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the Æolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user, other than the Æolian Company, of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid.

And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time forward the Æolian Company will keep books of account, render statements, and pay royalties, as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past.

And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any of the provisions of this agreement, or of the aforesaid agreement of even date herewith, until the Æolian Company shall notify the publisher that a number of copyright owners, satisfactory to the Æolian Company, have made similar agreements with said company.

And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized.

Chicago Music Company, [seal.]

Platt P. Gibbs, President.

The Æolian Company. [seal.]

By E. S. Votey, Director.

Witnessed by—

Pauline Flaherty. J. F. Bowers.

The Æolian Company, New York, May 5, 1902.

The Chicago Music Company, Music Publishers, Chicago, Ill.

Dear Sirs: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect.

Looking forward to profitable and pleasant business relations, we remain,

Yours, truly,

The Æolian Company, E. R. Perkins, General Manager.

Mr. Chaney. I would like to have this gentleman who has just spoken to us (Mr. Low) submit a typewritten statement relating to the various sections in the bill to which he objects, and setting out his objections.

The Acting Chairman. Without objection that privilege will be accorded to him.

Washington, D.C., June, 12, 1906.

To the Committees on Patents of the United States Senate and House of Representatives.

Gentlemen: I file herewith in typewriting specific suggestions for the amendment of the said bill, in pursuance of the resolution of the joint committee, passed on the 8th day of June, 1906; these remarks or this statement to follow in the record the exhibit contracts which I presented to your committees at that time.

Very respectfully,

H. N. Low.

SUGGESTIONS AS TO THE AMENDMENT OF THE PENDING COPYRIGHT BILL.

To the Committees on Patents of United States Senate and House of Representatives.

Gentlemen: If the allegations which have been made before the committee, and not denied, and which can not be successfully denied, that there has been effected a combination in the nature of a trust to secure practically all of the commercial business of this country in the manufacture, sale, and use of mechanical records or controllers for the production of music, etc., by mechanical means are true, then a very serious situation confronts you.

The agencies relied upon to make said combination of publishers and manufacturers successful are—

1. The contracts which have heretofore been entered into in anticipation of this legislation, four of which contracts have been filed in connection with the remarks of Mr. O'Connell and of Mr. Low.

2. New legislation of the character proposed by this copyright bill and especially by paragraph (g) of section 1.

In one of the contracts referred to, dated April 30, 1902, between the Chicago Music Company and the Æolian Company, it is provided—

"During the existence of this contract, after the payment of the license fee thereunder, the Æolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company."

In the other contract of the same date and between the same parties, a facsimile of which has been filed with your committees, it is provided—

"That no charge shall be exacted from or be due from the Æolian Company * * * until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user other than the Æolian Company of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid. And for and in consideration of the premises the Æolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit," etc.

Such test suit was instituted entitled The White-Smith Music Publishing Company v. The Apollo Company by and at the expense of the Æolian Company, the real complainant, and decided against the Æolian Company, the holding of the court of last resort, the United States circuit court of appeals for the second circuit, being that such perforated music sheets were not infringements of the copyrights of the nominal complainant.

Although defeated so far, it is not reasonable to suppose that the combination of the Æolian Company and its "number of copyright owners satisfactory" to that company would rest without further effort to make effective for profit the agreement into which they had entered. The only remaining means was by new legislation, and I submit that the aim and end of the pending bill is to be a substitute for that favorable decision of a court of last resort which the Æolian Company failed after strenuous efforts to obtain.

Certain provisions of the bill here and there—for example, the lengthening of the copyright term—have attracted to the support of the bill various interests who are totally indifferent one way or the other to the question of perforated music sheets or phonographic records, but I submit that these other provisions are more or less unimportant, do not improve the present law, and most of them would never have been heard of except for the desire of the special interests above referred to to obtain new legislation as to the mechanical producers of sound.

In the spring of 1904 attempt was made by this same combination to obtain the legislation desired by the insertion of a specific provision in the law to substantially this effect:

"Provided, That in the case of a musical composition authors or their assigns shall have the exclusive right to use said copyright musical compositions in the form of perforated rolls for playing attachments, copyright on which music rolls may be obtained by said author or his assigns in the same manner as now provided by law for copyright on musical compositions."

I have not been able to discover that this proposed amendment of the law was ever introduced in the form of a bill into either House of Congress. It may have been. But I am informed that it was formulated for the purpose of introduction as a bill in Congress in the terms above set forth.

It was found impracticable to obtain the new legislation in such specific and undisguised form, and resort is now had to a pretended revision or codification of the entire copyright law, for which there is not the slightest necessity and which will inevitably give rise to a great amount of litigation before the meaning and effect of the words used in the new law can be legally understood, for the sole purpose that the Æolian Company may have with its contracting publishers and copyright owners "pleasant and profitable business relations," as expressed in the notice from the Æolian Company to the contracting publishers, dated May 5, 1902 (a facsimile of which I have filed with your committees). This notice states "a number a copyright owners satisfactory to us have made with us agreements similar to our agreement with you."

Although the matters above referred to have been opened up before your committee in the remarks of Mr. O'Connell, I have felt it my duty to give my view of the matter in brief form, both in confirmation of what Mr. O'Connell has said, and for the purpose of indicating that the bill itself and proposed amendments thereto must be scrutinized by your committees with the greatest care before it is reported.

As to amendments of the bill, I see no alternative to the striking out of paragraph (g) of section 1. If the combine exists as is alleged it is obvious that the patents, inventions, machinery, and plants of all those manufacturers of mechanical records who are not inside of the combine, that is to say, of all the manufacturers of perforated music rolls excepting the Æolian Company, and all the manufacturers of talking machines and records excepting the two companies who are alleged to be members of another combination or trust for the exclusive manufacture of such machines, and of all without exception of the manufacturers and users and sellers of pianos and organs which are operated by perforated music sheets, will be rendered practically useless, the owners of such manufactories will be put out of business, and their workmen will have their field of labor and bread taken away.

If this will be the result of the bill, and especially of the paragraph section 1 (g), the bill is most unjust and class legislation of the worst type. And that is just what the bill is intended to be, but I am thankful that its object can not be concealed.

It is no answer to the above objection to say that the bill provides only for the future. So do the contracts between the Æolian Company and its "satisfactory number" of copyright owners. The said contracts are unlimited as to time, having been signed by the great bulk of the trade (meaning thereby almost all of the great music publishers of the country), they leave outside of the combination only small publishers, and the contracts provide as follows:

"Now, therefore, the publisher, for and in consideration of the premises, and of the sum of one dollar, lawful money of the United States, to him paid by the Æolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Æolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Æolian Company the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Æolian Company to give and secure to it the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher, except that if the Æolian Company do not accept any piece offered them within three months after said offer then the publisher may be at liberty to dispose of the same otherwise."

From the foregoing we arrive at this conclusion, and there is no escape from it, that there is in existence a combination whose design and effect upon very important business and laboring interests of this country will be injurious and unlawful if the bill should be passed as proposed, which combination is of unlimited duration as to time, and which combination will control, for the purpose of producing perforated music sheets, all the copyrights or rights of production hereafter for such unlimited duration of time which may be acquired by the great bulk of the trade (music publishers) of this country. Your committees will see, therefore, that the bill provides for the profitable future of the members of the combination without limit as to time.

The result of this will be threefold:

1. The Æolian Company will secure for itself practically the entire business of the United States in the manufacture of perforated music sheets, and will be in a position to dictate the prices for such sheets to the trade, including the manufacturers and sellers of pianos and organs operated by said sheets as well as the sellers of the sheets alone, and to raise the price to the public generally for such sheets.

2. The publishers who have contracted with the Æolian Company to give the latter all the rights which the publishers have or may have in copyrighted music will receive from the Æolian Company certain royalties, which royalties will either be clear profit to the publishers or will be less than any extra royalties which the publishers will pay to the composers. It is practically certain that in the long run the composers will get no more royalties than they now receive, for the composer, for his own advantage in obtaining a large sale of his works, must go to one of the large publishers of music, and will be compelled by such publisher to accept in full payment of his copyright just such a royalty as he now gets under existing law, and all the extra profits which can be mulcted from the public under section 1 (g) of the bill will be divided between the members of the combination.

3. The public will foot all the bills without any more advantage to themselves than they have under existing law.

The assertion made in support of the bill, that it relates only to the future, is completely met with the reply that the bill does not provide for the future of anyone who is outside of the combination.

If the existing copyright law is bad or insufficient and anything like a revision of or a codification of the copyright statutes in a new law must be made in the interests of justice, let it be done. But let care be taken that you do not do injustice. If a new copyright law is to be enacted, and the pending bill is to be the foundation of such a law, the practical question is, how is it to be amended in order that it may not cause the evils above referred to.

Mr. Putnam in his introductory remarks indicated that your committees would find evidences of "selfishness" in the bill. He is undoubtedly right. It is, however, much more far reaching in this respect than Mr. Putnam had any idea of. It is extraordinary that the conference which advised Mr. Putnam adopted such radical legislation as is proposed in section 1 (g) without inviting the attendance at the conference of a single person interested adversely to this legislation. In fact it would appear that such persons were purposely kept in ignorance of what the conference was doing.

But I do not think that the selfishness of the interests which are opposed to the said new legislation, and who are now fully aware that it is proposed, extends beyond a rightful effort to prevent their own extinction.

In my opinion the manufacturers of mechanical music controllers or records are willing to pay a fair and reasonable royalty to composers of music which they use, or to other owners of copyrights for musical compositions, but this must be provided for otherwise than by an enactment which will give rise to the evils attending the said paragraph, section 1 (g) of the bill. That paragraph should be eliminated and other parts of the bill corresponding with this paragraph, and there should be substituted for it, probably at some other more appropriate part of the bill, a provision like the following:

"Any person, firm, or corporation who shall make, use, or sell, 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, shall pay to the author or composer of such work a fair and reasonable royalty to be determined according to the market price for such or similar royalties.

"And the author or composer of the work so used shall have the same remedies for the recovery from such person, firm, or corporation of such royalty or royalties as is provided in this act for the recovery of damages for the infringement of copyright.

"And after the amount of such royalty or royalties shall have been ascertained and become due by express contract between the parties, or shall have been ascertained and adjudged to be due by any circuit court of the United States, and is not paid, then the author or composer shall have the same remedy by injunction against such person, firm, or corporation, as is provided in this act in cases of the infringement of a copyright."

It is believed that such an enactment would give to the composers who have appeared before your committees all the rights and remuneration which is due them, and at the same time will defeat the unlawful combination which exists and is hereinbefore referred to.

I believe that it will not be at all difficult to arrive at the just value of such royalties, and in almost every instance they would be settled by contract between the owner of the copyright and the maker of the mechanical appliance for producing the music. In the case of a composition of any value the composer will dispose of it for an agreed-upon royalty to some music publisher in the usual way. He will then dispose of his right to the composition for reproduction by mechanical means to some manufacturer of such mechanical means for a royalty agreed upon. If any other such manufacturer, not in contractual relations with the owner of the copyright thereafter makes use of the composition, the amount of the royalty for which the owner of the copyright has contracted will aid in determining what royalty is fair and reasonable and is to be paid by such other manufacturer. I suppose that in some cases litigation may be necessary to arrive at the amount of the royalty, but not more than is inevitable in human affairs. It is not to be supposed that a manufacturer will resist the payment of the royalty for a musical composition which he has utilized and pay to the complainant the cost of litigation rather than make a fair settlement upon terms which are well settled, or will soon become well settled under this act, in the trade.

A provision like that above suggested is analogous to, and appears to be quite similar in its effect to, the compulsory-license provision of some of the foreign statutes. For instance, in the law of the Dominion of Canada, lately enacted, in 1903, we have the following:

"7. (a) Any person, at any time while a patent continues in force, may apply to the commissioner, by petition, for a license to make, construct, use, and sell the patented invention, and the commissioner shall, subject to general rules to be made for carrying out this section, hear the person applying and the owner of the patent, and if he is satisfied that the reasonable requirements of the public in reference to the invention have not been satisfied by reason of the neglect or refusal of the patentee or his legal representatives to make, construct, use, or sell the invention, or to grant licenses to others on reasonable terms to make, construct, use, or sell the same, may make an order under his hand and seal of the patent office requiring the owner of the patent to grant a license to the person applying therefor, in such form and upon such terms as to the duration of the license, the amount of the royalties, security for payment, and otherwise, as the commissioner, having regard to the nature of the invention and the circumstances of the case, deems just."

I instance this foreign law to show that under a system of jurisprudence exactly like our own it has been found best to limit rights heretofore granted in the most exclusive form, and provide for compelling the owners of such rights to deal reasonably and fairly with the public. This Canadian law relates to exclusive rights to inventions under letters patent, where the ascertainment of what is a just license fee or royalty is always more or less complicated and difficult. In the case of copyrights much simpler conditions prevail, the value of musical compositions are more easily measurable and there would be far less difficulty in arriving at a fair royalty by a contract between the parties or by arbitration, or, in the last resort, by the judgment of a circuit court. I have mentioned a circuit court merely for purpose of illustration. It would probably be more convenient to confer this jurisdiction on a United States district court.

It seems to me that under the conditions which confront your committees, there being on the one hand a desire to recompense musical composers, and on the other hand the necessity of defeating the unlawful combination which will have entrenched itself most securely if the bill should become a law including the objectionable paragraph which I have discussed, an amendment of the bill in some such way as above indicated is inevitable.

SPECIFIC AMENDMENT OF THE BILL.

I submit that in the interest of the public it is far better to correct any evil in the existing copyright law, which was pretty thoroughly revised not very many years ago, than to pass a revision of the law which uses so many new terms and words which have not received judicial interpretation, and which bill evidently requires itself revision and amendment in almost every section. It requires such amendment in detail in the first place to eliminate those matters which have been embodied in the bill for the purpose of most thoroughly carrying out the provisions of section 1 (g), upon which I have already commented. If it is necessary to eliminate the paragraph specified, it is also necessary to revise the bill in many other sections where corresponding matter appears.

In the second place, the bill requires amendment as to the term of copyright proposed, as to the damages for infringement, as to the effect which the certificate of the filing of the entry shall have, as to the way in which and the terms in which the notice of copyright shall be given, and as to broad and uncertain expressions which are found in many sections, which can have no good effect and which will only be productive of uncertainty, confusion, and litigation.

I am informed that a substitute bill will be submitted to your committees in the nature of specific amendments to the existing law to cure any evils which may exist therein and, among other things, to give reasonable compensation to authors or composers for the use of their works by the manufacturers of automatic mechanical reproducing devices. I believe that it will be preferable to thus amend existing law, leaving the great bulk of the law in those words and terms and provisions which there is no necessity of changing and which have become well understood by years of judicial interpretation.

I will however proceed to discuss the pending bill and point out the specific amendments which appear to be necessary in the interest of the public, both as to clearness and certainty of expression and as to the relative just claims of the author and of the public.

Section 1, paragraph (f), should be amended by striking out the words "or for purpose" and the remainder of line 10 and to the end of line 13, and by inserting the words "or to make any variation, adaptation, or arrangement thereof."

It will be seen that to retain this paragraph in the present form would be equivalent to retaining paragraph (g), because it was the intent in framing paragraph (f) to have the word "performance" cover the operation of an automatic mechanical device; and the words "arrangement or setting" were intended to include the production of a perforated music sheet.

Paragraph (g) should be eliminated for the reasons already given.

Paragraph (h) should be amended by inserting at the end thereof the words "amounting to a copy thereof."

It is obvious that this paragraph is altogether too broad and uncertain. The paragraph should only protect against infringements which are copies, and it must be left to judicial determination in the future as it has been in the past to say whether or not any particular abridgment, adaptation, or arrangement is a copy within the meaning of the law.

Section 2 appears to be substantially similar to section 36, and one of the two sections should be eliminated or they should be consolidated.

Section 3 should be amended by striking out "the copyrightable" and the rest of line 4, and to the end of line 8, and substituting "matters copyrighted after this act goes into effect."

So amended the section does not appear to be necessary in the bill, but on the other hand in its present form it will be seen at once that it is retroactive and very injurious, making in effect certain matters infringements of the copyright granted under existing law which are not infringements now and are within the public domain.

Section 4 is absurdly broad and indefinite and covers pastry or other works of a cook. It should be amended by inserting the word "literary" before the word "works," or by substituting the word "writings," which is used in the Constitution and is the preferable word to employ, or by inserting after the word "works" the words "mentioned in section 5 hereof."

In section 5 paragraph (h) should be eliminated. This paragraph was intended to cover perforated music sheets or talking-machine records which are to be otherwise provided for. As to other matters it may be said that if the reproductions referred to are copies of things already copyrighted, they are infringements; if not copies, they are works of art in themselves under paragraph (g) of section 5.

On page 4 "The above specifications shall," in line 8 and line 9 and line 10, to and including the words "nor shall," should be canceled, and in line 11, after "classification," insert the words "shall not."

It is obvious that an unlimited subject-matter of copyright is highly undesirable from the standpoint of the public.

In section 6, line 15, after "compilations," insert "or," and in the same line strike out "or other versions." These words are plainly unnecessary and are intended to have a capability of elastic interpretation unduly favorable to the author and prejudicial to the public.

In section 7, paragraph (b), the words "of a work" and the rest of line 6 and lines 7, 8, and 9, to and including the word "text," should be canceled. If a work has fallen into the public domain, even though subsequent to 1891, it would be retroactive to now bring it within the copyright law and deprive the public of its use.

Section 8, paragraph (a), in the interest of clearness should be amended by striking out the words "or cotemporaneously" in line 21, and by inserting after line 22 "shall publish his work within the limits of the United States cotemporaneously with its first publication elsewhere; or."

Section 9 should be amended by inserting after the word "Act," line 14, the words "and by the performance of the other conditions precedent mentioned in the act, and by entry of the title of the work as hereinafter provided." It is plain that a person does not "secure" copyright by the publication with notice, which is all that is mentioned in this section.

Section 10, line 24, the words "and such registration shall be prima facie evidence to ownership" should be struck out. There does not appear to be sufficient reason for giving a mere assertion of claim the prima facie standing of absolute ownership.

It would put upon the true author, whose production had been entered for copyright by another person, the burden of proof, and this section if not amended would be very susceptible of fraudulent use. I am inclined to think that it is advisable, certainly if the copyright entry is to be prima facie evidence of ownership, to require that the claim be verified before it is presented to the Librarian, and that false swearing to such a claim shall subject the affiant to the penalty for perjury.

Section 13, page 9, line 19, "and all his rights and privileges under said copyright shall thereafter be forfeited" should be canceled. These words might lead to the unjust forfeiture of a copyright if the false affidavit were made by the agent or printer without the knowledge of the author or owner. Also the words seem superfluous. If a condition precedent has not been performed, the right is lost by operation of law without these words. To insert them implies that the provisions of section 13 are not conditions precedent to obtaining a valid copyright.

In line 24 the word "and" should be substituted for "or;" and at the end of line 25 the words "if it has been published" should be inserted. It is very desirable that all the facts upon which the copyright depends should be clearly stated when possible.

Section 14, line 2, the words "or the," and the following matter down to, but not including the word "accompanied," in lines 5 and 6, should be canceled, and the words "with the date of entry of the copyright" should be inserted.

The notice of copyright must be clear and in such usual words, not signs which hardly anyone will understand, as are intelligible to the public. I consider it highly important that the date of copyright, including the year, month, and day, should appear in the notice, and also the name of the person by whom the original entry is made in the copyright office. The indexes will be kept by these names, and any subsequent entry or transfer should always be indexed under such original names. These remarks apply also to sections 44 and 45 hereafter considered.

In line 10, after "some," the words "uncovered and" should be inserted.

In line 13, after "name," the words "as in the original entry of copyright" should be inserted.

Line 19, the word "its" should be changed to "the," and in line 20, after "following," the words "of each separate volume" should be inserted; and in line 24, after "accessible," the word "uncovered" should be inserted.

Page 11, line 3 should be stricken out or amended to cure its indefiniteness as to the meaning of the word "composite."

In line 4, the word "musical" should be changed to "musical-dramatic."

It has never been intended by the copyright law to use the word "performance," excepting of such works as are only useful when represented or "performed" in a dramatic sense. The word "dramatic" has not always seemed sufficiently broad, and the words "musical composition" have often been added to include operas, oratorios, and musical works that are not purely dramatic, and yet are partially so. It is submitted that it has never been the intention of the law to make the mere singing of a song from copyrighted notes that have been paid for, or the playing of music, infringements of copyright, and it is believed that this section will carry out the full intent of the law if the word "dramatic" be coupled with the word "musical," as above indicated.

In view of the use of the word "performance" in other parts of this bill for the purpose of including the use of automatic mechanical devices, it should be made clear that the word "performance," in line 5, has nothing beyond its ordinary significance. I suggest that this can best be attained by striking out the word "performance," in line 5, and inserting the word "representation."

Section 15 should be amended by striking out the words "if, by reason" and the rest of line 11 and lines 12 and 13.

It is plain that these words in the bill leave an open door for free publication which brings a work within the public domain, and subsequent monopoly of the work upon a mere allegation of error. The Librarian has not the facilities or legal machinery to try such question of error, and it should be left to the courts to determine whether there has been an error or omission, and whether by reason thereof any condition precedent for a valid copyright has been left unperformed.

Page 12, line 13, the words "bulk of the" should be stricken out. These words are uncertain and would allow the proprietor to omit the notice from 49 per cent of the edition. This would clearly amount to insufficient notice to the public and could be made the instrument of fraud. Line 14 and the remainder of the section are entirely sufficient for the purpose without the words "bulk of the."

Section 17, line 22, the words "be extended to" should be canceled, and at the end of line 24 the words "such term beginning with the date of filing the request for the reservation of the copyright," should be inserted.

There appears to be no reason for granting more than the specific term, which the law will provide, in the case which section 17 is intended to cover.

Section 18 relates to the term of copyright.

The whole system provided in the Constitution is for the benefit of the public, the intent is to accumulate for the use of the public, matters of literature, art, and invention. The stimulus in the way of a reward given by the public in return for these matters is subsidiary to the main object. The reward consists in "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The objection to the term provided in the bill is that it is unconscionably long. It may easily amount to a hundred years or more, during which time the public will have paid tribute to the author for something which will be so old fashioned as to be useless to the public when the copyright has expired.

The word "limited" in the Constitution shows that the framers of that instrument had in mind to secure for the public certain benefits after the time had expired. To provide such a long copyright term as the authors seek to obtain in this bill would practically defeat the object of the said clause of the Constitution and the intention of its framers. I submit that it could only be considered for a moment on the ground that it is a matter of indifference to the public because the works so to be protected are entirely useless in themselves. I do not think there is any sufficient reason for lengthening the term—twenty-eight years with an extension of fourteen years—provided by existing law.

In another respect this section is bad in making the length of the term dependent upon an event which is uncertain in advance, and of which no public accessible record may be made when it occurs; that is to say, the death of the author. I see no reason why a young author should have longer protection than an old author, and the provision would leave open to publishers a door of fraud by securing copyrights for the productions of old authors in the name of some younger person.

The objection to a long term especially applies to music which depends almost entirely upon fashion and taste, and these soon change and the music becomes useless to the public. In my opinion, purely musical productions should have a relatively short term of copyright, but I have not considered the subject sufficiently to be justified in fixing any precise number of years.

But as to all copyrights it is my conviction that the interest of the public unquestionably requires that they be granted for a definite term of years, and that, if an extension is provided, the extension should be for a fixed and definite time. It is only this which enables the public to know, upon reading a notice of the copyright, when the monopoly will terminate.

If for any reason it should seem wiser to make the term dependent in its length upon the death of an author, then the continuance of the copyright should depend upon definite evidence being filed in the copyright office showing positively the date of death.

At the end of section 18, page 15, line 8, after "name," the words "Provided, That in such published work the notice of copyright be given as required in this act" should be inserted.

Section 19 should, in my opinion, be canceled. It is retroactive in its character. Definite contracts have been entered into between authors and the public with respect to matters already copyrighted, and it would impair the obligations of those contracts to provide any renewal or extension of such copyrights. It has already been agreed between such authors and the public at what time their copyrighted works shall pass into the public domain.

Recurring to lines 3 and 4 of page 15, I submit that they should be canceled, so that the copyright shall extend for a definite number of years after the date of original entry. There seems to be no sound reason for giving an author a longer copyright, longer by a year, if he makes his entry on the 2d of January, than another author will have who enters his copyright on the 30th of December preceding.

Section 21 should be canceled, as it gives, in effect, copyright privileges where the conditions precedent required by this act have not been performed.

Section 22, line 14, is too broadly worded for the benefit of the authors of this bill, and the word "reproduction" should be canceled and the words "copy or representation" should be inserted.

In lines 22 and 23 the words "such fraudulent" and the rest of the section should be canceled, and the words "copies which are infringements is hereby prohibited."

Section 23, paragraph (b), should be canceled and made to read:

"(b) To pay to the copyright proprietor damages for the infringement."

As the paragraph now reads, it gives double damages. The proprietor should receive damages which will be judicially ascertained in the ordinary way, either by estimating the profits which the infringer has made, or by estimating the damages or loss which the proprietor has suffered. If there is no actual damage it should not be provided that $250 should be recovered, and if the damages are greater than $5,000 there is no sound reason for limiting them to the latter sum.