The clause of the Constitution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of Article 1, which declares that "the Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in the Trade-Mark cases, where the court said that "while the word 'writing' may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind."
The clause of the Constitution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of Article 1, which declares that "the Congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in the Trade-Mark cases, where the court said that "while the word 'writing' may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original and are founded in the creative powers of the mind."
In the year 1888, a suit was brought in the United States circuit court for the eastern district of Massachusetts for the purpose of subjecting a perforated roll like one of these [exhibiting] to the domain of a copyright upon a sheet of music which had been lawfully and regularly copyrighted. That case was elaborately litigated, and was the subject of argument on both sides before his honor, Judge Colt, then the circuit judge and now the chief judge of the circuit court of appeals for the first judicial circuit.
Judge Colt in that case, commonly called the McTamanny case, gave an elaborate and learned decision to the effect that this perforated paper roll, or any sheet of perforated paper like it, intended for the mechanical reproduction of a tune, did not infringe a copyright upon the tune thus reproduced.
That was in 1888, and that decision was universally acquiesced in by all the judges and all the people of the United States for thirteen years. During that thirteen years a number of gentlemen devoted themselves to making the machines, pianolas, or whatnot, that are capable of being used with these perforated sheets; and among those gentlemen is the modest and excellent inventor, Mr. Davis, who appeared before the committee yesterday. Those men proceeded in full reliance upon the decision of Judge Colt, acquiesced in by everybody that they had a perfect right to perforate those sheets of music and use them in mechanical playing instruments; and great amounts of ingenuity have been devoted to the development of that particular art, and large amounts of capital have been devoted to it, in full reliance upon the decision of Judge Colt, in which everybody acquiesced. But the Æolian Company, of Meriden, Conn.—and in the statement that I am about to make I am going to state what is true; I can not prove the statements here to-day, but I could prove them if the committee should sit and take testimony and send for persons and papers——
SenatorSmoot. You can file the proof, can you not, Mr. Walker?
Mr.Walker. It would be like a big litigation to do so, and it would be putting a very heavy expense upon me that I would hardly be called upon to bear. But I can tell you how I know.
Mr.Currier. If the statements that you are to make now are not true, gentlemen can controvert them.
Mr.Walker. Certainly. They have had chances to controvert them heretofore. This is not the first time that I am making these statements in public. I have made them in court over and over again, and they have passed entirely unchallenged, because they are perfectly true.
The Æolian Company made certain contracts with a large number of members, and I think with every one of the members of the Musical Publishers' Association——
Mr.Burkan. I beg to deny that——
Mr.Currier. Later on you can be heard, if you wish.
Mr.Walker. A gentleman showed me one of the contracts to-day, and I have it in my pocket.
Mr.Burkan. It was the one offered in evidence.
Mr.Walker. I can not be interrupted. I am telling what I know to be true.
TheChairman. You shall not be interrupted, Mr. Walker.
Mr.Walker. Thank you. The Æolian Company made contracts with nearly all or all of the members of the Musical Publishers' Association. Each of those contracts provided as follows: That the particular member of the Music Publishers' Association granted to the Æolian Company the exclusive right to make perforated sheets of paper to play the tunes represented by all of the music published by that particular publisher; and that contract also provided that the Æolian Company should never pay any money for that exclusive right until the Æolian Company succeeded in getting some court to decide that the copyright laws covered the perforated paper roll. That contract also provided that the Æolian Company should pay all the expenses of some test suit made for the purpose of testing that question.
In pursuance of that contract, the Æolian Company caused the White-Smith Music Publishing Company to bring a suit against the Apollo Company, in the southern district of New York, upon a couple of little negro melodies, one of which was entitled "Little Cotton Dolly" and the other of which was entitled "The Kentucky Babe Schottische." I fancy that the copyright on both those negro melodies was not worth as much as a dollar and a half, and that certainly $3 would cover the value of both of them; but they answered the purpose of a test case.
The Æolian Company poured out money like water in that litigation, and endeavored to secure from the United States courts a reversal of the decision of Judge Colt, which had been made many years before. In the course of that litigation I was retained by the Automusic Perforating Company, which was not a party to this litigation, but which had an interest a hundred times greater than that of the nominal defendant. In pursuance of that retainer I presented a petition to Judge Hazel, before whom the case was heard, and in that petition I asked that my client be made a defendant. And I set forth in that petition the whole Æolian scheme in full, with all the clearness of statement of which I was capable, and it was sworn to by my client.
When that statement was filed before the judge, a printed copy was served upon the attorney for the Æolian Company, Mr. Charles E. Hughes, one of the ablest men in the United States, who has distinguished himself in the recent insurance investigation in New York. Anything that he does not think of is not likely to be worth thinking of, and when he put in, as he did, an elaborate brief in reply to my petition, he did not controvert one solitary word of the statement of evidence set forth in the petition about the inherent character of the Æolian scheme, which he would have done if he could have done so.
TheChairman. What was his reply—raising questions of law?
Mr.Walker. I do not think his reply amounted to a row of pins.
TheChairman. Is that a matter of printed record?
Mr.Walker. His reply? I have a copy of his brief in my office in New York.
TheChairman. Will you send that to the committee?
Mr.Walker. I will; yes.
SenatorClapp. And your petition?
Mr.Walker. Yes.
Mr.Sulzer. He raised the question of jurisdiction in his reply, did he not?
Mr.Walker. No; not at all.
Mr.Sulzer. What was his reply, if you remember?
Mr.Walker. I would rather not tell, because I do not think it is particularly creditable to Mr. Hughes.
Mr.Sulzer. You just complimented him very highly.
Mr.Walker. And I do not desire to deduct anything from that compliment.
Mr.Bonynge. You are going to file a copy of it, are you not?
Mr.Walker. Yes; but my time is limited, and if I gave the honorable gentleman from New York an account of that it would take me ten minutes to do so.
TheChairman. You will have an opportunity to inspect his reply and that petition when we have the records here.
Mr.Walker. Now, let me tell you the rest of the story. His reply did not contain a word controverting my statements of fact in the petition. He did not take any issue with the statements of fact in the petition at all—not the slightest. But so far as his reply contained any matter at all, it was first of all an attempt to show that my client was not entitled to be admitted as a defendant anyway, and that, if I was entitled to be heard, he took the ground that my argument was not very conclusive. He did not reflect upon the petition at all; his reply applied entirely to my argument.
Judge Hazel afterwards overruled the petition, and the same day that he overruled the petition he decided the case in favor of the defendant, and followed my brief in his decision. So that the intellectual origin of Judge Hazel's decision can be traced back to the brief that I filed in pursuance of the petition which he overruled.
Very well. The Æolian people then caused that case to be appealed to the circuit court of appeals. When the case came up there I filed a petition in that court to be permitted to argue the case on behalf of the defendant, and also file a brief, both of which petitions were granted. In that petition I repeated the whole Æolian story over again, and I served a copy of that petition on Mr. Hughes a week before the argument came up, and he had abundant opportunity to reply to it. I also called him up and asked him if he was going to reply to it, and he said "No." And when he came to the argument he was as silent as the grave; though he had nearly two hours for his speech, he was as silent as was the grave in respect to all the allegations I had made about the inherent character of the Æolian scheme, and confined himself entirely to attempting to persuade the court that a perforated paper roll was an infringement of sheet music, and that however unconscientious the Æolian scheme might be as the representative of the Æolian company it was entitled to the pound of flesh.
And that was the way he met the second presentation of the Æolian scheme. Afterwards, two weeks ago yesterday, the circuit court of appeals for the second circuit decided against him again.
Mr.Bonynge. How long ago?
Mr.Walker. Two weeks ago yesterday.
Mr.Currier. The decision is in the record already.
Mr.Walker. Certainly.
Now, I wish to say this to the committee, that that Æolian scheme is the most ingenious scheme that I ever knew to be invented by anybody in this country for the purpose of acquiring wealth by means of a patent or a copyright monopoly. And, further than that, I wish to say that the Æolian scheme is so ingenious that it does not violate any law whatever except one, and that is the golden rule. You can not square the Æolian scheme with the Sermon on the Mount, but you can square it with the Sherman antitrust act, and you can square it with every statute on the statute books. They have dodged a violation of every statute in inventing their scheme. And now they lack nothing at all to consummate their scheme except for Congress to pass this bill in the form in which it is drawn. That will place the capstone upon the monument, and will give to the Æolian Company a million of dollars a year out of the pockets of the people of the United States. And of that million of dollars they will keep at least $900,000, and about $90,000 of the rest will go to the music publishers, and not one cent over $10,000 of the whole million will go into the pockets of any music composers during their natural lives.
In the nature of the case it must be so. My statements are not based alone upon any special contracts or facts; but as long as human nature remains as it is, as long as the business problem involved in mechanical playing instruments remains as it is, it must be true that a proposition, if enacted and enforced, to subject perforated music rolls to copyright protection will enormously burden the American people for the benefit of corporations and middlemen, and only very slightly for the benefit of musical composers.
These distinguished gentlemen—Mr. Herbert and Mr. Sousa—are so distinguished that they can make their own terms, and this bill would enrich them. I do not see that they need to be enriched. I believe that these gentlemen, for amusing the American people, are each one of them receiving more money than Theodore Roosevelt is receiving for regulating the affairs of mankind. [Laughter.] And I myself have contributed many a dollar to their coffers, and I have always obtained full value therefor. I have had the pleasure of listening to two of their operas lately, and if any of you gentlemen get a chance to hear one of them I hope you will not miss it, because it is worth the price.
But this business problem that I am expounding is one of great complexity, and while the result of many years of experience with this general topic and the result of many months of special investigation of this subject convinces me that all my statements as to how the thing must work are correct, I can not, in any brief period of time, prove these statements to be true by depositions or testimony of witnesses.
Mr.Chaney. Can you give us an illustration of the respect in which the mere copyrighting of the music roll will do all that?
Mr.Walker. Yes; I can. I think I can do it in three or four minutes.
The music that the American people want to play now is made up of two kinds—classic music, uncopyrighted music, and the current music that comes out. Now, if this scheme were carried out the Æolian people would have the exclusive right to perforate paper rolls in accordance with all the current music covered by their contracts with the music publishers; and those contracts cover at least nine-tenths of all the music being produced month by month and year by year.
Now, inasmuch as the Æolian Company would have the exclusive right to perforate sheets for half the music that the people want, nobody could sell a music-playing instrument unless it was manufactured by the Æolian Company, because the Æolian Company as a part of their policy would refuse to sell their perforated sheets except for use in connection with their own instruments; and this would be the situation: You want to buy a pianola. You go to New York and call on the Æolian people. They say: "We will sell you a pianola, and if you buy it from us you can use it to play any tune known to man, classical or modern. Go over to our neighbor across the street, and he will sell you a pianola, too, but he can only sell you music rolls to represent classic music and uncopyrighted music. If you are contented with Beethoven and Mozart and the masters, and do not care for Sousa and Victor Herbert and their contemporaries, go across the street and buy your pianola. But if you want a pianola that will enable you to play any copyrighted music at all, you must buy it from us; for there is not another party in the United States that can sell you one of those machines."
So that the passage and enforcement of this bill would practically give the Æolian Company, of Meriden, Conn., a permanent patent on an old machine, namely, the automatically played piano, and all other musical instruments played by perforated paper roll.
I assure you, gentlemen, that this bill must in the nature of the case have that operation. So that the moment that the Congress passes that bill, if it were to be enforced by the courts afterwards, Congress would be giving to the Æolian Company, of Meriden, Conn., a permanent patent on that great industry, without those people ever having invented a solitary part of the origin of the business, and without ever having composed a single piece of music played in their machines.
TheChairman. Mr. Walker, had you intended to speak specifically about the provisions of this bill?
Mr.Walker. I had, but I have been interrupted so much that I have not been able to do so up to this point. Now I am going to devote myself entirely to that.
TheChairman. You have only twenty-five minutes.
Mr.Walker. I realize that.
Mr.Chaney. You were going to speak of the constitutionality of the bill, also.
Mr.Walker. That is what I am going to take up now.
The Constitution provides that copyrights may be granted on writings. This bill provides that copyrights may be granted on works. The fourth section of this bill reads as follows:
That the works for which copyright may be secured under this act shall include all the works of an author.
That the works for which copyright may be secured under this act shall include all the works of an author.
Although this bill purports to be founded on the Constitution, and although the Constitution is confined to the word "writings," that word "writings" does not appear among the 8,000 words of that bill. It is not there once. This bill is based upon the theory that Congress has power to grant an exclusive right to works, and the word "works" is used more than 30 times where the word "writings" ought to have been used, and the word "writings" is not printed in that bill from its beginning to its end.
I am not reflecting upon any gentleman who drafted the bill in that way, because the bill was drawn upon the theory that the Constitution justifies copyright upon an author's works. Now, the word "works" includes "writings" and is far more comprehensive than "writings." Take the case of Theodore Roosevelt. He has published and printed 15 volumes of original works, and he has delivered without writing more than 1,500 speeches. Now, those books that he has printed and those speeches that he has delivered are equally his works, but they are not equally his writings, because he never has reduced those speeches to writing. So that there is a plain distinction between works and writings, and that distinction is recognized in this bill, as follows. (Now I will devote myself for the rest of the time to strict analysis.)
Sec. 4.That the works for which copyright may be secured under this act shall include all the works of an author.
Sec. 4.That the works for which copyright may be secured under this act shall include all the works of an author.
Then twelve classes of works are enumerated. The third of those classes of works is said to be "oral lectures, sermons, and addresses." Now, those productions come under the head of works, and do not come under the head of writings, confessedly.
Mr.Bonynge. But they could not be copyrighted until they were reduced to writing, could they?
Mr.Walker. Yes; they could, under this bill.
Mr.Bonynge. How?
Mr.Currier. What would you file in the copyright office?
Mr.Walker. You do not have to file anything for a year.
Mr.Currier. I know that; but you have got to file something then.
Mr.Walker. But you get a year's copyright without ever doing that, and this bill would give a man a monopoly of a whole year on a speech never reduced to writing, and that is a "limited time." And if he chooses ever to reduce it to writing, then all he has got to do is to file one copy in the office of the Library of Congress and not publish it at all.
Mr.Chaney. Well, you must remember that we must confine this to copyrighted matter.
Mr.Walker. You must confine it quite narrowly, I think; but please let me develop my particular thought.
It is perfectly plain that under this bill a man may have a copyright on an oral sermon, lecture, or address and maintain that copyright for a whole year without that discourse ever being even put into typewriting during that period. That is a perfectly plain case, therefore, of copyrighting a work that is not a writing.
Now, come down to subsection G, "works of art." There is another item. Now, that word is much broader than "writings." I have made a good many works of art myself. Everybody that invents a complicated machine produces a work of art and a work of high art. There are a great many works of art here in this room which could not by any possible strain of language be denominated "writings." There is a perfectly plain case of attempting to copyright, under this statute, a work which is not also a writing.
Mr.Currier. What change would you suggest in subsection G?
Mr.Walker. I have formulated such a change as that, but it would take a little time to explain it.
Mr.Currier. Very well. Take your own course.
Mr.Walker. I am very glad to be at the disposal of the committee, but it would take me five minutes to explain. It is a very important point.
Subsection H covers "Reproductions of a work of art." There is a perfectly flagrant case of attempting to copyright not only a thing that is not necessarily a writing, but also a thing that is not even original; whereas the Supreme Court has told us over and over again that nothing can be copyrighted that is not original.
Now, go over to the next page, page 4, Class L:
Labels and prints relating to articles of manufacture, as heretofore registered in the Patent Office under the act of June 18, 1874.
Labels and prints relating to articles of manufacture, as heretofore registered in the Patent Office under the act of June 18, 1874.
That was the very act that the Supreme Court held fifteen years ago was unconstitutional as not authorizing copyright on things which are not writings. So that there is a recommendation to this committee to reenact a law that the Supreme Court has expressly held to be unconstitutional.
Now, come, if you please, to the second page of this bill. The first section of this bill enumerates exclusive rights to be covered by copyright. Subsection C is:
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
Mr.Campbell. What page is that?
Mr.Walker. The top of page 2.
SenatorSmoot. Subdivision C.
Mr.Walker. (Reading):
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
To deliver, or authorize the delivery of, in public for profit, any copyrighted lecture, sermon, address, or similar production prepared for oral delivery.
A lecture could be copyrighted under this statute without any copy ever being put even into typewriting, as I stated a little while ago, and that copyright could be maintained for a year, when the discourse has no existence whatever except in the mind of the man who delivers it, and in the ears of those who heard it, and in the air that transmitted it from the vocal organs of the lecturer.
D—To publicly perform or represent a copyrighted dramatic work.
D—To publicly perform or represent a copyrighted dramatic work.
Section 4966 of the Revised Statutes covers that ground already, and provides that copyright may cover the performance of dramatic work. But I hold, and I hold without the slightest hesitation, that that whole section 4966 is unconstitutional. No court has ever held it to be constitutional, and any attempt on the part of Congress to grant a copyright to enable a man to monopolize the rendering of a play on the stage is preposterous. The fathers who went to Philadelphia in 1787 had more weighty business on hand than to give to playwrights an added grip on the monopoly of their productions in addition to the common-law grip that they already had. At that time and now the author of a play is abundantly protected under the common law, but Congress in 1870 provided an additional grip for the playwright under the copyright statute, in face and eyes of the fact that the Constitution under which they were acting was confined to writings. But if I do not remember wrongly (and I think the gentleman from North Carolina will agree with my recollection) about 1870 Congress did several things that could not be fully vindicated under the Constitution.
Mr.Webb. Yes.
TheChairman. Mr. Walker, have you in mind the exact language of the Constitution?
Mr.Walker. Certainly.
TheChairman. Will you not put it on the record at this point?
Mr.Walker. "Congress shall have power to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
"F. To publicly perform a copyrighted musical work, or any part thereof."
"F. To publicly perform a copyrighted musical work, or any part thereof."
Now, is Mr. Sousa present? If not, I see Mr. Victor Herbert here, and I would like to ask Mr. Victor Herbert whether, during the last few years, he has with his orchestra performed copyrighted music of other composers, of which copyrighted music he purchased and had the sheets there for the performance?
Mr.Herbert. With their permission.
Mr.Walker. Did you get any other permission than the purchase of the sheets?
Mr.Herbert. That is included.
Mr.Walker. Did you get any special permission to perform?
Mr.Herbert. The permission is written on the sheet.
Mr.Walker. What is written on the sheet?
Mr.Herbert. Permission for performance.
Mr.Walker. It is on the sheet, is it?
Mr.Herbert. Yes.
Mr.Walker. In all cases?
Mr.Herbert. That is, on the corner of the sheets—"permission to perform."
Mr.Walker. Very well, if in his case it is there. But this is the situation of the law at the present time: If one of you gentlemen goes to church and joins in the singing of a hymn that is the subject of a copyright, you are liable to a penalty of $100 for the first time you join in that singing, and a penalty of $50 for every subsequent time, unless you yourself bought that particular hymn book at first hand from the publisher. That is the law now.
Mr.Sulzer. Suppose the church bought it?
Mr.Walker. Then you are liable for the penalty.
Now, that section 4966 has been violated more than a million times since Congress enacted it in 1897, and Congress does not notice the difference; and I take it that it has taken no steps to vindicate its dignity.
Mr.Bonynge. There is a bill pending before our committee on that proposition.
Mr.Walker. Yes; I understand about that pending bill, but I am speaking of the law as it now exists. So that, gentlemen, I take the ground that any legislation that gives to the composer of any music the exclusive right to publicly perform that music is outside of the Constitution, because a copyright on a writing can be infringed only by writing; and when some gentleman or some lady stands up in a church and sings a song out of his or her mind he or she is not doing anything about any writing.
Clause G is one to which I direct attention. That clause G is the one that is directed against all music-playing instruments. The gentleman who preceded me did not make entirely clear the nature of this beautiful instrument that he showed the committee, which he stated was capable of rendering music. What he showed to the committee was a perfectly plain steel cylinder. When you look at it you can see no——
Mr.Currier. Most members of both committees are perfectly familiar with that instrument.
Mr.Walker. Very well; I am very glad to hear that. There are a very great many persons who are not.
Mr.Currier. That instrument was exhibited before the House committees in the Fifty-seventh Congress.
Mr.Walker. Oh, yes—then you know all about it. There are a great many gentlemen who have not been informed about it, and I thought I would mention it.
Aside from the matters of constitutional consideration—I have twelve minutes left, and during those twelve minutes I wish to devote myself to some criticisms of this bill which have nothing to do with the constitutional questions that I have been discussing. Those criticisms are equally applicable whether the bill is to be framed and enacted on the basis of "works," or whether it is to be framed and enacted on the basis of "writings." And in any view that anybody may take about the scope of the copyright, the criticisms to which I am now calling attention deserve consideration.
The first one is in section 13, which is one of those sections that is intended to give the American manufacturer the monopoly of manufacturing copyrighted books.
That purpose is a good one, but that section is not well drawn to effect that purpose, because the gentlemen who drew the section were not thoroughly acquainted with the art of printing in its modern development; and the suggestions I have to make to the committee are with a view to strengthening that section so as to close up some loopholes that the authors of the section left wide open.
The language is:
That of a printed book or periodical the text of the copies deposited under section 11 above shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made from type set within the limits of the United States, or if the text be produced by lithographic process, then by a process wholly performed within the limits of the United States.
That of a printed book or periodical the text of the copies deposited under section 11 above shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made from type set within the limits of the United States, or if the text be produced by lithographic process, then by a process wholly performed within the limits of the United States.
The trouble there is that the author of that section supposed that the lithographic process was the only other process of producing a book besides printing it from type or a streotyped plate. Now, the lithographic process is not the only process. There are modern processes of photomechanical printing that have nothing at all to do with lithography, that are much cheaper than lithography, and that do all that lithography does. As an illustration, those beautiful illustrated supplements that come out every week with the New York Tribune on Sunday are supposed by some gentlemen to be lithographs. They are not. They are printed on aluminum cylinders at great speed and with great cheapness, and they are very much cheaper and very much better than can be done by the old art of lithography.
Mr.Currier. Could not that be said to be a plate within the meaning of this act?
Mr.Walker. No; because a stereotype plate is meant. But that is very easily corrected. I would suggest that for the words "by lithographic process" be substituted "any other process." Then that covers lithography and every other possible process. Then, on the 21st line of that page, I would suggest the substitution of "illustrations" for "lithographs," because illustrations may be made otherwise than by lithography.
The gentleman who delivered himself upon that particular subject upon behalf of the American mechanic was uninformed about the matter, and complained that a large number of printed illustrations were being imported into this country that would be kept out under the lithographic clause if you put the lithographic clause in strong enough. Now, he is entirely mistaken about that, because the very things that are being imported and that he complains of are not made by lithography at all, but by another process.
Section 15 contains a provision as to what shall happen if the copyrighter does not deposit his copies in the office of the Librarian of Congress on time; and there is a proviso in lines 19, 20, and 21 which reads:
That in such case no action shall be brought for infringement of the copyright until such requirements have been fully complied with.
That in such case no action shall be brought for infringement of the copyright until such requirements have been fully complied with.
That ought to be amended by adding the words "or be based on any infringement begun before the time of that compliance," because otherwise the public would have no protection at all. A man could go on and innocently infringe during that year, and the only protection this section gives him is that he would not be sued until after the end of the year, but when sued the action would be retroactive; and that amendment ought to go in to perfect the section.
Section 18 relates to the duration of copyright. Gentlemen, that is a topic to which I have given great consideration, and I can do no more than state my opinion. I should like to elaborate it, but what I would recommend the committee to adopt on that subject is this very short provision: That the copyrights secured by this act shall endure for a hundred years in the case of an original book or dramatic or musical composition (one hundred years, Mr. Herbert, I liberally advocate in your behalf) and for fifty years in every other case.
I am totally opposed to any law providing for the extension of any copyright or any patent. The public ought to know, when the copyright comes out and when the patent comes out, exactly when it is going to expire; and it ought not to be made contingent upon anything so uncertain as human life. On the other hand, there is every reason in favor of giving the copyrighter a very long period of monopoly. Seventeen years is long enough for the patentee. I am a patentee myself. I would be very glad indeed to have Congress extend some of my patents, but I have not the effrontery to ask Congress to do it, because I do not deserve it.
Mr.Currier. Do you think a hundred years is a limited time within the meaning of the Constitution?
Mr.Walker. Oh, yes; certainly. A thousand would be. [Laughter.] And I wish to make this suggestion: It was suggested to me that the word "limited" meant definitely limited, and that therefore Congress would not be conforming to the Constitution if it made the period dependent upon any uncertain contingency. Now there is some force in that.
Mr.Sulzer. I agree with you, Mr. Walker, upon making the number of years definite; whether you make the years few or many, make them definite. Now, right there, without any intention to be facetious, do you not think that fifty years is sufficient?
Mr.Walker. No; and I will tell you why. Harriet Beecher Stowe wrote "Uncle Tom's Cabin" in 1853. She got a copyright on it for twenty-eight years, then an extension of fourteen years, and at the end of that time, in 1895, the copyright expired. Harriet Beecher Stowe then was dead—died in 1896—but she left two maiden daughters; and it would be a comfort to me, and it would be a comfort to all those who honor the memory of Harriet Beecher Stowe, if those two ladies could now be in the receipt of some royalty from "Uncle Tom's Cabin," which they can not be.
Mr.Sulzer. Is there any government that grants a patent or copyright for more than fifty years that you know of?
Mr.Walker. Not that I know of. Fifty years would be altogether excessive for any patent. The longest period that could possibly be vindicated by argument for a patent would be twenty years.
Mr.Bonynge. How about copyright?
Mr.Walker. I wish I could argue the matter; but I hold that all original works ought to be copyrighted for a hundred years, and all derivative works, such as dictionaries and encyclopedias, for fifty.
Mr.Bonynge. What is the longest period granted by any government, that you recall, for a copyright?
Mr.Walker. I can not speak as to that with certainty.
Mr.Sulzer. Fifty years?
Mr.Walker. The nations are numerous.
Now, I must come to another point, section 23, in respect of the damages that may be recovered. Section 23 begins as follows:
That if any person shall infringe the copyright in any work protected under the copyright laws of the United States by doing or causing to be done, without the consent of the copyright proprietor first obtained in writing, any act the exclusive right to do or authorize which is by such laws reserved to such proprietor, etc.
That if any person shall infringe the copyright in any work protected under the copyright laws of the United States by doing or causing to be done, without the consent of the copyright proprietor first obtained in writing, any act the exclusive right to do or authorize which is by such laws reserved to such proprietor, etc.
The trouble with that is that it makes the man who does the thing an absolute infringer unless he can show a consent in writing; and that repels the whole doctrine of implied licenses and equitable estoppel, which two doctrines are found to be absolutely indispensable to the administration of justice in patent cases, and heretofore in copyright cases. The idea that there can be no answer to an infringement suit for a copyright except a written license is new in this statute. It has never been in any copyright law before, and it would work havoc with justice, because it would enable the wilfully malicious copyrighters to mislead men into unwitting infringement, and then pounce on them with an infringement suit, and then, when they set up equitable estoppel or an implied license, say, "Equitable estoppel and implied license do not go in this statute. You must show a written license." Words can not express how badly that would work.
Again, in subdivision B, this man is—
to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer may have made from such infringement.
to pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer may have made from such infringement.
That is wrong, because it gives him two recoveries; and in patent cases the courts have established for more than a quarter of a century that the patentee is entitled to a recovery of profits or damages, whichever he prefers, but is not entitled to recover both. No proposition has ever been made, in any statute, to give anybody a double recovery until it is made here; and here he is told that he shall have both. And what is worse, down at the bottom there of the subsection, if it turns out that there were no damages inflicted and no profits made, then the provision is that the judge shall fix the damages at such a sum as he finds to be just; and then, after the judge is told to exercise his discretion to fix a just sum, he is told that that sum must not be less than $250.
On page 18, among the evils and misfortunes that are to be inflicted upon the unwitting infringer as well as the willful infringer, is the following. He must—
deliver up on oath, to be impounded during the pendency of action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright.
deliver up on oath, to be impounded during the pendency of action, upon such terms and conditions as the court may prescribe, all goods alleged to infringe a copyright.
So that if anybody wants to drive his competitor out of business, all he has to do is to file a bill alleging that the competing goods infringe, and he does not even have to swear to that; and then, in pursuance of that bill, all the property of that alleged infringer is impounded during the course of the litigation. And it would be a very dull complainant that could not keep the litigation going at least five years, and to that extent eliminate competition.
The next one is wickeder still. The infringer must—
deliver up on oath for destruction all the infringing copies or devices, etc.
deliver up on oath for destruction all the infringing copies or devices, etc.
Here is a case of an unwitting infringer. He is found to infringe. He thought he did not infringe. Good lawyers told him he did not. The court finally found that he did, and there, among the penalties, all his goods must be delivered up for destruction. Now, that is entirely wrong. The courts have decided in patent cases that under precisely those circumstances the defendant has a right to export his goods and sell them in foreign countries; and there is no ethical and no legal reason why an unwitting infringer of a copyright, after having been found to infringe in this country, should not export his goods and sell them elsewhere. And the circuit court of appeals for the second circuit has unanimously decided, in patent cases, that that is perfectly right.
Mr.Webb. Not only the copyrighted goods, but the machines themselves.
Mr.Walker. I will come to the other point—certainly; and he must not only have those destroyed, but the "plates, molds, matrices, or other means of making such infringing copies."
My client, the Automusic Perforating Company, has a plant that cost $50,000. That mechanism is adapted to perforating rolls, and if they should use that mechanism in perforating 500 rolls with perfect right, and then inadvertently use that mechanism in perforating one roll that was held to infringe, under this bill their whole plant would be cleared out of their place and would be destroyed.
Gentlemen, that is so surprising a proposition that I presume it may be of interest to know the origin of it. The patent laws of England provide that, at the discretion of the court, infringing material may be destroyed. That is because the Parliament of England is not subject to any constitutional limitations, and can pass any kind of a law that it pleases. Mr. Justice Gray knew more about the laws of England than he did about the laws of America; and at one time, one of the two times when he was deciding a patent case while he was on the bench, he ran across an English decision in which it was held that the infringing goods might be destroyed. And then, by way of obiter dictum, without having the slightest occasion to do so, he wrote into the decision an obiter dictum to the effect that that was the law of this country. But the judges of the circuit courts know better, and never have enforced that obiter dictum. And if they were to enforce it they would violate two or three provisions of the Constitution, among others that no person shall be deprived of property without due process of law.
But the authors of this provision, taking the hint from that obiter dictum of Justice Gray, have not only applied it to the same matter that Judge Gray applied it to, namely, the infringing thing itself, but to the entire plant of the infringer.
(At this point it was announced that Mr. Walker's time was up.)
Mr.Walker. I promised to stop at the end of an hour, and I will do so.
TheChairman. Can you finish what you desire to say regarding the provisions of this bill in five minutes additional?
Mr.Walker. Well, I can talk five minutes; I ought to have ten. [Laughter.]
TheChairman. We will give you five minutes more because of the interruptions.
Mr.Walker. Yes.
Section 30, in respect to this matter of importations—I am now speaking on behalf of the gentlemen, no one of whom I know, namely, those who desire to be protected in this country against the competition of the labor of Europe in getting up copyrighted books. Section 30 reads: