Chapter 13

That during the existence of the American copyright in any book the importation into the United States of any foreign edition or editions thereof (although authorized by the author or proprietor) not printed from type set within the limits of the United States or from plates made therefrom, or any plates of the same not made from type set within the limits of the United States, or any editions thereof produced by lithographic process not performed within the limits of the United States, in accordance with the requirements of section 13 of this act, shall be, and is hereby, prohibited.

Now, gentlemen of the committee, that prohibition does not amount to a row of pins. It is as void as is the atmosphere around the North Pole at Christmas time of all human interest, because, although one would suppose by a superficial reading that it put a fence up around all parts of the lot, it leaves at least half the sides of the lot entirely uninclosed. Thus, it prohibits nothing except the importation of an entire edition. Now, somebody may say: "No; it is not an entire edition it is aimed at, but only one specimen of the edition."

But I say in response to that, that that language "Edition or editions" is taken out of the present statute, and in the present statute the words "edition or editions" are confined in their meaning to entire editions by the circumstance that the present statute prohibits also the importation of individual copies. So that if Congress were to enact that section, and it should come before a court, the lawyer for the defendant would say: "It is perfectly plain that Congress intended to change the law. Formerly, in its wisdom, it prohibited the importation of an edition or editions, and also the importation of individual copies. Now it has expressly left out prohibition of the importation of individual copies and prohibited only the importation of an entire edition," and there would not be any answer whatever to that argument.

Mr.Sulzer. Then, in the interest of the working people of the United States, you would prefer to have the law left just as it is now?

Mr.Walker. That would be much better than this; but I would strengthen that law. I know how to strengthen it, and I——

Mr.Sulzer. Will you tell us, briefly, how you would strengthen the present law?

Mr.Walker. Yes; I would do it by amending this section in three places, very simply, if the stenographer will take this down.

Mr.Sulzer. He takes everything down.

Mr.Walker. Very well. I propose that section 30 be amended in the interest of American mechanics by substituting the word "copy" for the words "edition or editions" in line 5 of page 23. Then in line 9 of that section——

Mr.Sulzer. "Or any part thereof?"

Mr.Walker. Wait a moment—and by substituting the word "copy" for the word "editions" in line 9 of page 23; and by substituting the words "any other" for the word "lithographic" in line 10 of page 23. Now, with those amendments, every door would be closed, and the American mechanic would be protected at every point.

Mr.Sulzer. Would that preclude any part of that edition being imported?

Mr.Walker. It would, because that language, "or any part thereof," is contained elsewhere.

Section 32: There is a statement 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.

Gentlemen, one of the competitors of the gentlemen before me wrote an opera, and that was George Ade, and in this opera he inserted this witticism:

The Constitution may follow the flag, but the cocktail is sure to.

We are told by the Supreme Court that the Constitution does not follow the flag necessarily; it follows it if Congress sends it there. Now, if in the wisdom of Congress the copyright law should be extended to Hawaii, Porto Rico, and the Philippine Islands, that can be accomplished only by a statute expressing that intention. And the statement that the courts in those outlying regions shall have jurisdiction of copyright cases amounts to nothing unless you extend the copyright laws to those portions of the earth's surface. I am not in favor of doing it; but if you want to make copyrights effective in those outlying regions you must do so by express enactment.

Here is a more important matter:

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.That ought to be amended by substituting the word "his" for the word "the," because as it reads now you can sue a man for somebody else's infringement.

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.

That ought to be amended by substituting the word "his" for the word "the," because as it reads now you can sue a man for somebody else's infringement.

Mr.Chaney. So that it would read "his violation?"

Mr.Walker. Yes; substitute "his" for "the." Then there should be added to that section this language: "And wherein the defendant has a regular and established place of business."

The public policy involved in that point has been threshed out for many years in patent cases; and in patent cases it has been found to be unjust to compel anybody to submit to an action for infringement of a patent in any district unless it be in the district of which he is an inhabitant, or a district where he has a regular and established place of business. You can not sue somebody for infringing a patent merely by proving that he did formerly infringe that patent in a particular district away from home, or by finding him in that particular place. You can not go to Chicago and sue a New York man for infringing a patent on the allegation that a year or so ago he did infringe that patent in the northern district of Illinois, unless you prove also that he has a regular and established place of business in Chicago. No man ought to be sued for infringing a copyright except in the district where he resides; or, lacking that, in the district where he is engaged in business.

Mr.Chaney. Then you would favor the defendant rather than the complainant in such a case?

Mr.Walker. No; I would be just to both; and my proposition is deduced from the present patent statute, and that patent statute is deduced from considerations of justice as they have worked out during fifty years of patent litigation as on the whole being most equitable.

Section 35 provides that "In all recoveries under this act full costs shall be allowed."

That ought to be amended by substituting the word "actions" for the word "recoveries," so as to permit recovery in behalf of a successful defendant as well as in behalf of a successful complainant; and the word "full" ought to be erased, and these words ought to be added "in accordance with law," so that the section would read:

That in all actions under this act, costs shall be allowed in accordance with law;

and the law that would be put into operation by that amendment would be those general statutes of the United States which relate to the taxation of costs in all litigations in the United States courts.

Here is a bad section, 43—

That in place of the original instrument of assignment there may be sent for record a true copy of the same, duly certified as such by any official authorized to take an acknowledgment to a deed.

That opens the door wide to fraud, because hardly anything is easier than to get a notary public to certify that one document is a copy of another, particularly where he is acting in a capacity outside of his office, and therefore would not be liable for any inconvenience or penalty if the certificate should turn out to be false. So here is a proposition to make the ownership of a copyright depend upon the record in the copyright office of an alleged copy of an assignment, which alleged copy may be fraudulent, and if fraudulent then resulting in no punishment to the wrongdoer.

Mr.Chaney. You would confine that to some other official, then; would you?

Mr.Walker. No; I would take it out altogether, and leave it as in patent cases—that only originals are entitled to be recorded. Such a thing as allowing a copy of an assignment of a patent or a copyright to be recorded in the place of the original is entirely unknown, and it would open the door widely to fraud.

TheChairman. Your time has expired, Mr. Walker.

Mr.Walker. Yes. I wish to express my thanks to the committee for hearing me so long and so patiently, and to express my best wishes for the future of the bill, and my own entire willingness to contribute, if I am found to be competent to contribute, to the perfection of the bill hereafter.

SenatorSmoot. Mr. Walker, I have been wondering, for the hour that you have been delivering your intelligent speech here, on what basis your congratulations were extended to Mr. Putnam and other persons who took part in the preparation of this bill. [Laughter.]

Mr.Walker. Why, I am surprised that you did not see that.

Mr.Putnam. I can say, Senator, It is because they have had the benefit of such lucid criticism at such an early stage. I can say that it was not expected by us that anyone would take up this bill with such a penetrating intelligence as Mr. Walker has shown, within a week after its introduction into Congress.

Mr.Walker. And I wish to say to the Senator from Utah, if I may be permitted, that while I have criticized this bill in plain terms, the framework of the bill as a whole is very scientific, and in one day or two days I could so amend the bill as to entirely remove all my objections and still preserve the substance of the scheme which Mr. Putnam has put upon paper.

SenatorSmoot. I have been very much interested, Mr. Walker, in your statement.

Mr.Sulzer. Mr. Chairman, I agree with the Senator from Utah; I have been very much interested in what Mr. Walker has said, and I was going to make this suggestion: That he be allowed to file a brief with the committee, which will be printed in the record as a part of the record.

TheChairman. That was understood the other day.

Mr.Walker. Thank you very much.

Mr.Sulzer. Mr. Chairman, I would be glad to have the committee hear now Mr. Nathan Burkan, who represents the publishers and composers of music.

Mr.Currier. Mr. Sulzer, two gentlemen who are now present have come all the way from Chicago to address the committee and have just this moment gotten here.

TheChairman. We will hear Mr. Burkan after them.

Mr.Currier. We will hear him later.

Mr.Putnam. Mr. Chairman, you have requested me to remind the gentlemen present that it is the desire of the committee to have a register of the names of all who have attended these hearings, and the capacity (if they desire to indicate it) in which they have been here. Some of you who were not here before will find opportunity to register at the door, and I would suggest that as the register was not opened until Thursday, any of you who know of any persons present on Wednesday who had left by Thursday, and whose names therefore did not appear upon the register, will please pass a memorandum of their names in to us.

Mr. Chairman, I have a memorandum handed in which I offer to the committee on behalf of Mr. Charles W. Ames, calling attention to a misunderstanding, as he has believed, of two sections, section 3 and section 19, and another communication simply filing objections to certain sections, 13, 18, 32, 33, and 34, and desiring an opportunity later to be heard.

TheChairman. They will go in the record.

(The papers above referred to, together with a letter from Mr. Leo Feist, were directed to be made part of the record, and are as follows:)

Washington,D.C.,June 9, 1906.Mr.Herbert Putnam,Librarian of Congress.Dear Sir: I wish to file with the committee at this time objections to sections 13, 18, 32, 33, and 34 of the copyright bill. I will indicate briefly the grounds of my objection and will make further argument on them at some future time if the committee should desire.Yours, respectfully,Charles W. Ames.Section 13, page 9.—I have always objected to the proposed affidavits of domestic manufacture. I believe there is no real need for it and that it imposes an unnecessary burden on the copyright proprietor and the copyright office. It has been demanded only by the Typographical Union, which claims to have private reasons for believing that the requirement of domestic manufacture is being frequently violated by publishers. The records of the copyright office do not show such violations, nor have I ever heard of any being shown in the courts. The publishers generally throughout the country regard this requirement as an imposition and an outrage—that on the suspicion of the Typographical Union they should be required to swear that they were not violating the law whenever they take out copyright. The publishers would have questioned the propriety of this measure when it was pending before the last Congress if opportunity had been offered, and strenuous opposition would have been made to the passage of the bill.At the first conference last year, the representatives of the Association of Publishers, in a spirit of conciliation, agreed with the representatives of the Typographical Union that they would not oppose the requirement of an affidavit. As a member of that Association of Publishers. I shall not now oppose the affidavit section as a whole, which requires me to swear five hundred times a year that I have done something, failure to do which would have invalidated many thousands of dollars' worth of copyright property.But I do object earnestly and emphatically to the final paragraph of section 13 (lines 21-25, p. 9), requiring the statement in the affidavit of the particular establishment in which the work has been done. This fact is wholly irrelevant to the purpose of the affidavit and has no bearing on the requirements of the copyright law. It is purely a private business matter. In case the affidavit is challenged (as it would be in only an infinitesimal proportion of registrations) and proof of domestic manufacture is required in any action, of course the establishment would be readily shown. Copyright proprietors should not be required to disclose it otherwise, satisfying the curiosity of business rivals and others.It seems also an unnecessary insult to the publishers to provide special penalties for false affidavits. Will not the ordinary penalties for the crime of perjury be sufficient to cover all cases where publishers, in addition to jeopardizing their property rights by violating the provision for domestic manufacture, swear falsely in the premises?I believe that Mr. Sullivan, in behalf of the Typographical Union, stated at the last conference that the union was not disposed to insist on the specification of the establishment in the affidavit if it should appear that this fact was unnecessary and irrelevant to the purpose of the affidavit. I hope that the union will make no opposition to the elimination of this provision, which is obnoxious to the publishers. By so doing they will at least minimize the opposition of the publishers to the affidavit provision as a whole. There are very many publishers throughout the country who are not members of the association referred to, and will not be governed by the agreement made at the conference.The date of publication, if given in the affidavit, might serve for convenience as furnishing an essential fact to be a part of the record covered by the Librarian's certificate.Section 18, page 14.—This section relates to the term of copyright. In fixing the term I think due consideration has never been given to the fact that a vast majority of copyrights become commercially worthless after a very few years. Thus the records of the copyright office show that last year but 2.7 per cent of the copyrights completing their original term of twenty-eight years were thought by the authors of sufficient value to renew them for the additional fourteen years under the comparatively simple provisions of the present law.It is safe to say that not more than 5 per cent of all the copyrights have any commercial value after twenty-eight years. It would seem feasible to provide for the extension of the property rights in these valuable literary or artistic properties without conferring undeserved or undesired extensions of term in hundreds of thousands of copyrights of no pecuniary value to the owners. On the other hand, there is some intrinsic value to the public in a portion of the copyrighted material after it has lost all pecuniary value to the author or his assignee.I believe that the great majority of copyrights should fall into the public domain at a definite and easily ascertainable time. I hold, therefore, that the ordinary copyright term should be no longer than the twenty-eight years as fixed at present. But the few valuable copyrights could be secured for a much longer term by a simple and easy arrangement for renewal, as by requiring merely the filing of a notice of the desire to extend and allowing the author or his heirs to file such notice; or, in case there has been an outright assignment, permitting the author and assignee or licensee under royalty to join as provided in section 32 of the present draft.Some provision should also be made for the renewal of valuable proprietary copyrights of the sort enumerated in subsection(b)of section 18.Sections 32-33, pages 26-27.—My most serious and strenuous objections are to this section 32, regarding actions arising under the copyright law, and especially the second paragraph, providing that actions may be brought and jurisdiction secured in any district of the United States where violation of any provision of this act has occurred. This means that any copyright proprietor or any publisher may be brought into any district in the United States or every district simultaneously in the case of many articles sold generally throughout the country. And it therefore concerns very nearly every person interested in the copyright law.Every copyright proprietor may be defendant in a suit as well as complainant. Suits may be brought in good faith or for malicious reasons; for the real protection of property or for harassing business rivals. They may be well founded or groundless, honest or frivolous. Now, speaking as the proprietor of a large number of copyrights and a great deal of valuable copyright property which I am anxious to protect against infringement, I would much prefer to forego the advantages offered to complainants under this section rather than run the risk of the infinite vexation which might be caused my company as defendant in malicious and frivolous suits brought in foreign jurisdictions chiefly for purposes of blackmail.I see no good reason why copyright proprietors should have facilities for the use of the Federal courts not accorded to any other class of suitors. It is true that certain classes of copyright property may require special provisions for their protection, but it should be noted that section 966 of the Revised Statutes is by this bill retained (see sec. 64), and would therefore still protect dramatists and musical people in the peculiar rights which they now have under the present law.The penal provisions of this bill are severe and even harsh, including misdemeanor clauses with fines and forfeitures and even imprisonment. On the other hand, the law is full of novel provisions. It will be, at best, years before these can be judicially construed so that they may be generally understood. Meanwhile, everyone concerned will find many doubtful points and open questions on which legal advice will vary, and can in no case be conclusive. To subject authors and publishers to the danger of being peremptorily summoned to defend an action in a distant district for some supposed violation of some provision, "any provision of this act," however insignificant, with the issuance of ex parte injunctions operative throughout the whole country, with possible "impounding" of important and valuable publications for an indefinite period of time (during the pendency of the suit, see sec. 23, p. 18), a publisher in New York might sue his neighbor across the street in any distant district, possibly Alaska or the Philippine Islands; a rich and powerful house might crush a feeble competitor by forcing him to defend suits brought simultaneously in a hundred jurisdictions. These possibilities may well terrorize all persons interested in copyrightable property of any description.Finally, I say from long experience that it is a mistaken kindness to make copyright litigation easy. The protection of the copyright law is chiefly moral. Remedies for actual wrongs committed are in most cases illusory. A copyright suit should never be brought except for the most serious reasons and to protect large business interests.I believe, therefore, that section 32 should be eliminated altogether from this bill, unless it is thought necessary to retain the first paragraph; and I suppose section 33 would go with it. If this were done, perhaps section 4966 of the Revised Statutes should be incorporated in the new law at this point and reenacted for the sake of completeness, if the committee thinks that it should be retained.Section 34, page 28.—The limitation of actions in the present law applies only to actions for penalties and forfeitures. I do not think it should be applied, as in this section 34, to all actions; if it should be so applied the term should be at least six years (which is the rule with patents, I understand). The statutes should show clearly that the time runs from the date of the discovery of infringement by the complainant. In these days of an ever-increasing multitude of publications, the copyright proprietor should not be required to examine everything which is issued to see whether his works have possibly been pirated; nor should he be debarred from seeking a remedy if knowledge of piracy should come to him long after the offense has been committed. Unfairness is not always shown on the face of an infringing work, and direct evidence is often required to prove this even to the injured proprietor.[Memorandum by Charles W. Ames.]June 9, 1906.As a constant attendant at the last two conferences, I venture to offer a few words in explanation of two sections of this bill, which, I think, have been misunderstood by some of the gentlemen who have appeared before the committee.Section 3 has been supposed to have some particular reference to and bearing on now existing copyrights taken under the present law. On the contrary, I understand this section to be general and permanent in its character, the purpose of the last three lines being to specifically protect all copyrighted matter for its proper term and no longer, when reproduced in whole or in part, under license or otherwise, in connection with a later copyrighted work. This section is very important as definitely clearing up for the future a question which has been frequently raised in connection with the present law.Section 19, on the other hand, relates merely to now existing copyrights. It has the laudable purpose of extending the benefits of the new law to authors of valuable literary and artistic works copyrighted under the present law. The provisions at the end of the section are designed to secure such new privileges to the authors without interfering with the vested rights and investments of their publishers. After such authors have enjoyed the full forty-two years of monopoly granted them under existing law, they may secure such additional term as is to be accorded to authors under the new law; but if under the contracts which they have already made they have conferred rights upon their publishers as assignees or licensees, then they must have the publishers join with them in their request for the extension.It is questionable whether, in the absence of such provision, the new privileges could be lawfully conferred upon authors who have assigned their rights without impairment of existing contracts. For example, when an author has sold his copyright altogether, the publisher has combined with the literary property investment in plates, stock, and good will, which should not be taken from him at the expiration of the copyright term. In such cases, he could, under the provisions of the present section, secure an extension of exclusive rights only with the help of the author with proper compensation, and the author could secure extension only by fair consideration of the publisher's rights. If they fail to agree, they are left just where they expected to be when they made their contract under the terms of the present law.As to the licensee for publication under royalty, I see no objection to the addition of such a provision as was proposed by Mr. Ogilvie, to protect the author against unfair treatment in respect to future royalties.Washington, D.C.,June 8, 1906.TheChairman of the Joint Committee on Patents of the Senate and House of Representatives.Sir: At the meeting of the Joint committee held to-day, counsel representing one of the talking machine companies made a statement to the effect that Hon. Herbert Putnam, Librarian of Congress, in the preparation of the copyright bill had called into conference only such interests as he wanted, and with whom he was in league, and intimated that the Librarian has acted in an unfair manner.When recess was taken and the gentleman was leaving the building, I called him aside and emphatically took exception to the remarks referred to. As one attending but not participating in the last two conferences held, I think it no more than fair and just and my duty to express to the joint committee the fact that Mr. Putnam's course throughout the conferences was fair, just, and equitable to all interests represented, and that every interest concerned was invited to present its views.The interests were varied and frequently antagonistic, and Mr. Putnam was decided in his expressions that every representative should be heard to the fullest and freest extent, and that after the wishes of those interested was ascertained he was confident an equitable bill would be the outcome; that while it might not be satisfactory in every respect to each, yet he felt positive that with the assistance of the Department of Justice, the Treasury Department, and the cooperation and counsel of the American Bar Association, and the Bar Association of the City of New York, no interest or line of industry, whether represented or not, would be unjustly or unfairly treated. His attitude in all of the conferences was in the highest degree dignified and impartial.To my positive knowledge the trade journals, as well as the newspapers, contained full information concerning the copyright conferences and the proposed copyright bill as long ago as February, 1906; yet the gentleman referred to claims that the conferences were star chamber proceedings for the benefit of selected private interests. No interested concern could have failed to become acquainted with the fact that the conferences were being held, and no one seeking admission was denied opportunity to present his views.This statement is made solely for the reason that the unjust, unfair, and undeserved criticism of Mr. Putnam, known to me to be absolutely true, has stirred my deepest indignation, and I present this protest to the committee and ask that the reflections upon Mr. Putnam be stricken from the record.Sincerely, yours,Leo Feist.

Washington,D.C.,June 9, 1906.

Mr.Herbert Putnam,Librarian of Congress.

Dear Sir: I wish to file with the committee at this time objections to sections 13, 18, 32, 33, and 34 of the copyright bill. I will indicate briefly the grounds of my objection and will make further argument on them at some future time if the committee should desire.

Yours, respectfully,

Charles W. Ames.

Section 13, page 9.—I have always objected to the proposed affidavits of domestic manufacture. I believe there is no real need for it and that it imposes an unnecessary burden on the copyright proprietor and the copyright office. It has been demanded only by the Typographical Union, which claims to have private reasons for believing that the requirement of domestic manufacture is being frequently violated by publishers. The records of the copyright office do not show such violations, nor have I ever heard of any being shown in the courts. The publishers generally throughout the country regard this requirement as an imposition and an outrage—that on the suspicion of the Typographical Union they should be required to swear that they were not violating the law whenever they take out copyright. The publishers would have questioned the propriety of this measure when it was pending before the last Congress if opportunity had been offered, and strenuous opposition would have been made to the passage of the bill.

At the first conference last year, the representatives of the Association of Publishers, in a spirit of conciliation, agreed with the representatives of the Typographical Union that they would not oppose the requirement of an affidavit. As a member of that Association of Publishers. I shall not now oppose the affidavit section as a whole, which requires me to swear five hundred times a year that I have done something, failure to do which would have invalidated many thousands of dollars' worth of copyright property.

But I do object earnestly and emphatically to the final paragraph of section 13 (lines 21-25, p. 9), requiring the statement in the affidavit of the particular establishment in which the work has been done. This fact is wholly irrelevant to the purpose of the affidavit and has no bearing on the requirements of the copyright law. It is purely a private business matter. In case the affidavit is challenged (as it would be in only an infinitesimal proportion of registrations) and proof of domestic manufacture is required in any action, of course the establishment would be readily shown. Copyright proprietors should not be required to disclose it otherwise, satisfying the curiosity of business rivals and others.

It seems also an unnecessary insult to the publishers to provide special penalties for false affidavits. Will not the ordinary penalties for the crime of perjury be sufficient to cover all cases where publishers, in addition to jeopardizing their property rights by violating the provision for domestic manufacture, swear falsely in the premises?

I believe that Mr. Sullivan, in behalf of the Typographical Union, stated at the last conference that the union was not disposed to insist on the specification of the establishment in the affidavit if it should appear that this fact was unnecessary and irrelevant to the purpose of the affidavit. I hope that the union will make no opposition to the elimination of this provision, which is obnoxious to the publishers. By so doing they will at least minimize the opposition of the publishers to the affidavit provision as a whole. There are very many publishers throughout the country who are not members of the association referred to, and will not be governed by the agreement made at the conference.

The date of publication, if given in the affidavit, might serve for convenience as furnishing an essential fact to be a part of the record covered by the Librarian's certificate.

Section 18, page 14.—This section relates to the term of copyright. In fixing the term I think due consideration has never been given to the fact that a vast majority of copyrights become commercially worthless after a very few years. Thus the records of the copyright office show that last year but 2.7 per cent of the copyrights completing their original term of twenty-eight years were thought by the authors of sufficient value to renew them for the additional fourteen years under the comparatively simple provisions of the present law.

It is safe to say that not more than 5 per cent of all the copyrights have any commercial value after twenty-eight years. It would seem feasible to provide for the extension of the property rights in these valuable literary or artistic properties without conferring undeserved or undesired extensions of term in hundreds of thousands of copyrights of no pecuniary value to the owners. On the other hand, there is some intrinsic value to the public in a portion of the copyrighted material after it has lost all pecuniary value to the author or his assignee.

I believe that the great majority of copyrights should fall into the public domain at a definite and easily ascertainable time. I hold, therefore, that the ordinary copyright term should be no longer than the twenty-eight years as fixed at present. But the few valuable copyrights could be secured for a much longer term by a simple and easy arrangement for renewal, as by requiring merely the filing of a notice of the desire to extend and allowing the author or his heirs to file such notice; or, in case there has been an outright assignment, permitting the author and assignee or licensee under royalty to join as provided in section 32 of the present draft.

Some provision should also be made for the renewal of valuable proprietary copyrights of the sort enumerated in subsection(b)of section 18.

Sections 32-33, pages 26-27.—My most serious and strenuous objections are to this section 32, regarding actions arising under the copyright law, and especially the second paragraph, providing that actions may be brought and jurisdiction secured in any district of the United States where violation of any provision of this act has occurred. This means that any copyright proprietor or any publisher may be brought into any district in the United States or every district simultaneously in the case of many articles sold generally throughout the country. And it therefore concerns very nearly every person interested in the copyright law.

Every copyright proprietor may be defendant in a suit as well as complainant. Suits may be brought in good faith or for malicious reasons; for the real protection of property or for harassing business rivals. They may be well founded or groundless, honest or frivolous. Now, speaking as the proprietor of a large number of copyrights and a great deal of valuable copyright property which I am anxious to protect against infringement, I would much prefer to forego the advantages offered to complainants under this section rather than run the risk of the infinite vexation which might be caused my company as defendant in malicious and frivolous suits brought in foreign jurisdictions chiefly for purposes of blackmail.

I see no good reason why copyright proprietors should have facilities for the use of the Federal courts not accorded to any other class of suitors. It is true that certain classes of copyright property may require special provisions for their protection, but it should be noted that section 966 of the Revised Statutes is by this bill retained (see sec. 64), and would therefore still protect dramatists and musical people in the peculiar rights which they now have under the present law.

The penal provisions of this bill are severe and even harsh, including misdemeanor clauses with fines and forfeitures and even imprisonment. On the other hand, the law is full of novel provisions. It will be, at best, years before these can be judicially construed so that they may be generally understood. Meanwhile, everyone concerned will find many doubtful points and open questions on which legal advice will vary, and can in no case be conclusive. To subject authors and publishers to the danger of being peremptorily summoned to defend an action in a distant district for some supposed violation of some provision, "any provision of this act," however insignificant, with the issuance of ex parte injunctions operative throughout the whole country, with possible "impounding" of important and valuable publications for an indefinite period of time (during the pendency of the suit, see sec. 23, p. 18), a publisher in New York might sue his neighbor across the street in any distant district, possibly Alaska or the Philippine Islands; a rich and powerful house might crush a feeble competitor by forcing him to defend suits brought simultaneously in a hundred jurisdictions. These possibilities may well terrorize all persons interested in copyrightable property of any description.

Finally, I say from long experience that it is a mistaken kindness to make copyright litigation easy. The protection of the copyright law is chiefly moral. Remedies for actual wrongs committed are in most cases illusory. A copyright suit should never be brought except for the most serious reasons and to protect large business interests.

I believe, therefore, that section 32 should be eliminated altogether from this bill, unless it is thought necessary to retain the first paragraph; and I suppose section 33 would go with it. If this were done, perhaps section 4966 of the Revised Statutes should be incorporated in the new law at this point and reenacted for the sake of completeness, if the committee thinks that it should be retained.

Section 34, page 28.—The limitation of actions in the present law applies only to actions for penalties and forfeitures. I do not think it should be applied, as in this section 34, to all actions; if it should be so applied the term should be at least six years (which is the rule with patents, I understand). The statutes should show clearly that the time runs from the date of the discovery of infringement by the complainant. In these days of an ever-increasing multitude of publications, the copyright proprietor should not be required to examine everything which is issued to see whether his works have possibly been pirated; nor should he be debarred from seeking a remedy if knowledge of piracy should come to him long after the offense has been committed. Unfairness is not always shown on the face of an infringing work, and direct evidence is often required to prove this even to the injured proprietor.

[Memorandum by Charles W. Ames.]

June 9, 1906.

As a constant attendant at the last two conferences, I venture to offer a few words in explanation of two sections of this bill, which, I think, have been misunderstood by some of the gentlemen who have appeared before the committee.

Section 3 has been supposed to have some particular reference to and bearing on now existing copyrights taken under the present law. On the contrary, I understand this section to be general and permanent in its character, the purpose of the last three lines being to specifically protect all copyrighted matter for its proper term and no longer, when reproduced in whole or in part, under license or otherwise, in connection with a later copyrighted work. This section is very important as definitely clearing up for the future a question which has been frequently raised in connection with the present law.

Section 19, on the other hand, relates merely to now existing copyrights. It has the laudable purpose of extending the benefits of the new law to authors of valuable literary and artistic works copyrighted under the present law. The provisions at the end of the section are designed to secure such new privileges to the authors without interfering with the vested rights and investments of their publishers. After such authors have enjoyed the full forty-two years of monopoly granted them under existing law, they may secure such additional term as is to be accorded to authors under the new law; but if under the contracts which they have already made they have conferred rights upon their publishers as assignees or licensees, then they must have the publishers join with them in their request for the extension.

It is questionable whether, in the absence of such provision, the new privileges could be lawfully conferred upon authors who have assigned their rights without impairment of existing contracts. For example, when an author has sold his copyright altogether, the publisher has combined with the literary property investment in plates, stock, and good will, which should not be taken from him at the expiration of the copyright term. In such cases, he could, under the provisions of the present section, secure an extension of exclusive rights only with the help of the author with proper compensation, and the author could secure extension only by fair consideration of the publisher's rights. If they fail to agree, they are left just where they expected to be when they made their contract under the terms of the present law.

As to the licensee for publication under royalty, I see no objection to the addition of such a provision as was proposed by Mr. Ogilvie, to protect the author against unfair treatment in respect to future royalties.

Washington, D.C.,June 8, 1906.

TheChairman of the Joint Committee on Patents of the Senate and House of Representatives.

Sir: At the meeting of the Joint committee held to-day, counsel representing one of the talking machine companies made a statement to the effect that Hon. Herbert Putnam, Librarian of Congress, in the preparation of the copyright bill had called into conference only such interests as he wanted, and with whom he was in league, and intimated that the Librarian has acted in an unfair manner.

When recess was taken and the gentleman was leaving the building, I called him aside and emphatically took exception to the remarks referred to. As one attending but not participating in the last two conferences held, I think it no more than fair and just and my duty to express to the joint committee the fact that Mr. Putnam's course throughout the conferences was fair, just, and equitable to all interests represented, and that every interest concerned was invited to present its views.

The interests were varied and frequently antagonistic, and Mr. Putnam was decided in his expressions that every representative should be heard to the fullest and freest extent, and that after the wishes of those interested was ascertained he was confident an equitable bill would be the outcome; that while it might not be satisfactory in every respect to each, yet he felt positive that with the assistance of the Department of Justice, the Treasury Department, and the cooperation and counsel of the American Bar Association, and the Bar Association of the City of New York, no interest or line of industry, whether represented or not, would be unjustly or unfairly treated. His attitude in all of the conferences was in the highest degree dignified and impartial.

To my positive knowledge the trade journals, as well as the newspapers, contained full information concerning the copyright conferences and the proposed copyright bill as long ago as February, 1906; yet the gentleman referred to claims that the conferences were star chamber proceedings for the benefit of selected private interests. No interested concern could have failed to become acquainted with the fact that the conferences were being held, and no one seeking admission was denied opportunity to present his views.

This statement is made solely for the reason that the unjust, unfair, and undeserved criticism of Mr. Putnam, known to me to be absolutely true, has stirred my deepest indignation, and I present this protest to the committee and ask that the reflections upon Mr. Putnam be stricken from the record.

Sincerely, yours,

Leo Feist.

STATEMENT OF FREDERICK W. HEDGELAND, ESQ.

TheChairman. Whom do you represent?

Mr.Hedgeland. I represent the Kimball Company.

I wish to state, gentlemen, that three or four days ago I first learned of the introduction of this measure. I have heard what the advocates of this bill have said with reference to there being one side to this question. There are really four sides to this question—the public, the composer, the manufacturers of the automatic musical instruments, and the inventors that have made that industry possible.

The bill as drawn practically gives the monopoly of all this capital that has been invested, the genius that has been displayed and made this field possible to the composer, to the publisher and composer, in its entirety. Now, the brains and effort that have made this market open to the publisher should be recognized in this bill. The bill should not be a retroactive one, to punish the inventor and the capitalist for what they have done in the past to provide a field for the composer.

Mr.Currier. It will not be retroactive.

Mr.Hedgeland. It must be equitable; and as to any rights that are conveyed in that bill to the publisher or the composer, it must put these industries on an equal footing. Otherwise it is creating one of the worst features of trusts that one can conceive of.

In a recent suit it has been claimed that these instruments discourage education in music. Such is not the case. In a recent test case it was proven and never contradicted that learning, both vocal and instrumental, has increased year after year, and that the sale of these staff notation copies has been increased rather than diminished by the automatic musical instruments. Now, those things all being taken into consideration, I think this industry deserves very careful equitable consideration on your part.

I have had no time to prepare the different phases of this matter, and would like, if the committee will give me permission, to file a short brief from the manufacturers' and inventors' standpoint.

TheChairman. You may have that privilege.

Mr.Hedgeland. With that, gentlemen, I will not take any more of your time.

To the joint committee of the Senate and House:In obedience to the privilege extended me on my short address June 9 by your honorable committee I now file the following brief:There are, without question, four vital interests involved in the copyright legislation now before your committee, as applying to mechanical reproductions of musical compositions, as set forth specifically in section 1, paragraph (g), and section 38; this bill, H.R. 19853, also bristles in many sections with conditions that might easily be construed as applying to mechanical industry, and calls for careful analytical legal investigation.The interests of equity involved are: The inventor; the composer; the manufacturer of automatic instruments and their controllers; the public. I shall take up the equities in the order named.The inventor.—Being an inventor, and the majority of my inventions being on automatic musical instruments and devices for making the controllers (which patents largely outnumber any contributed by any other individual to this art), I am well fitted to state the part these devices have taken in the advancement of music. Automatic musical instruments date back six decades or over. The barrel organ, with its cylinder and pins, was used to accompany divine worship in English churches before pianos adorned the homes of the congregation, and they have been constantly manufactured up to the present time, and are known now as orchestrions. Twenty-three years ago, at the inventions exhibition held in London, England, automatic reed organs (Æolians) were exhibited by the Mechanical Organette Company, of New York, and, mechanically, I had charge of the instruments on exhibition. There were also exhibited piano players of French and German manufacture and the Miranda pianista, an English pneumatic player. Both Æolians and piano players have constantly been manufactured up to the present time, inventive genius constantly laboring for perfection in operation, ease of operation, and reduction of cost to place them in reach of the masses. It is a fact beyond dispute that barrel organs are as old as or older than pianos or reed organs.I have labored twenty-three years in this industry and contributed between thirty and forty patents to the automatic-instrument industry, and have invented and patented machines that would record on controllers for automatic musical instruments the conceptions of pianists and authors, when played on an instrument by them, and I have yet to acquire a competency for my labors. The inventor's labors are always discounted by the following conditions:First. Capital and machinery to market and manufacture the invention.Second. State of the prior art as brought out in the Patent Office search.Third. The liability of infringement and the slow and tedious and expensive process of stopping it, taking testimony from Maine to California, etc. I have a case of flagrant infringement which was prosecuted four years ago and has not yet been adjudged by the circuit court—as is usual in such cases, temporary injunction being denied, which the composer or author could and does readily obtain.The composer.—The composer or author of musical compositions rarely, if ever, follows composing or copyrighting alone as the means of making a livelihood. In all my experience I can not recall a single instance where this has been the case. With practically no exceptions, the composers of musical compositions are engaged in various other walks of life, and this line of work is more or less incidental to the occupations they follow. As an illustration I will name a few of them: Band masters, professional pianists, organists, choir leaders, teachers of music, piano salesmen, music salesmen, and many other callings. The amount of time or application spent in framing musical compositions is oftentimes but a few hours and in the majority of cases in otherwise idle hours. For instance, the testimony of George Schleiffarth, given under oath, which appears later in this brief. He states: "I have composed 1,500 pieces in thirty-seven years and have netted only $5,000 for these thirty-odd years." This is an average earning of $3.33 for each piece he copyrighted, or a yearly income during these thirty-seven years of $135 per year from his copyrights. It is patent to anyone that he did not procure his livelihood by this means. This is not an exceptional case, but rather a fair average of them.I do not believe a single case can be produced where a musical composer has earned a livelihood by his compositions alone. This is a very different case with the author of a book with whom the composer shares like privileges under the copyright act. In the majority of cases the author follows writing as his only means of livelihood. This class of work occupies a great deal of time, expense, travel, and study of the subjects forming the foundation of his work. The composers rarely treat their compositions as a serious business proposition, but rather as a side issue of net gain on what they realize from them. The publishers of the country are banded and organized together for mutual protection and enrichment to profit by this condition at the expense of the composer, the policy to fight royalties in favor of outright purchases for nominal amounts being general.The manufacturer of automatic musical instruments and their controllers.—The equitable interest of the automatic instrument manufacturer consists really of two classes, namely, their rights as legitimate manufacturers to a self-made industry; and the part they have taken in the musical education of mankind, and the right they have to continue uninterrupted in an industry and art in which they have been so potent a factor, without molestation.First. All manufacturers of automatic musical instruments or their controllers have vast interests involved. Capital and time have been heavily spent in creating an honest, legitimate and, beyond question, legal business. They have acquired patent rights, built at large expense special machinery to make a more perfect and less costly product. In short, have exercised and exhibited the same ambition and enterprise that is put into any business where price and merit is the determining factor of success.Second. The manufacturer of self-playing instruments has done much to extend and create cultivated musical taste in the community.This has at no time been at the expense of the composer, but, to the contrary, has increased not only the sale of sheet music but has not diminished the study of music, as the following witnesses testified under oath in the recent copyright case: White Smith Music Publishing Companyv.Apollo Company, which testimony was never rebutted or disputed as to fact.Mr. George Schleiffarth, witness called on behalf of defendant, being duly sworn, testified as follows:"I have been writing music for thirty-seven years. I have written about fifteen hundred copyrighted compositions, several comic operas, and innumerable musical sketches of all sorts. I have also published some music personally and have now compositions with nearly all the leading publishers in the United States. My best-known compositions are 'Doris,' 'Ambolena Snow,' 'Douglas Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera 'Rosita,' which has been playing for about twelve years,* * *and as the composer is anxious to be known, I have often asked my publishers to allow the reproduction of my compositions on graphophones and self-playing devices."Q. 5. Is it your actual observation that the demand for the sheet music is created and stimulated so that the sale thereof is increased by having the musical compositions played by the piano players and other self-playing instruments, and that the cutting of the perforated rolls for a given musical composition and the selling of such rolls with and for the piano players does increase the demand for the sheet music?—A. As I am not in the sheet business on such a scale that I could judge to what extent it has increased, I still claim, from knowing the amount of music sold in the United States to-day, especially in the popular composition line, it is stimulated by all self-playing devices. For example, I would sit at a piano player and play a catchy melody; six or eight people standing around me will immediately ask—or some of them will—'What is this tune you are playing?' and I know from personal knowledge that many copies, especially of my own compositions, which are cut for self-players, have been bought in sheet-music form on account of my playing them on the machine."Redirect:"Q. 22. I inferred from your statements in that regard that you received usually what you regard as very small compensation or price for a great many of your compositions thus sold. Will you give some instances of this sort, illustrating the disparity between the price you received and the popularity, in sales, of the pieces respectively?—A. My first great success, 'Careless Elegance," which I published on royalty twenty-eight years ago, and which is still selling to-day, netted me $11. My great song, 'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me $83. My great composition, 'The World's Exposition March,' $5. 'The Cadet Two-step' (50,000 copies sold), $4. And so I may go on ad infinitum. Out of 1,500 compositions I have probably earned $5,000.""Peter C. Lutkin, witness called on behalf of the defendant, being duly sworn, testified as follows:"Q. 4. Have you in mind the rate of growth in respect to pupils in attendance in the school of music for which you are dean, for five or six years back; and if so, will you kindly give us the facts in general?—A. I have the statistics for the past five years. The attendance in the school of music for the year 1898-99 was 248; for the next year, 297; the next, 348; for the next, 366; for the present year, 460. The figures for the present year are an underestimate rather than an overestimate, as the year is not yet closed; actual number is 453 to date, but will probably run to 475."No cross examination.""Julius W. Peters, a witness called on behalf of the defendant company, being sworn, deposes and testifies as follows:"Direct examination by Mr.Burton:"Q. 1. Please state your name, age, residence, and occupation.—A. Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue, Chicago, Ill.; bookkeeper for Chicago Musical College."Q. 2. In your capacity of such bookkeeper, have you been intrusted with the keeping of the attendance of that institution?—A. I have."Q. 3. Will you please state what those records show as to the rate of growth of the attendance of pupils at that institution during recent years, giving, if you can do so, the rate from year to year, down to the current year?—A. I have taken this report from the year 1896-97, and our years run from September to September, The increase from 1896-97 to 1897-98 over the preceding year was 9.6 per cent, in the following year 10 per cent, in the next year 10 per cent, in the next 23¾ per cent, and in the next year 12.9 per cent."Q. 4. Can you give, from the indications so far in this year, the approximate rate of increase?—A. I should say it would be at least as much as last year, which was approximately 13 per cent."Q. 5. What is the total increase in attendance from the first year of which you have stated the figures, to the present time?—A. 75.3 per cent; that is, up to September, 1902."No cross-examination.""Mr.William McKinley, a witness called on behalf of defendant, being duly sworn, deposes and testifies as follows:"Direct examination by Mr.Burton:"Q. 1. Please state your name, age, residence, and occupation.—A. William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music publisher."Q. 6. During the period, say, for the past three years, during which the manufacture and sale of these automatic players has been most rapidly increasing, what has been the fact with regard to the sales of sheet music, as to growth or diminution?—A. My business has greatly increased."Q. 7. If you have made any examination with regard to the compositions which have been cut in perforated rolls and used in automatic players by the different companies making such players, as to the sales which have been made of these pieces in sheet-music form during the period, say of the last three or four years, or since the time when they were cut in perforated rolls, will you state how the sales of such pieces have run? Have they increased or decreased during those years?—A. My business has very greatly increased in certain pieces that I know are issued in the form of a perforated roll."Q. 8. Have you in mind—if so, you may state as near as you recall—the rate of increase of any number of those which you have looked up and remember, giving their titles, if you recall them; and, if not, in general?—A. The sales of some of the pieces have doubled within the last two years—double what they were for the four years previous. I have traced up about 20 pieces of that sort to get these figures from which I stated the comparison above. I know when I desire to get new music for my family I call on the operator or performer of some of the stores that handle the music rolls. They often give me a list of the pieces. I usually purchase that. I have a list in my pocket of perhaps at least 20 pieces that I have been recommended to purchase. They have been recommended to me by one of the young men who has charge of that department—music rolls—in one of the stores; pieces I had never heard before."Q. 9. I understand you mean by your last statement that the pieces that you are recommended to purchase are so recommended by persons who have opportunity to hear them played by means of the perforated rolls?—A. Yes, sir."No cross-examination.""Walter Lutz, witness, called on behalf of defendant, being duly sworn, deposes and testifies as follows:"Direct examination by Mr.Burton:"Q. 1. Please state your name, age, residence, and occupation.—A. Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; salesman with H. B. McCoy in the music business, Chicago."Q. 2. How long have you been employed as music salesman?—A. Sixteen years."Q. 3. From your experience as a salesman of sheet music, have you had any opportunity or occasion to judge what effect, if any, the introduction and increasing use of the piano players and other automatic instruments of this class has upon the demand for and sale of the sheet music of the same compositions?—A. Yes; I have had people come in the store and ask for music which they had heard from the various players."No cross-examination."I wish to call the committee's attention to the fact that the above testimony was taken to prove the opinions expressed by two witnesses for the plaintiffs were in error when they stated as their opinion that the mechanical player was detrimental to the sale of sheet music. Note the lawyers for the White Smith Music Publishing Company did not dispute the facts by not cross-examining these witnesses. The plaintiff is a big music publishing house and influential members of the Music Publishers' Association, with all the evidence and aid their association could lend, could not and did not attack these undisputable facts. It is a coincident worthy of your close attention that W. M. Bacon, a partner in the plaintiff's firm in this case and also of the copyright committee of the Music Publishers' Association, who was leader of the prosecuting forces and signally failed to prove that this industry did other than to improve the sale of music, now comes to your committee with a copyright measure framed by his associate on the copyright committee of his association.Mr. G. W. Furniss, who is chairman, presented it and had it drafted in at the first conference, at which they both were present, and they were at every other conference to guard their conspiracy; conspiracy I say, because Mr. Bacon's firm has a contract (and his lawyers had to so stipulate), identical to the contract filed with your committee, between a publisher and the Æolian Company. Read the contract; they have conspired against the composer and against the public for an undue personal gain, grafted what they wanted in their copyright measure, and now come to you gentlemen with it under the guise that the composer is being robbed of his dues by automatic devices. I submit it is a prima facie case of the principals to this contract not only planning to sweat the composer, but to hold up the public. It is a conspiracy in which the copyright office has aided them, possibly innocently, and they have asked your assistance, the public funds paying the expenses, the same public they want to get under their grasp. I can prove every word of this at any time. Is it not time Uncle Sam should arouse?The public.—The public side of this question is an important one. They have purchased in good faith instruments and self-playing devices and invested their money on the reasonable assurance of being able to continue undisturbed in these rights, and, by their patronage, have helped develop one of the foremost industries of this country and must be permitted to continue to buy controllers from the different manufacturers of their instruments. The public's spending power in this industry, being the foundation of this great and prosperous industry and the foundation on which compensation is now sought by copyright legislation for the composer, it is obvious that it must not be impaired at this late date by any measure calculated to give either the composer or his publishers legislation that will place either of them in a position to dominate this extensive industry and interests, and the public.PERTINENT POINTS OF FACT.This bill, H.R. 19853, as presented, is an iniquitous measure, framed not by the "poor composer" nor by the public interested, but by banded, bonded interests, which have conspired together for special privileges and greed and have had the audacity to submit it to Congress for its seal of approval. There is no secret now about this. The Librarian's records show, as also his admissions, that the interests I have enumerated in this brief were never notified of intended proceedings and never invited, although these uninvited interests are the very ones bartered in in the bill. The conferees at the conference consisted of the Book Publishers' Association, the Music Publishers' Association, etc. The two mentioned could hardly represent the authors and composers. Have they any credentials to this effect? The facts are, they represent copyrights they own and for which they seek further favorable concessions, out of which the exploited beneficiaries, the composers, would get nothing.It had been maintained that mechanical players tend to discourage learning and reduce the sale of copyright music, but all the evidence taken on this subject proves the contrary is the case, and it was never questioned, even by counsel representing the publishers, who now seek special privileges. The publishers can not prove that they have paid an average of 1 per cent on copyright music they have published, nor the composers that they have earned an average of 1 per cent on their copyrights, in an industrial field of their own, yet they ask legislation giving them a dominating interest in an industry that other brains and money have created. Any amendment to this measure placing all interests on an equitable footing will be fought by its advocates, showing their corrupt intentions. This industry has been hampered for past years by threats of the mentioned combinations, and Congress in any new bill should clearly define whether this mechanical matter is or is not included in the amendment. To end this matter once and for all, I am in favor of giving the composers (not the proprietor or owner of a copyright) the specific right to copyright his composition as applied to mechanical reproductions, and to collect reasonable royalties from manufacturers who may wish to use it, leaving it to a court of equity to determine what a reasonable equity would be, if such a measure is considered advisable. I should urge that, as this provision will apply solely to mechanical reproductions and receive its benefits therefrom, the term of this copyright should, in all equity, take the life of a patent with which it associates.The following parallel ethical equities with the case of the composer might well be considered by the committee:The architect, the man of brains, who conceives a wonderful conception of a piece of architecture or arrangement of a building, how can he prevent anyone else from duplicating this result or building it, which is the creation of his conception and work? A man discovers a treatment for some disease; others use it and apply it. A surgeon discovers a new form of operation; the others use it. A business man, by dint of his brain, figures out a great system for running his business, which makes it immensely profitable; his fellow-beings adopt it and don't pay him a cent. There are hundreds of parallel cases. Gentlemen, if it had not been for this gigantic conspiracy you would not have heard of the composer's woes.This amendment has been fathered throughout by publishers, associations, and rings. They have exploited the composers' interests when they do not represent them, but, instead, their own selfish interests, which have been safeguarded in advance by contract.Any legislation in favor of the oppressed composer should be so worded and framed as to not place him any further under the power of these combinations.I shall be pleased, at any time, to prove to your honorable committee any statements made in this brief.F. W. Hedgeland,Representing Inventors, Manufacturers, Composers, and thePublic, 1535 West Monroe street, Chicago, Ill.

To the joint committee of the Senate and House:

In obedience to the privilege extended me on my short address June 9 by your honorable committee I now file the following brief:

There are, without question, four vital interests involved in the copyright legislation now before your committee, as applying to mechanical reproductions of musical compositions, as set forth specifically in section 1, paragraph (g), and section 38; this bill, H.R. 19853, also bristles in many sections with conditions that might easily be construed as applying to mechanical industry, and calls for careful analytical legal investigation.

The interests of equity involved are: The inventor; the composer; the manufacturer of automatic instruments and their controllers; the public. I shall take up the equities in the order named.

The inventor.—Being an inventor, and the majority of my inventions being on automatic musical instruments and devices for making the controllers (which patents largely outnumber any contributed by any other individual to this art), I am well fitted to state the part these devices have taken in the advancement of music. Automatic musical instruments date back six decades or over. The barrel organ, with its cylinder and pins, was used to accompany divine worship in English churches before pianos adorned the homes of the congregation, and they have been constantly manufactured up to the present time, and are known now as orchestrions. Twenty-three years ago, at the inventions exhibition held in London, England, automatic reed organs (Æolians) were exhibited by the Mechanical Organette Company, of New York, and, mechanically, I had charge of the instruments on exhibition. There were also exhibited piano players of French and German manufacture and the Miranda pianista, an English pneumatic player. Both Æolians and piano players have constantly been manufactured up to the present time, inventive genius constantly laboring for perfection in operation, ease of operation, and reduction of cost to place them in reach of the masses. It is a fact beyond dispute that barrel organs are as old as or older than pianos or reed organs.

I have labored twenty-three years in this industry and contributed between thirty and forty patents to the automatic-instrument industry, and have invented and patented machines that would record on controllers for automatic musical instruments the conceptions of pianists and authors, when played on an instrument by them, and I have yet to acquire a competency for my labors. The inventor's labors are always discounted by the following conditions:

First. Capital and machinery to market and manufacture the invention.

Second. State of the prior art as brought out in the Patent Office search.

Third. The liability of infringement and the slow and tedious and expensive process of stopping it, taking testimony from Maine to California, etc. I have a case of flagrant infringement which was prosecuted four years ago and has not yet been adjudged by the circuit court—as is usual in such cases, temporary injunction being denied, which the composer or author could and does readily obtain.

The composer.—The composer or author of musical compositions rarely, if ever, follows composing or copyrighting alone as the means of making a livelihood. In all my experience I can not recall a single instance where this has been the case. With practically no exceptions, the composers of musical compositions are engaged in various other walks of life, and this line of work is more or less incidental to the occupations they follow. As an illustration I will name a few of them: Band masters, professional pianists, organists, choir leaders, teachers of music, piano salesmen, music salesmen, and many other callings. The amount of time or application spent in framing musical compositions is oftentimes but a few hours and in the majority of cases in otherwise idle hours. For instance, the testimony of George Schleiffarth, given under oath, which appears later in this brief. He states: "I have composed 1,500 pieces in thirty-seven years and have netted only $5,000 for these thirty-odd years." This is an average earning of $3.33 for each piece he copyrighted, or a yearly income during these thirty-seven years of $135 per year from his copyrights. It is patent to anyone that he did not procure his livelihood by this means. This is not an exceptional case, but rather a fair average of them.

I do not believe a single case can be produced where a musical composer has earned a livelihood by his compositions alone. This is a very different case with the author of a book with whom the composer shares like privileges under the copyright act. In the majority of cases the author follows writing as his only means of livelihood. This class of work occupies a great deal of time, expense, travel, and study of the subjects forming the foundation of his work. The composers rarely treat their compositions as a serious business proposition, but rather as a side issue of net gain on what they realize from them. The publishers of the country are banded and organized together for mutual protection and enrichment to profit by this condition at the expense of the composer, the policy to fight royalties in favor of outright purchases for nominal amounts being general.

The manufacturer of automatic musical instruments and their controllers.—The equitable interest of the automatic instrument manufacturer consists really of two classes, namely, their rights as legitimate manufacturers to a self-made industry; and the part they have taken in the musical education of mankind, and the right they have to continue uninterrupted in an industry and art in which they have been so potent a factor, without molestation.

First. All manufacturers of automatic musical instruments or their controllers have vast interests involved. Capital and time have been heavily spent in creating an honest, legitimate and, beyond question, legal business. They have acquired patent rights, built at large expense special machinery to make a more perfect and less costly product. In short, have exercised and exhibited the same ambition and enterprise that is put into any business where price and merit is the determining factor of success.

Second. The manufacturer of self-playing instruments has done much to extend and create cultivated musical taste in the community.

This has at no time been at the expense of the composer, but, to the contrary, has increased not only the sale of sheet music but has not diminished the study of music, as the following witnesses testified under oath in the recent copyright case: White Smith Music Publishing Companyv.Apollo Company, which testimony was never rebutted or disputed as to fact.

Mr. George Schleiffarth, witness called on behalf of defendant, being duly sworn, testified as follows:

"I have been writing music for thirty-seven years. I have written about fifteen hundred copyrighted compositions, several comic operas, and innumerable musical sketches of all sorts. I have also published some music personally and have now compositions with nearly all the leading publishers in the United States. My best-known compositions are 'Doris,' 'Ambolena Snow,' 'Douglas Club Two-step,' 'Who Will Buy My Roses Red?' and the comic opera 'Rosita,' which has been playing for about twelve years,* * *and as the composer is anxious to be known, I have often asked my publishers to allow the reproduction of my compositions on graphophones and self-playing devices.

"Q. 5. Is it your actual observation that the demand for the sheet music is created and stimulated so that the sale thereof is increased by having the musical compositions played by the piano players and other self-playing instruments, and that the cutting of the perforated rolls for a given musical composition and the selling of such rolls with and for the piano players does increase the demand for the sheet music?—A. As I am not in the sheet business on such a scale that I could judge to what extent it has increased, I still claim, from knowing the amount of music sold in the United States to-day, especially in the popular composition line, it is stimulated by all self-playing devices. For example, I would sit at a piano player and play a catchy melody; six or eight people standing around me will immediately ask—or some of them will—'What is this tune you are playing?' and I know from personal knowledge that many copies, especially of my own compositions, which are cut for self-players, have been bought in sheet-music form on account of my playing them on the machine.

"Redirect:

"Q. 22. I inferred from your statements in that regard that you received usually what you regard as very small compensation or price for a great many of your compositions thus sold. Will you give some instances of this sort, illustrating the disparity between the price you received and the popularity, in sales, of the pieces respectively?—A. My first great success, 'Careless Elegance," which I published on royalty twenty-eight years ago, and which is still selling to-day, netted me $11. My great song, 'Who Will Buy My Roses Red?' which sold 100,000 copies, netted me $83. My great composition, 'The World's Exposition March,' $5. 'The Cadet Two-step' (50,000 copies sold), $4. And so I may go on ad infinitum. Out of 1,500 compositions I have probably earned $5,000."

"Peter C. Lutkin, witness called on behalf of the defendant, being duly sworn, testified as follows:

"Q. 4. Have you in mind the rate of growth in respect to pupils in attendance in the school of music for which you are dean, for five or six years back; and if so, will you kindly give us the facts in general?—A. I have the statistics for the past five years. The attendance in the school of music for the year 1898-99 was 248; for the next year, 297; the next, 348; for the next, 366; for the present year, 460. The figures for the present year are an underestimate rather than an overestimate, as the year is not yet closed; actual number is 453 to date, but will probably run to 475.

"No cross examination."

"Julius W. Peters, a witness called on behalf of the defendant company, being sworn, deposes and testifies as follows:

"Direct examination by Mr.Burton:

"Q. 1. Please state your name, age, residence, and occupation.—A. Julius W. Peters; age, 45; residence, 4465 Oakenwald avenue, Chicago, Ill.; bookkeeper for Chicago Musical College.

"Q. 2. In your capacity of such bookkeeper, have you been intrusted with the keeping of the attendance of that institution?—A. I have.

"Q. 3. Will you please state what those records show as to the rate of growth of the attendance of pupils at that institution during recent years, giving, if you can do so, the rate from year to year, down to the current year?—A. I have taken this report from the year 1896-97, and our years run from September to September, The increase from 1896-97 to 1897-98 over the preceding year was 9.6 per cent, in the following year 10 per cent, in the next year 10 per cent, in the next 23¾ per cent, and in the next year 12.9 per cent.

"Q. 4. Can you give, from the indications so far in this year, the approximate rate of increase?—A. I should say it would be at least as much as last year, which was approximately 13 per cent.

"Q. 5. What is the total increase in attendance from the first year of which you have stated the figures, to the present time?—A. 75.3 per cent; that is, up to September, 1902.

"No cross-examination."

"Mr.William McKinley, a witness called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr.Burton:

"Q. 1. Please state your name, age, residence, and occupation.—A. William McKinley; 41; 3306 Indiana avenue, Chicago, Ill.; music publisher.

"Q. 6. During the period, say, for the past three years, during which the manufacture and sale of these automatic players has been most rapidly increasing, what has been the fact with regard to the sales of sheet music, as to growth or diminution?—A. My business has greatly increased.

"Q. 7. If you have made any examination with regard to the compositions which have been cut in perforated rolls and used in automatic players by the different companies making such players, as to the sales which have been made of these pieces in sheet-music form during the period, say of the last three or four years, or since the time when they were cut in perforated rolls, will you state how the sales of such pieces have run? Have they increased or decreased during those years?—A. My business has very greatly increased in certain pieces that I know are issued in the form of a perforated roll.

"Q. 8. Have you in mind—if so, you may state as near as you recall—the rate of increase of any number of those which you have looked up and remember, giving their titles, if you recall them; and, if not, in general?—A. The sales of some of the pieces have doubled within the last two years—double what they were for the four years previous. I have traced up about 20 pieces of that sort to get these figures from which I stated the comparison above. I know when I desire to get new music for my family I call on the operator or performer of some of the stores that handle the music rolls. They often give me a list of the pieces. I usually purchase that. I have a list in my pocket of perhaps at least 20 pieces that I have been recommended to purchase. They have been recommended to me by one of the young men who has charge of that department—music rolls—in one of the stores; pieces I had never heard before.

"Q. 9. I understand you mean by your last statement that the pieces that you are recommended to purchase are so recommended by persons who have opportunity to hear them played by means of the perforated rolls?—A. Yes, sir.

"No cross-examination."

"Walter Lutz, witness, called on behalf of defendant, being duly sworn, deposes and testifies as follows:

"Direct examination by Mr.Burton:

"Q. 1. Please state your name, age, residence, and occupation.—A. Walter Lutz; 29 years; 902 North Halstead street, Chicago, Ill.; salesman with H. B. McCoy in the music business, Chicago.

"Q. 2. How long have you been employed as music salesman?—A. Sixteen years.

"Q. 3. From your experience as a salesman of sheet music, have you had any opportunity or occasion to judge what effect, if any, the introduction and increasing use of the piano players and other automatic instruments of this class has upon the demand for and sale of the sheet music of the same compositions?—A. Yes; I have had people come in the store and ask for music which they had heard from the various players.

"No cross-examination."

I wish to call the committee's attention to the fact that the above testimony was taken to prove the opinions expressed by two witnesses for the plaintiffs were in error when they stated as their opinion that the mechanical player was detrimental to the sale of sheet music. Note the lawyers for the White Smith Music Publishing Company did not dispute the facts by not cross-examining these witnesses. The plaintiff is a big music publishing house and influential members of the Music Publishers' Association, with all the evidence and aid their association could lend, could not and did not attack these undisputable facts. It is a coincident worthy of your close attention that W. M. Bacon, a partner in the plaintiff's firm in this case and also of the copyright committee of the Music Publishers' Association, who was leader of the prosecuting forces and signally failed to prove that this industry did other than to improve the sale of music, now comes to your committee with a copyright measure framed by his associate on the copyright committee of his association.

Mr. G. W. Furniss, who is chairman, presented it and had it drafted in at the first conference, at which they both were present, and they were at every other conference to guard their conspiracy; conspiracy I say, because Mr. Bacon's firm has a contract (and his lawyers had to so stipulate), identical to the contract filed with your committee, between a publisher and the Æolian Company. Read the contract; they have conspired against the composer and against the public for an undue personal gain, grafted what they wanted in their copyright measure, and now come to you gentlemen with it under the guise that the composer is being robbed of his dues by automatic devices. I submit it is a prima facie case of the principals to this contract not only planning to sweat the composer, but to hold up the public. It is a conspiracy in which the copyright office has aided them, possibly innocently, and they have asked your assistance, the public funds paying the expenses, the same public they want to get under their grasp. I can prove every word of this at any time. Is it not time Uncle Sam should arouse?

The public.—The public side of this question is an important one. They have purchased in good faith instruments and self-playing devices and invested their money on the reasonable assurance of being able to continue undisturbed in these rights, and, by their patronage, have helped develop one of the foremost industries of this country and must be permitted to continue to buy controllers from the different manufacturers of their instruments. The public's spending power in this industry, being the foundation of this great and prosperous industry and the foundation on which compensation is now sought by copyright legislation for the composer, it is obvious that it must not be impaired at this late date by any measure calculated to give either the composer or his publishers legislation that will place either of them in a position to dominate this extensive industry and interests, and the public.

PERTINENT POINTS OF FACT.

This bill, H.R. 19853, as presented, is an iniquitous measure, framed not by the "poor composer" nor by the public interested, but by banded, bonded interests, which have conspired together for special privileges and greed and have had the audacity to submit it to Congress for its seal of approval. There is no secret now about this. The Librarian's records show, as also his admissions, that the interests I have enumerated in this brief were never notified of intended proceedings and never invited, although these uninvited interests are the very ones bartered in in the bill. The conferees at the conference consisted of the Book Publishers' Association, the Music Publishers' Association, etc. The two mentioned could hardly represent the authors and composers. Have they any credentials to this effect? The facts are, they represent copyrights they own and for which they seek further favorable concessions, out of which the exploited beneficiaries, the composers, would get nothing.

It had been maintained that mechanical players tend to discourage learning and reduce the sale of copyright music, but all the evidence taken on this subject proves the contrary is the case, and it was never questioned, even by counsel representing the publishers, who now seek special privileges. The publishers can not prove that they have paid an average of 1 per cent on copyright music they have published, nor the composers that they have earned an average of 1 per cent on their copyrights, in an industrial field of their own, yet they ask legislation giving them a dominating interest in an industry that other brains and money have created. Any amendment to this measure placing all interests on an equitable footing will be fought by its advocates, showing their corrupt intentions. This industry has been hampered for past years by threats of the mentioned combinations, and Congress in any new bill should clearly define whether this mechanical matter is or is not included in the amendment. To end this matter once and for all, I am in favor of giving the composers (not the proprietor or owner of a copyright) the specific right to copyright his composition as applied to mechanical reproductions, and to collect reasonable royalties from manufacturers who may wish to use it, leaving it to a court of equity to determine what a reasonable equity would be, if such a measure is considered advisable. I should urge that, as this provision will apply solely to mechanical reproductions and receive its benefits therefrom, the term of this copyright should, in all equity, take the life of a patent with which it associates.

The following parallel ethical equities with the case of the composer might well be considered by the committee:

The architect, the man of brains, who conceives a wonderful conception of a piece of architecture or arrangement of a building, how can he prevent anyone else from duplicating this result or building it, which is the creation of his conception and work? A man discovers a treatment for some disease; others use it and apply it. A surgeon discovers a new form of operation; the others use it. A business man, by dint of his brain, figures out a great system for running his business, which makes it immensely profitable; his fellow-beings adopt it and don't pay him a cent. There are hundreds of parallel cases. Gentlemen, if it had not been for this gigantic conspiracy you would not have heard of the composer's woes.

This amendment has been fathered throughout by publishers, associations, and rings. They have exploited the composers' interests when they do not represent them, but, instead, their own selfish interests, which have been safeguarded in advance by contract.

Any legislation in favor of the oppressed composer should be so worded and framed as to not place him any further under the power of these combinations.

I shall be pleased, at any time, to prove to your honorable committee any statements made in this brief.

F. W. Hedgeland,Representing Inventors, Manufacturers, Composers, and thePublic, 1535 West Monroe street, Chicago, Ill.

STATEMENT OF CHARLES S. BURTON, ESQ., OF CHICAGO, ILL.

TheChairman. Whom do you represent?

Mr.Burton. I speak for the manufacturers of the perforated rolls and automatic instruments.

TheChairman. How much time do you wish?

Mr.Burton. I do not know how much time the committee has at its disposal nor what has transpired. It may appear that some of the points on which I wish to speak have already been handled, and if I am informed of that as I touch them I will not take up further time with them. As I say, I speak for the manufacturers of perforated rolls and automatic instruments.

TheChairman. We have had several speakers on that subject.

Mr.Burton. I understand that some points have been presented.

TheChairman. Perhaps it would answer your purpose to be permitted to see what they have said and supply in writing any additions you may desire to make.

Mr.Burton. I should be very glad to do so. I have been obliged to come here on the shortest possible notice. I left my desk with my mail half opened and jumped for a train upon a telegraphic request to be here, and have only had that much time to determine just the form in which I would like to present what I have to say. But I could give you in ten minutes, probably, the results which, it seems to me, the bill should accomplish, and if I touch on points that have already been discussed it will not be necessary to speak further on them.

TheChairman. You may have ten minutes.

Mr.Burton. But I would like to take advantage of the permission to file a full brief, giving my suggestions in detail as to the changes which, it seems to me, ought to be made in the bill.

Mr.Chaney. Of course we want that, Mr. Burton. We think that will be more valuable to the committee than a speech.

Mr.Burton. That is what I wanted to present, and if I had had time I should have been glad to have brought it in that form here.

I want to say first that it seems to me that while the bill follows the previous statutes in general in respect to copyrights, in the point I am going to speak of it ought to be amended. The practice in respect of patents is that the inventor shall verify his inventorship; he shall make oath that he believes himself to be the inventor, and any rights that pass to an assignee of the inventor must pass by an instrument which can be placed of record, signed by the inventor. But on the contrary, in the case of copyrights, in order to obtain a copyright the person claiming as the proprietor has merely to come in and make the claim as proprietor. He does not even have to verify that; and thereupon this bill expressly provides that he has a prima facie title to the copyright thus obtained.

It seems to me that that opens the door, as it always has—there is nothing new in this bill in that respect—to a large amount of fraud upon the author or whoever is the one in whom the right originates. I think, therefore, that when the bill is made up it should require the author to verify his authorship. The bill should provide that the application for registration should be accompanied by an affidavit of authorship, and if application is made on behalf of an assignee as proprietor there should be an instrument conveying the right from the person who originates it, namely, the author, accompanying the petition. It seems to me that no hardship can arise from requiring this of an author and the assignee of an author, as it is required of an inventor and the assignee of an inventor.

The bill provides that there shall be a very careful prima facie case made by affidavit as to the printing and preparation of the mechanical material for publication in order to come within the statute. All that must be verified, but the fundamental authorship requisite goes upon a mere assertion, without even the verification of an oath of the party claiming. A change should be made in that respect.

Then, furthermore, with regard to the right respecting perforated rolls, in respect of which I am speaking particularly, I think the right should be entirely distinct and separate from the fundamental copyright, the copyright of the "work," using the term that has been used; that the right to the perforated roll or whatever other form of mechanical reproduction is claimed should be based upon the filing of a copy of that perforated roll; that the filing of the copy of the original work should carry the copyright in the common sense of the word, but if the author desires to claim copyright in a perforated roll on his work, for that purpose, if you please to put it so, he should take it for that purpose, and make his claim of copyright upon that roll. If he wishes it in any other form of reproduction, such as the disk of the talking machine, he should file that; and I think that right should be entirely separate from the right which might pass by an assignment of the copyright. The publisher who may acquire the copyright on the work from the author should not, without express conveyance (although the same person might acquire both) acquire the right to control the perforated roll or the phonograph record or the talking-machine disk; they should be entirely separate.

The bill does provide that these shall be regarded as separate estates; but in view of the decisions in which a similar phrase is used, it is clear to me that that means that when the copyright has been obtained by the one proceeding provided for here, all these elements of it are separate estates which might be passed by separate assignments, but they would all be contained in the one copyright. I think that is wrong. I think that the right for the perforated roll should be acquired by filing a copy of that roll, in order that the public may know just exactly what is claimed, and whether it is claimed or not, and whether it is to be utilized.

Furthermore, I think that is a right that is naturally distinct from the other. It is a right that goes into manufacture instead of into publication. It is not to be done by the same people, naturally. The manufacturer, having a factory, makes the perforated roll. The publisher makes the books in an entirely different way. The two things are like different lines of trade. They are not naturally blended, either in use or sale. And therefore the composer or author, whichever it be, a work of words or of music, should be entitled to handle it entirely himself, apart from any right that he may have passed to the publisher by the transfer of his copyright.

I think I overheard as I came in a remark indicating that the next point I desire to press has already been suggested. In section 3 of the bill as I read it, as it stands now, there is a provision which would make it possible (and the committee will interrupt me if it has already been discussed, for in that event I should not wish to spend any time upon it) for the owners of copyrights of existing music to simply refile that music for copyright under this statute, and publish it with the mark that is required by this bill, and thereupon all that was contained in the previous copyright that is contained in that refiled and recopyrighted matter would come under this act, with all the privileges that this act gives over former copyright acts.

For example, this very matter of the right to mechanically reproduce would attach to a piece of music which had been previously copyrighted and of which a copy is now filed under this statute, and all the privileges of the bill except the longer term would attach to old copyrighted music which is simply refiled. So it would be possible to make the provisions of this act retroactive, so that the publishers, upon taking this proceeding, for 50 cents, with all their copyrighted music, would immediately cause the loss of the millions of dollars that have been invested in those rolls.

Mr.Currier. That has been discussed by several gentlemen, and objection taken to it—the same objection you are discussing now.

Mr.Burton. Very well; I will not talk of that.

Mr.Chaney. His point is that he would let the copyright go to each one of these interests, as I understand it.

Mr.Currier. That is on another point, however. He is speaking about section 3 now, in reference to subsisting copyrights.

Mr.Burton. In section 3 there is a provision which ought to be changed to prevent the subsisting copyright from carrying over these provisions into the new——

Mr.Currier. That has been discussed by several gentlemen.

Mr.Burton. Then if you are not going to make it retroactive—I judge the committee is clear upon that point—so as to bring under a copyright and make infringements all these outstanding millions of rolls, the question next should be, Should it be possible for the composer, by copyrighting now his perforated roll or taking any steps under this statute, to have the right from this time on to control the cutting of music which has heretofore been cut?

That strikes one at once with a little semblance of justice; but the injustice of that proposition consists in this: That for every piece of music which has been cut by a manufacturer, that has been lawfully cut under the present decisions, where he has a perfect right to do it, he has been obliged to expend from $10 to $25. He has that much investment lying under this music that is out in the market. Now, if it is not reasonable that all this outstanding music, lawfully made and lawfully sold, should become outlawed by a new act, is it reasonable that all this provision for making that investment, which amounts to millions of dollars, in the preparation for cutting this music, should become outlawed immediately, so that no more compensation can come to this manufacturer who has this $25 or this $10 invested in each piece, and say to him: "You can not use that music; you can not cut any more of that music?" Is it reasonable that that investment should be killed—that that investment, lawfully made, in a lawful product, should become immediately unlawful and waste paper?

Mr.Webb. What section has that effect?

Mr.Burton. I do not say the bill would certainly have that effect. It is entirely uncertain, but it seems to me the bill would have the effect, as I read it, of permitting the composer to claim the rights except as to outstanding music—that is, the right from this time on to cut it. The bill should be clear. I have had only a very short time to examine it, and a provision may possibly lurk somewhere under which the continued production of perforated rolls now being produced would be permitted, but I think not. I think it is possible, or might be held possible, under the bill for the composer to claim the rights from this time on to cut the music.

Mr.Currier. Oh, very clearly so; he can sell that right.

Mr.Burton. If that is the case, it seems to me unjust.

Mr.Campbell. Where the copyright has run out?

Mr.Currier. No; for copyrights taken out after the passage of this bill.

Mr.Burton. I am talking about the music that is now on the market, not the rolls, but the means of cutting them—whether the composer can, under this bill, acquire the right to stop the cutting from now on of that music.

Mr.Currier. I do not think you need to take any time with that proposition.

Mr.Burton. If that is clear, I will pass it. It seems to me the bill gives it; but if you make it entirely clear that it does not——

Mr.Currier. It is not the purpose of the committee, I judge, to allow that. Your time has expired.

Mr.Burton. Then I will ask leave to file a complete brief suggesting changes.

Mr.Currier. And I might say to you what has been said to others here—that neither the Senate nor the House committee will take any action on this bill at this session. It will go over until next winter, and at any time before action is taken you can file any further brief or any further suggestions with the committee.

Mr.Burton. I thank the committee on behalf of the interests I represent.

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