Library of Congress, Copyright Office,Washington, D.C., June 15, 1906.Dear Sir: I ask to be allowed to file for the printed report of the hearing on the copyright bill the following, in addition to my answers to the questions you asked me on Friday, June 8, in relation to the importation of copies of unauthorized editions of American books:1. It is fundamental to the protection of copyright that all unauthorized reprints of copyrighted books shall be prohibited importation into the country of origin. It is therefore provided in all foreign copyright legislation that such unauthorized copies shall be prohibited importation. Such copies are treated as fraudulent copies, and I know of no provisions in any foreign legislation which permit importation of unauthorized copies either by individuals, educational or other institutions, or libraries.In the copyright legislation of the United States prior to 1891, the provisions prohibiting importation dealt only with unauthorized copies and these were prohibited importation, except with the direct consent in writing of the author or copyright proprietor.2. The act of March 3, 1891, introduced an additional prohibition of importation, namely, of copies of authorized editions of foreign copyrighted books, or of authorized foreign reprints of American copyright books, unless printed from type set within the limits of the United States or from plates made therefrom.To this prohibition of importation certain exceptions were enacted in favor of private book buyers, educational institutions, and libraries; and some paragraphs of the free list of the act of October 1, 1890 (permitting importation without the payment of duty) were taken over into the copyright law to insure that the articles named in these paragraphs should be included in the exceptions to the prohibition of importation of copies of authorized editions of books.It was not supposed that Congress intended that these exceptions to the prohibition of importation should apply to unauthorized editions, but upon the matter being submitted to the Department of Justice an opinion was filed by the Solicitor-General ruling that the exceptions did extend to unauthorized reproductions of American books. (See Opinion of Holmes Conrad, April 19, 1895; Synopsis of Treasury Decisions for 1895, pp. 495-498.)3. In the provisions of the new bill dealing with importation a careful distinction has been maintained between unauthorized (fraudulent) copies and copies of authorized editions not printed from type set within the limits of the United States.In the case of all unauthorized reprints of books the prohibition of importation is absolute, and any such copies introduced into the United States are subject to seizure, forfeiture, and destruction. (See sections 26 to 29 of the bill.) In the case of copies of authorized editions not set in the United States, such copies if imported are seized and exported, but not destroyed. (See copyright bill, sec. 31.)All exceptions, therefore, to the prohibition of importation of authorized editions in the bill concern only authorized copies, and there is no permission in favor of any one to import any unauthorized, pirated copies.Very respectfully, yours,Thorvald Solberg,Register of Copyrights.Hon.Frank D. Currier,Chairman House Committee on Patents, House of Representatives.
Library of Congress, Copyright Office,Washington, D.C., June 15, 1906.
Dear Sir: I ask to be allowed to file for the printed report of the hearing on the copyright bill the following, in addition to my answers to the questions you asked me on Friday, June 8, in relation to the importation of copies of unauthorized editions of American books:
1. It is fundamental to the protection of copyright that all unauthorized reprints of copyrighted books shall be prohibited importation into the country of origin. It is therefore provided in all foreign copyright legislation that such unauthorized copies shall be prohibited importation. Such copies are treated as fraudulent copies, and I know of no provisions in any foreign legislation which permit importation of unauthorized copies either by individuals, educational or other institutions, or libraries.
In the copyright legislation of the United States prior to 1891, the provisions prohibiting importation dealt only with unauthorized copies and these were prohibited importation, except with the direct consent in writing of the author or copyright proprietor.
2. The act of March 3, 1891, introduced an additional prohibition of importation, namely, of copies of authorized editions of foreign copyrighted books, or of authorized foreign reprints of American copyright books, unless printed from type set within the limits of the United States or from plates made therefrom.
To this prohibition of importation certain exceptions were enacted in favor of private book buyers, educational institutions, and libraries; and some paragraphs of the free list of the act of October 1, 1890 (permitting importation without the payment of duty) were taken over into the copyright law to insure that the articles named in these paragraphs should be included in the exceptions to the prohibition of importation of copies of authorized editions of books.
It was not supposed that Congress intended that these exceptions to the prohibition of importation should apply to unauthorized editions, but upon the matter being submitted to the Department of Justice an opinion was filed by the Solicitor-General ruling that the exceptions did extend to unauthorized reproductions of American books. (See Opinion of Holmes Conrad, April 19, 1895; Synopsis of Treasury Decisions for 1895, pp. 495-498.)
3. In the provisions of the new bill dealing with importation a careful distinction has been maintained between unauthorized (fraudulent) copies and copies of authorized editions not printed from type set within the limits of the United States.
In the case of all unauthorized reprints of books the prohibition of importation is absolute, and any such copies introduced into the United States are subject to seizure, forfeiture, and destruction. (See sections 26 to 29 of the bill.) In the case of copies of authorized editions not set in the United States, such copies if imported are seized and exported, but not destroyed. (See copyright bill, sec. 31.)
All exceptions, therefore, to the prohibition of importation of authorized editions in the bill concern only authorized copies, and there is no permission in favor of any one to import any unauthorized, pirated copies.
Very respectfully, yours,
Thorvald Solberg,Register of Copyrights.
Hon.Frank D. Currier,Chairman House Committee on Patents, House of Representatives.
TheChairman. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here?
Mr.Putnam. I think Mr. Davis has not yet come in.
With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject-matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this:
I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing, so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it.* * *As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me, and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.
I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing, so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it.* * *As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me, and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.
The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added:
And provided furthermore, That a series of maps, drawings, photographs, prints, and pictorial illustrations, and labels and prints relating to articles of manufacture, and other subjects of copyright of an artistic nature, constituting a unit or assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, should the applicant so elect, whether or not they are actually joined by binding, printing on the same sheet of material, or otherwise.
And provided furthermore, That a series of maps, drawings, photographs, prints, and pictorial illustrations, and labels and prints relating to articles of manufacture, and other subjects of copyright of an artistic nature, constituting a unit or assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, should the applicant so elect, whether or not they are actually joined by binding, printing on the same sheet of material, or otherwise.
I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point.
TheChairman. That will go in the record.
Mr.Putnam. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view."
That is in answer to an inquiry as to whether he wished to have a hearing before the committee.
I have received a communication from the International Brotherhood of Bookbinders, as follows:
As president of Local No. 4, of Bookbinders' Union, of this city, and representative of the International Brotherhood of Bookbinders of the United States, I would be pleased to be heard on the Currier copyright bill to-morrow, immediately after Mr. J. J. Sullivan has spoken on bill. I will not consume more than ten minutes, and possibly less than that. I will be in attendance at the hearing.Very respectfully,J. L.Feeney.
As president of Local No. 4, of Bookbinders' Union, of this city, and representative of the International Brotherhood of Bookbinders of the United States, I would be pleased to be heard on the Currier copyright bill to-morrow, immediately after Mr. J. J. Sullivan has spoken on bill. I will not consume more than ten minutes, and possibly less than that. I will be in attendance at the hearing.
Very respectfully,
J. L.Feeney.
The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while I have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all.
Mr.A. R. Serven. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smithv.Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed.
TheChairman. Mr. Putnam, just call our attention to the proposed change.
Mr.Putnam. This is contained in a written communication, and it will really take less time to read it from the communication.
TheChairman. Yes.
Mr.Putnam. (Reading:)
Section 1, subsection G, should be amended to read as follows:"To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism publicly to reproduce to the ear the whole or any material part of such work."
Section 1, subsection G, should be amended to read as follows:
"To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism publicly to reproduce to the ear the whole or any material part of such work."
Omitting the explanations, the next amendment will be as follows:
Section 3 should be amended to read as follows:"That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, and the devices, appliances, or contrivances mentioned in section 1, subdivision (g) of this act, but without extending the duration of such copyright."Section 23, subdivision (b)——
Section 3 should be amended to read as follows:
"That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, and the devices, appliances, or contrivances mentioned in section 1, subdivision (g) of this act, but without extending the duration of such copyright."
Section 23, subdivision (b)——
TheChairman. I suppose the other amendments are simply to follow if the first amendment is approved?
Mr.Putnam. If the first amendment is approved; that is my understanding.
Mr.Serven. Mr. Chairman, that is true with the exception of one amendment. The Musical Publishers' Association suggests that the same right of appeal and review in interlocutory judgments and orders should be provided for in the new bill as is provided for in the existing law. That is the only thing that is different.
Mr.Horace Pettit. Mr. Chairman, may I ask Mr. Serven whether he will add to his amended section 3 the clause which I suggested in my amendment to the original section 3? It would accomplish the same purpose as I had intended. My suggestion of amendment would also apply to your amended section 3, which adds:
And provided, That no devices, contrivances, or appliances, or dies or matrices for making the same, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright.
And provided, That no devices, contrivances, or appliances, or dies or matrices for making the same, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright.
Mr.Serven, Yes, Mr. Chairman; I think that is only fair to the interests represented.
Mr.Pettit. You accept that as an addition to your amendment?
Mr.Serven. We are very glad to, indeed. We think that is perfectly fair.
Mr.Currier. A suggestion was made here the other day, the first day of the hearings, to strike out section 3, I think.
M.Pettit. Well, either that or that my amendment be added to it.
Mr.Currier. Yes. Who was the gentleman who replied to you.
Mr.Pettit. Mr. Fuller, of New York.
Mr.Currier. I understood Mr. Fuller to say that the question of whether subsisting copyrights covered these mechanical devices was now in the court, and they thought the court might hold that such devices were now covered. If such should be the decision of the court, would it not prohibit the use of graphophone cylinders and records already made and in use, if they were records of music covered by a subsisting copyright, under that section 3?
Mr.Pettit. If the decision of the court were such as to include talking-machine records or other sound records within the subsisting law, of course it would prohibit that.
Mr.Currier. Does any gentleman here think we ought to legislate along that line?
Mr.Pettit. Not that I know of. I do not understand that they think so, unless Mr. Fuller was misunderstood.
Mr.Currier. That would prevent any boy or girl in the country who has bought records and who is using them to-day from using them. Immediately, I suppose, a warning circular would go out that they must not use those records and cylinders that they had bought in good faith. It does not seem to me that we could pass any such legislation as that.
A Gentleman.Mr. Chairman, that is exactly the position of a great many of the interests involved and exactly the position on which we wish to be heard here to-day.
Mr.Currier. I do not think you need spend much time in talking about subsisting copyrights.
Mr.Burkan. The intent of this act is to make it apply to compositions copyrighted after this act goes into effect.
Mr.Currier. I understand that another section provides that; but it must be in conflict with this section if the courts should hold as Mr. Fuller thinks they may.
Mr.Burkan. But the amendment to section 3 should be that the devices and contrivances mentioned in subdivision (g) shall apply only to compositions copyrighted after this act shall have gone into effect, and say nothing about subsisting copyright.
Mr.Chaney. It can be readily modified to suit that. There is not any question that we do not want to make it retroactive.
TheChairman. Mr. Putnam, is Mr. Davis here now?
Mr.Putnam. Mr. Davis is here. Mr. Davis, it is necessary to know how the hour assigned to particular opponents of the music provision, or a group of them, is to be apportioned, and whether the statement that you are to submit is part of that or not. They understand that it is distinct from the group of statements by them, and they also state that they understood that you understood that, and that your statement would be brief, something like fifteen minutes. I ask in behalf of the Chairman as to this understanding. Whom do you represent?
Mr.Davis. Inventors as a class of their own, and distinct from manufacturers.
Mr.Putnam. No particular establishment?
Mr.Davis. No, sir.
Mr.Putnam. And no particular association?
Mr.Davis. No, sir.
TheChairman. How much time do you wish, Mr. Davis?
Mr.Davis. About 20 minutes.
TheChairman. You may proceed, Mr. Davis.
STATEMENT OF G. HOWLETT DAVIS, ESQ.
TheChairman. Will you not state your name and who you represent?
Mr.Davis. My name is G. Howlett Davis. I have been an inventor during all of my majority and represent inventors as a class. I hope to show how the passage of this act will, first, discourage invention; second, restrict patent grants already held by inventors; third, provide authority to confiscate an inventor's physical property; fourth, to abrogate the inventor's constitutional rights, and, fifth, to create a monopoly which would be practically controlled by a few to the detriment of inventors and the public.
Of course, there are a good many subjects to take up here in the limited time allowed me, and I am willing to take them up in any order you may designate.
TheChairman. I think it only fair that in your case as well as that of the other gentlemen the time devoted to questions should not be considered as part of your time, and taken out of your time; but I would like to ask one or two questions before you begin. Do you understand that this bill proposes to interfere with existing patent rights?
Mr.Davis. Yes, sir.
TheChairman. Vested rights?
Mr.Davis. Yes, sir. I shall take that up first, if you please.
SenatorSmoot. You mean, then, that section 3 is the section that interferes with them?
(Mr. Davis looks for the bill.)
SenatorSmoot. If you have not it there, do not bother about looking for it now. Go right on.
Mr.Davis. I had a marked copy here.
SenatorSmoot. We will listen to you when you come to that section, anyhow.
TheChairman. You may proceed, Mr. Davis, and we will not interrupt you during your twenty minutes.
Mr.Davis. Thank you, sir.
I would like to first explain that I am here without counsel and without any previous notice from the Copyright Office, and without invitation from any source whatever. I discovered the existence of the proposed bill by mere accident on Saturday last. I was then notified that a firm which operates under my patents would have to go out of business if this law passed, and would necessarily have to cancel its licenses with me. That concern is the Perforated Music Roll Company, with offices at 25 West Twenty-third street, New York City. I have also just to-day received similar intimation from another concern manufacturing under my patents in Philadelphia, the Electrelle Company, just organized for a million dollars for the manufacture under my patents for reproducing music mechanically.
I have been inventing in numerous classes during the last twenty years, including printing presses, typesetting machines, typewriting machines, clocks, stencil duplicating apparatus, etc., but about ten years ago I took up the class of self-playing musical instruments. I recognized that there was a peculiar relation of this art to copyrighted musical compositions, and I saw that in some way whatever devices I might invent for the reproduction of music mechanically might interfere with the composer's rights, because music is a necessary component part of the class of self-playing musical instruments, and you all know that this industry has become one of the greatest of the young industries of the country. You can take up any magazine and you will see many pages filled with descriptions of self-playing musical devices, including phonographs, graphophones, apollos, angeluses, cecilians, pianophones, and a hundred other devices for reproducing music automatically. As far as I am able to ascertain none of these concerns have had notice of this bill, and the two concerns who are operating under my patents not only have had no notice, but have notified me, as before stated, that in case of the passage of the bill they will have to annul their contracts with me.
From dire necessity I was compelled to work for two years with the Æolian Company, a concern which attempted to take from me without due consideration inventions which I believe have since been recognized as superior to their instrument, the pianola. During the St. Louis exposition the Government officials sought for a self-playing device which would represent the highest advancement of the art. Among others they considered the pianola, manufactured by the Æolian Company, and they also went further and considered the inventions of poor inventors who had no backing; and finally they selected my device as the sole exhibit. It was the only self-playing musical instrument which was exhibited in the Government building during the St. Louis exposition.
After I left the Æolian Company, declining to accept the compensation which they offered me, they have persecuted me in the courts for years. Moreover, as I can prove to you if you will only give me time to produce the documents from my attorneys (I waited for them until the last minute this morning), this concern, failing to secure a monopoly or strangle my invention through the courts, and recognizing, as a result of the Government and other indorsements of it, that it would in time be universally recognized as a superior instrument, has connived with music publishers and secured from nearly every member of the Music Publishers' Association a contract which sets forth that in case the music rolls or records are decided by the courts to come within the copyright laws, they will take over from them the exclusive right of reproducing their music for a compensation. These contracts I have seen with my own eyes. I can swear that they exist, but unfortunately I can not produce them this morning. But I will agree to produce at least two of them if you will give me a week's time to do it.
Mr.Currier. You will have the necessary time to put anything of that kind in the record.
Mr.Davis. I thank you. Now, the Æolian Company, being back of the independent members of the Music Publishers' Association, have influenced in turn the music publishers as an association to insert in this bill clauses which will cover mechanical methods of reproducing music; and in proof of this I will say that as a result of Mr. Solberg's kindness yesterday afternoon in allowing me to search the records of the star-chamber proceedings presided over by the Librarian of Congress, that the first introduction of those clauses was made by Mr. Bacon for the Music Publishers' Association in the form of an amendment which now appears in all of its substantial terms as subdivision (g) page 2, of the bill. Now, the independent music publishers in turn control the great majority of composers, so that there is thus formed a complete monopolistic octopus, in which the Æolian Company forms the head and brains, the Music Publishers' Association the body, the independent publishers the writhing arms, and the composers the suckers and baiters. [Applause.]
The Æolian Company is a ten-million-dollar concern whose monopolistic game has already been uncovered in several courts, as I will show by proofs, and the music publishers are here to pull its chestnuts out of the fire. [Applause.]
Now, if the inventors of this country knew what was in this bill there would be enough here to fill up every room in this great building, but they do not know it. It will strike them like a thunderbolt out of a clear sky when they learn that there are clauses in this bill which not only seem to lessen or destroy the scope and commercial value of our existing patent and confiscate our physical property, etc., but also imprison us in case we infringe the proposed copyright act.
Now I will read you from——
Mr.Chaney. What is your first subheading there that you are going to talk from?
Mr.Davis. That it will discourage invention, but I would like to take up this bill first; I would like to take it a little out of set up in my preamble.
Mr.Currier. Subdivision (g) on page 2?
Mr.Davis. Subdivision (b) on page 1.
Mr.Chaney. All right; "To sell, distribute, exhibit, or let for hire," etc.?
Mr.Davis. Yes, sir.
Mr.Currier. I do not see how that touches your industry.
Mr.Davis. No, sir; I had my marked copy here——
Mr.Currier. I should say "(g)" was the first one that would affect you.
Mr.Davis. Yes, sir "(g);" you are right, Mr. Currier.
Mr.Chaney. That is, "To make, sell, distribute, or let for hire any device, contrivance," etc.?
Mr.Davis. "To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work."
Now, in this art of self-playing musical instruments alone I have been granted some twenty-seven patents by this country, and have also been granted patents all over the world. My patents read very similar to this—that I shall have the exclusive right to make, use, and sell the mechanical contrivance covered by the claims of those patents, and those claims embody, in connection with the mechanism, a perforated roll, which is a controller for the instrument, and is an essential part of it, and in the case of phonographs or graphophones they include the engraved record.
Notwithstanding that I have gone ahead in good faith under the reading of the Constitution and the laws as construed by the courts right up to date, that composers shall be limited to their "writings," intimating thereby that we inventors should have the right to any methods that we might discover for mechanically reproducing music—notwithstanding that I have expended years of effort and all my money, time, and labor to devise these machines, and have built models and exhibited them, and companies have been formed around them—and notwithstanding that my patents give me the exclusive right to make, use, and sell these machines, this proposed act comes out and says that "any device especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any published and copyrighted work after this act shall have gone into effect," etc., shall be illegal, and subjects me to all those hardships enumerated in my preamble, and transfers to the copyrighter in almost the exact words of my patent those rights given me by the Commissioner of Patents under the authority of the Constitution.
I am not a lawyer, and never made a public speech before in my life, and can only speak to you out of the fullness of my heart. I have not even been able to get my counsel here——
Mr.Chaney. I do not think you need any. [Laughter.]
Mr.Davis. After destroying or limiting the patent rights already vested in me as explained, and transferring them in whole or part to the copyrighter, as contemplated in subsection (g), page 2, in the bill, I am, by another part of the bill, liable to imprisonment if I infringe a copyrighted composition, and this I will do of necessity if I proceed under the authority of my existing patents giving me the exclusive right to make, use, and sell my mechanical device for reproducing music, whether copyrighted or not, thus through two conflicting grants, one to the composer and the other to me, I may innocently——
Mr.Currier. Not if you do it innocently. If you read it carefully you will find that that is the case.
Mr.Davis. There is a paragraph further over, section 25, page 18, which provides that anyone who shall knowingly and willfully infringe the proposed copyright "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year." Now, if I proceed "willfully" to exercise my full rights as vested in me by my existing patents in defiance of the conflicting and unconstitutional copyright grant proposed, then the copyrighter can put me in jail for a year and during my incarceration and during the entire life of my patents make, use, and sell my machines under the provisions of subsection (g). It is no misdemeanor for one inventor to infringe the patents of another inventor, no matter how frequent and willful such infringements may be; then why imprison an inventor for infringing a usurping copyrighter. Supposing such infringements are innocently made, then wealthy and unscrupulous corporations, such as the Æolian Company, through their unscrupulous lawyers, will succeed in jailing many poor and innocent inventors. It is hard enough now for most inventors to keep out of the poorhouse and the courts; don't add to their present hardships.
SenatorSmoot. Mr. Davis, of course you mean that that would happen if you published something after the passage of this act that was copyrighted? This act plainly says, in section G: "Any work published and copyrighted after this act shall have gone into effect." It does not affect anything at all that you have done before?
Mr.Davis. Yes; but it applies to machines that I have already invented and which I may use after this act, according to my patent, to mechanically reproduce any music of the past, present, or future.
Mr.Webb. It does not apply to pieces that you play on those machines now, though, even if they are now copyrighted, does it? It only applies to pieces copyrighted after this act goes into effect.
Mr.Davis. My machines, those that I have been inventing and patenting for years, are specially adapted to reproduce, or may be specially adapted and arranged to reproduce any particular piece, whether copyrighted to-day or hereafter. Under the Constitution, as I understand it, I have the right to use anything that is not a writing, a readable writing; and I have gone ahead under the Constitution with the full reward therein provided as an incentive for my work. The bill covers not only pieces or controller records, but also the machines which they actuate.
Mr.Webb. You do not understand, though, Mr. Davis, that this act will destroy any of your vested rights at present, do you?
Mr.Davis. I do, sir; as I have explained, though perhaps not clearly.
Mr.Webb. When it says that it shall only apply to works published and copyrighted in the future? It only applies to works copyrighted and published after this act goes into effect, and I do not see how it can affect any vested right which you have on account of your past investments.
Mr.Davis. But the idea of inventions is to be able to produce a mechanism which can be specially adapted to any music, whether of to-day or to-morrow. My patent grant does not except new copyrighted pieces.
Mr.Webb. I understand that; but there are two propositions involved here. The first is, you say it will destroy what you have already invented. The next is, you say it will destroy you because of your inability to get hold of these pieces that will be published and copyrighted in the future. Is that your point, now? Is that your argument?
Mr.Davis. I say that this practically depreciates or destroys the marketable value of my inventions or machines, which are capable of being used for mechanically reproducing either old or new music, as well as destroying in part or whole my existing patent rights.
Mr.Webb. Because it will not let you reproduce works published and copyrighted in the future? Is that the reason, now, why you say it will destroy your invention?
Mr.Davis. Yes, sir; coupling this admission with my previous explanations.
Mr.Webb. I wanted to get your meaning.
SenatorSmoot. Or, in other words, if Mr. Sousa should have a very popular air or piece produced in the future, you think that you ought, as you have in the past, to simply be permitted to reproduce that by your machine?
Mr.Davis. Yes, sir; either I or any other patentee.
SenatorSmoot. Without any consideration whatever?
Mr.Davis. Yes, sir, I do; because outside of a possible minor and remote ethical or equity right, he possesses not a vestige of a statutory or legal right to stop me.
SenatorSmoot. And whatever his brain, and his talent, and his gift has brought forward, you are entitled to use?
Mr.Davis. And I want to go ahead and explain, if you will allow me, why I say that.
Before I took up this art of self-playing musical instruments, as I said, I saw that there was a possible limitation, and that in order to make inventions commercially successful I would have to use musical compositions. If I used old music, they would be useless. I would have to use current music; and I read the Constitution, and the very first article of the Constitution that I came to, section 8, reads:
That the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.
That the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.
Mr.Webb. Mr. Sousa insists on that, too. [Laughter.]
SenatorSmoot. Yes; I was going to say, that is just exactly what Professor Sousa insists upon.
Mr.Chaney. That is where the other fellows claim they come in.
Mr.Davis. There is where Mr. Sousa and the trust, on one side, and I are going to lock horns—right here with the Constitution as our battle ground.
Mr.McGavin. Would you like to amend that?
Mr.Davis. No, sir; I want the Constitution to stand as it is. It is not the construction Mr. Sousa puts on this word "writing" therein; it is not the construction that I put on it; but I followed this matter down, as an inventor. Every decision that has ever been made in this country and England, as I read it, has limited that word "writing" to mean some visible and readable writing; not the mere making of a wave in the air. If I invent improvements in wireless telegraphy, the Government does not grant me anything but the mechanical means of doing that, or the method. It does not give me exclusive right to use God's free air and vibrate it.
For instance, we will imagine Mr. Sousa facing an audience of ten thousand persons and behind him one hundred skilled musicians who, upon the movement of Mr. Sousa's baton perform in melodious concord upon one hundred different musical instruments. We will, for illustration, as audiences do without suggestion, forget the inventors who evolved the orchestral musical instruments and without which Sousa's band would be a nonentity, and take under consideration only one of the inventors who have formed part of the audience which has been enraptured. After the performance the thought occurs to many that it would be a blessing to mankind if such music as they had heard could be reproduced at will for their own pleasure and for that of those who are in remote sections of the world and for those who are too poor to pay for even the lowest-priced seat.
One of the inventors present determines that he can produce the great desideration to practice, and from that moment commences to evolve in his mind thousands of different apparatus which appear to him feasible for the full achievement thereof. After years of experimenting he is ready to test a machine which, in some of its structural features, resemble that of the human organism. The inventor's machine is set up within the range of the air waves, set in vibration by the instruments of Sousa's band, and which air waves are escaping into space to be lost to man forever. The ear-like diaphragm of the instrument is impinged by and set in motion, and through connecting means resembling the human oricular bones and nerves there is engraved upon a sensitive surface not far unlike the material matter of the human brain a record of every minute vibration of all the one hundred instruments.
After the performance no one in the audience, musician though he be, can simultaneously resound any two instruments, and the majority of the audience would be hissed if they attempted to resound any one of the instruments. Not so with the mechanical listener, for it is capable of resounding simultaneous and accurately all of the 100 instruments, and upon the expenditure of 50 cents for a copy of the machine-made record the poor man and his family in every part of the world can, by a slight movement of his hand, start up his $7 graphophone and thus be amused and enraptured, all owing to the inventor having caught, preserved, and provided means for mechanically reproducing the air waves which would have otherwise have escaped beyond Sousa's power to recall. Nevertheless, the bill provides that the lost chords must be all returned to Sousa by the inventor in the form of a royalty.
There is no novelty in music, nor vibrating the air as a means of transmitting musical tones, for—
Long 'ere earth was matter or had form,Music out of wind and lightning was borne;It was thus God solaced nature,And her troubles were shorn.
Long 'ere earth was matter or had form,Music out of wind and lightning was borne;It was thus God solaced nature,And her troubles were shorn.
Long 'ere earth was matter or had form,
Music out of wind and lightning was borne;
It was thus God solaced nature,
And her troubles were shorn.
Now, defining an ethical or equity right which the inventor might claim with equal justice against Sousa and other composers, the common people all over the world, who listen to the mechanically reproduced lost chords of Sousa's band, do frequently order and pay for the sheet music score for the piano, banjo, violin, and other instruments which the purchaser plays or thinks he can play, and upon all these orders induced by the inventor's machine he is entitled to a commission, which in actual fact and adjustment would offset the alleged right of the royalty claimed in this bill. There are many other corelated equity rights which us inventors might set up but which it would be impracticable to secure to us.
TheChairman. Mr. Davis, if I may interrupt you, do you claim that you have the right to take one of Mr. Sousa's compositions and use it in connection with your mechanical device without compensation to him?
Mr.Davis. Under the Constitution and all the laws of the land, I say yes, decidedly; but I want to explain my contention and the position of inventors in a little different line of argument.
The composer of music never conceives nor produces, and never did in respect of the actual composition, conceive or produce, any means for conveying to the ear the musical composition. On the contrary, all such means from the beginning to the present time are the direct result, not of authorship, not of composition, but of invention. The composer never conceives the idea of a mechanical means for playing a piece of music. That achievement is the result of the effort of the inventor. The Constitution makes no distinction in respect of right of protection as between an author and an inventor, but both are coequal under the Constitution, and the line or field within which each may be protected is clearly marked out in the Constitution, the result of authorship being distinctly distinguished from the result of invention. The author is restricted by the Constitution to protection for "writings" and the inventor to "discoveries."
The courts have determined what may properly come within the constitutional provision of discoveries, and it has been determined a number of times that under the constitutional provision a writing does not include a mechanical contrivance. If the law under discussion be enacted it will operate to take away from the inventor the rights which are vouchsafed to him by the Constitution and by the laws of Congress enacted in pursuance thereof, and deliver his rights over to the author or composer of a literary production or a musical composition. Such a procedure would clearly annihilate the inventor, offering him up as a sacrifice to the author or composer. The Constitution intended no such thing, and in matter of every right, irrespective of the limitations provided by the Constitution, Congress ought not to pass a law which turns the inventor over to the mercy of the author or composer.
It is needless to mention to this committee the unprecedented state of prosperity and material progress attained by this country as the direct result of invention. In all arts the work of the inventor will be found at the foundation of the progress and prosperity of the country. The author or composer has to do more with the pleasure or esthetics of life, the inventor with the real necessities, and in the art allied to the fine arts has had to do with placing throughout the United States in the possession of the common people everywhere the means by which the composer as composer can never give them. It is not for a moment intended to detract from the value of the work of the author or composer, for his work is valuable, but its value has certain limitations, and these limitations are defined in the Constitution and acts of Congress heretofore passed in pursuance thereof.
The farmer or the workingman in all the small towns of this country, who are possessed of an electrical piano player or an automatic piano player, or a graphophone or a phonograph, which serves to relax the tension of their daily labor and fill their souls with music, is not because of the composer, for he rarely reached them, but it is the direct result of the inventor of the mechanical contrivances with which music may be conveyed. Yet this law attempts to reach out and take away from the inventor the product of his brain and to deliver it over to the composer. So far as the mass of the people of this country is concerned, the work of the composer is infinitesimal as compared with the work of the inventor, and the inventor is willing that the composer shall have his just rights under the Constitution; that is to say, shall have full protection in his writings, but does protest that a law should not be passed which will enable the composer to overstep the field of protection to which he is entitled under the Constitution and usurp that which the Constitution has particularly provided shall be with the inventor.
Mr.Currier. Would you object to paying a reasonable royalty to a musical author or the proprietor of the copyright if all companies would get the right to use that piece of copyrighted music upon the same terms?
Mr.Davis. Most assuredly not—no, sir; I would not, provided——
Mr.Currier. You would not object to paying a reasonable royalty if that right was given to all upon the same terms?
Mr.Davis. Provisionally I would not object, but your proposition is one which mainly interests the manufacturers of my machine, whom I do not represent. As an inventor I approve of the bill as a whole and only seek to strike out therefrom those comparatively few words covering mechanical devices, the insertion of which vitally affects our present vested rights.
Mr.Currier. If it could be worked out along the lines suggested, you would not object to that?
Mr.Davis. No, sir; no, sir. But, in my opinion, you will never be able to draw a better or more workable line of demarkation between the inventor and composer than that now set up by the Constitution, particularly if you follow the lines of the present bill as regards mechanical devices, in respect to which collusive elements have been at work behind the drafting of the bill. I will give you my word of honor to produce evidence of it.
TheChairman. Of what character?
Mr.Davis. That Mr. Sousa, or rather the majority of composers, have been sold out by their publishers to this monopolistic octopus, the Æolian Co. and lesser satellites, and that contracts exist which anticipate and control benefits designed primarily for the composers, with whom us inventors have no direct fight.
Mr.Chaney. The idea is now, you know, to try to protect these people who produce the music to the public, and all that. They have rights which we are bound to respect, as well as the inventor.
Mr.Davis. Yes, sir; and I would help you in all reasonable and lawful efforts.
Mr.Chaney. And the idea now is to try to evolve something that will treat everybody fairly.
Mr.Davis. Yes, sir. But if the Constitution has led inventors on, given an incentive to them to go ahead and work and devote their funds and lives to developing these industries, which are second to none in the world as young industries, it would be wrong to come in at this stage and either curtail the incentive or subtract from rights already vested in them.
Mr.Currier. Yes; but that very clause gives the same incentive and protection to the musical author, does it not, as to the inventor? He is protected on his writings as you are on your discovery?
Mr.Davis. Yes, sir; there is a line of demarcation set up in the Constitution. I went in to try to get the line of demarcation between an inventor and a composer. I went in, as I thought, intelligently. I have studied the laws right down to the last decision of the 25th ultimo, that of the court of appeal for the second circuit, and all confirm the contention which I have made here that the only incentive held up to the composer is a specific protection for his "writings," not on machines.
TheChairman. Would you object to Mr. Sousa taking your invention and combining it with his composition and putting it upon the market?
Mr.Davis. If there was some fair, equitable way of doing that, no sir, I would not. But unfortunately, we inventors and composers are the ones that are generally imposed on, and naturally I am fearful that any change in the laws as they now exist will prove disadvantageous to both our interests.
Mr.McGavin. If I understand your position correctly, you feel that Mr. Sousa has no more right to require any further compensation from a phonograph company, if it be a phonograph company, for the use of any particular piece of music which has been copyrighted, and of which he has received the benefit, than an inventor of a drum would have a right, after he has been protected by a patent right, to require Mr. Sousa to pay further for the use of that right. That is your position, is it not?
Mr.Davis. Well, you can look at that in two different lights. From the legal standpoint he has no right whatever. From an ethical standpoint there seems to be a sort of remote ethical right. I am not a lawyer, and not used to legal verbiage, and am not sure that I can clearly differentiate between legal and ethical rights.
Mr.Chaney. Well, this is the "Constitution between friends," you know.
Mr.Davis. As inventors we proceeded under the laws of the land as they exist.
Mr.McGavin. That is just what I say.
Mr.Davis. Mr. Sousa, through his publishers, has tried in the various courts to have the word "writing" broadened, but he has failed to do so, and he now comes to you to do it. In no copyright act or law has there ever been introduced before—you will not find it anywhere—one word or clause or phrase, before this one, that covers mechanical devices.
Mr.Chaney. Under that word "writing" you want to exclude such people as Mr. Sousa entirely from its operation in respect to self-playing musical instruments?
Mr.Davis. If you are going to work under the Constitution; yes.
Mr.Chaney. Then, is it not high time that we were giving it a little wider construction than that?
Mr.Davis. I think it is rather late in the day, after we inventors have spent our lives at this art and created a new industry. I think you ought to have done it soon after 1789, if at all, and if the law had been passed then there is no inventor in the land that would have gone ahead developing this particular art.
Mr.Campbell. Why not, Mr. Davis?
Mr.Davis. Because we would have been dominated by composers, as I have explained at great length.
Mr.Campbell. Mr. Sousa can not use your machine nor your process.
Mr.Davis. But we would have gone into other fields or arts not dominated by composers. We would have left this art undeveloped. He may make use of machines if he can construct them with "writings" or musical tones and infringe only a remote correlative ethical right of the inventors.
Mr.Campbell. Well, now if there is a mercantile demand, a commercial demand, for your method of reproducing music, why would you not have gone into it for exactly the same reason? If Mr. Sousa's music, played upon your machine, meets a public demand, he must use your instrument just exactly the same as you use his music.
Mr.Currier. But suppose there are half a dozen of these concerns and one of them, by an arrangement with the musical publishers of the country, gets control of all the copyrights?
Mr.Davis. That is what they have done, sir.
Mr.Currier. Then would the competing concerns be able to use their instruments at all?
Mr.Davis. They might use, but could not sell, and over their pecuniary misery would weep alone. [Applause.]
Mr.Campbell. The proposition here is that this bill, as I understand it, does not affect what has already been done. It applies to the future. You all stand upon the same level, and that relates right back to the contractual rights of the parties. If Mr. Sousa desires to make a contract with some machine producing music independent from yours, why should his right to do so be restricted by us under the law? That is the question I would like to have you answer.
Mr.Davis. Well, sir, I am not a lawyer——
Mr.Campbell. No; but that is a practical question.
Mr.Davis. I have been trying to get counsel here. He would probably have advised me in my opening speech for the opposition to imitate Mr. Sousa in making a bid for your sympathy and avoid a discussion of fine legal points, but I will give you my practical ideas of that. I am an inventor who has studied the law, but without being a lawyer I am ready to say that as the law now stands——
Mr.Campbell. I am speaking of the future. This bill affects the future.
Mr.Davis. Well, "this bill affects the future," but has it the right to affect the future? Has it the right to change a situation which has existed since 1789? The bill proposes a change, not merely amend the Constitution, therefore I challenge the authority of Congress to enact it. At present the composer has no contractual right as regards a machine, and Congress can not give it to him.
Mr.Campbell. That is the very proposition we are trying to get at.
TheChairman. We can not very well change the Constitution.
Mr.Chaney. It is not a question of changing the Constitution; it is a question of giving the Constitution its fullest scope.
Mr.Davis. Well, a gentleman speaking here yesterday, Mr. Stephen H. Olin, counsel for the American Publishers' Copyright League, although favoring this bill as a whole, gave you a warning that if this bill attempted to broaden the word "writing" so as to include a machine, then the bill in this respect might be held by the Supreme Court to be unconstitutional, and I have already traced the introduction of the terms "machine" or "device" in the bill direct to the monopolistic octopus. Mr. Olin made that statement here yesterday voluntarily.
Mr.Chaney. I know that.
Mr.Davis. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word "writing" in the Constitution. They have been at work at it for many years, with the result that a machine remains a machine and not a "writing."
Mr.Webb. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases?
Mr.Davis. No, sir; I do not say that, exactly, sir——
Mr.Webb. What is your position, then, if that is not your position?
Mr.Davis. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable "writings" expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Constitution, as I would translate it, in layman's language, says: "Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected." This includes public performances. We do this in a way that does not decrease Mr. Sousa's income, but increases it, as I have explained.
Mr.Webb. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for?
Mr.Davis. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance.
Mr.Webb. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music.
Mr.Davis. Well, Mr. Sousa is not construing the laws. I am telling you my idea of the laws, as I understood them when I entered into this art ten years ago, and as the courts have sustained them right up to a few days ago.
SenatorSmoot. Mr. Davis, as I understand you, you would not object at all to paying a royalty for any music that you may use upon any instrument that you may have invented or produced, providing that that same royalty is paid by all other concerns or individuals, and that all other concerns and individuals may have the same right to use it as any particular one that the producer of the music may even try to designate himself?
Mr.Davis. Individually—and I believe I represent the class of inventors affected by the proposed act—and without retreating from the stand I have taken regarding our present rights, I would not object, because I recognize that remote ethical right which you are casting about to secure and deliver over to the composer together with the many other new gifts in the bill. If you can protect it in some such way as will meet my many objections, we inventors will be satisfied, but I am constrained to say that I think your efforts will be futile.
TheChairman. I think that is all, Mr. Davis. You can submit in writing any further statement that you desire to make.
Mr.Davis. Thank you; and may I submit later the evidences and proofs to which I have referred?
TheChairman. You may do that.
Mr.Davis. Senators and Representatives in joint committee assembled, I thank you for the close attention which you have given to my remarks and for the liberal extension of time within which to make them; and on behalf of the inventors of this country I assure you of our full confidence and belief that you will finally modify the proposed act in a way that will protect our properties and persons against the monopolistic giants who do now or may hereafter seek to destroy us.
Mr.Sousa. Mr. Chairman, the gentleman referred to "visible music." Now, as I think you can see, that [referring to sheet music] is music, one notation. This [indicating perforated roll] is a perforated roll. That is visible; that is music in another notation. That is what they are taking [indicating perforated roll]; that [indicating sheet music] is what we are paid for.
Mr.Herbert. Mr. Chairman, one word. Mr. Davis has made a statement which is absolutely untrue. He said, speaking about the Æolian Company and this contract which they have signed, or made the publishers sign with them, that "They control the publishers and the publishers control the composers." That is absolutely untrue in my case. Nobody controls my works, the works that I am going to write. I am going to bring out a work in September, of which I have only written a few notes so far. I do not even know what I am going to write, and nobody has a contract with me to-day. I want to state most emphatically that I have not even been approached by any firm for the future.
Mr.Currier. Who is your publisher?
Mr.Herbert. Mr. Whitmark, of New York.
Mr.Currier. Has anybody else published any of your music?
Mr.Herbert. Yes; Schubert & Co., Schirmer & Co., and so on.
Mr.Currier. Do you mean lately?
Mr.Herbert. That was before I went with Whitmark.
Mr.Currier. How long have you been with him?
Mr.Herbert. About six or seven years.
Mr.Currier. And nobody else has published any of your music in six or seven years?
Mr.Herbert. Not since then; no, sir. Naturally, I have a perfect right to go around to my friends and get the best offer I can, have I not?
Mr.Currier. Surely.
Mr.Herbert. There must be competition. But I want to state most emphatically—and I know that these gentlemen are going to try to make the point that arrangements have already been made—that there have no arrangements been made in my case—absolutely none. I have not even been approached by any one of the companies—not even by the company, for instance, that is in favor of paying the royalty, the Victor Talking Machine Company. They have never spoken a word to me about the future, and I have not made a contract for my next work with Whitmark & Sons yet. I may publish it with somebody else; I do not know. So I am perfectly free to say that his statement in that respect was absolutely untrue.
Mr.Sousa. I would like to say, Mr. Chairman, that I have never been approached by any of the mechanical instrument companies; and the house which I have a contract with, the publishing house, is not a member of the Music Publishers' Association. I have never even been approached by any of them, and I have no contract with anyone.
TheChairman. We will hear you now, Mr. O'Connell.
Mr.Putnam. Mr. Chairman, for the group of interests which are now to be heard I wish to make a statement that they might feel called upon or required to make, but which it is not fair should be taken out of their time. They were not participants in the conferences. How completely they were omitted is apparent only from the list. That list is before you. It will take but a moment to read the titles of these associations: American Authors' Copyright League, National Institute——
SenatorSmoot. We know them.
TheChairman. They are already in the record. They have been laid before us.
Mr.Putnam. They were not participants in the conferences. They were not invited to the conferences by the copyright office. There were no notices sent to them from the copyright office that the conferences were being held; that these provisions were being considered at them. The copyright office shows, so far as I am aware, no communication with them on the subject of any of these provisions. We have never, ourselves, in any way notified them that these provisions were being proposed for the bill. I say that as much because it is to their advantage that I should say it as for them to say it, and it is not fair that that statement should have to be made at the expense of their time.
STATEMENT OF JOHN J. O'CONNELL.
Mr.O'Connell. We intended to make that statement ourselves.
TheChairman. Whom do you represent?
Mr.O'Connell. I appear on behalf of ten independent manufacturers of automatic piano players in the city of New York, and the names of these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll & Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, and the Estey Piano Company.
I also appear on behalf, by arrangement here, of independent manufacturers of music rolls. I can also say that possibly what I shall have to say to your committee will represent the ideas of the various independent manufacturers of automatic piano players in the United States and the various independent manufacturers of perforated music rolls.
To anybody reading the provisions of this bill it would appear very clearly that one of the great special interests were the manufacturers of perforated music rolls. Proceed a little further and it will be very apparent that the manufacturers of automatic piano-playing instruments, which can not be operated without music rolls, had a very special interest in this bill. It would be the easiest thing in creation to notify the manufacturers of music rolls and the manufacturers of automatic piano players of these conferences. Take up any directory of manufacturers in the United States and you would find them by the dozen.
TheChairman. Let me interrupt you for a moment, Mr. O'Connell, to say that so far as I myself am concerned it does not seem necessary to continue longer upon that line, for the reason that the committees of the Senate and House are now giving you a hearing, and you shall have an ample opportunity to present your side of the case.
Mr.O'Connell. I simply wanted to make it clear to the whole committee, as I explained it to the chairman yesterday, that it was only last Saturday that we knew what the situation was and knew what the provisions of this bill were.
I might say at the outset that the companies which I represent are not members of that class which Mr. Putnam so delicately denominated as pirates. We are here to protect industries in which there are invested millions of dollars. It has also been said by some of these special interests which are appearing in favor of the bill, in elegant language, that we were "butters-in" at the eleventh hour, and that we are here for the purpose of a hold-up. If protecting our business makes us butters-in and hold-up artists, then we come under that definition.
I want to say furthermore, at the outset, that we have no particular controversy or quarrel with those very eminent gentlemen, Mr. Herbert and Mr. Sousa. It is perfectly proper for them to seek to get all they possibly can from the products of their genius, but we are all a great deal too sentimentally inclined toward them and their possessions because of the many hours of delight they have given to every one of us.
Here is our position, and I will try to outline it as briefly as I possibly can: A number of years ago in the city of New York, within the last decade, a number of gentlemen interested in a manufacturing concern, one of the pioneers in the piano-playing industry, had the foresight to realize that the industry was destined to become one in which there were millions of dollars of profit, followed the conclusion that they would like to get for themselves all of the millions in that particular industry. The question was how to achieve and attain that result. Naturally they turned to the patent laws, to get monopolies under patents covering not only the machines themselves, but also the music rolls, without which the machines could not be operated, and machinery for cutting such music rolls.
Applications were made on their behalf for hundreds of patents, both on the machine and on the music rolls, and on machines for cutting the music rolls. Before they had gone very far, however, it developed that the patent laws would not afford them a monopoly of the machines or the music rolls, because of the fact that they could not get and control a basic patent, for the reasons that in the first place the operation by means of wind instruments, vacuums, etc., of an automatic playing device was as old as pipe organs, and furthermore that the perforated music roll or perforated music sheet was also as old as the very ancient hand organ. Therefore they saw that it was utterly impossible for them to obtain the monopoly which they wanted under the patent laws, and naturally the next thing for them to consider was: Can we not attain the required result through the copyright laws?
Eminent counsel were retained, and those eminent counsel, after an examination of the existing copyright laws and decisions, made this discovery: That in what is known as the McTammany case, decided by Judge Colt in the United States circuit court for the district of Massachusetts some twenty years ago, that jurist held that the perforated music sheet used in a hand organ was not an infringement of the copyright music sheet covered by the statute. When they had reached this point it became necessary to develop a new line of action, and this was the new line of action:
Now, there existed at that time an association of music publishers, and that association included and includes practically all of the big publishing houses which turn out the classical as well as the modern and popular compositions of the day. They said to themselves: Let us make contracts with all of these houses whereby we will get from these houses the exclusive right to reproduce the compositions which they handle in music rolls and other mechanical devices. Then we will go ahead and we will institute suits and try to obtain a reversal of the decision of Judge Colt in the McTammany case, and if we fail in that, then, holding exclusive contracts as we do with the vast majority of the publishing houses, we will go before the Congress and get from it what the courts refused us.
Mr. Chairman and gentlemen, I am not speaking in the air about this. I have here with me a copy of two contracts made with one house in Chicago by this monopoly, and I now offer in evidence those two contracts.
Mr.Currier. What is this monopoly? You have not mentioned the name of it.
Mr.O'Connell. The Æolian Company, of New York, which is a Connecticut corporation.