Chapter XIII: Section 23: , subdivision (b) (2)

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.

DEFENDANT'S EXHIBIT ÆOLIAN-SUMMY CONTRACT.

_Document No. 1._

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

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

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

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

Now, therefore, the publisher, for and in consideration of the
premises, and of the sum of $1, lawful money of the United States,
to him paid by the Æolian Company, receipt of which is hereby
acknowledged, and for and in consideration of the true and
faithful performance by the Æolian Company of its covenants
hereinafter made, does hereby sell, assign, transfer, and set over
unto the Æolian Company, the exclusive right for all perforated
music sheets of the kinds aforesaid in and to all the copyrighted
musical compositions of which the publisher is the proprietor, or
in the case in which he is the owner of any less rights, to the
extent of said rights, and does hereby covenant and agree with the
Æolian Company to give and secure to it, the exclusive right in
like manner for all perforated music sheets of the kinds aforesaid
in and to all those other musical compositions which may hereafter
be protected by copyright, and the copyrights or rights in which
may be acquired by the publisher.

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

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

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

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

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

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

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

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

CLAYTON F. SUMMY CO. [SEAL.]
THE ÆOLIAN CO. [SEAL.]

By E. S. VOTEY,
_Director_.

Signature of publisher witnessed by--

J. F. BOWERS.
THEODOR WILD.

_Document No. 2._

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

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

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

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

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

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

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

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

CLAYTON F. SUMMY. [SEAL.]
THE ÆOLIAN CO. [SEAL.]

By E. S. VOTEY,
_Director_.

Witnessed by--

J. P. BOWERS.
THEODORE WILD.

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

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

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

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

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

Mr. CURRIER. I realize the difficulties.

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

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

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

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

Mr. BURKAN. How about De Koven, and how about Julian Edwards; and how about----

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

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

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

On the bill itself----

Mr. CHANEY. What section?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. CHANEY. On page 2?

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

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

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

Senator SMOOT. It is on page 2.

Mr. O'CONNELL. It gives the right--

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

Then it goes on (subdivision G):

To make, sell, distribute or let for hire any device, contrivance,
or appliance especially adapted in any manner whatsoever to
reproduce to the ear the whole or any material part of the work
published and copyrighted after this act shall have gone into
effect, or by means of any such device or appliance publicly to
reproduce to the ear the whole or any material part of such work.

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

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

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

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

Mr. CURRIER. Clearly so.

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

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

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

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

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

Mr. O'CONNELL. Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. O'CONNELL. But look at the difference across----

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

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

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

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

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

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

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

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

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

Mr. CHANEY. We have that decision.

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

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

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

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

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

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

Mr. CHANEY. Of the time of Rameses.

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

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

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

Mr. SOUSA. Without my consent.

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

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

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

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

(The letter referred to is as follows:)

THE ÆOLIAN COMPANY,
_New York, May 5, 1902_.

The CHICAGO MUSIC COMPANY,
_Music Publishers, Chicago, Ill_.

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

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

Yours, truly,

THE ÆOLIAN COMPANY,
E. R. PERKINS, _General Manager_.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. O'CONNELL. On page 15:

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

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

Mr. PUTNAM. Oh, yes.

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

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

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

Mr. CHANEY. It says "actual damages."

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

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

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

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

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

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

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

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

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

Next, it says (subsection D):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. CHANEY. Yes.

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

Mr. CHANEY. That is the idea.

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