Chapter XLV: Section 35: provides that "In all recoveries under this act full costs

shall be allowed."

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

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

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

Here is a bad section, 43--

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

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

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

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

The CHAIRMAN. Your time has expired, Mr. Walker.

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

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

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

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

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

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

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

The CHAIRMAN. That was understood the other day.

Mr. WALKER. Thank you very much.

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

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

The CHAIRMAN. We will hear Mr. Burkan after them.

Mr. CURRIER. We will hear him later.

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

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

The CHAIRMAN. They will go in the record.

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

WASHINGTON, _D.C._, _June 9, 1906_.

Mr. HERBERT PUTNAM, _Librarian of Congress_.

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

Yours, respectfully,

CHARLES W. AMES.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Memorandum by Charles W. Ames.]

JUNE 9, 1906.

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