I think it is necessary to ascertain whose performance was broadcast. Was it that of the broadcaster, or was it that of another person, who may have been authorized to perform the copyrighted composition publicly and for profit? If the latter, I do not believe the broadcaster is to be held liable. By means of the radio art he simply made a given performance available to a great number of persons who, but for his efforts, would not hear it. So far as practical results are concerned, the broadcaster of the authorized performance of a copyrighted musical selection does little more than the mechanic who rigs an amplifier or loud speaker in a large auditorium to the end that persons in remote sections of the hall may hear what transpires upon its stage or rostrum. Such broadcasting merely gives the authorized performer a larger audience, and is not to be regarded as a separate and distinct performance of the copyrighted composition upon the part of the broadcaster. When allowance is made for the shrieks, howls, and sibilant noises attributable to static and interference, the possessor of a radio receiving set attuned to the station of the broadcaster of an authorized performance hears only the selection as it is rendered by the performer. The performance is one and the same whether the "listener in" be at the elbow of the leader of the orchestra playing the selection, or at a distance of 1,000 miles.

If a broadcaster procures anunauthorized performance of a copyrighted musical composition to be given, and for his own profit makes the same available to the public served by radio receiving sets attuned to his station, he is, in my judgment, to be regarded as an infringer. It may also be that he becomes a contributory infringer in the event he broadcasts the unauthorized performance by another of a copyrighted musical composition. To this proposition, however, I do not now finally commit myself.

It was contended for the defense that the orchestra was playing the piece under permission from the copyright owner, and on this phase the court remarked that if such was the fact, it would be "impossible to find infringement on the part of the broadcaster."

With these divergent views in the district courts, the question came before the United States Circuit Court of Appeals for the Sixth Circuit1 by appeal from the Ohio decision above quoted. The case was reversed. The appellate court discussed both the question of whether the broadcasting was a public performance and whether it was "for profit," concluding that it fell within the meaning of the act in both respects. As to the first feature, the court said:

A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.

The court answered the contention that the performance was not for profit because no direct compensation was received by saying:

It suffices. that the purpose of the performance be for profit, and not eleemosynary; it is against a commercial, as distinguished from a purely philanthropic, public use of another's composition, that the statute is directed. It is immaterial, in our judgment, whether that commercial use be such as to secure direct payment for the performance by each listener, or indirect payment, as by a hat-checking charge, when no admission fee is required, or a general commercial advantage, as by advertising one's name in the expectation and hope of making profits through the sale of one's products, be they radio or other goods.

It is to be noted that the court does not discuss the question whether the broadcaster is really giving a performance, nor is there any reference to the holding of Judge Knox in the General Electric Company case. The court does, however, say, as above quoted, that the "artist" is "participating in a public performance," Judge Knox's opinion being that the artist alone created it. So far as can be judged by the published report of the case, whether the broadcasting was itself a "performance" was not raised.

The case was taken to the Supreme Court of the United States by certiorari, but that court declined to review it.1 Judge Knox in his decision suggested that one who broadcasts a copyrighted composition, the production of which is not authorized, may be liable as a contributory infringer, although not himself responsible for the production. This specific question was later passed upon by Judge Thatcher of the same court, 2 who adopted the rule as to basic liability declared by the Court of Appeals of the Sixth Circuit, saying that he found no grounds for differing from it. An attempt was made to differentiate the case before him because of the fact that the broadcaster did not participate in the unauthorized musical production except by affording others the opportunity to hear it. Judge Thatcher, after remarking that listeners do not perform and therefore do not infringe, held that "the broadcaster is actively engaged in transmitting to the radio audience the original unauthorized production," and that it was therefore a contributory infringer.

The decision of the Circuit Court of Appeals seems to have been generally accepted by the broadcasters as an authoritative statement of the law, and, excepting the opinion of Judge Thatcher, there has been no subsequent decision on the subject.

CHAPTER IX

CONTROL OF BROADCAST PROGRAMS

In the early days of radio broadcasting, but little attention was given to program. The listener did not demand much in the way of quality. His thrill came from the hearing of strange call letters and distant voices. He was satisfied merely by the miracle of bringing signals through space and cared little for their substance. Some of that spirit still remains, but as familiarity has taken the place of novelty, most listeners now seek for matter which has some characteristic of value. They demand programs which are in themselves interesting or instructive or entertaining, and this demand has created the new art of program preparation and distribution. Many stations, particularly those in remote districts, have difficulty in finding in their communities sufficient talent of high quality to furnish continuous programs, are compelled to look for outside assistance, and have thus called into being the business of furnishing programs for pay which has already started and promises expansion.

The interconnection of stations by wire or radio, often called chain broadcasting, makes material and events broadcast by one station available generally to others, and simultaneous broadcasting over large areas of the same matter by several stations is a common occurrence. The gathering of matter for broadcasting, the obtaining and paying of artists and speakers, the creation of complete programs and furnishing them to whatever stations, near or far, will pay the price, is a legitimate business of almost certain wide development.

In the beginning, too, the persons who actually appeared before the microphones and created the programs, the singers, speakers, or musicians, gave their services gratis, glad to contribute to the new amusement, or recompensed by the publicity which they received. But that situation likewise has largely changed. Artists are now demanding and receiving the compensation to which their talents entitle them. Performance by radio, whether by song, speech, or orchestra, is on the same plane as though in a theater or other public place. The publicity feature is present in both, varying only in degree, and there would seem no reason for free service in one more than in the other. The selling of artistic talent for radio programs is entirely legitimate and already common.

There is keen competition among stations. There has come to be a station reputation just as there is newspaper reputation. Stations are known by their names or call letters rather than by the names of their owners, just as are newspapers. This reputation depends primarily on the character of the programs transmitted and is a valuable asset. Stations are jealous of it and anxious to preserve it. In addition to the inherent worth of the program material, it depends upon the quality of the transmission, its clearness, and exactness of reproduction as it reaches the listener. If it comes to him distorted by poor rebroadcasting through another station, the reputation of the originator is that much impaired.

The commercial phases of broadcasting have only lately been appreciated but have rapidly developed. It has been remarked that it is particularly dangerous to prophesy regarding the commercial or scientific possibilities of radio communication, whose history began but yesterday;1 yet it seems fairly safe to predict that the commercial side must finally be looked to for broadcasting support and that, in all its phases, it is bound to increase in importance.

These changes in situation have brought corresponding modifications in attitude. So long as publicity was the only motive, the wider the publicity, the better pleased 1 Judge Hough in Armstrong v. DeForest, 13 Fed. (2d) 438, 440.