Senator DUFFY. I would proceed under section 3.

Mr. DALY. Wait one moment. I am coming to that; I am coming to section 3.

In addition to that you must not only show the actual damage you suffer by my infringing your rights but you must also show, as I read this bill, the profit I made by infringing your right. I do not think either is susceptible to proof under any circumstances at all that you can name. Yet that is section 2. Section 3 goes further. You are alluding to section 3.

Senator DUFFY. Let us just stop at section 2. As I understand it, that is practically the law as it stands on the statute books today, as far as that section goes.

Mr. DALY. Let us come to section 3:

To pay in lieu of the proved damages and profits provided for in the foregoing paragraph.

As I understand it, if I brought suit for infringement today because my musical composition, my book, my play, or whatnot is infringed today, I must first show directly in dollars and cents what my loss was. I must certainly show just exactly what you made in dollars and cents by infringing my right. After those things have been shown, section 3 comes in and says "to pay in lieu of the proved damages and profits"-"proved" as referred to in section 2.

Senator DUFFY. "In lieu of." That is, instead of the proved damages.

Mr. DALY. Wait a minute. "To pay in lieu of the proved damages and profits", such damage as some court should determine.

I am not questioning the integrity of the court for a minute, but in my mind I have the impossibility of any court's being able with any degree of accuracy at all to show just what I lost in dollars and cents by your infringing my right, or to show just exactly what profit in dollars and cents you made by infringing my right.

Senator DUFFY. Are you giving me a chance to answer now, or are you through?

Mr. DALY. Do you agree with me in that?

Senator DUFFY. No; I do not agree with you at all.

Mr. DALY. How could a court fix it?

Senator DUFFY. You have the right here to proceed either under (1), under (2), or under (3).

Mr. DALY. Yes.

Senator DUFFY. You can get an injunction under (1), you can prove damages under (2), or you can get just statutory damages under (3).

Mr. DALY. Yes.

Senator DUFFY. From anywhere from a dollar to $20,000. The present law is $5,000. We thought that in case of a willful violation and infringement by a chain of broadcasters $5,000 was not enough; that if there was a violation of that kind they ought to pay more for it. So we raised it to $20,000. All you have to do is show the circumstances of the case. You do not have to prove your damages at all. You prove that you owned the copyright, that it was infringed, and it is up to the court to do what? To award such sum as shall be sufficient to prevent their operation as a license to infringe and as shall be just, proper, and adequate in view of the cir cumstances of the case.

Mr. DALY. Senator, I want to say, as an attorney myself, that if I were engaged to represent people who had infringed a copyright, I would go into court and under that particular clause argue that the law requires the party whose copyright was infringed to prove his real, actual loss and, in addition to that, to prove the actual gain made by the party I represented. I think it is subject to the widest argument in the world.

Senator DUFFY. What does the wording mean, "to pay in lieu of"? "Instead of approved damages"? You have that alternative. That is the present law.

Mr. DALY. What is the object of the second paragraph?

Senator DUFFY. I assume that there may be cases where a man could go in and show that his copyright had been stolen and that it had been sold for $100,000. But, if he could, he could go in and get that, because that is the profit that the fellow made.

Mr. DALY. He could show his loss of $100,000 by reason of one orchestra playing it or one motion picture producing it? I think a court would laugh at it.

Did I understand you to say one moment ago I may have been wrong in my recollection-that you favored a reduction of that $250 clause to $100?

Senator DUFFY. No; I did not.

Mr. DALY. Then I misunderstood you.

Senator DUFFY. What I started to say was that, had we been willing to agree in the Senate to having this $250 reduced to $100, I do not think there would have been more than an hour or two of dis

cussion on it.

Mr. DALY. If that had been adopted by the Senate, the punitivedamage clause would have been a minimum of $100 instead of $250? Senator DUFFY. That is right.

Mr. DALY. That would not be as big a club as the $250.

Mr. KRAMER. Mr. Chairman, I move we adjourn. I think the Senator is tired.

Mr. DALY. One other question and I am through.

Senator DUFFY. Let me explain to the members of the committee here that I am glad to have you question me, but I think within 15 or 20 minutes after convening the Panama Canal toll comes up, in which I am supposed to help Senator Gore.

The CHAIRMAN. Will you be kind enough to come back tomorrow morning at 10 o'clock? We have a lot of questions we would like to ask you.

Senator DUFFY. I again am up against the proposition that we have the Foreign Relations Committee handling the Panama Canal treaty tomorrow.

The CHAIRMAN. We would like to ask you about the bill, Senator. When could you come back?

Senator DUFFY. I think I can probably come back Thursday.
The CHAIRMAN. That will be all right.

Mr. KRAMER. I move we adjourn.

Mr. DEEN. I think you called an executive meeting today?

The CHAIRMAN. Yes; we will call it right after we have adjourned. Senator Duffy will then return Thursday at 10 o'clock. (Whereupon, at 12:04 p. m., the committee met in executive session, after which it adjourned until 10 a. m., tomorrow, Wednesday, Mar. 11, 1936.)

REVISION OF COPYRIGHT LAWS

WEDNESDAY, MARCH 11, 1936

HOUSE OF REPRESENTATIVES,
COMMITTEE ON PATENTS,
Washington, D. C.

The committee met at 10 a. m., Hon. William I. Sirovich (chair

man) presiding.

The CHAIRMAN. The Chair recognizes Mr. Baldwin.

Mr. DEEN. Mr. Chairman

The CHAIRMAN. Just a minute.

Give your name, Mr. Baldwin.

Mr. BALDWIN. James W. Baldwin.

The CHAIRMAN. Whom do you represent.

Mr. BALDWIN. I am managing director of the National Association of Broadcasters.

The CHAIRMAN. Mr. Deen?

Mr. DEEN. I realize that the schedule has been printed and various witness furnished copies of the schedule, and Mr. Baldwin is here to testify. I have no brief for Mr. Baldwin or his organization, or any other organization connected with these hearings, but it seems to me that since several questions were asked yesterday by the members of the committee of Senator Duffy, with respect to certain phases of his bill, S. 3407, and since Senator Duffy stated in answer to four or five questions of members, that he did not know the answers to those questions but said that the interdepartmental committee, the members of which committee he called, have that information, it seems to me that it would be entirely appropriate at this time to make a transfer, that is, an exchange between Mr. Baldwin and the chairman of the interdepartmental committee, who is Dr. McClure, from the State Department.

I do not know what Dr. McClure knows about the bill or the copyright problems, and I do not know what he does not know about them. But I do think, in view of Senator Duffy's reference there, that Dr. McClure and Mr. Baldwin should exchange places and have Mr. Baldwin wait for Dr. McClure, and let us have his testimony at this time.

I make that motion, Mr. Chairman.

Mr. DUNN. Mr. Chairman, maybe Mr. Baldwin has made arrangements to somewhere.

The CHAIRMAN. The Chair is ready to rule on this matter. The committee, through the chairman, has organized a program of hearings, and we have arranged to call witnesses from all over the country. Mr. McClure is located here in Washington, and he will be put down later for appearance before the committee, and since

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arrangements were made yesterday that Mr. Baldwin should go on, we will ask him to proceed.

Mr. O'MALLEY. Mr. Chairman, I understood Mr. Deen's request was in the form of a motion.

Mr. CHURCH. Mr. Chairman, if that is agreeable to the other witnesses present, it seems to me that Mr. Baldwin would be willing, and it seems to me that if so, we could do that. However, it does seem to me that we ought to ask Mr. Baldwin.

The CHAIRMAN. It dislocates the entire hearing, for the simple reason that we have made arrangements with the Hotel Owners' Association, through their president, to be here next week, Tuesday and Wednesday, when the hotel owners will be represented, and we cannot dislocate the hearings, especially in view of the fact that people are coming from all over. Go ahead, Mr. Baldwin.

Mr. CHURCH. Mr. Chairman, I would like to give these witnesses a chance to accommodate themselves. If they prefer to wait and to have us put another witness on here, to follow the logical sequence of these hearings, I think it would be better. It seems to me that Mr. Deen is right. This is the first time I ever saw this list of hearings. I tried to get it last night, before this hearing today, and I was able to get it finally late last night for one party, but I did not see it myself. I would like to know from the witnesses whether they are following these hearings, and they want to be accommodated a little bit, because they are the people to be considered. They are either interested in this bill, in favor of it, or against it. If the witness desires to wait, then I would like to know about it.

Mr. DEEN. Mr. Chairman, in that connection I have not discussed it with the witness, and I do not know whether he desires to wait. Mr. CHURCH. I do not know either, and it is the first time I ever saw the gentleman.

Mr. DEEN. He may be insulted at my suggestion, because I do not know whether he wants to wait, but I have concern for the sequence of the hearings, very much concern.

Mr. CHURCH. So have I.

Mr. O'MALLEY. There has not been any sequence.
Mr. CHURCH. There certainly has not.

Mr. BALDWIN. Mr. Chairman, may I state for the benefit of the committee, in line with the conversation that we had yesterday afternoon, it has been our feeling, sir, that all of the proponents of the bill should be heard previous to our putting in our testimony. That is the way we felt about it. As I explained to you yesterday, Mr. Chairman, we want to cooperate with your committee and to expedite the hearings just as much as we possibly can. However, it was your feeling that we should follow Senator Duffy, and I told you that we would be here prepared to go on, and we are prepared to go on, yet at the same time we are perfectly willing to stand aside until such time in the future as you desire us to appear, should that be your choice.

Mr. CHURCH. Would you prefer to step aside, on account of my suggestion here?

Mr. BALDWIN. Mr. Church, it has been our position that we very much prefer to follow all of the opponents of the bill, because we are supporting the bill.