right is charged and surcharged with public interest, you can not consider nor can I discuss this license agreement, this mechanical license, apart from that proposition.

I heard Mr. Solberg this morning, incidentally, while he did not oppose the license, but he put in a letter which seemed to oppose it. I assume that he is saying this from a theoretical point of view, on the theory the copyright license has no place such as in the present law. But when it comes to the public policy and this Congress feels that, in the necessity of the public's protection, you should have a license as a matter of public policy, I think that Mr. Solberg is the last man in the world to say that that would not be a perfectly proper proposition to insert as a public policy, and that he has nothing to do with that. I think, if he was within the sound of my voice, he would not deny that. This, also, is not a theoretical question affecting merely abstract rights; rather it is a live issue. affecting the livelihood of thousands of men, and many millions of invested capital.

I listened yesterday afternoon with some interest-I won't say amusement to the colloquy between Mr. Paine and Mr. Bloom on this proposition that we have heard so often speakers say "I ask only my constitutional rights; I stand only on the Constitution." Now I am just going to take about two or three minutes; I am going to venture to try to make Mr. Bloom especially, see that Mr. Paine was right; that Mr. Bloom is talking about constitutional rights as a layman and Mr. Paine was talking about them in legal terms, or legal contemplation.

There are some constitutional rights upon which a man can stand without Congress. You can not take my property without due process of law; I am guaranteed life, liberty and the pursuit of happiness, and I do not care anything about Congress. They can not give me that right, nor can they take it away. I stand on the Constitution.

Mr. BLOOM. How about prohibition?

Mr. BEATTYS. I consider that irrelevant.

Mr. BLOOM. I do not.

Mr. BEATTYS. But when it comes to the question of the copyright, the giving of copyright rights, then legally a man can not stand upon the Constitution; because those rights are only statutory. The basis of the statutory rights, of course, is the Constitution; but Congress must give those rights if they are given and Congress can take them away if it wants to. That is all there is to that. It is a very simple matter; it is not tweedle dee and tweedle dum and, if you stand on your constitutional rights, talking about the copyright, why of course, in that sense that it has been used here, then there is no substance to that and the thing is absolutely meaningless. Mr. BLOOM. You mean to say, then, that Congress can take away the rights altogether?

Mr. BEATTYS. Oh, I do not say any such thing; I say Congress can grant them or can refuse to grant them.

Mr. BLOOM. Altogether?

Mr. BEATTYS. Altogether. Let me say this: Here were some folks that went for these very rights to the Supreme Court. They said, we stand upon our constitutional rights, we want them."

66

The

Supreme Court said in the White-Smith-Pollock case,

"You have

no constitutional right; you go over to Congress and let them fix this matter up, it is none of our business."

Mr. BLOOM. That was for a particular right, was it not?

Mr. BEATTYS. These rights.

Mr. BLOOM. That was for a particular right; in that law there was no right.

Mr. BEATTYS. These particular rights that we are talking about. I want this clear-I am not talking about the constitutional question; I have got something else to do besides talk about that. I can make one observation on that. It is this: That if in order to endeavor to convince a committee of the unconstitutionality of that provision of the mechanical license, it takes a good lawyer one day and a half to make that endeavor, then it is a safe bet that thing is constitutional. That is as good an argument as the Rhode Island man made. He came in here and said he declared that thing to be unconstitutional, and here is what he said: "I do not need to prove that; because I admit it." That is all there was to it.

Mr. Mills this morning said they had not attacked the constitutionality for 17 years, because he was afraid they would not only lose the rights but the license-the whole thing would go by the board. That means, then, that this 2-cent postage-stamp business here was very valuable; that they did not dare to risk it. But, now-now-they come in here having the right by this proposed bill and tell you and the listeners that this thing did not amount to anything, it was worthless; it was only a 2-cent stamp. Well, all right. It makes the difference of what confronts them. That is all I have to say about constitutionality.

Now, just a word in making my meaning clear on the historical status just a few words. Prior to 1909 we took this music and used it and paid no one. They called us pirates. Now "pirates means robbers, infringers. They went to the Supreme Court and the Supreme Court kindly said we were not; they refused to call us those names and said we were justified. Now they come before this Congress and they say "give us protection against these people.' We say "all right; we are perfectly willing to pay them something, but we in turn need protection against them; we need access to the popular dance music, and we believe if one of two concerns had access, we will say, to two or three or four or five of the most prominent composers, exclusively, then every other music roll company and phonograph company would be put at a terrific disadvantage and probably out of business. That is our argument.

Mr. BLOOM. Did you not try to do it yourself about 20 years ago?
Mr. BEATTYS. Yes, sir.

Mr. BLOOM. You signed up every publisher in the country?
Mr. BEATTYS. We had only about 87 of them.

Mr. BLOOM. Yes.

Mr. BEATTYS. That is just what I am talking about. What did we do? That is the cause of that very thing, and they want to put us back where that thing was once. We said "we will give these up if you will give us a provision." We gave them up, every last living contract, when we got this provision. That is what we did, and that is what you will have again if you will limit it.

Mr. BLOOM. You gave them up after the court told you you had to. Mr. BEATTYS. No, sir; no court ever told us we we had to. Mr. BLOOM. Did not you go into court and try to enforce your contracts?

Mr. BEATTYS. Never, never; not a one.

Mr. BLOOM. You offered to do it.

Mr. BEATTYS. Never.

Mr. BLOOM. Were you with the Aeolian Co. then?

Mr. BEATTYS. I was indirectly connected with it. I was with that litigation you are referring to, the White-Smith-Pollock case. I want to answer Mr. Mills in this way, or to refer to some things that he said, and I am going to put it this way: The Sixtieth Congress rendered a judgment; I am going to say that, put it that wayrendered a judgment which found expression in the 1909 statute. Now, you gentlemen are asked to reverse that judgment. In legal procedure one court never reverses another court unless it is a higher court. You gentlemen are coordinate courts, with your brother committees, and I take it you will not seek to reverse any judgment of theirs unless you are at least careful enough to see the basis upon which they acted and whether that basis exists to-day. Do not reverse your coordinate court without some good reason.

The CHAIRMAN. You are willing to say that the committee has not deteriorated any, has it?

Mr. BEATTYS. No, sir; I am willing to say that. [Laughter.] I say, judging from appearances, that you are a very wise set of gentlemen [laughter], and I would not waste my time talking if I did not think so. Now, I just want to say this, that Senator Smoot was chairman of the Senate committee and Mr. Currier was chairman of the House committee when the joint committee had these hearing. A member of that committee was Senator Brandegee, the leader of the bar of the State of Connecticut, and there was never, in my humble judgment, a keener legal mind that sat in Congress than that man. He was a member of that committee also. Now, just to get at the heart of the problem, I am going to read not over six questions, a running colloquy, and I am going to take Mr. Burkan as the witness, that is all, and the chairman.

Mr. BLOOM. From what are you reading?

Mr. BEATTYS. The hearings before this Joint Committee on Patents that I am referring to, on the 1909 bill.

Mr. BLOOM. I just wanted to get it in the record. On what bill was that?

Mr. BEATTYS. That was a hearing, as I understand it, on the bill that was enacted. I do not have the name.

Mr. BLOOM. On the present law?

Mr. BEATTYS. The 1909 Act.

Mr. BLOOM. There were no hearings on the present law.

Mr. BEATTYS. Well, you can put it that way if you want to. It depends upon what you mean by the present law. This book which I hold in my hand in entitled "Revision of Copyright Laws. Hearings before the Committees on Patents of the Senate and House of Representatives on the pending bills to amend and consolidate the acts with respect to copyrights. March 26, 27, 28, 1908." Refer

ring to the fact that this matter was referred by the Supreme Court to Congress, the chairman says:

That is just exactly what the committee wants to determine, and we want to determine it in such a way that not only will the author be protected in some form, but we want the American people as a whole to be also protected. The CHAIRMAN. In order to get down to the substance of this matter (speaking to Mr. Burkan) do you not believe that if the Victor Talking Machine Co. or the Aeolian Co., or any other company, one large concern, had the exclusive right to produce the music of half a dozen men that could be named among the American composers, that they would have the advantage over every other manufacturing concern in the country?

What did Mr. Burkan say?

They would to an extent.

If your opponents will say they would to an extent, you can eliminate the extent. [Laughter.] But let me give you an illustration. He said:

You have a number of theatrical producers and there are fifteen or twenty leading dramatists. The manager that offers the greatest reward gets the best production.

It is a matter of competition pure and simple. He says:

Getting music is a matter of competition.

That is just what we want to avoid.

A dramatist will not write unless he knows he is going to be compensated, and he will write in accordance with the character and amount of his royalty. The CHAIRMAN. There I agree with you absolutely, but the dramatist has only one way of getting his return and he keeps his work unpublished. The composer of music gets his return from the royalty for publishing his music and selling it to the public.

Mr. BURKAN. Yes, sir.

The CHAIRMAN. And now he wants still another return.
Mr. BURKAN. Yes, and I will tell you why.

The CHAIRMAN. I am perfectly willing that he shall have it, so far as I am concerned, if that is coupled with a provision that anybody who desires to pay him a royalty shall have the use of his copyrighted composition.

Those are just a few questions and answers to illustrate what they were up against; that is all. Now let me read just a few sentences from their report:

The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return.

This was after the two cents was in an adequate return. Two cents was considered an adequate return and it has been from that day to this.

Mr. BLOOM. Would you be willing, along that same line, to allow any one to make your rolls by a compulsory licensing clause?

Mr. BEATTYS. Well, that is the same old question in the same old way and I want fairly to answer it, Mr. Bloom. I might as well stop here and answer it, because I am bound to have to answer it at some time. [Laughter.] All right, sir, I am going to try to be so frank that you will have to say to me, down in your heart, there is some force in what I say. Now, I own a roll; I can bargain and sell that for any price I want to, can I not?

Mr. BLOOM. Surely.

Mr. BEATTYS. Yes, sir. The composer has a song and he can bargain and sell that song for anything he wants to, can he not? Mr. BLOOM. You mean for publication?

Mr. BEATTYS. Now, do not evade; that is a straight question. (Laughter.)

Mr. BLOOM. No; I am not evading, because I know more about the Aeolian Co. than you do.

Mr. BEATTYS. Perhaps you do. Perhaps you had better write a history and we publish it.

Mr. BLOOM. Now you are talking about the publishing rights.

Mr. BEATTYS. Oh, no; I am not going to get into fine distinctions yet; I am outside of the copyrights so far.

Mr. BLOOM. But he can not bargain with that.

Mr. BEATTYS. I am not talking about copyrights. He has a song

Mr. BLOOM. Yes.

Mr. BEATTYS. You are a good musician. You wrote a song once, we will say; all right. Now, before that is copyrighted you can bargain and sell it, can you not?

Mr. BLOOM. Yes.

Mr. BEATTYS. Yes, sir. There is where the analogy ends. There is nothing to-day with the whole situation as far as the license agreement goes beyond that point. Now, if the composer wants to go to the copyright office and get a copyright, then he goes subject to the prior right of the public which is paramount, and Congress was compelled, we will say, to pass a statute which provided that if he did want a copyright, as far as the mechanical rights were concerned, it would have to be with a limitation based upon public policy, which would take the form of protection of the public against monopoly and favoritism in granting that right.

Mr. BLOOM. Right.

Mr. BEATTYS. That is what they said.

Mr. BLOOM. Yes, sir. Now, how about the treatment of Rachmaninoff and Paderewski from your company? Go on and continue. Mr. BEATTYS. I am through.

Mr. BLOOM. Let us get the facts. How about Mr. Rachmaninoff and Paderewski, who composed some dozen

Mr. BEATTYS. Kindly allow me, sir, to say this to you

Mr. BLOOM. Yes.

Mr. BEATTYS. That situation you are now bringing up now is about the larger amounts paid to them and the smaller amounts to theseMr. BLOOM. I do not care about the amount.

Mr. BEATTYS. I am going to get to that; but I did not want to be shunted off, because my time is limited.

Mr. BLOOM. As far as I am concerned, I will give you all the time you want; because we want the facts and the other members, too. You are making statements here. If Mr. Rachmaninoff and Paderewski play for your rolls, do you not reserve the exclusive rights on their compositions for them playing for the Aeolian Co. and you charge other people whatever you want? Do you allow other people to make their own rolls with their own processes?

Mr. BEATTYS. We do not happen to make any with Rachmaninoff. Mr. BLOOM. You do with Paderewski?

Mr. BEATTYS. Yes.

Mr. BLOOM. On his own compositions?

Mr. BEATTYS. Yes, sir.

Mr. BLOOM. Do you allow other people to make them?

Mr. BEATTYS. To make what?