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Mr. WEIL. On the other hand, I do believe that one can learn from experience, and the English law was enacted as a result of prolonged hearings before a parliamentary committee, and it has worked very well in practice. "I am not in favor of the adoption of the English law without change. I am in favor of the application of many of the principles of the English law to copyright laws generally.

Are there any more questions?
Mr. Bloom. No.
Mr. WEIL. I thank you, gentlemen.

The CHAIRMAN. We thank you, Mr. Weil. We will now hear Mr. Mills.

STATEMENT OF E. C. MILLS, OF NEW YORK (and Washington)

Mr. Mills. I have been here quite awhile, Mr. Chairman, waiting to hear something new, and yesterday I heard it--a dog story [laughter], and there was something in it about a cat, and I was reminded of Champ Clark's famous campaign cry, “You got to quit kicking my dog around.” I could not help but think that it is a well-established principle of law, I believe, that every dog is entitled to his first bite [laughter], and we have had quite a few.

Much of the discussion here has been about everything except this act. We could talk endlessly about it—and have done so.

I would like to read to you the remarks of Mr. Nathan Burkan about this bill, and confine myself to his remarks-read as much of it as I can in 30 minutes and file the rest for the record. This is a brief in support of bill H. R. 10434:

BRIEF IN SUPPORT OF BILL H. R. 10434

The proposed legislation provides that an author shall among other rights have the exclusive right

"(h) To perform, represent, or exhibit said work publicly in whole or in part if it be a dramatic or dramatico-musical work, in any manner or by any method whatsoever, and if such work is unpublished, to vend any manuscript or record thereof or otherwise dispose of the same; to make or to procure the making of any transcription, roll, or record thereof, in whole or in part, or any other contrivance by or from which it may in any manner or by any method or means be communicated, exhibited, performed, represented, produced, or reproduced ; and to communicate, exhibit, perform, represent, produce, or reproduce it in any manner or by any means or method whatsoever."

This provision does away with the compulsory license provision that appears in the copyright act of 1909, under which anybody may have the right to reproduce a musical composition on mechanical contrivances, where an author has granted such license to one person upon the payment of 2 cents per roll or record.

It is intended by this legislation to right a wrong that was done to the author by the act of 1909.

The facts and circumstances surrounding the enactment of 1909, are very pertinent.

The original bill was drafted by the Copyright Office and was introduced in pursuance of a message of President Roosevelt to Congress in December, 1905, wherein he called to the attention of Congress that the existing law was defective in that it omitted provision for many articles which under modern reproductive processes were entitled to protection.

By this bill it was proposed to extend copyright to music rolls and phonograph records. The opposition to the bill developed three phases: First, that a perforated music roll was a part of a machine, as was the phonograph record, which could not be read and therefore was not a “writing " within

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the meaning of the Constitution, and the power of Congress to extend exclusive copyright control to theses devices was seriously challenged by the mechanicalmusic industry on constitutional grounds. Secondly, that rolls and records promote the sales of sheet music--give them tremendous publicity-and the author had an ample return by reason of the enhanced sales of sheet music; in other words, a perfect quid pro quo.

The composers contended that these devices took the place of the old sheet music and reduced their sales.

Thirdly, that a group of music publishers had signed a contract with the Aeolian Co., a manufacturer of perforated rolls, under which the Aeolian Co. undertook to bring a suit and to carry the suit to the Supreme Court of the United States, in order to test the applicability of existing copyright laws to these mechanical devices, and in case of a successful termination of the suit, the Aeolian (0., was to have a 10-year right to reproduce the catalogues of those publishers upon the payment to each publisher of 10 per cent of the gross receipts derived from the sale of devices adapted to reproduce their respective songs.

The minority report from the Committee on Patents gives some idea as to the extent to which this industry had grown at the times the bill was pending. (Minority report, 59th Cong., 2d sess., Rept. 7083, pt. 2, filed March 2, 1907) :

The bill is a redraft of House bill 19853, which was introduced in this House on May 31, 1906. In its original form the bill had a provision (subdivision g. sec. 1) securing to musical composers the exclusive right to reproduce their compositions by mechanical means, such as perforated rolls and disk or cylinder records.

“ In these hearings the fact was brought out very strongly that the manufacture of devices for the mechanical reproduction of music has assumed gigantic proportions and is still growing in bulk of output, as well as in the range of practical application.

Though its beginnings date back but a few years, this industry is now producing and marketing every year many millions of perforated music rolls for player pianos and of records for talking machines. While there has been much conflicting argument as to whether these appliances are proper subjects of copyright, it is not questioned that each of them represents a musical composition and will, when operated with a proper instrument. reproduce the music of that composition to the ear. The appliance does away with the personal performer and at the same time with the sheet of music which is required by the performer to guide him in striking the proper notes.

The present condition of the law can not encourage the composers. new practice of exploiting their works has grown up and bids fair to soon outstrip the old style of sheet music ; but while their rights in sheet music are recognized, they must see millions of automatic records sold without their leave being asked and without their right to a share of the profits being admitted.”

It has been decided by the courts that a music roll was not a copy of a sheet of music within the meaning of the existing copyright statutes, but was merely a part of a mechanical musical machine (Kennedy_v. Morammany, 33 Fed. 584).

This was followed by the decision in Stern v. Rosey (17 App. Dis. Col. 562) that wax cylinders for use in a phonograph were not an infringement of a composer's copyright in his song, because they were not copies of sheet music within the meaning of the then act.

And these decisions were followed by the decision in White-Smith v. Apollo (209 U. S. 1), which held to the same effect.

The conflict between an unorganized group of composers and a thoroughly organized group of mechanical instrument manufacturers raged fiercely and attracted a great deal of attention, and in order to satisfy all interests the chairmen of the House and Senate committees before whom the bill was then pending in joint hearings, suggested a compulsory-license scheme.

The bills themselves did not present that scheme.

Several of the members on the committee expressed doubt as to the constitutionality of such a price-fixing regulation.

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Attorneys for some of the phonograph companies and roll companies expressed similar apprehension as to the constitutionality of the act. Counsel for the composers declared that the proposed act was unconstitutional, and the committee suggested that he prepare a brief.

Before the brief was submitted, without submitting to anyone the proposed bill incorporating the compulsory-license scheme for scrutiny, a report was made by the Committee on Patents of the House (60th Cong., 2d sess., Rept. No. 2222, February 22, 1909). The bill was passed without a report by the Senate committee, without the question of constitutionality being considered, debated, or discussed, without the Judiciary Committee of either House passing upon the constitutionality of the proposed legislation, and at the closing hour of the session, on the 4th of March, 1909, the bill was enacted into a law without debate on the floor.

The committee evidently rested its claim for power to incorporate compulsory-license feature in a copyright bill upon the following statement in Wheaton v. Peters (8 Pet., at p. 663):

“ This right, as has been shown, does not exist at common law; it originated, if at all, in the acts of Congress. No one can deny that when the legislature are about to vest an exclusive right in an author or in an inventor they have the power to prescribe the conditions on which such right shall be enjoyed, and that no one can avail himself of such right who does not substantially comply with the requisitions of the law,

“ This principle is familiar, as it regards patent rights, and it is the same in relation to the copyright of a book.”

But the context clearly shows that the conditions referred to were not in relation to “the exclusive right,” but rather in relation to the copyright formalities required under existing copyright statutes; so also under the statute of Queen Anne and under the statutes of the several States before the adoption of the Constitution, an author, in order to secure copyright, was required to comply with certain statutory formalities as a condition precedent to securing his copyright.

We reproduce the context from Wheaton v. Peters, 8 Peters, 663, from which the statement so much relied upon to justify the act of 1909 was torn and isolated, viz:

“ This right, as has been shown, does not exist at common law; it originated, if at all, under the acts of Congress. No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed; and that no one can avail himself of such right who does not substantially comply with the requisitions of the law.

“ This principle is familiar, as it regards patent rights; and it is the same in relation to the copyright of a book. If any difference shall be made, as it respects a strict conformity to the law, it would seem to be more reasonable to make the requirement of the author, rather than the inventor.

The papers of the latter are examined in the Department of State, and require the sanction of the Attorney General; but the author takes every step on his own responsibility, unchecked by the scrutiny or sanction of any public functionary.

“ The acts required to be done by an author, to secure his right, are in the order in which they must naturally transpire. First, the title of the book is to be deposited with the clerk, and the record he makes must be inserted in the first or second page; then the public notice in the newspapers is to be given; and within six months after the publication of the book, a copy must be deposited in the Department of State.

A right undoubtedly accrues on the record being made with the clerk, and the printing of it as required; but what is the nature of that right. Is it perefct? If so, the other two requisites are wholly useless.

“How can the author be compelled either to give notice in the newspaper, or deposit a copy in the State Department. The statute affixes no penalty for a failure to perform either of these acts; and it provides no means by which it may be enforced.

“ But we are told they are unimportant acts. If they are indeed wholly unimportant, Congress acted unwisely in requiring them to be done. But whether they are important or not, is not for the court to determine, but the legislature; and in what light they were considered by the legislature, we can learn only by their official acts.

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'“ Judging then of these acts by this rule, we are not at liberty to say they are unimportant, and may be dispensed with. They are acts which the law * requires to be done, and may this court dispense with their performance?

But the inquiry is made, shall the nonperformance of these subsequent conditions operate as a forfeiture of the right?

"The answer is, that this is not á technical grant of precedent and subsequent conditions. All the conditions are important; the law requires them to be performed, and consequently their performance is essential to a perfect title. On the performance of a part of them the right vests; and this was essential to its production under the statute; but other acts are to be done, unless Congress have legislated in vain, to render the right perfect.

" The notice could not be published until after the entry with the clerk, nor çould the book be deposited with the Secretary of State until it was published. But these are acts not less important than those which are required to 'be done previously. They form a part of the title, and until they are performed the title is not perfect.

“The deposit of the book in the Department of State may be important to identify it at any future period, should the copyright be contested, or an unfounded claim of authorship asserted.

* But if doubts could be entertained whether the notice and deposit of the book in the State Department, were essential to the title, under the act of 1790, on which act my opinion is principally founded, though I consider it in connection with the other act, there is, in the opinion of three of the judges, no ground for doubt under the act of 1802. The latter act declares that every author, etc., before he shall be entitled to the benefit of the former act, shall, 'in addition to the requisitions enjoined in the third and fourth sections of said act, if a book, publish, etc.

" It not this clear exposition of the first act? Can an author claim the benefit of the act of 1790, without performing the requisites enjoined in the third and fourth sections of it.' If there be any meaning in language, the act of 1802, the three judges think, requires these requisites to be performed in addition to the one required by that act, before an author, etc., shall be entitled to the benefit of the first act.'

The rule by which conditions precedent and subsequent are construed, in a grant, can have no application to the case under consideration, as every requisite, in both acts, is essential to the title.

“A renewal of the term of 14 years can only be obtained by having the title page recorded with the clerk, and the record published on the page next to that of the title, and public notice given within six months before the expiration of the first term.” (Pp. 663, 664, 665, 666.)

"The construction of the acts of Congress being settled, in the further investigation of the case it would become necessary to look into the evidence and ascertain whether the complainants have not shown a substantial compliance with every legal requisite." (P. 667.)

There is certainly nothing in that case that justified the enactment of a patent or copyright law with a compulsory-license provision.

What was said in Monongahela v. United States (148 U. S. 312) is apposite to the enactment of 1909. It was said at page 325 :

it was well said by Mr. Justice Bradley, speaking for the court in Boyd v. The United States (116 U. S. 616, 635): ‘Illegitimate and unconsti. tutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering. to the rule that constitutional provisions for the securing of person and property should be liberally construed. A close and literal construction deprives them of half their efficiency and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Their motto should be obsta principlis.'"

Neither courts nor legislatures are required to follow an erroneous decision, and courts have consistently refused to follow erroneous decisions.

The act of 1909 was plainly unconstitutional. If the Supreme Court of the United States has the right to refuse to follow an erroneous decision, then certainly a congressional committee has the right to refuse to be bound by a hasty, ill-considered enactment.

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In Pollock. v. Farmers' Loan & Trust Co. (157 U. S. 557), wherein the court quoted approvingly the language of Mr. Justice Taney in the Genesee Chief (12 How. 443, 455), wherein there was cited as a precedent a previous decision in that court, and with respect to which the following was said:

“But at the same time we are convinced that, if we follow it (the previous decision), we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen; and the subject did not therefore receive that deliberate consideration which at this time would have been given to it by the eminent men who presided here when that case was decided.

Manifestly, as this court is clothed with the power, and intrusted with the duty, to maintain the fundamental law of the Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.”

The act of 1909 extending copyright control to mechanical instrument devices was so artfully drawn that if the compulsory license provision were declared unconstitutional, the part extending the control to mechanical devices would likewise have to fall upon the principle laid down in Pollock v. Farmers' Loan & Trust Co. (158 U. S. 601), wherein it was held, at page 636 :

that if the different parts are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carriead into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with

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them.'”

And if the law had been declared unconstitutional, it would have left the composers in the position they were in since 1888, when Kennedy v. McTammany (33 Fed. 584), was decided.

Another danger that confronted the composer was the power of the boycott, wielded and exercised by the mechanical instrument manufacturers against composers and publishers.

An apt illustration is the case of the manufacture of master records in the United States, their shipment to foreign countries, from which were reproduced many records, and upon which no royalty was paid.

It was decided in Feist v. Columbia Graphophone Co. and Ricordi v. Columbia Graphophone Co. (258 Fed. 72) that these master records, having been manufactured in the United States, and the six of the seven steps in the course of manufacture having taken place in the United States, that the royalty fixed by statute would have to be paid upon each record reproduced in foreign countries from these masters.

Some of the companies affected employed the boycott against those composers and publishers who demanded payment of royalties from foreign sources. The manufacturers refused to use their works in mechanical reproduction, with the result that every composer and publisher was forced to surrender his claims to past due royalties and royalties that might accrue in the future from such foreign reproductions.

Attempts to change the law were rendered abortive on account of the stress of public business in Congress and the intervention of the war.

The act of 1909 was void for repugnancy to the Constitution.
That act was void for three reasons :

1. All that Congress was empowered to grant to an author was the exclusive right as a monopoly for a limited period in the work made, the subject of copyright. Congress can give neither more nor less. Freeing the work for use by manufacturers of mechanical records upon the payment of an arbitrary price fixed by Congress is not securing to the author a monopoly for a limited period” nor the exclusive right in his work.

2. A copyright being private property, Congress had no power to fix the price for which private third parties might use the work. Even if the Government could appropriate or use it itself, it would have to pay just compen. sation, and the ascertainment of such compensation was a judicial question and not a legislative one, and Congress could not fix the price.

3. Assuming, but not conceding, that Congress could fix the price, the rate fixed in the act was unjust, unreasonable, and confiscatory.

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