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STATEMENT OF MR. NATHAN BURKAN, OF NEW YORK CITY, N. Y.
Mr. BURKAN. Mr. Chairman and gentlemen of the committee, I do not think there is any question in the mind of any member of this committee that a composer should be entitled to exclusive rights in liis property, no matter what form that property may take. The design of the Kittredge-Barchfeld bill is to secure that right. The only objection that is urged to the Barchfeld-Kittredge bill is that if the legislation is passed it will create one of the greatest monopolies in the history of modern times.
I come before this committee now and I say that the phonograph trust is the greatest and most oppressive trust in the United States, and I propose now to prove every assertion that I make. I further propose to prove that these people object to this legislation, because if you pass this bill it is going to interfere with their monopoly. They have formed an organization which they call the American Musical Copyright League, the purpose of which is not to secure to the author the full fruits of his labors but to defeat copyright. They tell you that they were not invited to the conference called by the Librarian of Congress to draft a copyright law and were not given an opportunity to present their views in drafting such a measure.
Why should the Librarian of Congress invite them to any con ference looking to the protection of the composer against their unanthorized appropriations of his works? They never met the composer or his representative and said: “You have written a certain composition which we want to use on our machines, and we would like to know for what reasonable royalty you will let us use it. We are willing to pay you a reasonable royalty.” No such offer was ever made, but, on the contrary, every time the composer asserted that he had some rights to the mechanical reproduction of his work his rights were challenged and resisted with the greatest vigor. Every case that was started in the courts to establish the composer's rights was contested by the manufacturers. The cases are Kennedy v. McTammany, Stern ”. Rosey, and White-Smith Co. against Apollo Com. pany. In each instance the composer was defeated. Now, when the composer or his representative, the publisher, comes before this committee and urges this legislation to put a stop to this iniquity of permitting the manufacturer to appropriate the labors of the composer they tell you we are going to create a monopoly. It is only a pretext for the continuation of this injustice.
Now, let us see about that monopoly. The United States Government has been protecting the mechanical manufacturer and these devices for reproducing music by patents, and by virtue of those patents these gentlemen have been forcing upon their dealers price maintenance contracts which are most oppressive in restraint of trade and suggestive of “trust methods” of doing business. I propose to put those contracts in evidence.
Here is the contract of the American Graphophone Company (exhibiting paper), of which the Columbia Phonograph Company is the sole sales agent, and, by the way, Mr. Paul Cromelin, the vicepresident of the Columbia Graphophone Company, appears before this committee as the vice-president of the American Musical Copyright League, the purpose of which league is not to protect the intellectual worker in the fruits of his labor, as the title suggests, but to defeat this particular legislation, in so far as it may protect him. It is not a question of public interest or policy with this league, but is simply in the interest of the Columbia Phonograph Company, organized for the purpose of defeating all copyright legislation looking to the betterment of the condition of the American composer in respect to mechanical devices. Here is the contract. It is headed “ Notice to Purchasers of Columbia' Graphophones, Records, and Blanks.” It sets forth that
All “ Columbia " graphophones, records, and blanks are manufactured by the American Graphophone Company under certain patents and licensed or sold through its sole sales agent, the Columbia Phonograph Company, general, subject to conditions and restrictions as to the persons to and the prices at which they may be resold by any person into whose hands they may come.
Any violation of such conditions or restrictions makes the seller or user liable as an infringer of said patents.
So that if a man buys a record embodying Victor Herbert's composition, and that man sells and disposes of that record at a price that he thinks fair and reasonable in the regular course of business but in violation of this contract, he is an infringer and he may be prosecuted as such. Then they have the temerity to come before this committee and say that this proposed legislation is a great steal, and if passed will drive them out of business.
The CHAIRMAN. Before you leave that point will you tell me whether there is any reason why any other manufacturing concern in the United States can not manufacture a disk record of Mr. Herbert's production?
Mr. BURKAN. There is a reason, and that is because of these 300 patents that have been issued to them covering every possible phase of this subject, and so that if a man goes into this business he is overwhelmed with litigation, as an infringer of one of these 300 patents.
The CHAIRMAN. How many concerns are manufacturing disk records?
Mr. BURKAN. Three concerns.
Mr. BURKAN. I do not know anything about perforated rolls. I have no knowledge of that subject whatever. Twelve, I believe.
This contract then proceeds: After reading the foregoing notice and in consideration of trade discounts given to me (us) by the Columbia Phonograph Company, General, I (we) hereby agree to take any goods received by me (us) from said company, either directly or through any intermediary, under the conditions and restrictions referred to in said notice and, except in case of sales to bona fide retail dealers as hereinafter provided for, I (we) agree to adhere strictly to and to be bound by the official list prices established from time to time by said company, and that I (we) will neither give away, sell, offer for sale, nor in any way dispose of said goods, either directly or through any intermediary, at less than such list prices, or induce the sale of such goods by giving away or reducing the price of other goods. I (we) further hereby agree not to sell or supply said goods, or any part or parts thereof, either directly or through any intermediary, at less than said official list prices to any but bona fide retail dealers, and not until they have first signed said company's prescribed price maintenance contract governing and controlling sales by retail dealers, and in such sales I (we) agree to adhere strictly to and to be bound by the official discounts established from time to time by said company, and that my (our) discounts to said dealers shall not exceed those of said company on equal quantities and under the same conditions. I (we) also agree not to sell to dealers on said company's suspended list or continue to sell to a dealer if he cuts prices or discounts, and I (we) understand that a breach of this agreement will amount to an infringement of said patents and subject me (us) to a suit and damages therefor.
I (we) acknowledge the receipt of a duplicate of the foregoing notice and contract and also a copy of the official list prices and discounts of said company, in force at the date hereof.
No representations or guarantees have been made by the salesman on behalf of the said company which are not herein expressed.
Now, they have obtained over 300 patents, covering every possible improvement in these devices, and I propose to offer in evidence, at this point, a list of the patents, and ask to have them put in the record.
The list referred to is, by direction of the committee, inserted in the record, and is as follows:
Memorandum of the number of patents in the following classes and of the number in the classes issued to each person named, to wit: Sound boxes, graphophone, total number of patents.
120 T. A. Edisoll..
25 Edison Phonograph Company
4 United States Phonograph Company.
1 American Graphophone Company
10 Stylophone Company
1 Hawthorne & Sheble Manufacturing Company
1 Universal Talking Machine Company
1 New Jersey Patent Company Highamophone Company
1 Regina Company-
Sound boxes, gramophone, total number of patents.
United States Gramophone Company.
1 2 4 19 1 5 3 1 11 1 1
Graphophone tablets, turning and smoothing, total number of patents.
T. A. Edison
New Jersey Patent Company.
American Multiplex Talking Machine Company
Graphophone, reciprocating record, total number of patents..
T. A. Edison.-
Graphophones, feed mechanisms, total number of patents.
T. A. Edison.-
Memorandum of the total number of patents in the following classes :
130 115 27
8 78 97 24
Class 181, ACOUSTICS.
SUBCLASS 14.—Method and machines for making graphophone tablets.
437427. T. A. Edison, September 30, 1890, making method. 429079. O. P. Austin, May 27, 1890, resurfacing method. 329796. C. E. Hadley, November 13, 1888, manufacturing. Assignor to Volta
Graphophone Company, Alexandria, Va. 400619. T. A. Edison, April 2, 1889, making method. 400650. T. A. Edison, April 2, 1889, making method. 393464. T. A. Edison, November 27, 1888, making machine. Assignor to Edison
Phonograph Company. 393463. T. A. Edison, November 27, 1888, making machine. Assignor to Edison
Phonograph Company. 393462. T. A. Edison, November 27, 1888, making process. Assignor to Edison
Phonograph Company. 382417. T. A. Edison, May 8, 1858, making process. 382790. E. Berliner, May 15, 1888, making process. 606725. T. H. Macdonald, July 5, 1898, making process. Assignor to American
Graphophone Company. 626709. T. H. Macdonald, June 13, 1899, making process. Assignor to American
Graphophone Company. 726965. Miller & Pierman, May 5, 1903, making process. Assignor to National
Phonograph Company. 757867. A. Hamon, April 19, 1904, apparatus for casting cylinders. 744339. A. Haug, November 17, 1903, apparatus for manufacturing cylinders. 773978. A. N. P'etit, November 1, 1901, process of making. 773801. T. H. Macdonald, November 1, 1904, process of making. 777629. A. Haug, December 13, 1904, process of making. 790516. Miller & Pierman, May 23, 1905, apparatus for making. Assignor to
New Jersey Patent Company. 855557. J. W. Aylsworth, June 4, 1907, process of making. Assignor to New
Jersey Patent Company. 854SS6. V. M. Harris, May 28, 1907, apparatus for making. 878931. H. S. Berliner, January 11, 1908, method of making.
SUBCLASS 17.-Graphophones, tablets.
341213. Bell, Bell & Tainter, May 4, 1886, radiophone.
406569. T. A. Edison, July 9, 18S9, cylinder. 414759, T. A. Edison, November 12, 1889, cylinder composition, 400576. T. A. Edison, July 9, 1889, cylinder composition. 408998. W. B. Tattershall, August 13, 1889, (ylinder. 414761. T. A. Edison, November 12, 1889, (ylinder. 430274. T. A. Edison, June 17, 1890, composition. 421450. C. S. Tainter, February 18, 1890, cylinder composition. 437429. T. A. Edison, September 30, 1890, cylinder composition. 130570. T. A. Edison, June 17, 1890, cylinder composition. 460338. I. W. Ileysinger, September 29, 1891, cylinder composition. 488191. T. A. Edison, December 20, 1892, cylinder composition. 505910. J. E. Wassenich, October 3, 1893, disk. 664223. T. B. Lambert, December 18, 1900, cylinder composition. 657956. A. N. Petit, Septen:ber 18, 1900, cylinder. 666937. A. X. Petit, January 29, 1901, (ylinder. 686321. F. Myers, November 12, 1901, disk. Assignor to Stylophone Company. 689350. E. Berliner, December 17, 1901, disk. Assignor to lnited States Grapho
phone Company. 676111, J. W. Aylsworth, June 11, 1901, cylinder composition. Assignor to
National Phonograph Company. 682992. T. H. Macdonald, September 17, 1901, cylinder. 689117. A. N. Petit, December 17, 1901, cylinder composition. 746806. J. H. Fedeler, December 15, 1903, cylinder or disk. 717311. J. E. Alexander, December 30, 1902, disk. 692623. A. Clark, February 4, 1902, seal for disks. 692624. A. Clark, February 4, 1902, seal for cylinders, 701820. L. P. Valiquet, June 3, 1902, seal for disks. 708828. A. H. l'etit, September 9, 1902, cylinder composition. Assignor to In
ternational Phonograph and Indestructible Record company. 701619. L. P. Valiquet, June 3, 1902, disk. Assignor to Universal Talking
Manufacturing Company. 713328. G. H. Moore, November 11, 1902. Assignor to Moore Taking Scale
Company. 727960. J. W. Jones, May 12, 1903, disk composition. Assignor to American
Graphophone Company. 739421. E. R. Johnson, September 22, 1903, disk. Assignor to Victor Talking
Machine Company. 739318. E. R. Johnson, September 22, 1903. Assignor to Victor Talking Machine
Company. Re. 12096. T. H. Macdonald, March 10, 1903, cylinder. Assignor to American
Graphophone Company. 726966. Miller & Pierman, May 5, 1903, cylinder composition. Assignor to Na
tional Phonograph Company. 749092. A. N. Petit, January 5, 1904, disk. 750119. A. X. Petit, January 19, 1904, cylinder. 761816. O. Messter, June 7, 1901, disk. 771758. C. N. Wurth, October 4, 1904, cylinder. 778976. E. R. Johnson, January 3, 1905, disk. Assignor to Victor Talking
Machine Company. 782375. J. W. dylsworth., February 14, 1905, cylinder. Assignor to New Jersey
l'atent Company. 785191. H. S. Berliner, March 21, 1905, disk. 786317. W. S. Darby, April 4, 1905, disk. Assignor to Victor Talking Machine
Company. 785317. Manwaring, Emerson, Capps & Norton, March 21, 1905, cylinder. As
signor to American Graphophone Company. 787001. J. Sander, April 11, 1:05, disk composition. 790517. Miller & Pierman, May 23, 1905, cylinder. Assignor to New Jersey
Patent Company. 800800. T. A. Edison, October 3, 1905, cylinder. Assignor to New Jersey Patent
Company. 788927. W. H. Miller, May 2, 1905, cylinder. Assignor to New Jersey Patent
Company. 791592. E. N. Dickerson, July 11, 1905, cylinder. 800331. Shigley & Paxton, September 26, 10.7, cylinder. 802135. N. Bryant, October 17, 1907, (ylinder.