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After twenty years of private negotiations, the second world war intervened, and efforts to revise the copyright statute died.

III

SHORTCHANGING THE FUTURE

The history of copyright revision efforts during the first half of this century demonstrates how a process of private negotiations, initially adopted as an expedient alternative to a government commission,' 131 came to dominate copyright revision. A closer look at the substance of some of the negotiations reveals insights about the strengths and weaknesses of that process as a method of drafting

statutes.

Throughout the various conferences, interests that were absent from the bargaining table were shortchanged in the compromises that emerged. The Librarian of Congress's conferences in 1905 and 1906 excluded the piano roll and talking machine interests; the bill that emerged disadvantaged them.132 The motion picture industry attended none of the negotiations that resulted in the 1909 Act and found the statute a significant hindrance." The 1912 negotiations between motion picture and theatre industries to frame the Townsend Amendment yielded a compromise that handicapped authors and publishers of nondramatic works, who did not participate.' The conferences in the 1920s that led to the Dallinger bill included no representatives of the broadcasting industry; the Dallinger bill gave publishers and composers rights at the broadcasters' expense. 135 The broadcasters walked out of the conferences that produced the Vestal bill; the Vestal bill addressed none of the broadcasters' concerns.

136

134

At first glance, this observation seems intuitively obvious. Parties who are negotiating would seem to have no incentive to safeguard the interests of their absent competitors. On further consideration, however, the persistent shortchanging of absent interests seems more startling. The battles that preceded the enactment of the 1909 Act should have demonstrated to the participants that interests excluded from negotiations could effectively block legislation. Many

131 See supra notes 37-40 and accompanying text.

132 See supra notes 44-50 and accompanying text.

133 See supra notes 67-70 and accompanying text; supra note 86.

134 See supra note 80 and accompanying text.

135 See supra notes 87-99 and accompanying text.

136 See supra notes 102-07 and accompanying text.

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of the participants in the later conferences had been privy to the 1906 and 1908 hearings. Even had the threat been dismissed or forgotten, the controversy that surrounded the Dallinger bill' 37 should surely have persuaded conference participants to make some accommodation for absent parties in connection with the Vestal bill. Yet, the compromises that were made emerged only after faceto-face bargaining, either within the conferences or at the last minute in response to congressional pressure.

If the parties' desire to draft enactable legislation would seem to engender consideration for those excluded, other forces made that accommodation difficult. The division of rights among competing interests became increasingly complex and interdependent. The compromises that emerged from the conference approach were rarely bilateral. Authors conditioned concessions to motion picture producers on their receipt of concessions from organized labor who in turn demanded something from publishers. 139 In the ensuing complex web of interrelated concessions, the hypothetical demands of absent parties got lost.

The understandable tendency of stakeholders to view representatives of the upstart future as poachers on previously settled territory also influenced the course of negotiations. 140 Composers, sheet music publishers, and musicians divided up the world in a satisfactory manner before the producers of piano rolls and talking machines entered their markets. Novelists, dramatists, photographers, book publishers, and theatrical producers had comfortable niches before motion picture theatres came on the scene. Excluding newcomers from the benefits conferred by copyright legislation may have seemed like a necessary corollary to protecting one's turf.

Indeed, the interests that had not yet come into being when the negotiations took place were the quintessential excluded parties. They threatened competition with all current stakeholders and posed no apparent threat of lobbying against legislation. As one might expect, then, they were the parties most likely to find that the negotiated compromises operated to their disadvantage. The industries that chafed most under the provisions of the 1909 Act, for example, were the motion picture and broadcast industries: the for

137 See supra notes 87-96 and accompanying text. 138 See supra notes 108-14 and accompanying text. 139 See, e.g., sources cited supra notes 95-97.

140 See, e.g., 1924 House Hearings, supra note 86, at 105-11 (testimony of Gene Buck, ASCAP); 1908 Hearings, supra note 10, at 173-79 (testimony of Ligon Johnson, Nat'l Ass'n of Theatrical Producing Managers).

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mer barely begun and the latter not yet imagined at the time the Librarian of Congress called his conferences in 1906.141

The motion picture and broadcast industries found the 1909 Act particularly inhospitable because it required emergent industries to adapt themselves to conform to ill-fitting molds. A statute could pose difficulties for a new technology simply because its general provisions seem not to anticipate the specific circumstances of a new invention. That, however, is a problem shared by most legislation. The problems inherent in the 1909 Act were more pernicious, because its drafters crafted the language to settle particular, specific inter-industry disputes.

The 1909 Act's strategy for reconciling competing demands among industry representatives was to specify rights and remedies within subject matter categories. The conferences began in 1905 with each organization's articulation of its wish list. 142 Each of the affected interests sought to retain the advantages it enjoyed under current law, while eliminating features that worked to its detriment. Where wishes appeared irreconcilable, the parties suggested differentiation of provisions along subject matter lines.13 The solutions to many disputes were provisions detailing the particular rights attaching to particular categories of works, the particular actions that constituted infringement of those rights, and the particular remedies available for those infringements. 144 The bill introduced in the 59th Congress followed this strategy. 145 For example, the original bill varied the term of copyright among different classes of works, from twenty-eight years for prints and labels, to life of the author plus fifty years after death for musical compositions. In addition, it placed a ten year limit on the exercise of the exclusive dramatization right in a book.146 In tinkering with the bill, the House and

141 See, eg., General Revision of the Copyright Law: Hearings Before the House Comm. on Patents, 72d Cong., 1st Sess. 168 (1932) (remarks of Louis G. Caldwell, Nat'l Ass'n of Broadcasters).

142 COPYRIGHT CONFERENCE, IST SESS., supra note 6, at 7-26; see also STENOGRAPHIC REPORT OF THE PROCEEDINGS OF THE LIbrarian's CONFERENCE ON COPYRIGHT, 2D Session, in New York City, Nov. 1-4, 1905, at 7-29, 33-35, reprinted in 2 E.F. BRYLAWSKI AND A. GOLDMAN, supra note 6, at pt. D (hereinafter COPYRIGHT CONFERENCE, 21 Sess.]

143 See Copyright Conference, 1ST SESS., supra note 6, at 45-48, 51-53, 77-84. 144 See STENOGRAPHIC REPORT OF THE PROCEEDINGS of the LIBRARIAN'S CONFERENCE ON Copyright, 3d Session, at LIBRARY OF CONGRESS, WASHINGTON, D.C., MARCH 13-16, 1906, at xxix-lxiv, xcv-c, reprinted in 3 E.F. BRYLAWSKI AND A. GOLDMAN, supra note 6, at pt. E.

145 See S. 6330, 59th Cong., 1st Sess. (1906).

146 See S. 6330, 59th Cong., 1st Sess. §§ 18, 20 (1906).

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[Vol. 68, 1989] Senate committees removed some of the distinctions but added others. Thus, Congress replaced the variable copyright terms with a uniform renewable term of twenty-eight years. On the other hand, the 1906 bill treated the performance rights in musical compositions and dramatic compositions similarly. The bill that Congress enacted gave the rights different scope and established different remedies for their infringement. 148

The extent to which the 1909 Act's category-specific language encompassed new technology was difficult to predict. Although the specificity of terms initially provided security to the affected industries, the growth of new forms and methods made the language seem increasingly ambiguous. The development of the mimeograph machine, for example, created doubts about the reach of a provision requiring all books to "be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein."149 When the word roll, a piano roll with lyrics printed alongside the perforations that produced the music, superseded the simple piano roll, it was unclear whether the compulsory license for mechanical reproductions of music permitted the addition of printed lyrics.'

151

150

The statutory language posed more radical problems for the new media. The infant industries found the 1909 Act ambiguous and its application to their activities uncertain until the courts issued an authoritative ruling. Courts, in turn, struggled to apply the 1909 Act's language to fact patterns that its drafters never envisioned. As case law developed, the application of copyright law to new technology depended more on linguistic fortuity than anything

147 See 17 U.S.C. § 24 (1909).

148 Compare S. 6330, 59th Cong., 1st Sess. §§ 1(d), 1(f), 23(b)(3) with 1909 Act, supra note 10. §§ 1(d), 1(e), 25(b). See supra notes 15-20 and accompanying text.

149 17 U.S.C. § 15 (1909). Congress amended the section in 1926 to preserve the copyrights in mimeographed books from forfeiture. See Act of July 3, 1926, 44 Stat. 818.

150 See, e.g., 1926 Joint Hearings, supra note 90, at 86-87 (testimony of Alfred Smith, Music Industries Chamber of Commerce). The courts held that the statutory mechanical license did not permit the reproduction or distribution of printed lyrics. See Standard Music Roll v. F.A. Mills, 241 F. 360 (3d Cir. 1917).

151 See. e.g.. General Revision of the Copyright Law: Hearings Before the House Comm. on Patents, 72d Cong., 1st Sess. 174-75 (1932) (testimony of Louis G. Caldwell, Nat'l Ass'n of Broadcasters); id. at 405-06 (testimony of George P. Aarons, Motion Picture Theatre Owners); General Revision of the Copyright Law: Hearings on H.R. 10,976 Before the House Comm. on Patents, 72d Cong., 1st Sess. 206-07 (1932) (testimony of Frank A.K. Boland, American Hotel Ass'n).

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303

Determining the scope of copyright protection for motion pictures, for example, required courts to decide such questions as whether the exhibition of a motion picture constituted "publication" within the meaning of the 1909 Act. 153 Was a motion picture, specifically enumerated in subsections (1) and (m) of section 5, also a "dramatic or dramatico-musical composition” as specified in subsection 5(d), or, if not, could it still be deemed a “drama” for the purposes of subsection 1(d)?154 If so, was exhibiting the film a “performance"? Should projecting the frames of a motion picture be characterized as making a "copy" of the motion picture1ss or as "dramatizing" it?156 Radio broadcasting posed similar problems. Was the broadcast of music to receiving sets in individuals' homes a public performance? Was broadcasting at no charge to listeners a performance for profit?158 Was it a public performance for profit to install a radio receiving set and loud speakers in hotel guest rooms?159

152 See 75 CONG. REC. 11,062 (1932) (remarks of Rep. Sirovich):

At the time of the passage of the 1909 Act, radio broadcasting was an unknown quantity. Because of certain general provisions of that act, such as "public performance" and "mechanical reproduction" it turned out that dramatic and musical compositions were protected over the radio, but the act nowhere provided for protection over the radio in any other respect. The author of literary works is not protected under the present law.

See also Varmer, Limitations on Performing Rights 104-07, reprinted in SunCOMM. ON Patents, Trademarks and Patents of THE SENATE Comm. ON THE JUDICIARY, 86th Cong., 1st Sess., Copyright Law Revision (Comm. Print 1960). 153 See, e.g., Patterson v. Century Prod., 93 F.2d 489 (2d Cir. 1937); Tiffany Prods. v. Dewing, 50 F.2d 911 (D. Md. 1931). The majority of courts held that exhibition was not publication

154 See, e.g., Metro Goldwyn Mayer Distrib. v. Bijou Theatre, 3 F. Supp. 66 (D. Ma. 1933); Tiffany Prods, 50 F.2d at 914-15.

155 See Patterson, 93 F.2d at 493-94; Metro Goldwyn Mayer, 3 F. Supp at 73-74. A few courts concluded that the projection was indeed a copy. See Varmer, supra note 152, at 104-07.

156 See Metro Goldwyn Mayer, 3 F. Supp. at 73; cf. Kalem Co. v. Harper Bro., 222 U.S. 55 (1911) (applying prior law). Kalem held that projecting a motion picture dramatized the book on which it was based, even if the motion picture was not itself a copy of the book. Some courts extended that rationale. See Varmer, supra note 152, at 105-06. 157 See, e.g.. Jerome H. Remick & Co. v. American Auto. Accessories, 5 F.2d 411 (6th Cir. 1925). Most courts held that it was. But see Jerome H. Remick & Co. v. General Elec., 4 F.2d 160 (S.D.N.Y. 1924).

158 See. e.g., M. Witmark & Sons v. L. Bamberger & Co., 291 F.2d 776 (D.N.J. 1923). The majority of courts said yes.

159 See Buck v. Jewell-LaSalle Realty, 283 U.S. 191 (1931). The court held that it was. But see Twentieth Century Music v. Aiken, 422 U.S. 151 (1975) (holding that installing a radio receiving set and loud speakers in a delicatessen was not a performance). Under the case law that developed, both radio broadcasting and the playing of