may-as he frequently does-play what he wishes to perform from memory. It is entirely his business.

The plaintiff complains that the society has authorized and caused D. W. May (Inc.) to broadcast the song "Maybe" from its broadcasting station located at Newark, N. J., and known as station WBS. This composition was written by Fred Ahlert and Ted Snyder. Mr. Snyder has been a member of the society since 1914 and Mr. Ahlert for some years, and each of them has, with the knowledge, consent, approval, and acquiesence of the plaintiff, assigned to the society the performing rights in all compositions written or composed by them, either alone or in collaboration with others, under the general form of assignment already discussed. With the knowledge, consent, and approval of the plaintiff, the society has paid to Mr. Snyder the following royalties under the society's scheme of allotment and distribution of royalties:

Mr. Ahlert also received his distributive shares of the royalties, aggregating $833.93.

The court will note the marked increase in Mr. Snyder's share of the royalties for the years 1922 and 1923. This increase was due to the fact that in 1921 Mr. Snyder was classified as a class B member and entitled to a smaller proportion of the share of the royalties to be distributed among the composer members.

Mr. Snyder claimed that he was entitled to be classified as a class A member of composers upon the ground that he had written, among other songs, a number entitled "The Shiek," published by the plaintiff, and the song “Maybe She'll Write Me," also published by the plaintiff, and the success of these two numbers and their value to the society's catalogue entitled him to promotion to the highest class of the society.

'On the 16th day of April, 1923, the plaintiff was notified that D. W. May (Inc.), operating broadcasting station WBS, Newark, N. J., had secured a license from the society authorizing the public performance of compositions copyrighted by the society's members. The plaintiff never, until the commencement of this suit, in words or in substance, protested or complained against the issuance of that license, but, on the contrary, took advantage of the license and sent its " pluggers " to broadcast from that station to compositions published by it.

The defendant society is the only organization now in existence in the United States which functions in respect to nondramatic performing rights in musical works.

It is untrue, and I deny the statement set forth on page 3 of Mr. Waterson's affidavit, that this society has since its organization enlarged its scope and purpose and acquired a substantial monopoly in this country of the performing rights in popular music. Its scope to-day is the same as its scope at the time of its inception. It is banded together to prevent organized pirates from robbing the creators of music of the fruits of their genius.

The quotation from the minutes of the conference between the society and the radio broadcasters, which is set out on pages 4 and 5 of Mr. Waterson's affidavit, is misleading, because it stops at the most important part. The question there for consideration was whether or not the radio broadcasters would have to deal with more than one organization. That was answered (p. 28 of the minutes of that conference):

"I have seen this point developing for some minutes now, and perhaps I can clear it up. It is quite true that if the copyright proprietors who are not

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members of this society, and there are several, some of them very important firms, decide to change their present policy and enforce their rights as to public performance, they have a perfect right to do so.

"So far as we know, there has been no decision upon their part, individually or collectively, so to do. They are members of the Music Publishers' Association of the United States, and some of them are also members of the Music Industries Chamber of Commerce, but neither of those organizations, as at present constituted and under present by-laws, functions in the collection of performing rights, fees, or the protection of copyrights from this angle, though either or both of them or some new organization to be formed might do so.'

Mr. Mills, when asked by one of the conferees (p. 29 of the minutes): “If we are to consider a license or apply for a license from the American society, how many others will we have to take into consideration?" replied: "You may have to take into consideration all of the standard publishers whose works you desire to use, individually; or they may form some separate organization to function in this matter, and request you to recognize that organization, or they may affiliate with the American Society of Composers, Authors, and Publishers, in which latter event you would have but one organization to deal with."

I deny that the society has a virtual monopoly of popular music. The fact is that of the twenty-odd thousand musical compositions registered for copyright annually, the members of the society publish and own less than 10 per cent.

I deny and Mr. Waterson well knows-that the society has not arranged for the general conduct of its administrative and executive function under the general direction of an advisory board or an advisory committee. The executive functions of the society, as well as the administrative functions, are carried out by its board of directors, and those powers have never been surrendered or yielded up to anyone.

I deny that the society is forcing anyone to accept its rates or inducing or compelling the taking out of general licenses from it.

The plaintiff refers to the high cost of the overhead expenses of the society, and the amount paid to its representatives out of all collections. Neither the plaintiff nor its representative on the board of directors ever complained to the society of these costs or charges. The necessity for engaging counsel and the terrific cost of overhead has been due entirely to the organized piracy prevailing throughout the United States, and to the encouragement given to organized piracy by the actions of this very plaintiff.

Mr. George Maxwell has been president of the society for nine years. The late Victor Herbert was vice president for nine years. Charles K. Harris has been its secretary for one year, and his predecessor was Glen MacDonough, who served for nine years. Mr. Raymond Hubbell has been its treasurer for seven years. Neither I nor any of the above-named persons have ever received a penny by way of salary, emolument, or other compensation as officers or directors of the society save and except a director's fee of $15 per meeting, and these meetings are held on an average of once per month during 10 months of the year. The directors receive no compensation except the director's fee as aforesaid.

Dtstribution of royalties are made quarterly. The highest quarterly royalty paid to any writer member of the society has been $291. The highest royalty paid to any publisher member in one quarter has been $1,390.

The affairs of the society have been administered as economically as is practicable, and the very purpose of appointing the advisory committee was to devise ways and means of reducing the overhead expenses if possible and to increase the society's business. This committee must report to the board and has no power except such power as is expressly conferred upon it by the board.

I deny that the reserve fund is used for disciplinary purposes or to give the society any punitive power over its membership. That reserve fund was created prior to the plaintiff's readmission to the society in January, 1921. That reserve fund has been used to take care of the poor, the indigent, the sick and distressed members of the society and their widows and orphans. The plaintiff very well knows that it was one of the purposes of the society to prevent composers and authors from being buried in unknown and paupers' graves, to prevent them from becoming objects of charity in their old age and to prevent the widows and orphans from going to almshouses or to orphanages.

From the very inception of the society, relief was one of its principal objects and purposes; Article XIV, section 7, provides for the relief committee to investigate requests or applications for relief on behalf of a sick, infirm, needy. or deserving member, or his widow, infant children, or indigent parents. Upon the recommendation of such a committee the board may direct the payment of such sum or sums as in its judgment will satisfy the immediate necessity of such person or persons, and to make advances from royalties thereafter to accrue to the member.

Subdivision B provides that the board of directors shall annually vote a part of the proceeds derived from it operations for the purpose of giving financial aid to members of the society, their widows, infant children, or indigent parents.

The plaintiff well knows that writers of songs are the poorest paid of all professional workers. The plaintiff pays to its writers at the rate of 2 cents per copy of sheet music published and 33% per cent of the mechanical royalties. The mechanical royalties are fixed by statute at 2 cents per record or roll. The sheet music and mechanical royalties are divided among all the authors or composers of each composition. There are usually two authors--a lyric writer and a musical composer---to each song, so that each writer gets 1 cent per copy for music sold and 16% per cent of 2 cents of each phonograph record or music roll. The average earnings per year of song writers and composers are about $3,000.

The society has out of this reserve fund paid for medical relief, rent, food. hospital bills, undertaker, and burial bills of members, and made advances to needs members.

It is not true that all the publishers have been anxious to have their songs and music broadcast. Publishers and writers have learned to their sorrow that the introduction of radio broadcasting has cut the sales of sheet music and the sale of phonograph records and music rolls by one-half; that it has detracted from the attendance at legitimate theaters and is cutting down quite considerably the royalties earned by writers. Most of the publishers, composers, and authors have declared that unrestricted radio broadcasting is injurious to the popularity, vogue, and financial success of musical numbers; that the constant and repeated singing and playing of the same composition nine or ten times per night from various radio broadcasting stations satiates the public's craving for said publication and its overexploitation actually destroys it. The song "I Love You," from the musical play "Little Jesse James," had every earmark of being the greatest hit of 1923. Undestricted broadcasting and its overexploitation at the broadcasting stations shortened its life and decreased very materially its earnings.

The plaintiff says that broadcasting stations have been quite content, and are now cantent, to broadcast the songs and music without charge. Mr. Powell Crosley, jr., the treasurer of the National Association of Broadcasters, operating station WLW, at Cincinnati, has publicly declared that publishers will be charged for broadcasting such songs as they desire plugged." Furthermore, in a circular letter of December 31, 1923, issued by the National Association of Broadcasters, Bureau of Music Release, it is stated:

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Inclosed please find information for song-writers which we wish you would glance over, as it explains our plans for helping writers to achieve success. When a number has been accepted by us for release, the copyright owner furnishes us with 100 dance orchestrations and the same amount of professional or song copies, which we distribute to our members, who in turn place them in the hands of artists who broadcast at their stations. The copyright owner also signs contracts allowing us a fair percentage of the mechanical royalties."

The National Association of Broadcasters approaches the proposition by asking the composer for a fair percentage of his mechanical royalties. Were it not for the activities of the society, composers desiring to broadcast would have to divide their sheet music royalties as well.

The arguments advanced by Mr. Waterson in his affidavit were the identical arguments urged by the broadcasters in their endeavor to seek a repeal of the musical performing provisions of the copyright act. These arguments neither Mr. Waterson, nor Mr. Walter Douglas, nor Mr. Snyder ever presented to the society. On the contrary, they were in full accord with the policy and progress of the society with regard to broadcasting. The language of the affidavit is not that of a music publisher but rather of a broadcaster justifying his desire to the free and unrestricted use of copyrighted music.

I deny that the society was surreptitiously soliciting broadcasting stations to "plug" their music.

The plaintiff complains that the form of license agreement between the society and broadcasters. This form was no different than the form of license agreement issued to the hotels and to cabarets and to motion-picture theaters. The genesis of the cancellation clause has already been explained in a preceding part of this affidavit.

The plaintiff complains that there are over 500 broadcasting stations in the United States, and thus far the society has been able to force only a very small number of stations to take out licenses or to recognize the right of the society to exact tribute. The society in its activities has never sought to force anybody to take out licenses. It has demanded and insisted that users of copyrighted music shall desist from infringing upon the rights of its members, and those that were willing to respect rights could have licenses for the very reasonable license fees established by the society's rates. The society has endeavored and is endeavoring to establish that radio broadcasting by commercial stations operated for profit is a public performance for profit within section 1, subdivision (e) of the copyright laws.

Mr. E. F. McDonald, referred to in Mr. Waterson's affidavit, is the same E. F. McDonald who is the president of the National Association of Broadcasters, the bitterest of the society's foes. The license of the Edgewater Beach Hotel was canceled because there was a default in the payment of royalties under the agreement and for the further reason that it was constantly conniving with the broadcasting station maintained upon its premises in the rendition for profit of the society's numbers. The license to that hotel limited the performance to the hotel premises. It applied for a renewal of the license and during the course of discussion it was suggested that it would be distinctly to the interest of the broadcasting station operating upon the roof of the hotel if it also took out a license, and a rate therefor was finally agreed upon.

I am informed and verily believe that at no time was it ever stated or indicated that a license for the hotel would be withheld unless it also signed up for the broadcasting station.

It is strange indeed that Mr. Waterson should now make reference to this Edgewater Beach Hotel transaction, when at no time did he or his representatives on the plaintiff's board of directors ever present that matter to the board of directors for its investigation or action.

It is untrue that the broadcasting station connected with the Edgewater Beach Hotel did not use the society's numbers. The fact is that it did and persisted in so doing, and was a rank infringer. It was giving false announcements of titles, but actually broadcasting compositions of the members of the society.

Waterson attaches a letter from Mr. Louis Bernstein, of Shapiro, Bernstein & Co., to his representative in Minnesota, Charles Cordey, dated September 13, 1923. (Waterson's affidavit, p. 16.) His object is to have the court believe that Bernstein, a member of the society, was seeking by subterfuge to have his music broadcasted. The fact is that Bernstein did nothing of the kind, and there was nothing in the letter that should give rise to any such inference. That letter was plainly intended to have Cordey go to orchestra leaders and have them broadcast from stations that were duly licensed. Since there are 36 broadcasting stations licensed by the American society, and there are about 100 stations, such as charitable and educational institutions, that have the right to broadcast the society's music without any fee whatever, making a total of 136 stations, Bernstein was certainly within his rights and was not violating his agreement with the society in having his manager induce orchestra leaders to pay at these stations.

The letter of Jerome H. Remick & Co. to the manager of station WYAZ, at the Edgewater Beach Hotel (Waterson's affidavit, p. 17), was perfectly proper. I deny Waterson's statement that station WYAZ, on February 11, 1924, the date of that letter, was an unlicensed station. The fact is that it was licensed, and the best proof is that the plaintiff, in its own Exhibit D (E. F. McDonald, jr.'s affidavit) so states. Mr. McDonald in his affidavit states:

"In order to have the license renewed for the dining room, the hotel was forced to pay a considerable additional sum for the broadcasting privilege which was not wanted, and our company reimbursed the Edgewater Beach Hotel for this additional amount, and we have not used, even though we have a license, the music of the American Society."

The series of telegrams between the society and Abe Lyman, set forth on pages 18 and 19 of Waterson's affidavit, do not show that this society was doing anything that it had no right to do. The fact is that Lyman did not wish to conduct for broadcasting, and he asked the society to wire him so that he could show the wire to his employer, the Hotel Ambassador, at Los Angeles. All he was asked to do by the society was not to cooperate with broadcasting stations unless they secured licenses. The reasons for that was that none of these broadcasting stations respect the rights of the society and that all of them who are not licensed are openly infringing. The society does not propose to permit any of its members to assist or to participate in any infringements. This is within its rights.

The letter which is quoted in part from E. S. Hartman, the society's representative in Chicago, at pages 21 and 22 of Waterson's affidavit, illustrate that it is not easy at all times to control agents throughout the country who may become overzealous and step beyond the bounds of their authority. The fact is that when the society was informed by E. S. Hartman that he had drawn a proposed form of license for this broadcasting station at Elgin, Ill., to broadcast upon the condition that such station use exclusively the music of the society, Hartman was immediately informed that he had no right to do this, and that proposed form of license was changed. Hartman's act was without the knowledge, consent, or approval of the society.

All of the alleged grievances set up in Waterson's affidavit were never presented to the board of directors for investigation or action.

Waterson has incorporated, at pages 22 and 23 of his affidavit, the statements about radio having helped to make the musical composition Marcheta a great success, and he recites at length the experiences of Mr. Frank Sheridan. the publisher of that composition. This argument was advanced to the Senate Committee on Patents by Mr. Sheridan in person. Mr. Sheridan appeared before that committee last April and related his experience with Marcheta exactly as Mr. Waterson has summarized them in his affidavit.

I stated before that committee, and I state now, that radio broadcasting has had a tremendously unhappy effect upon the music-publishing business; that since broadcasting has come into wide use, the sale of sheet music of the music publishers has fallen off approximately 50 per cent. The revenue derived from publishers, from the phonograph companies, and piano-roll companies has fallen off in about the same proportion. The public no longer bulys sheet music, phonograph records, and music rolls.

It is strange that the plaintiff did not discover any of these unfair practices nor that the other publishers were resorting to subterfuges in order to have their numbers broadcasted during all the time that its representative, its officer and managing agent, Mr. Walter Douglas, sat on the board of directors and voted with the other directors on the matter of policy pertaining to the society.

Section 4, article 14, provides for a complaint committee and for the investigation of misconduct, fraud, fraudulent acts, or acts derogatory to the welfare of or prejudicial to the society. The plaintiff never asked for a redress of any of its alleged grievances now set up in the complaint, all of which alleged grievances are projected only after the plaintiff's attempted resignation from the society. The grievances alleged are not its grievances but the grievances of the broadcasters, and were aired before the House and Senate Committee cn Patents.

I deny that the society ever prevented any one of its members, under threat of expulsion, from playing independent music at any time or in any place.

I deny that the society ever interfered with any rights or owners of independent music or the owners of any other kind of music.

With respect to the license issued to stations WJZ and WJY, this license was granted for one special night only, without any license fee, and as an experimental or test performance to determine the effect upon the society's works and upon the stations' suggestion that the program would be limited to the society's numbers.

The application should be denied.

Sworn to before me this 30th day of June, 1924.

GENE BUCK.

HERMAN GREENLEY, Notary Public, New York City.