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In the meantime the industry progressed and developed to such proportions that the composers soon discovered that their royalties earned from sheet music were cut in half and that the sales of these devices were cutting very seriously into the sale of sheet music. In that situation the composers appealed to Congress in 1906 for protection against the unrestricted use of their works without compensation for the profit of others.

The arguments presented to the Joint Committees on Patents of the House and Senate on the bill to revise and amend the copyright laws against extending the copyright control to mechanical musical devices were:

(1) Relying upon this array of decisions beginning in 1888, uniformly holding that these records and rolls were not copies of sheet music, but were parts of patented machines, their manufacturers had built up gigantic industries and had made large investments of capital therein; that Congress ought not to extend the composers' copyright control to these devices and thereby debar the mechanical users from enjoying an unlimited and unrestricted field of music as theretofore without due consideration of their rights in the premises.

(2) Then this very serious constitutional question was raised against the proposed extension. It was argued that the power of Congress to enact copyright legislation was circumscribed, limited, and restrained by the Constitution; that writings in the limited sense of a book, a print, a sheet of music in staff notation, were the subjects of protection within the constitutional provision. That the word "writings" as used in the Constitution means the literary production of an author in the form of a book, a paper, a print, or a kindred work, by which the ideas in the mind of the author are given visible expression. That these records and rolls could not be read; they were not literary productions, but were merely parts of machines, were not "writings" within the meaning of the Constitution and that Congress therefore had no power to extend the copyright to these mechanical instruments.

(3) The final and last contention against the proposed extension was that a number of music publishers had signed an agreement with the Aeolian Co., a manufacturer of perforated rolls, under which that company agreed that in case it was decided by a court of last resort that a perforated music roll was a copy of a sheet of music, within the meaning of the then existing copyright statutes, then the Aeolian Co. was to have the exclusive right to reproduce the works of these publishers on music rolls for a period of 10 years, upon the payment of a license fee of 10 per cent of the selling price of each roll. The Aeolian Co. had agreed, at its own cost and expense, to have a suit brought and to prosecute the suit to the Supreme Court of the United States to test the applicability of the copyright laws to music rolls.

The principal consideration that induced these publishers to sign the agreement was that this important question as to whether or not a music roll was in truth and in fact a copy of a sheet of music, within the meaning of the then laws, and was an infringement of the composer's copyright, had never been exhausitvely and thoroughly argued before any of the courts, and had never theretofore been presented to the Supreme Court of the United States.

These publishers desired an expression from the Supreme Court of the United States, and to that end, principally signed the agresment. The suit was started in 1904 (White Smith v. Apollo, 209 U. S. 1) and decided in 1907 adversely to the publishers, holding that perforated rolls and records are not copies or publications of copyrighted music within the meaning of the copyright act, but are mere parts of a machine.

It was strongly urged to the committee that this situation would create a mechanical music trust and would enable the Aeolian Co. to dominate the field of reproducing musical compositions upon perforated rolls.

On one side were the composers whose properties were being despoiled, being exploited for the use of the manufacturers without compensation. On the other the mechanical reproducers clamoring that the Aeolian Co. got an unfair advantage in tying up a group of publishers.

In that view of the situation-these hearings lasted from 1906 to 1909-the suggestion was made by the chairman of the Committee on Patents that, as theretofore, the right to reproduce the musical compositions ought to be left free to every reproducer upon the payment of a fixed royalty or upon the basis he called the "compulsory license." Several members of the committee doubted the constitutionality of such a provision in a copyright statute.

Speaking on behalf of the composers, I stated unqualifiedly that it was absolutely unconstitutional; that the Congress had no such power; that its power to enact copyright legislation was derived from the Constitution--that that was the source of all its power. That the word "exclusive" as used in the Constitution, as understood by the framers of the Constitution, as understood by the first Congress that enacted copyright laws after the Constitution, and as that word as well as the term copyright" was understood at common law and as defined by the decisions of great English judges and by the decisions of Story and Marshall, that Congress could not enact any law freeing the works of composers to others who desired to use the work upon the mere payment of a royalty fixed by Congress.

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The form in which the bill now appears was never presented to the public before its enactment. It was never discussed before the committee in that form. This great question of the power of Congress to introduce a compulsory license scheme in a copyright bill was not debated upon the Floor of the House or of the Senate.

I also wish to emphasize that when I argued the constitutional point, it was suggested by the chairman of the committee that I brief the point and submit it, but before the work was finished, the bill was reported out favorably and was enacted into law.

This far-reaching, revolutionary, and important question was not debated by the Judiciary Committee of the House or of the Senate. The bill was reported on the 22d of February, 1909, passed on the 4th of March, 1909. For the purpose of enabling the statute to be passed, the clock was turned back. It was the last act that President Roosevelt signed.

Now, here is a most radical innovation in copyright legislation. Here is a legislative price-fixing scheme without precedent in copyright or patent legislation. A power never before asserted or sanctioned. A power which was seriously and gravely questioned. It was to be expected that this question would be debated on the floor

of the House and of the Senate; that the great lawyers sitting on the Judiciary Committees of the House and of the Senate would look into the question and give to it the research, care, thought and study it deserved.

I say to you gentlemen, in all sincerity, in view of the manner in which that bill was presented, and passed; in view of the fact that the great legal minds in the Senate and the House at no time considered and did not, in fact, discuss the constitutionality of that statute, and since it conclusively appears that the constitutional objection was not debated, considered, or discussed in the committees having the bill under consideration, nor by the Judiciary Committees, nor by Senate and House sitting as Committees of the Whole, the act of 1909 has no binding force upon your committees as a precedent. The Supreme Court, when confronted, by way of precedent by an erroneous decision, has not hesitated to refuse to follow such decision upon the ground, first, that the court is intrusted with the duty to maintain the fundamental law of the Constitution, and 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 super


Furthermore, it will refuse to follow such decision when the great importance of the question was not then foreseen, and the subject did not receive that deliberate consideration which the court, to which the case is cited as precedent, would have given the question. (Pollock v. Farmers Loan & Trust, 157 U. S. 557.)

Those principles laid down by the Supreme Court apply to this committee. The responsibility of this committee is no less great than that of the Supreme Court. The reasons which impel the Supreme Court to refuse to follow an erroneous decision apply with equal vigor to a case where an unconstitutional precedent is cited to a committee of Congress, otherwise illegitimate and unconstitutional practices would gain a permanent footing in all our legislation. And with respect to unconstitutional statutes, let me say to the committee that Congress, in 1870, enacted the trade-mark acts. They passed those acts under a revision, consolidation, and amendment of the statutes relating to copyrights and patents. The constitutionality of the acts was questioned nine years later in TradeMark Cases, 100 U. S. 582. The Supreme Court of the United States declared that the power of Congress to legislate concerning authors and inventors, and their writings and discoveries, was limited to the constitutional provision, article 8, section 1; that the word "writings" as used in the Constitution, meant original, intellectual productions founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like; that the Constitution restricts the right to authors and inventors, men who write literary works and men who make scientific discoveries; that a trade-mark was not the product of creative genius; it was not an intellectual creation; it did not represent invention, originality, or conception of thought or any work of the brain. It required no fancy or imagination, no genius, no laborious thought. It was an arbitrary symbol-the adoption of something already in existence as the distinctive symbol of the party using it. The right to it is founded upon priority of appropriation and use. After nine years the Supreme Court declared the act unconstitutional.

A statute modeled after a series of statutes enacted from 1861 to 1870 was declared unconstitutional by the Supreme Court. (Pollock v. Farmers, 157 U. S. 429; 158 U. S. 601.)

There is no statute of limitations or right of prescription against raising the question of the constitutionality of any act. The mere fact that an act of Congress has remained on the statute books for 17 years does not make it invulnerable against constitutional attack unless it is shown that some court of competent jurisdiction and of eminent respectability has held the act to be constitutional.

You might ask the question, Why has not the constitutionality of the act of 1909 been tested? The answer is a very simple one.

The extension of the copyright control to these devices was not given outright, but upon condition. The grant was given and then there was a condition attached in the form of a compulsory license that if the musical author uses the work for mechanical reproduction, then anybody in the public has a similar right upon the payment of a fixed royalty-2 cents per record or roll. Under wellknown constitutional principles, if the different parts of an act are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other as to warrant the belief that the legislature intended them as a whole, and that, if all could not be carried 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 them. (Pollock v. Farmers, 158 U. S. 626.)

Unquestionably this act was so artfully drawn, that if an attack was made upon the compulsory provisions of the act and the court declared them unconstitutional, the whole act would have to fall. That would have left the authors in the same plight they were in from 1888 to July, 1909. These musical authors, creating works of great value, were deprived of their property without just compensation. During the years 1909 to 1914 there was so much constructive and important Government legislation and legislation of nation-wide scope pending that there was very little time that Congress could afford to give to a more or less private measure of this sort. Those of us who have been interested in this legislation know the great travail, toil, trouble, and hardship there is involved to get enacted into law any copyright


Another reason for the failure to make any attack upon the constitutionality of this proposition was the power of boycott that these reproducers of mechanical instruments possessed.

While under the act of 1909 every care was taken to secure to mechanical reproducers the right to seize any work they desired for use upon the payment of the fixed royalty of 2 cents, there is no reciprocal protection given to the musical author to compel a manufacturer to reproduce his works. The mechanical instrument manufacturers have the privilege of choosing the compositions they desire for reproduction. They could single out the favored authors, one after another, whose works were to be reproduced. There was given to them the power to punish an offending author and the power to reward an obliging one. The author who truckled to them, they rewarded by putting upon the back of a sound record carrying a very successful number a very inferior number, lacking in merit, and possessing no real commercial value, but being hitched on to a very successful piece, it brought tremendous revenue to this favorite whose song was on the reverse side of a record of the song "hit" of the day.

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Although the act provided that 2 cents should be paid as the fixed royalty for each record manufactured, these commercial reproducers forced composers to allow 10 per cent off for breakage. They refused to pay royalties on records manufactured, but paid only on records sold. Then they proceeded to manufacture in the United States master records, six out of seven steps of manufacture taking place here. While the law required them to pay 2 cents upon every record manufactured, they sent the master records out to Canada and to foreign countries and reproduced from these masters thousands upon thousands of commercial phonograph records upon which they refused to pay any royalties.

The matter of the reproducing in foreign countries commercial records from masters made here was taken to the courts. I prosecuted one them myself to the Circuit Court of Appeals, second circuit, and successfully established the principle that royalties must be paid on such records. The authors never got the 2 cents on records produced elsewhere from masters made here. The mechanical reproducers made it known to the composers and to the publishers that if they insisted upon and demanded payment of the royalty fixed by the statute with respect to these records sold in foreign countries, their works would be boycotted.

The act of 1909, while it provided in case of any infringement of the copyrighted work of the infringor should be liable to very severe penalties, damages, costs, to injunction, seizure, and forfeiture of infringing material, and to criminal punishment, in the case of the illegal mechanical reproduction, the sole remedy furnished by the act is limited to a recovery of three times the royalty fixed by the statute; that is, 6 cents per record or a roll and to a temporary injunction until such damages are paid. If the mechanical reproducer made no reports or kept false books as to the number of records or rolls he manufactured, then the composer's plight is more desperate. Frequently we are confronted by this very trying and serious situation. You have irresponsible, fly-by-nights, who reproduce the most successful pieces, taking one hit after another, never making honest accountings, nor paying the accrued royalties. When you go to law and sue, the most you get is a worthless judgment based upon a sheer guess of the number of records or rolls the scalliwag in all probability manufactured.

With these conditions staring us in the face, we were obliged to allow the act of 1909 to remain as it is. We are now appealing to Congress to undo the inequity of 1909.

Therefore I am going to address myself, with this little preface, to the real constitutional questions involved in this bill, and I divide my points under these headings.

First, that the present bill as it now appears before you, deprives musical authors of their broadcasting rights with respect to existing copyrights and secured to them by existing law. The bill as drawn, modeled upon and fashioned after the act of 1909 mutatis. mutandis, effects that purpose. The circumstances attending this bill differ radically from those in respect of the act of 1909. In 1908 the Supreme Court declared that the composers had no control over the mechanical reproduction of their works that these records and rolls were not copies of sheet music within the then copyright statutes; but with respect to broadcasting of music the courts have solemnly adjudicated, up to the Supreme Court of the United States, that the

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