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be subpoenaed and examined under oath as to the state of their business. Ex-parte statements should not be tolerated. Loose, vague, and indefinite statements are not evidence.

Representative HAMMER. Do you mean to say they are the proponents of this Dill bill?

Mr. BURKAN. They certainly are.

Representative HAMMER. I did not hear anybody but Judge Tuttle.

Mr. BURKAN. Judge Tuttle is in the pay of the broadcasters' association.

Representative HAMMER. Do they want to regulate the price we have to pay for the product of the mind which they broadcast and then come here and not tell us what profits they are making? Surely not.

Mr. BURKAN. They certainly refused to furnish a statement of receipts and expenditures. Mr. Harkness was asked by Mr. Esterly, of Pennsylvania, and by Mr. Bloom, “Would you care to tell the committee the cost and expense of your operations and your receipts?" And his answer was, “I prefer not to."

Representative WEFALD. I did not hear all of their testimony, but did not the officer infer here that one of the reasons why they were not making much money was because this association was holding them up?

Mr. BURKAN. Yes; that is right.“We are going to be put out of business” was their plea here. They did a business last year of $450,000,000 out of radio directly.

Representative HAMMER. How did you get that information?

Mr. BURKAN. Secretary Hoover said that. That is his statement. Now, that $450,000,000 represents moneys derived directly out of radio and indirectly it is $600,000,000. Let them deny it if they dare. Let the broadcasters submit their books, records, vouchers, statements of receipts, and expenditures to a subcommittee of Congress. Let such a committee examine them under oath. It is going to stagger the American people to learn what the radio industry is getting out of them for radio, radio tubes, etc., apparatus and from radio operations.

Representative WEFALD. Have the officers of the association put their statements in evidence?

Mr. BURKAN. Absolutely. Anything we have you can have. With us it is cards on the table face up. We have no secrets.

Representative HAMMER. You must have some little reservation to it.

Mr. BURKAN. There is not anything. Judge Hammer, I say to you now that we were investigated by the Department of Justice for iwo solid years. They have examined every book, every letter, every voucher, every paper, in our possession or under our control or custody. We opened our doors wide. Mr. Buck, Mr. Hein, and I visited Judge Seymour in the Department of Justice and invited him to investigate us. We told him people came before congressional committees and accused us of being monopolists.

Representative HAMMER. I believe you were even frank enough to tell what your salaries were here?

Mr. BURKAN. Yes; we did, and I will tell you now if you want to know.


Representative HAMMER. No; I do not.

Representative WEFALD. And you were found to be as guiltless as the aluminum people, were you?

Mr. BURKAN. I do not know about the aluminum people.
Representative WEFALD. Well, they got a clean bill of health.

Mr. BURKAN. But radio has not got a clean bill of health yet. They are this very minute under investigation by the Federal Trade Commission. The smartest thing the broadcasters did was to come down here and yell monopoly. They knew very well that when I got on my feet I would charge that this bill to compel the authors to take a fixed price for their creations was conceived and sponsored by the radio monopoly. They knew I would tell this committee about the charges made against them by the Federal Trade Commission and in a report of a committee of the House on a radio control bill, and how a small group pooled 200 patents, parceled out and divided the radio activities of this country among themselves. So they very cleverly anticipated me by reversing the tables and charging us as being the monopolists.

Representative HAMMER. I think you are trying your best to be. I am not saying you are doing wrong.

Mr. BURKAN. We got out of radio last year $113,000. I was in error when I told the committee we got $133,000. The radio industry directly and indirectly grossed $600,000,000. That's the best answer to our desire to be a monopoly.

Representative HAMMER. You did not get much, then.

Mr. BURKAN. Hardly. Now, let me say this: We have given them the right to broadcast the compositions of the whole world—not only those of American origin, but French, English, German, Swedish, Spanish, Austrian, and Italian, as well, for $113,000. Broadcasters told you 90 per cent of the programs they furnished was music. In the face of that they tell you that we are monopolists—we are going to stop them from operating their business and they are going to close their radio stations if they are compelled to pay us a fair and just compensation for our contribution to enable the radio industry to yield $600,000,000—compensation commensurate with the value of our properties.

Representative HAMMER. Would you mind telling me, if you recall, whether your receipts were greater last year from every source than they were for prior years?

Mr. BURKAN. Do you mean from the sales of sheet music? Representative HAMMER. I mean receipts from the sale of music. Mr. BURKAN. That I can not answer.

Mr. Buck. I have already answered that. That information is in the record. For mechanical and sheet music it is less.

Mr. BURKAN. Judge Hammer, there has been a lot said by Mr. Tuttle here as to the great service radio is rendering to music in popularizing and creating a demand for it and that for this “ plug” the broadcasters are receiving no consideration but are obliged to pay tribute to the composers. This is all irrelevant to the issue. The Supreme Court of the United States has held that when the Government appropriates for public uses private property, the whole value for it must be paid; and that value depends largely upon the productiveness of the property. The “just compensation” mentioned

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in the fifth amendment, viz, “Nor shall private property be taken for public use without just compensation," excludes the taking in account as an element in the compensation any supposed benefit that the owner may receive in common with all from the public uses to which his private property is appropriated. So that no private property shall be appropriated to public uses unless a full and exact equivalent for it be returned to the owner. (Monongahela v. Navigation, 148 U. S. 326.) So that if these composers have works that can attract $450,000,000 to the pockets of the broadcasters, what has the “plug" got to do with it?

Representative HAMMER. What is that?

Mr. BURKAN. By “plug” Mr. Tuttle meant pushing and introducing to the public the song.

Representative BLOOM. Mr. Burkan, in answer to Representative Hammer's question, Representative Esterly asked Mr. Harkness this question: "Would the witness care to insert in the record a statement of the expenses and receipts ?” Mr. Harkness said, “I should prefer not to. I do not think that has any bearing on the case. This is only one item of our expenses. We expend large sums for talent."

Mr. BURKAN. I should like to have the committee know that the activities of the society have been thoroughly investigated from time to time since it commenced its operations. For over two years it has been investigated by the Department of Justice.

A suit was brought in the Supreme Court of the Sate of New York, in and for the county of New York, to have it determined that the society was operating in violation of law.

The case was exhaustively considered by the court. It reached the conclusion that the American Society of Composers, Authors, and Publishers was exercising only its lawful rights; that the association was formed for lawful purposes; that the institution of legal actions for violation of copyrights standing in the name of its members was justified for the protection of income from their music; that there were no acts of illegality in the society protecting the rights of authors and composers in their musical productions, nor in granting permission to commercial users to pay all the musical compositions of all of its members for a fee, in accordance with the schedule prescribed by the society.

The court held that “the fact that the music of the authors who are members of the association is popular and in demand presents just so much more reason why it should be protected and its authorized use at public entertainment given for profit prevented.” (One

( Hundred and Seventy-fourth Street Amusement Co. v. George Maxwell, as President, 169 N. Y. Supp. 895. New York Reports.)

Representative HAMMER. Did it go to the highest court? Mr. BURKAx. It did not. Our opponents, a strong organization of motion-picture exhibitors, stopped there. The Motion Picture Theater Owners of America then filed a complaint against the society for violation of law with the Federal Trade Commission.

The complaint was considered carefully by the commission, and on January 1, 1923, the Federal Trade Commission dismissed the charges.

Representative HAMMER. They gave you an absolutely clean bill of health?

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Mr. BURKAN. Yes. sir; an absolutely clean bill of health. The decision of the Federal Trade Commission is already in the record of the hearings on the Dill bill of 1924, to free radio broadcasting of musical compositions from the copyright control, and no further action has been taken against the society by the Federal Trade Commission since then.

Now, here's what was next done: Timed with the hearings on the Dill bill of 1924, Mr. Tuttle filed a suit on the 8th day of April, 1924, in the United States District Court for the Southern District of New York, in the name of the firm of Waterson, Berlin & Snyder Co., a publisher member of the society, against Gene Buck, as president of the Society of Composers, Authors, and Publishers.

Waterson, Berlin & Snyder are manufacturers of phonograph records—the Cameo record and are also the owners or largely interested in the David Grimes Radio Co., a manufacturer of radio parts, sets, devices, and products.

The bill of complaint set up the articles of association of the society, and its manner and methods of operation, and charged that the society in the year 1923 undertook and maintained a vigorous campaign to compel broadcasting stations to procure from it licenses for the broadcasting of compositions in the repertory of the society and to pay the society such lump sums for such licenses as the society might charge; that the society was a monopolistic combination in violation of the laws of the United States and the State of New York, organized in restraint of trade, to compel persons desirous of obtaining the right to publicly perform copyrighted songs, to purchase or obtain such rights from the society at arbitrary prices fixed by it; and that the society, as organized, represents and is an agreement and combination between its members that competition in interstate and foreign commerce in the right to publicly perform the same for profit shall be and is eliminated.

The allegations of monopoly were set up in varying forms in six paragraphs of the complaint. The suit was vigorously contested. An application was made by Mr. Tuttle for a temporary injunction on the 9th of July, 1924. In support of the application was subInitted an affidavit by E. F. McDonald, jr., the then president of the National Association of Broadcasters, verified the 19th day of July, 1924, and a 33-page affidavit by Paul B. Klugh, the executive chairman of the National Association of Broadcasters, verified the 18th of July, 1924. In this affidavit Mr. Klugh thoroughly and exhaustively went into the controversy raging between the National Association of Broadcasters and the American society.

Other voluminous affidavits were submitted on both sides. Mr. Buck's affidavits have been reproduced in the record on these hearings.

The motion came up for argument before Federal Judge Knox on the 9th day of July, 1924. The motion was argued at great length, most thoroughly and exhaustively. The facts and the law were ably and forcibly presented on both sides. Mr. Tuttle exhibited the articles of association and the various letters, communications, paper writings, and every other bit of evidence produced before this committee that were used on these hearings and the hearings on the Dill bill in 1924. He laid the same stress and em

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phasis on each and every document, letter, and the evidence in the case as he did in these proceedings, and he argued substantially in the same way. He labored arduously to establish the fact that the American society was a combination in restraint of trade, organized to suppress competition, and operating in violation of law.

I not only argued and answered each and every one of his contentions, but also submitted a voluminous brief upon the facts and the law.

We described the story of our origin—we explained the necessities for our organization-we related the manner of our operations and the means utilized by us for enforcing the rights of our members against organized piracy,

But Mr. Tuttle asked the judge for leave to file additional papers, which he never did, and he never pressed the motion to a decision.

The case was on the call calendar for trial on November 30, 1924, and appeared several times thereafter, but Mr. Tuttle did not want to try the case and put it off, and let the case die a natural death.

Representative HAMMER. A good lawyer never does want to unless he has a good case.

Mr. BURKAN. He knew very well that we wanted a Federal decision to settle once and for all the question of our right to operate. It was to our advantage to know whether or not this group of com. posers and authors was a monopolistic combination in violation of the laws of the United States and of the State of New York. Because these men are decent, self-respecting, law-abiding citizens and honorable men, men of the type of John Philip Sousa, Victor Herbert, and Irving Berlin. We wanted a decision. The broadcasters knew quite well what the result of that litigation would be, and they did not dare to press the case to a decision, because it would stiffe forever their principal argument against us, that we are a monopoly.

We showed by the act of January 6, 1897, that Congress secured to a musical author the exclusive right to give public performances of his copyrighted musical composition.

Notwithstanding such law, the rights of the composers were infringed by thousands of theaters, restaurants, hotels, cabarets, and other places of amusement throughout the country, the nature of the infringements was so ephemeral, fleeting and fugitive, that the copyright proprietor could not properly obtain evidence to prosecute the piracies.

The cost of obtaining evidence, and the cost of litigation, were prohibitive. The infringements were never limited to a single composition, but were always multiple infringements of a number of distinct copyrights nightly.

The commercial users of these rights were strongly entrenched, well-organized, in local, State and National associations, strongly financed by voluntary contributions of its members, and protected by counsel who were paid out of the common treasury called “defense funds."

All these organizations fought for the right to perform music at their places of business without compensation, restriction, or limitation whatsoever.

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