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The CHAIRMAN. Have you any other suggestions you wish to inake?
Mr. WALKER. I wish to speak about the subject of the musical branches of the bill.
The CHAIRMAN. That is not at present under consideration. Mr. WALKER. No; I understand that. The LIBRARIAN. I think Mr. Ansley Wilcox, of Buffalo, would like to submit an amendment and some comment which will be appropriate here, perhaps.
STATEMENT OF ANSLEY WILCOX, ESQ., OF BUFFALO, N. Y.
The CHAIRMAN. Will you not state your name to the stenographer?
Mr. Wilcox. Ansley Wilcox.
Mr. Wilcox. I am here representing a number of large lithographic concerns who are united under the name of the Consolidated Lithograph Company, and whose business, besides the general production of lithographic prints and illustrations and a general printing business, is principally that of poster printing-printing large illustrations.
The CHAIRMAN. How much time do you wish ?
Mr. Wilcox. A very few minutes, sir. Five or ten minutes will be enough for the definite suggestion which I have to make.
Quite aside from my representative capacity, Mr. Chairman, I have become, in attendance upon the conferences and in attendance here yesterday and to-day, interested in various features of this bill; and I have some suggestions which I shall venture to make, either orally or in writing, which do not specially concern my clients, but simply grow out of my interest in the subject and my desire to promote what I believe to be an admirable effort to improve the condition of our law of copyright.
Originally the clients whom I represent, as manufacturers of lithographic and other prints, and seeking to improve the conditions of that business and to improve and render more artistic the work which they put out to the public and persuade the public to buy, were concerned with the draft of the proposed bill as issued last spring, and were not satisfied with the provisions which it contained for the protection of their manufactures-prints and engravings. At present they are satisfied with sections 4 and 5 of the bill—amply satisfied that their products are completely protected. They were anxious about that subject because they had recently been parties in a very important litigation in which I was concerned, and in which the court of first instance and the circuit court of appeals had held, substantially, that posters were not copyrightable at all, and threatened to undermine the security of their entire business. That was the case of Bleistein v. Donaldson, which I brought for the Courier Company, of Buffalo, or for Mr. Bleistein, its president, in the circuit court for Kentucky, and in which the judge, instead of assessing our damages as a matter of course, as we thought he was going to do, threw us out of court upon the ground that our posters were not subjects of copy, right at all, on the ground that they were not highly artistic and original works and did not satisfy his artistic taste. The circuit court of appeals affirmed that judgment, and it took an appeal to the United States Supreme Court to reverse it. It was reversed there by a ourt divided against itself, by a vote of seven to two. Senator MALLORY. That is not unusual. [Laughter.]
Mr. Wilcox. Having just been through that experience, we are very anxious that no change in the copyright law should undermine the copyrightable quality of these posters and prints upon which our entire business depends, and that is sufficiently assured by the language of the bill as it stands to-day.
But our experience in this suit led us to one practical view of the matter which would seem to be directly contrary to our own interest, and yet which is in our own interest, and also, as I believe, in the interest of justice. That is connected with the question of damages — the liquidated damages which the law, as it stands to-day, allows to be recovered in such cases, and which the proposed law undertakes to modify.
Our experience in that case is instructive. I sent a representative of my firm to Covington, Ky., to enforce our remedy, and attach or seize a number of piratic prints reproducing some prints which we had copyrighted, on which we had three different copyrights. He found there 30,000 copies of these prints, which were seized immediately by a process in the nature of replevin. Incidentally I may say, in connection with the remarks which have been made here within the last few minutes with regard to the provisions of this bill which permit the impounding of matter of a piratical character infringing copyrights, that the present law permits that, and did permit it in the case I speak of. We absolutely seized, by replevin, 30,000 copies of infringing prints; and the penalty fixed by the present law is $1 a copy, or $30,000. I believe that the reason why we failed to succeed in that case in the court of first instance was that our penalty was so large, and that if we had had a penalty of a smaller amount the judge would have looked at the thing in a different manner, and might have been willing to have found that we were protected by the copyright law if we had not been protected to such an extravagant extent. The damages, of course, were altogether incommensurate with any suffering which we had endured or with any profit which our opponent had derived from the practice.
It was in view of that experience that the suggestion was made last spring that the penalty should be cut down to a maximum not exceeding $5,000, and that there should always be a minimum penalty of some kind, which has been put into the bill as now before you at $250, so as to afford at least some compensation to a party who has to sue an infringer in another jurisdiction—that something should be given to him even if he seizes only one or two copies of an infringing print or publication of any kind; and that he should never be allowed damages which would frighten the judge or frighten the jury into trying to defeat the law, which is substantially what happened, I think, in our case.
Senator MALLORY. May I ask you a question before you go on?
Senator MALLORY. Is it your experience that the present law permits a party whose copyright has been infringed to take possession of the pirate's articles of pursuing his occupation?
Mr. Wilcox. There is distinct confusion in the law, as I understand it, and in the rulings of the courts upon that subject to-day. I have been asked since I came down here by lawyers from other jurisdictions how the present law is enforced, and whether the new law should not contain more explicit provisions as to how the infringing articles should be impounded.
I think it should, Mr. Chairman and gentlemen. I think the law should state distinctly in what way and by what process the act of the court in impounding the articles which are claimed to violate the law should be enforced—whether it should be by replevin or by attachment or by some special process. My experience in that case was that the remedy by replevin worked in our instance, but it was a matter for very serious thought with us as to how we should go about exercising the remedy which the law gave us in general terms to seize the infringing articles. We did not know, and we had to reason it out by a study of the common-law jurisdiction of the courts in Kentucky and their remedy by replevin. We came to the conclusion that that was the nearest process that we could find, and we proceeded by an action in the nature of replevin at common law, and gave a bond and replevied the infringing prints, and got the marshal
Mr. CURRIER. Did the court hold that you should do that, or did it pass on that point ?
Mr. Wilcox. That particular question was not raised, sir; but they raised every question that they possibly could, and I think they were satisfied that it was the proper remedy in Kentucky. But I am advised that that particular remedy, has been denied in other jurisdictions, and that there is confusion in the law as it now stands. If so, I think the new law should state how the impounding process should be made effective and just exactly what remedy the court will allow parties to use.
The CHAIRMAN. Have you an amendment which you wish to sug
Mr. Wilcox. In that particular, sir, I have not. The amendment I
propose to offer is in respect to the phraseology used in section 23, in subdivision b of the bill, in respect of the measure of damages. I had hoped to have a chance to talk to Mr. Steuart and the gentlemen who were responsible for drafting the bill, in advance, and to submit this to them and find out their reasons for the phraseology which they have used, but I have not been able to do it, and therefore I submit this now to the committee for consideration by the committee and others:
Substitute for the last half of subdivision b, beginning in line 12 with the words “or in lieu thereof.” As to the first part of subdivision b, Mr. Chairman, I would like to say that I have heard it severely criticised, and I do not join in any of the criticisms upon it, except to say that ordinarily, in my experience, it will be inef
fectual anyhow. So far as I have been able to observe, it is very seldom possible for the people who claim an infringement of copyright either to prove any very large or very material damages on their part or to prove any considerable profits on the part of the other party. And I think that that remedy, that portion of the remedy by way of damages, will very seldom be available, and that the statute ought to provide liquidated damages, or it will be ineffectual; and that the liquidated-damage provision should be made definite and explicit and at the same time so reasonable that it will not frighten either a court or a jury in the other direction, as I have said before.
In that view I propose to substitute this for the last six lines of that subdivision as it stands:
Or in lieu of such damages and profits the plaintiff may elect to claim and thereupon may recover as liquidated damages, and not as a penalty, an amount to be assessed as hereinafter stated, but such damages shall not in any case be less than $250 nor more than $5,000, except that where a wilful or intentional infringement is found the court, in its discretion, may double or treble the liquidated damages, even though this may raise the amount above $5,000.
And then following that, Mr. Chairman, in subdivisions 1, 2, 3, and 4, where the different amounts are stated, and where in each case occur the words “not less than," I would strike out the words “ not less than," so as to make the amounts definite, distinctly liquidated damages. In each of those subdivisions it now reads that the damages shall be not less than $10, not less than $50, not less than $100, and so on.
The CHAIRMAN. You can make it a sum absolute?
Mr. Wilcox. A sum absolute as liquidated damages, as what we lawyers understand to be liquidated damages, with a maximum of $5,000 and a minimum of $250—liquidated damages between those sums, but with the power on the part of the court to double or treble the damages in case of a willful and intentional violation of the law.
Senator MALLORY. Do you mean by that that the judge may, on his own motion, raise the amount of damages?
Mr. Wilcox. On motion of the parties, I assume, not on his own motion, the judge may double or treble the damages.
Senator MALLORY. Do you take that matter away from the jury? Mr. Wilcox. No, if the jury has assessed damages.
Senator MALLORY. If the jury has assessed damages, say, at $500, you say the court
Mr. Wilcox. The court may, upon motion, upon a finding of wilful wrongdoing—that question could be submitted to the jury as a special question, whether or not the infringement was willful and intentional.
Senator MALLORY. The point I want to get at is whether the use of the word court there does not confine it to the judge as to increasing the damages!
Mr. Wilcox. I suppose, sir, that the ordinary practice is—it is with us in the State of New York—that where double or treble damages are provided for, the jury finds single damages, and the court may double or treble them.
Senator MALLORY. The court may fix the doubled or trebled damages!
Mr. Wilcox. That is the practice with us in the case of willful wrong, and I am following in this suggestion the practice which is quite familiar with us in our State practice in New York (and I supposed it was generally familiar to the bar), in having the jury assess ordinary damages, either in the actual amount or on the basis of liquidated damages, and having the court double or treble the damages in case of willful wrong-doing, by way of smart money or additional compensation.
The CHAIRMAN. The jury finds the fact of willfulness?
Mr. Wilcox. I think that question should always be submitted to the jury as a special question, and let them find whether it was willful or otherwise.
Mr. Chairman, by way of comment on the section as it stands to-day I confess that I can not understand it. I have studied it and puzzled over it, and I do not know what its effect would be. It reads“ or in lieu of actual damages and profits.” I do not like the use of the word “ actual” there, because liquidated damages are supposed to be actual damages, too“ or in lieu of actual damages and profits, such damages as to the court shall appear just.” That appears to contemplate that the court shall assess the damages, which is contrary to my idea of the ordinary practice. I do not know precisely what the gentlemen who put that language in there 'meant by it—" to be assessed upon the following basis." Then come the maximum limit of $5,000 and the minimum of $250; and then, when the basis comes to be set forth in each case, it says not less than $10,” thus imposing on the court a minimum amount with no maximum amount at all except the general maximum of $5,000, and leaving the court to assess the damages.
Now, frankly, I do not know, after some considerable study that I have given to the bill, just how that system would work out. And I have attempted to substitute for it a system which is more comprehensible, to my mind as a lawyer, and which I think would work justice to the complainant (and so far as I am here in a representative capacity, I am representing persons who expect, if at all, to be complainants in such lawsuits), and yet which would be so far from unjust to possible defendants that we would find our remedy efficacious, and not be misled by it as we were in the other suit that I spoke of.
Mr. CURRIER. Can you suggest any modification of paragraph c and paragraph b of that section, as to the impounding?
Mr. Wilcox. I have made the suggestion already, Mr. Chairman. Mr. CURRIER. Those are rather drastic provisions, are they not?
Mr. Wilcox. I do not think that is drastic at all. I do not think it is any more drastic than the present law; certainly not any more drastic than the present law was in our case. We gave a bond of $250, upon which we seized 30,000 copies of infringing prints, and put a stop absolutely to the defendant's sale or distribution of those copies at that moment. Of course we were liable on our bond, and they had the ordinary remedy to move to increase the bond, which they did not do in that case.
Mr. BONYNGE. Is there any provision in this bill for giving bonds when these goods are impounded? Mr. Wilcox. None whatever, sir; neither is there in the present