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that individual may claim a residence and there bring a suit, or else, as was suggested by the chairman this morning, bring the suit in the district in which the owner of the copyright may reside, his service upon this vender on the street is almost an impossibility.
The CHAIRMAN. Suppose that is changed and amended so as to provide this, “that actions arising under this act may be instituted in the district of which the defendant or his agent is an inhabitant or may be found.”
Mr. STEUART. That is right.
Mr. BONYNGE. That is the language of the statutes of the different States.
Mr. STEUART. That is entirely correct.
Mr. STEUART. That would be entirely satisfactory to us. It would give the fullest remedy.
Mr. WELLMAN. May I ask, Mr. Steuart, if that would protect the rights of dramatic composers as well as they are protected under the present law? I ask the question in the absence of Mr. Bronson Howard, my colleague, as vice-president of the American Copyright League and in the interests of the Dramatists' Club.
Mr. STEUART. I understood the chairman to suggest that the clause contained between lines 10, 11, 12, and 13 only should be amended.
The CHAIRMAN. That is right.
Mr. STEUART. Did you also refer to the erasure of any other part of the section?
The CHAIRMAN. Those are the only lines I had in mind at the time.
Mr. STEUART. That would give all of the existing language of the act (4966) which is now the dramatists' section. In section 33 it has been suggested that that section as it is now drawn would cut off the appeal to the Supreme Court of the United States. I can not so read the section; it was not so intended. If that is the interpretation which can be placed upon it it must be altered, because there is now an appeal as of right from the circuit courts of appeal in copyright cases to the Supreme Court of the United States, and it is desired to retain that right of appeal. The section is that the final orders, judgments, or decrees of any court mentioned in section 32 of this act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases finally determined in said courts respectively. Now, it was intended by that language to preserve the right of appeal.
Mr. BURKAN. Under the present statute, if a motion for an injunction is granted, and an order granted, we may appeal to the circuit court of appeals from that order; but the way the act reads now we would be deprived of that right to appeal, because an injunction order is not a final order; it is interlocutory. I therefore suggest that that be stricken out. It is very important to the defendant in some cases, if an injunction is granted and the defendant feels aggrieved, that he should have the right to appeal.
Mr. STEUART. That is provided for by existing act of Congress. I do not think this would change it.
Mr. BURKAN. That is the question. Might it not be contended that this statute wipes out the other act of Congress?
Mr. STEUART. It is not desirable to take interlocutory orders up. What you want to do is to take up final orders. If you
leave it as it is it will only apply to final orders, and it will leave the existing statutes which now provide for an appeal in interlocutory cases stand.
Mr. BURKAN. But when this Congress enacts a law and provides that appeals on copyright cases shall be only from final orders, judgments, and decrees Mr. STEUART. This does not
that. Mr. CURRIER. They are asking now for legislation allowing them to take an appeal on interlocutory orders.
Mr. BURKAN. Yes; but the act does not grant that.
Mr. STEUART. There is an act of Congress now which does grant it and which will not be affected by this clause.
Mr. BURKAN. I think it will.
Mr. BURKAN. This is my construction of section 33, that the final orders, judgments, or decrees of any court mentioned in section 32 of this act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases finally determined in said courts, respectively, so that all copyright cases would be covered and controlled by this section.
Mr. STEUART. All final orders.
Mr. BONYNGE. We could say that interlocutory orders may be reviewed, as provided by section so and so.
Mr. BURKAN. I might suggest that the orders, judgments, or decrees, etc., may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in such courts, respectively," simply striking out the words “ final” and “ finally.”
Mr. BONYNGE. Would not that prevent an appeal or a review on any interlocutory order, whether an injunction order or not?
Mr. BURKAN. That is true but
Mr. BONYGNE. You would not want to have every single order that might be made in the action reviewable by the appellate court.
Mr. BURKAN. As I understand the rule to be to-day, at least in the United States court in the New York jurisdiction, it is that any order that involves a substantial right is appealable.
Mr. BONYNGE. This would not be limited to that, but would allow an appeal from every order.
Mr. BURKAN. Why not say interlocutory order, or from the order granting or denying a motion for an injunction. It might be construed as permitting an appeal only in those cases, only from final orders. That is the danger, because you are providing for appeals.
Mr. CHANEY. It would undoubtedly be important in a case like this that in the case of an injunction you should have the right to go into the Supreme Court.
Mr. BURKAN. Yes.
Mr. WALKER. Mr. Chairman, I think Mr. Burkan is exactly right for once [laughter], and if that section is amended by canceling the word“ final," in line 24, section 33, and the word “ finally,” in line 3, on page 28, and amended by changing “determined, page 28, to "pending," then the operation of the section will be to relegate this subject entirely to existing law in respect to appealable orders or any one appealable order, so that when the court is asked to grant an appeal or not grant an appeal, it will be directed by this section to look at the existing law.
Mr. BURKAN. Exactly.
Mr. WALKER. Whereas if the section stands as it reads here now, it will be considered that only final judgments or decrees in copyright cases shall be appealable, and the general law heretofore existing will be considered as being modified to that extent in copyright cases.
Mr. SOUSA. Mr. Chairman, I would like to ask in that case what would happen if this bill became a law before the decision of the Supreme Court of a case that came from the circuit court of appeals! Suppose this present bill is passed by Congress, and then we will say that in a month or three months from now a case now before the Supreme Court should go there and it should be decided that under the Constitution we have rights in our compositions, can we recover for that damage which occurred before the passage of this present law ?
Mr. STEUART. No; you could only recover penalties which were in the law at the time the infringement occurred.
Mr. SOUSA. Will you kindly try to reconcile this for me? In the present copyright law it says that the composer or author shall have the opportunity of printing his composition. As I understand this decision, which I have in mind, it says that the machine or musicplaying device is publishing the composition by producing musical sounds. Who publishes it? The machine does not do it any more than a gun shoots itself off. The man put that record on there, and if we lose that case we lose all of that money.
Mr. STEUART. That is a question you will have to ask the courts. Mr. Sousa. That was in this decision published, and it so says. Now, the machine did not run around and take this up; it did not take my compositions. If I depended on the machine doing it, it would never be recorded; but these gentlemen have these machines, and I think you ought to look into that and make it so that if the court decides that “writing” means exclusive property that we will get something for a sort of back action. [Laughter.] ]
Mr. STEUART. Mr. Chairman, I am very much obliged to the committee for giving me the attention that it has, and I will not occupy any more time.
Mr. CURRIER. Mr. Steuart, what was the purpose of the peculiar phraseology of section 64?
Mr. STEUART. To satisfy some of the good gentlemen of the Dramatists' Club, that all the provisions of section 4966 were in the present act. That was all. We thought we had them all in; we believed we had, but they had some fear that some of them might have been left out. That was the reason.
(For memorandum of the committee on copyright and trade-mark of the association of the bar of the city of New York, prepared for the joint committee of the Senate and House in reference to the pending copyright bill (S. 6330, H. R. 19853), see Appendix, pp. 403– 410.)
STATEMENT OF MR. JEREMIAH J. SULLIVAN.
Mr. SULLIVAN. Mr. Chairman and gentlemen, we have received such generous consideration from your respective committees in the past that I have refrained from taking up any more of your time at this hearing, or at any of the previous hearings than possible, but I feel that in order to reply to some harsh and unjust criticisms which have been made upon our bill and also in order to introduce a slight change in the manufacturing clause of the law, that I should take at least five or six minutes of your time. I now refer to the proof copy, on page 44—–
Mr. CURRIER. What section is that, Mr. Sullivan ?
Mr. SULLIVAN. Section 13, the last two lines on page 44, in the proof copy. There have been some criticisms made in regard to the manufacturing clause of the law. These are the opinions of two gentlemen in regard to the manufacturing clause, and I wanted to say, in regard to those comments, with your permission—I wanted to ask if those gentlemen were aware that less than six months ago a series of American school books of the standard series now used in our public schools was imported from Japan into the port of San Francisco, invoiced at 850 per cent less than they could be put upon the American market by the American publishers, and to inquire in view of that importation whether they then used the word “canceled as applying to the manufacturing clause or to their own business, for I am positive that with the importation of such books at 850 per cent less than they can be produced by the American publishers, that inside of five years 95 per cent of the American publishers will be also canceled.
Senator Smoot. Well, those books were not allowed to enter the United States, were they?
Mr. SULLIVAN. They would have been allowed entry only that they carried false notice of copyright. They stole the American copyright, and the only reason they were refused entry into the United States is because they stole the copyright. Otherwise they would have been allowed entry here.
Mr. CURRIER. They took the plates over there to Japan. The plates were made here.
Mr. HINSHAW. Were they undervalued ?
Mr. SULLIVAN. That could not be proven. The collector of the port held them up, in the first instance, I believe, because he thought they were undervalued, and he then found the American copyright had been stolen. The only reason they were not allowed to come in was because they carried a false notice of copyright.
Turning to page 51 of the proof copy the only other criticism I wish to refer to
Mr. CURRIER. That is what section?
Mr. SULLIVAN. Page 51 of the proof copy, section 13, and this criticism is declared to be, or our legislation is declared to be outrageous. In reply to that I wish to say that, representing 50,000 American typographers and other interests in the printing business, we repudiate that assertion. That is a term often applied to our people for want of a better argument. I furthermore want to say that this same outrageous legislation has been submitted to the judgment of the Senate and House Committee on Patents, and that the Senators and Representatives have passed judgment upon it, and that they have reported it favorably, and that it has already passed one branch of Congress; and I am positive that if there was anything outrageous about it it would not have received your approval. I think that the marksman aimed low and shot high in that instance. That is all I wish to say in regard to the criticisms, because the other simply extends the manufacturing clause of the law.
Now, Mr. Chairman, the position that we have taken has been found necessary by our interests, and while we have been criticised, we have had some very cordial friends criticise us, believing our position was not justifiable. I have passed up for your consideration a publication of the United States Government, the bulletin of the United States Department of Labor, which on page 112 shows a printed chart carrying the average hourly rate of the American typographer, the English, the German, the French, and the Belgian typographers. Our wage rate in 1904, from statistics furnished by one of the most reliable Departments of the Government of the United States—the United States Bureau of Labor-gives it at 45 cents per hour. The average of the English, the German, the French, and the Belgian printers is found to be 11 cents per hour. Now, I have had representatives from the French and German authors, the officers of the English publishers, come to me and ask that the American typographers modify or eliminate the manufacturing clause of the law. And they have put up the cold blooded proposition that if we eliminate the manufacturing clause of the law they will bring their books over here and have us print them. I respectfully submit to you that it is not reasonable for a moment to believe that the German, the French, or the English publisher or author will bring these publications over to the United States, where the cost of manufacture is 300 per cent more than it is at home, and have their work done here. I have told them upon all occasions that when the truth of their logic percolated through my brain I would give them my answer, and that will never be given until the tea time of everlasting sundown. As American printers we claim that the manufacturing clause of the law is the only barrier that stands between us and competition with the European typographers.
The CHAIRMAN. Do I understand, Mr. Sullivan, that you wish these sheets to be incorporated as a part of your remarks?
Mr. SULLIVAN. As a part of my argument. I request that that plate be made a part of the record.