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Mr. SOUSA. I can not understand why you want to compel me to do something when I can not compel you to do something.
Mr. BURTON. I think Mr. Sousa looks at the matter from the wrong standpoint. It is not proposed to compel either to do anything. It is proposed to offer him something which he is not now getting.
Mr. SOUSA. One of the great points in this matter is the confidence I have in my publisher. I can go to sleep at night with the feeling that the next morning I am going to get what is due me. Suppose that under this law you have some scoundrel who will take my composition and not pay me for it. I have no redress, for the law compels me to give it to this man.
Mr. BURTON. You have the royalty which has accrued, or if they have taken it without the payment of royalty, you have a chance to sue an irresponsible person for damages. The scoundrel could take it before without your consent, and this provision would give you a definite right of recovery.
Mr. SOUSA. But if this law passes without that provision it would also give me a right to recover.
Mr. BURTON. I have presented the reasons which seem to me to be controlling ones in regard to the requirement of allowing any cutter to have the liberty to take any music he desires, namely, that the conditions of this trade are such that the moment you leave the matter open so that one house can obtain a recognized superiority in regard to its ability to use these rolls the whole trade will turn that way, and you do not secure the ordinary results of competition. You can not do that in this industry.
Mr. SOUSA. It is true that the whole bugaboo of this matter is found in this infernal Eolian business, but that condition does not obtain in the publishing business in this country.
Mr. BURTON. But the conditions are not the same in the publishing business.
Mr. JOHNSON. Why not?
Mr. BURTON. Take the school book publishing houses, for illustration. We will say that a given school must obtain all of its books from one house or another, as it pleases. Assume that such a condition exists. Then the house that has no arithmetic is out of the field; but that house can get an arithmetic, and it is only a question how soon it will overcome the disadvantage and be on a par with its competitor. And the fact that it needs one will bring the arithmetic author to it, for it is then their natural market because it needs their work. The contrary is the case in the instance of the automatic music business. The house that has already the best equipment of music is the one to which the composers will all go with their new works. If one house controlled, let us say, for convenience of comparison, 80 per cent of the production, it would have a good musical equipment and would immediately draw all of the composers to it, because it would have a larger number of customers, and would have a temporary supremacy. The result of that supremacy would be to draw purchasers, and then further composers would go to it. It is not like the ordinary conditions in ordinary competitive business.
Mr. SOUSA. But under the patent laws there is an enormous amount of litigation in the attempt to stop men from getting out their patents, but there are continually new patents coming out. Do you as
sume to tell me that when they get up an invention of that kind they are going to stop inventions?
Mr. BURTON. But the composers will go to the house that has the advantage.
Mr. JOHNSON. That is no advantage to the house. This bill does not say that the Eolian Company has got to have it and that the Edison Company is not to have it. It does not even say that your firm has to have it.
Mr. BURTON. I think the point has not been grasped. If the composer can grant an exclusive license, then the house that gets the most of this business becomes dominant. My proposition is, therefore, that the composer shall not grant it to an exclusive licensee, but that the right shall be open to all who pay the royalty.
Mr. JOHNSON. Take the case of Mark Twain, whose works are published by Harper Brothers. Would you, under the law, compel Mark Twain to allow the Century Company to publish his books by paying him the same royalty, and allow Putnam to do the same thing, and any other publisher to do the same thing?
Mr. BURTON. No; because the man who buys Mark Twain's book at one house can buy another author's books at another house if he desires, and so complete his library to any extent, and that is not true with reference to these perforated music rolls.
[For substitute draft submitted by Mr. Burton, see Appendix, pp. 411-426.]
Mr. JOHNSON. But you want Mr. Sousa to be compelled to sell his compositions to anyone who will pay him the royalty. Now, why could we not get Mr. Sousa's compositions from one house and Mr. Herbert's from another and Mr. De Koven's from another. The fundamental error, Mr. Chairman, in this provision is that the public in some way has a right to have Mr. Sousa's music. Under no construction of our policy, as adopted in 1891, has the public any right to have Mr. Sousa's music any more than it has the right to have the horse of the chairman. There is a communistic principle back of all this agitation for a license to do something with a man's work which the Constitution has reserved to him, and I tell you, gentlemen, that you can not trifle with that principle. We are now in a condition of affairs in this country in consideration of property when it is absolutely essential that every constitutional enactment, every constitutional outgiving, shall put the right of property where it belongs. I say to you that this is a communistic principle, to say that the country has a right to take Mr. Sousa's music when it has not the right to take my books.
I am about to go to New York in a few minutes, and I beg your indulgence to say this: We are here to protect the essential principle of property in literary, artistic, and musical productions, and in any other intellectual productions, and you can not trifle with that principle. You must not pass a bill which does not recognize that principle. I am very glad to think that the committee is in earnest about this matter. I say to you that the principle is eternal, and it will only be a little while, if this bill is not passed, until the principle is adopted.
There is no such thing as a nonexclusive copyright. It is pettifogging on the part of the gentleman to say that, because Congress has provided certain ways of registering a copyright, that is in no
way an infringement or limitation of his copyright. As Mr. McAdoo said in his great speech in the campaign of 1891:
Mr. Speaker, the first copyright law was written by Moses on tablets of stone" Thou shalt not steal." Even at that time these men who were engaged in using the writings of others were properly called pirates, because they preyed upon the brains of other men. I remember that Charles Dickens, when he came to this country and saw the son of one of his publishers; said to him: "What a nice little boy you are, and your father is the greatest pirate on earth."
I mince no words in dealing with these gentlemen who come here to overthrow the rights of the musical composer. Fifteen years ago this thing was made shameful, and it has been going on ever since. They would not be in court to-day if there had been such a thing as a mechanical reproducer of music; but they come here now and ask you to give them a license to prey upon the works of those men who are an honor to their profession and an honor to America.
We are just now forming in this country a school of music. We love music in this country. Our operas, our concerts, and our theaters are well attended. We have the musical taste, but we have not yet produced a school of music. I say it is most important that nothing should be done by this committee to keep from musical composers the encouragement which has been extended to and which has operated so well in the case of the literary man and the artist.
The CHAIRMAN. I want to interrupt here to ask Mr. Cutter one question. Do you claim that Congress has the power or authority to prevent the making of a contract such as you have read from this book?
Mr. CUTTER. No, sir; I only want you to understand that this bill should be so drafted that such a contract should not be legalized. The CHAIRMAN. Has Congress any power to declare it an illegal contract?
Mr. CUTTER. I understand it has been so declared by the courts. The CHAIRMAN. Before you begin, Mr. Walker, let me state to you that it is now half past 2 o'clock. The committee will be in session until 5 o'clock, and then take a recess until half past 7. It will continue its session until the five hours which you gentlemen have requested is exhausted. You are to divide your time as you see fit. The committee will then adjourn until to-morrow morning, at 10 o'clock, at which time it will hear Mr. Mauro for thirty minutes and Mr. Adams for thirty minutes. At the expiration of that time public hearings will be finished.
The LIBRARIAN. Mr. Chairman, I have a communication from Mr. Davis, who has applied for leave to be heard in behalf of certain inventors, in which he informs me that Judge Walker will express what he had intended to say in that behalf.
The CHAIRMAN. Let his communication be made a part of the record.
The communication referred to is as follows:
WEST ORANGE, N. J., December 7, 1906.
To the Senate and House Committees on Patents:
During the interim between the last hearings and the present ones upon the copyright bill, I have devoted much time and personal funds in efforts (1) to prepare a brief of my oral arguments before your committee on June 8 last and furnish evidence substantiating the charges made by me at that time; (2) to ascertain the consensus of opinion regarding paragraph g, section 1 of
the proposed bill, of leading inventors whose rights will be mostly affected thereby; (3) to create such an organization or association of inventors as would entitle us, under the ruling of Mr. Putnam, to notice of and admission to future conferences (secret and public) in which our interests are discussed with legislative ends in view by salaried officials of the Government.
Until late last night I had hoped to be able to appear before you to-day in person and ask you to again indulge me as a representative of numerous American inventors, but most unfortunately for me and for the cause I would plead, I am incapacitated for traveling as a result of a recent operation. In order to meet the contingency arising from this unforeseen circumstance, I am just sending the following telegram:
"WEST ORANGE, N. J., December 7, 1906.
"Register of Copyrights, Washington, D. C.:
"Illness incapacitated me from appearing in person at the present hearing as the representative of numerous inventors whose interests are threatened by the proposed copyright bill. It would be agreeable if Mr. Albert H. Walker would be allowed time in which to plead our cause specially. Please ascertain if the Committees on Patents will grant this favor, and Mr. Walker will gratuitously and on this short notice serve a large class of inventors who look up to him and Congress to save them in this emergency. Wire me results. Mailing letter to Mr. Walker and appeal to committees later to-day. "G. HOWLETT DAVIS."
It was my intention in my further oral arguments, had Providence and your gracious and honorable committees permitted, to have presented and urged the following points:
(1) That my failure to submit a brief of my former arguments, under the authority kindly extended by you, is due to the fact that Messrs. Walker, O'Connell, Cameron, and the other eminent speakers who spoke after me practically made my brief. The four contracts, copies of which are printed in the record of the former hearings, embody two of those referred to in my argument, and the record embodies such an exposé of these contracts and other matters as to completely justify my charge that collusive elements have been at work behind the drafting of the bill."
(2) That all of the inventors with whom I have conversed concerning the bill look upon paragraph g, section 1 thereof as iniquitous, and that the great majority of them object to paying composers a royalty under any circumstances or conditions because of the facts set out in my former arguments, and because of innumerable other reasons which can be advanced.
(3) That my failure in organizing those inventors whom I represent into an association is due partly to lack of time and funds, but mostly to the sublime confidence which they have in the stability of our laws and in their Representatives in Congress.
As an amendment to the bill I urge the cancellation of paragraph g, section 1, and of all other words, clauses, and paragraphs which include mechanical devices, and as a substitute therefor, preferably to appear at the end of the bill, the following:
"Provided, That the expression works' shall not, for the purposes of this act, be deemed to include perforated music rolls used for playing mechanical instruments, or records for the reproduction of sound waves or the matrices or other appliances by which such rolls or records respectively are made."
The above is a literal redraft of a part of section 3 of the British musical copyright act, passed in August of this year, and which had been pending fifteen years.
Are the English inventors any more worthy of protection than we who lead the inventors of all nations?
Will you change conditions which have existed for one hundred and nineteen years?
G. HOWLETT DAVIS, Inventor
WEST ORANGE, N. J., December 7, 1906.
Mr. THORVALD SOLBERG,
Register of Copyrights, Washington, D. C.
DEAR SIR: In conformity with my telegram to you of to-day I inclose herewith for transmittal, a communication addressed to the Senate and House Committees on Patents.
I am mailing in your care a copy of the communication referred to, to Mr. Albert H. Walker, not knowing his address in Washington. I trust that you will be able to effect a prompt delivery of this letter also.
Thanking you in advance for your action in these matters, and trusting that you may find it convenient to give me some information as to the progress of the hearings from time to time, I remain,
G. HOWLETT DAVIS.
The CHAIRMAN. How much time do you desire, Mr. Walker?
STATEMENT OF ALBERT H. WALKER.
Mr. Chairman and gentlemen of the committee: I appear before you to-day upon this bill, for the second time, in the same capacity in which I appeared before you in June. I appear before you as inventor, as author, as lawyer, and as the representative of many inventors and of a few manufacturers. Nearly all of those whom I represent I represent gratuitously, for they appealed to me as friend, philosopher, and guide, probably on account of my white hairs, to plead their cause before this honorable committee; and I am going to do it the best I can. There is only one party that is contributing to the expenses of my trip to Washington, and that is the Auto-Music Perforating Company of New York, which is pecuniarily interested in the automusic features of this bill.
I have no private interests to promote. Indeed, my own private interests would be much promoted by the passage of the bill exactly as it stands; and its indefinite postponement would be detrimental to my own interests; but I favor its indefinite postponement, and I oppose its passage. I do this as a jurist, as an author, and as a friend of constitutional law.
My brethren on the other side do not monopolize devotion to ethics. I am fond of ethics myself. I am opposed to the passage of this bill on any one of three grounds, and each of those grounds, in my judgment, is fatal to the propriety of the bill.
I will address myself to that part of the bill which undertakes to dominate mechanical musical instruments by the copyright laws of the United States. That is the part of the bill I am opposing today. I oppose that part of the bill on three grounds: First, on the ground that it is unconstitutional-plainly and undeniably unconstitutional; second, even if it were not unconstitutional it is flagrantly unjust; and, third, even if it were not unconstitutional and flagrantly unjust it is opposed to public policy. My observations will consist in an attempt to enforce each of these propositions.
When I appeared before the committee in June the committee very kindly listened to me for an hour, and the speech I then made was taken down with great accuracy and printed at pages 161 to 181, inclusive, of the arguments before the committee on the 6th, 7th, 8th, and 9th of June, 1906. The first five pages of that argument were devoted to the broad questions of common law and constitutional law which underlie this discussion. I do not intend to repeat that argument or any portion of it; but I recommend those gentlemen of the committee who desire to know what I think about the subjects there treated to read pages 161 to 165, inclusive, of the arguments made in June of this year. I propose to reenforce and strengthen that constitutional argument at present by reference to material which was