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Mr. WALKER. Johnson defines "writing" correctly. The other dictionaries you speak of are books with which I am not acquainted. Mr. SOUSA. I got the definition out of Johnson's Dictionary..
Mr. CURRIER. When you were exhibiting this perforated roll, I noticed that you made the remark that it was not a copy of a writing. Is it a reproduction?
Mr. WALKER. No; it is not a reproduction in any way at all, because it can not be read. Some gentlemen have stated that it can be read, but that is an absurdity. In order to read this perforated roll as a writing, you must, with your eyes, determine within an eighth of an inch how far the holes are from the edges of the paper, and the significance of these holes with respect to what notes they will play is dependent entirely upon their distance from the edges of the paper. The holes are often within an eighth of an inch of each other, and no human being can read that roll and determine what notes appear there, unless he can infallibly measure with his eye those slightly varying distances.
Mr. CURRIER. Is it a reproduction of his idea?
Mr. WALKER. No; it is not. His idea is never reproduced until it is put into the machine, and the machine constitutes the reproducing instrumentality. This is what the court found it to be after an exhaustive examination of conflicting expert testimony. The court held that: "The perforations in the rolls are not a varied form of symbol substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine." If they were a varied form of symbols substituted for the symbols used by the author, it would be a copy of that author's work beyond any doubt, and would be a reproduction; but the court finds, as a matter of fact, that they are not a varied form of symbols, but are mere adjuncts to a valve mechanism in a machine. In fact, the court says that it is the machine itself by which is conveyed the author's conception to the public. When they speak of the author's property they do not mean any property under the Constitution and statutes of the United States, because they found that he has no such property; but they use that language harmoniously, with the view of his inherent property right in intellectual production, and I submit they use it inaccurately, because after finding that there is no such property they proceed to speak of the author's property, whereas they should have spoken of his meritorious right, not secured either by the common law or by the Constitution or by statute.
You must realize, gentlemen, that the circuit court of appeals for the second circuit is composed of very busy men, and they allowed only an hour and a half to a side for the argument of this great case, which depended upon numerous facts not before the committee at all. These important questions were not adequately presented to the court. Why? The attorney for the Apollo Company in this case was my friend, Mr. Burton, and the attorney for the plaintiff was Mr. Charles E. Hughes, now governor-elect of New York. I entertained the views which you gentlemen have gathered from what you have heard me say here, and I desired to appear and present those views to the court, but Mr. Burton firmly refused to give me any of his hour and a half in which to say anything to the court and inasmuch as I did not represent any party to the litigation I was not tech
nically entitled to be heard. But I said to the court that my client had a hundred times as much interest in the case as the nominal defendant; that the public had a million times as much interest in it as the nominal defendant, and that I had some ideas about the matter which I would like to be permitted to state. Judge Lacombe said: "Mr. Burton can give you as much of his time as he pleases," but Mr. Burton would not give me a minute. Therefore I had to beg the court for time and they gave me only ten minutes, and during those ten minutes I was interrupted with several questions which I thought were not extraordinary in point of intelligence. The result was that the court had the benefit of no argument upon the constitutional questions involved, except such as I was able to hurl at them in ten minutes, when gentlemen were firing questions at me. Therefore I think their work is not characterized by the accuracy of statement which would have been expected if I or some other gentleman had been permitted to adequately explain my views to their honors.
Now, gentlemen, I am going to establish my second proposition, namely, that this legislation, if enacted and if constitutional, would be unjust as between individuals; and in order to do that it is necessary to connect my remarks with the speech I made in June, and particularly with a request that was made of me during that argument by Senator Kittredge, the chairman on the part of the Senate. What I have to say now is not confined to what is denominated the Aeolian scheme, because even independent of the Eolian scheme this legislation would be unjust. At the argument in June I submitted. to the committee, according to the light I then had, what I called the Aeloian scheme, of which other gentlemen have spoken in harsh language, but I, being a person of mild character, use softened speech when I have occasion to criticise persons whose conduct does not altogether square with my opinions of propriety. I must read a little of what I said then, in order to connect with the dialogue between Senator Kittredge and myself. I then said:
The Eolian Company made contracts with nearly all of the members of the Musical Publishers' Association. Each of those contracts provided as follows: That the particular member of the Music Publishers' Association granted to the Aeolian Company the exclusive right to make perforated sheets of paper, to play the tunes represented by all of the music published by that particular publisher, and that contract also provided that the Eolian Company should never pay any money for that exclusive right until the Eolian Company succeeded in getting some court to decide that the copyright laws covered the perforated paper roll. That contract also provided that the Eolian Company should pay all the expenses of some test suit made for the purpose of testing that question.
In pursuance of that contract, the Eolian Company caused the White-Smith Music Publishing Company to bring a suit against the Apollo Company in the southern district of New York upon a couple of little negro melodies, one of which was entitled "Little Cotton Dolly' " and the other of which was en titled The Kentucky Babe Schottische." I fancy that the copyright on both those negro melodies was not worth as much as $1.50 and that certainly $3 would cover the value of both of them, but they answered the purpose of a test case.
The Eolian Company poured out money like water in that litigation and endeavored to secure from the United States courts a reversal of the decision of Judge Colt, which had been made many years before. In the course of that litigation I was retained by the Auto-Music Perforating Company, which was not a party to this litigation, but which had an interest a hundred times greater than that of the nominal defendant. In pursuance of that retainer I presented a petition to Judge Hazel, before whom the case was heard, and in that peti
tion I asked that my client be made a defendant. And I set forth in that petition the whole Eolian scheme in full with all the clearness of statement of which I was capable, and it was sworn to by my client. When that statement was filed before the judge, a printed copy was served upon the attorney for the Eolian Company, Mr. Charles E. Hughes, one of the ablest men in the United States, who has distinguished himself in the recent insurance investigation in New York. Anything that he does not think of is not likely to be worth thinking of, and when he put in, as he did, an elaborate brief in reply to my petition he did not controvert one solitary word of the statement of evidence set forth in the petition about the inherent character of the Eolian scheme, which he would have done if he could have done so.
The CHAIRMAN. What was his reply-raising questions of law?
Mr. WALKER. His reply?
I have a copy of his brief in my office in New
The CHAIRMAN. Will you send that to the committee?
Senator CLAPP. And your petition?
That, Mr. Chairman, was a promise on my part to furnish the committee with that material, and I will now read briefly, because they are short, those portions of the petition which set forth the Eolian scheme, as it was sworn to by my client at that time. The petition was presented to Mr. Hughes several days before the argument of the case and several days before he filed his reply thereto. The following statements were in that petition:
Fourth. The Eolian Company, of Meriden, Conn., is a large and wealthy corporation, which is engaged in making and selling automatic musical instruments and in making and selling perforated strips of paper for use in those instruments.
Fifth. There is an association of publishers of sheet music, which association includes nearly all the principal music publishers in the United States, and the members of which association copyright and publish most of the sheet music which is copyrighted and published from time to time in this country.
Sixth. The Eolian Company has a contract with each member of said association of music publishers, which contract substantially provides that the Eolian Company shall have the exclusive right to make and sell perforated sheets of paper, to be used in automatic musical instruments, for producing the music represented by any or all of the copyrighted sheet music published by that publisher; provided the Eolian Company can and does cause a decree to be obtained in some Federal court declaring such a perforated sheet to be an infringement of such a copyright; or, failing to obtain such a decree, provided the Eolian Company shall succeed in inducing Congress to enact such a statute to subject such perforated sheets to the dominion of such copyrights; but which contract also provides that the Eolian Company shall not be obliged to make or sell any perforated sheet of paper to be used in producing the music represented by any particular copyrighted sheet music, or pay any royalty thereon, unless it elects to thus make and sell such particular perforated sheet.
Seventh. This action was actually begun, and has been really prosecuted, by the Eolian Company in the name of the White-Smith Music Publishing Company, but at the expense of the Eolian Company, for the purpose of obtaining such a judicial decree as is contemplated by each of said contracts.
Eighth. If this case is decided in favor of the complainant, all of those contracts will be thereby put into operation, and will operate to give the Aeolian Company the exclusive right to make and sell perforated sheets for use in automatic musical instruments to perform most of the music which the owner of such an instrument would desire to have performed thereby. That monopoly of the right to make and sell most of the perforated sheets which the public would wish to buy would practically result in conferring upon the Aeolian Company a monopoly to make and sell all of the perforated sheets which the public would wish to buy, and also a practical monopoly of making and selling all automatic musical instruments operated by perforated sheets of paper, because
no prospective purchaser of an automatic musical instrument would buy one which could be used by him in playing only a comparatively few tunes when he could purchase one from the Aeolian Company, even at a higher price, for playing all the tunes which he would desire to have played, and because the Aeolian Company could present this dilemma to every prospective purchaser of an automatic musical instrument by simply declining to sell any perforated sheets for use in any instrument not made and sold by that company.
That was the Æolian scheme as I set it forth in the petition. was sworn to by my client on information and belief. This was the affidavit upon which my client founded his request to be permitted to prove these statements by regularly taken depositions.
I have here the brief of Mr. Hughes filed in reply to that petition, and I am going to read to the committee all that this brief contains upon the questions of fact set forth in those portions of the petition which I have read:
The petition contains numerous allegations as to the Aeolian Company. are not supported by any evidence; they are made wholly upon information and belief. (Petition, p. 8.) The petitioner says its information was carefully acquired and that its belief is founded "upon convincing evidence." But the petitioner makes itself the sole judge of what is " convincing" and seeks to affect the judicial mind by assertions upon which it can not act judicially, save for the purpose of excluding them from consideration. When an attempt was made, as appears from this record, to prove assertions of this sort it resulted in a fiasco.
That is a plea which amounts to saying that the statement may be perfectly correct, but I had not proved it in regularly taken depositions.
The CHAIRMAN. What did the court say in denying your application?
Mr. WALKER. It did not comment upon the petition at all.
The CHAIRMAN. I mean what the court said on the question of permitting your client to be permitted to come into the suit.
Mr. WALKER. It did not make the slightest observation. It wrote on the back of the application "denied;" but at the same time it decided the case in favor of my views.
Mr. BURKAN. You filed a brief in that case.
Mr. TINDALE. When you were reading just now I noticed the statement that Eolian agreement was that they would try to obtain legislation from Congress.
Mr. WALKER. I am coming to that. That is my next point. I have read to the committee all that Mr. Hughes said upon that subject. I now wish to analyze what he says, because it is logically divisible into two parts.
The first part of that paragraph contains three or four sentences which amount simply to saying that the petitioner has not proved his statements, and that part of the paragraph does not contain any statement or any intimation that the petitioner's statements are not true. It simply says that they have not been proved except by affidavit.
The last sentence is this: "When an attempt was made, as appears from this record, to prove assertions of this sort, it resulted in a fiasco."
I did not make that attempt, and Mr. Burton did not make that attempt with any such view as that. In point of fact, what Mr. Hughes refers to as Mr. Burton's attempt to prove the Eolian scheme related to some evidence in the record to the effect that somebody on
his side of the litigation had written letters to five or six music publishers and asked them whether or not they were parties to the Eolian contracts, and one-half of them wrote back that they were and one-half that they were not. That is as far as Mr. Burkan pressed the question as to how far the Eolian contract had been agreed to by music publishers.
Here is the Eolian contract itself. I wish to say to my learned brother on the other side that at the time I prepared this petition I had never seen the Eolian contract. The Eolian contracts were kept among the secret archives of the company and of the publishers, and a copy of it had not leaked out, although information as to essential parts of it had leaked out. In preparing that petition I had to go on what had leaked out. More than a year afterwards, I, for the first time, saw the Eolian contract. When I came to analyze that contract I found out how fully it squared or did not square with the account I had given of it in the petition filed more than a year before. I find that it squares literally with every element of that account, except one. The account I gave a year before included numerous particulars, and one of those particulars was that the Æolian Company had agreed, in default of success in the courts, to attempt to secure legislation from Congress having the same operation. When you come to look at the Eolian contract you do not find that provision in form, but you do find it in substance, and I will tell you where.
You do find it in substance. The gentleman who addressed the committee to-day stated that the Eolian contract was made to depend upon the White-Smith suit, and that if the White-Smith suit failed the Eolian contract failed with it. But he is wrong about that. The Eolian contract goes into operation if the Eolian Company ever succeeds in getting a favorable decision from a court of last resort, and if they fail once they can try a second time, and so on indefinitely. If they ever do succeed in getting such a decision as will subject these perforated sheets to the copyright law, then the contract goes into effect. The Eolian contract provides that it shall go into effect whenever the Eolian Company wins a suit in the Supreme Court, and the only way they can adopt to win a suit in that court is to get Congress to enact a statute that will compel the courts to decide in their favor. So that if the Eolian Company loses this litigation in the Supreme Court a year hence, that will not end the Eolian contract at all. They can then rise up with another suit, based upon this new statute enacted by Congress, and then they will win, and then the contract goes into force.
Mr. TINDALE. That is a different statement from the one made previously to the effect that the Eolian Company had agreed to make an attempt to get legislation. This is entirely different, and I am glad to get the matter straightened out.
Mr. WALKER. There is no mystery about it at all. I made my statement on the best information then obtainable, before the Eolian contract leaked out. Now I am proving to you that although the Eolian contract did not in terms use the word "Congress" and did not in terms set forth that scheme, yet it sets it forth in substance; so that now, if any gentleman will take an hour to compare the Eolian contract with my account of that contract as set forth in