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this petition he will find my account literally correct in every point except one.
Mr. BONYNGE. Will you kindly read the clause of the Æolian contract to which you refer.
Mr. WALKER. I will, indeed. I marked that yesterday, as I thought somebody would ask me to read that clause. This Eolian contract is in two parts, one avowedly referring to the other. Then there is a letter connected with the contract which is to be taken into account. There is a good deal of verbiage in it, and it would take a good while to read the whole of it, but I have carefully marked the part which will apply to your question. It is as follows:
Now, therefore, the publisher, for and in consideration of the premises and the sum of one dollar, lawful money of the United States, to him by the Æolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be. exacted from or be due from the Eolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be instituted against some manufacturer or user, other than the Æolian Company, of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid.
Mr. BONYNGE. That refers to the then existing laws.
Mr. BONYNGE. Do you, as a lawyer, say that refers to statutes that might come into existence after the signing of that contract? Mr. WALKER. Certainly.
Mr. BONYNGE. Is that your legal opinion as to the construction of a contract made, based upon statutes then in existence that it applied to statutes that may be subsequently passed?
Mr. WALKER. If it had been confined to statutes then in existence it should have said, so. It says "Copyright laws of the United States," and that language is broad enough to cover laws that are in existence at the time the suit is brought as well as laws in existence at the time the contract is signed.
Mr. CHANEY. Usually we, as lawyers, confine the meaning of a contract to the laws in existence at the time of the execution of the contract.
Mr. WALKER. I do not know that that is the universal rule. It depends upon the contract. If the language of the contract plainly contemplates the laws that are in existence at the time of the execution only, then of course we give it that signification, but when you are construing the contract you must look at the relations of the parties and the purposes they have in view. The purpose both parties had in view could be subserved just as well by a new law as by the old one.
Mr. BONYNGE. This refers to "a suit." If "a suit " has been started, upon the determination of that suit, which was the suit evidently contemplated by this contract, does not the contract terminate?
Mr. WALKER. I do not think so, because the contract referred to "a suit" in the future and not to any particular suit.
Mr. BONYNGE. It refers to " a suit" and not to suits." Mr. McGAVIN. Suppose this bill is passed and, the law is made perfectly plain. Do you mean to say it would be necessary to have a decision of the Supreme Court of the United States on that language?
Mr. WALKER. Certainly; because then whoever objected to that law would question its validity in point of constitutionality and go to the Supreme Court on that point. You can make the law as plain as you please, but somebody will question it on that ground.
Mr. SOUSA. You state that this contract is unconstitutional, and that under any law passed it would be unconstitutional, do you not? Mr. WALKER. I say that any law to subject these perforated sheets to the copyright laws would be unconstitutional.
Mr. SOUSA. That is your view of it?
Mr. WALKER. Certainly.
Mr. SOUSA. And, of course, the right one.
Mr. WALKER. The contracts are not of the slightest value, unless they succeed in securing a favorable decision either on the basis of the present legislation or some future legislation.
Mr. SOUSA. Then these Æolian contracts are not worth anything? Mr. WALKER. Sometimes unconstitutional things are pecuniarily valuable.
Mr. BURKAN. Do you, as a lawyer, contend that if this legislation is passed this contract would be valid? It was contemplated in 1902 that the enforcibility of the contract should depend upon a suit. If they fail in that suit, and Congress should pass this law, do you mean to contend that this contract would be valid?
Mr. WALKER. Valid if the new law is valid.
Mr. BURKAN. Read your contract.
Mr. WALKER. You gentlemen have asked for my opinion and I give it to you.
Mr. LEGARE. Go on with your argument.
Mr. WALKER. A member of the committee has said to me in an undertone, "Go on with your argument." I am desirous of doing that, and I think more light will be thrown upon the subject, if my opponents will let me speak, rather than continually interrupt me.
Now, that Eolian scheme was set forth with perfect fairness in the petition that was filed. The petition was replied to by Mr. Hughes, one of the ablest men in the United States, now elected governor of New York, after full deliberation, and presumably he made the best reply he could make. The only reply he attempted to make was that Mr. Walker had not proved this by depositions, but only by affidavits. The CHAIRMAN. The statement made by Governor Hughes was that the final hearing had closed December 8 and your application was made in the latter part of December, asking to have the case reopened and a hearing upon the facts in a case already closed. Is that right? Mr. WALKER. I do not think it is quite right. Mr. Hughes took the ground that however true my facts might be about the Æolian scheme, it was too late to get them into the case. I did not deny that it was rather late to get into the case, but I was doing the best I could, and I set forth in a sworn paper in court a certain statement of facts. Mr. Hughes took the statement to make a reply to it and his reply was, first, "You are too late," and second, "You have not proved your statement of facts."
Mr. CHANEY. I think he would not be expected to examine facts if it was too late to present them.
Mr. WALKER. He would not take the risk of being sure it was too late to present them, because it is not at all unprecedented that an opportunity to prove such facts as were presented in my petition has been granted, and it would probably have been granted in this case if the judge had not decided according to my view without granting it. Mr. CAMPBELL. The court would have granted you an opportunity to be heard.
Mr. WALKER. It was not yet up to Mr. Hughes to disprove my statements of fact, but it was up to him to deny them if they had not been
Silence constitutes evidence in some cases in law. Where one states a fact against a particular party and the statements are repeatedly made known to that party and that party remains silent when it would be to his interest, if he could, to deny the statements, his silence constitutes evidence to men's minds that the statements which he does not dispute are true.
I have here a sheet taken from the Musical Age, one of the most reputable and extensively circulating musical papers in this country, of the date of December 1, 1906. There is an elaborate article on section g in that newspaper. This paper says that the Æolian Company has in its possession contracts with practically every publisher of prominence in the United States, covering a term of thirty-five years, by which this company obtained full and absolute use of all musical compositions as soon as litigation or legislation secured to it the absolute control of the copyrights. The possession of these contracts will enable the Æolian Company to stifle all competition.
Mr. CAMPBELL. Do you now contend that this contract provides for legislation?
Mr. WALKER. It provides for legislation in this sense, that it authorizes the Eolian Company to secure legislation, and on the strength of that legislation to secure a favorable decision by the Supreme Court and then put the contract into force. I believe, as firmly as I believe that we are assembled here this afternoon discussing this problem, that that was an understood part of the Eolian scheme, although not expressed in words in the Eolian contract. So far as I am able to understand contracts, and I have been getting my living by legal labor for a good many years, I do affirm that that contract does enable the Eolian Company to carry out that very scheme, to secure legislation and then secure a favorable court decision on the basis of that legislation, and then to put the contract .into force. If you disagree with me about that, you do; but that is my opinion, and it is based upon considerable professional labor and upon the best information I can get.
My next proposition is not connected with the Eolian scheme. Independently of that I am now going to lay down the proposition that this legislation would be unjust, and this is the foundation of my propositon: The business of inventing, making, and selling automatic music players began on a commercial scale about 1896, and it has gone on increasing from that time to this, about ten years; and during that time the sales of sheet music have far more than doubled. The sales of sheet music have increased much faster than the population has increased, and much faster than musical education has in
creased, and much faster than any element of civilization with which you can compare those sales has increased. And that excessive increase of sales has been caused by the introduction of automatic instruments, so that John Philip Sousa occupies this position: Whereas prior to 1895 he received royalties on his sheet music without any competition whatever, and without any infringement of his sacred right by any automatic music instrument manufacturer. Since that time his royalties have more than doubled, or, at least, the royalties of composers generally have more than doubled, and as the result of that doubling of royalties he is receiving much more money for his compositions than he would have received if the automatic players had never been introduced into the art at all.
It is therefore perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction. Further than that, the introduction of these automatic instruments has not deprived the composer of anything he would have had if they had not been introduced. And, further than that, the introduction of automatic musical instruments has much increased the composer's revenues from the sales of sheet music. Why so? Because the composers' tunes have been advertised far more extensively by the automatic music instruments than they could have been advertised in any other way, and those instruments have drawn to the sheet music an enormously increased demand. Thus, somebody goes along the street and hears one of Sousa's tunes played in a talking machine or in an automatically operated piano. That individual has a piano at home, but no talking machine and no pianola, and that lady or girl or young man who fancies that tune, having heard it, goes into a music store and buys the sheet notation of that music, takes it home, and plays it on the piano. If it had not been for the automatic instrument that person would never have heard the tune. Now, that is not a universal event, but the statistics show that the greatest benefit conferred upon composers in this country in the last ten years has been conferred upon them by the very people they denounce as pirates.
The CHAIRMAN. Mr. Walker, an hour has passed since you began to speak.
Mr. WALKER. With the consent of my associates, I will take a little of their time.
The CHAIRMAN. It is understood, however, that this time is taken from the time of your associates.
Mr. WALKER. Yes; I understand that my associates will permit me to have a little of their time, and I will therefore follow out this train of thought.
There is no doubt about it that certain composers are complaining, not because we take away anything they ever had or anything they otherwise would have had, but because we have not given them very much larger revenues than we have done, on account of our having done the things we have done. It is their desire to extract from our treasuries the very last drop of profit we have made out of our own brains in addition to the very large amount they have already extracted in the indirect manner I have indicated. In pursuance of their desire they stand up here and invoke these sacred ethical principles and reflect severely upon us as being pirates; whereas, instead of being pirates, we are the best friends they have.
What have we done in order to accomplish this beneficent work for these gentlemen? We have made hundreds of inventions, we have invested millions of dollars of money in producing automatic musical instruments, and we have put a vast amount of labor and ingenuity into the work, with the result of conferring upon them a large share of the fruits of our investment, our genius, and our labor. Mr. BONYNGE. Would these machines have been any good if the composers had not composed music?
Mr. WALKER. Certainly not. In a civilized country we must all walk along together. No man lives unto himself alone or dies unto himself alone. No man who contributes to a useful art can claim the whole of the fruits of that art on the ground that if he had not made his contribution the result would not have been arrived at at all.
And so, gentlemen, although my interests are the other way, and I speak only as a jurist, as a lawyer, and as a lover of justice, I say this: That the motive and tendency of such composers as come here and ask for this legislation is a mercenary motive and not an artistic motive. I say that if Victor Herbert or John Philip Sousa or Reginald De Koven hopes to compose immortal music hereafter he must discard that mercenary spirit and be willing to let these automatic musical inventors and producers live and prosper as well as himself.
It will take me only about five minutes to present my third proposition. This legislation is opposed to public policy, because if it were enacted it would increase the price of automatic musical instruments by stifling competition, and if enacted it would impede the progress of invention in automatic musical instruments. It would confine that business to one great combination or corporation, in pursuance of the Eolian scheme. Independent manufacturers have written letters to me asking me to appear and argue for them as friend, philosopher, and guide, which I am doing, and many of them have made valuable inventions in this art. So that if you gentlemen do decide to give this monopoly to the Eolian Company, you will confine the business to such inventions as that company have. They have a good many, but they have not all. The result of your work will be to increase the price of automatic musical instruments to the people of the United States. You will also compel them to buy machines inferior to those they otherwise would buy. No one can put up a state of facts or an argument that will controvert these propositions.
Now, gentlemen, this is the last time I shall have the honor of addressing you on this subject. You have an enormous responsibility. Millions, beyond the dreams of avarice, are involved in this bill. You have come from many different parts of the United States to recommend legislation to Congress, and in framing this law and in carrying this great responsibility I hope you will brush aside all preconceived notions and everything that is superficial, and go down to the very roots of the merits of this case. When you do that, you will find that this proposed legislation is contrary to the Constitution of the United States; you will find that it is unjust as between the parties in interest, and you will find that it is contrary to that public policy, which is so dear to your official hearts.