Mr. CURRIER. Who is your publisher?

Mr. HERBERT. Mr. Whitmark, of New York.

Mr. CURRIER. Has anybody else published any of your music? Mr. HERBERT. Yes; Schubert & Co., Schirmer & Co., and so on. Mr. CURRIER. Do you mean lately?

Mr. HERBERT. That was before I went with Whitmark.

Mr. CURRIER. How long have you been with him?

Mr. HERBERT. About six or seven years.

Mr. CURRIER. And nobody else has published any of your music in six or seven years?

Mr. HERBERT. Not since then; no, sir. Naturally, I have a perfect right to go around to my friends and get the best offer I can, bave I not?

Mr. CURRIER. Surely.

Mr. HERBERT. There must be competition. But I want to state most emphatically-and I know that these gentlemen are going to try to make the point that arrangements have already been made that there have no arrangements been made in my case-absolutely none. I have not even been approached by any one of the companies—not even by the company, for instance, that is in favor of paying the royalty, the Victor Talking Machine Company. They have never spoken a word to me about the future, and I have not made a contract for my next work with Witmark & Sons yet. I may publish it with somebody else; I do not know. So I am perfectly free to say that his statement in that respect was absolutely untrue.

Mr. SOUSA. I would like to say, Mr. Chairman, that I have never been approached by any of the mechanical instrument companies; and the house which I have a contract with, the publishing house, is not a member of the Music Publishers' Association. I have never even been approached by any of them, and I have no contract with anyone. The CHAIRMAN. We will hear you now, Mr. O'Connell.

Mr. PUTNAM. Mr. Chairman, for the group of interests which are now to be heard I wish to make a statement that they might feel called upon or required to make, but which it is not fair should be taken out of their time. They were not participants in the conferences. How completely they were omitted is apparent only from the list. That list is before you. It will take but a moment to read the titles of these associations: American Authors' Copyright League, National Institute

Senator SMOOT. We know them.

The CHAIRMAN. They are already in the record. They have been laid before us.

Mr. PUTNAM. They were not participants in the conferences. They were not invited to the conferences by the copyright office. There were no notices sent to them from the copyright office that the conferences were being held; that these provisions were being considered at them. The copyright office shows, so far as I am aware, no communication with them on the subject of any of these provisions. We have never, ourselves, in any way notified them that these provisions were being proposed for the bill. I say that as much because it is to their advantage that I should say it as for them to say it, and it is not fair that that statement should have to be made at the expense of their time.

STATEMENT OF JOHN J. O'CONNELL.

Mr. O'CONNELL. We intended to make that statement ourselves. The CHAIRMAN. Whom do you represent?

Mr. O'CONNELL. I appear on behalf of ten independent manufacturers of automatic piano players in the city of New York, and the names of these concerns are as follows: Winter & Co., Ludwig & Co., Jacob Doll & Sons, Laffargue & Co., John Ludwig, the Regal Piano and Player Company, Ricca & Son, the Auto-Electric Piano Company, Newby & Evans, and the Estey Piano Company.

I also appear on behalf, by arrangement here, of independent manufacturers of music rolls. I can also say that possibly what I shall have to say to your committee will represent the ideas of the various independent manufacturers of automatic piano players in the United States and the various independent manufacturers of perforated music rolls.

To anybody reading the provisions of this bill it would appear very clearly that one of the great special interests were the manufacturers of perforated music rolls. Proceed a little further and it will be very apparent that the manufacturers of automatic piano-playing instruments, which can not be operated without music rolls, had a very special interest in this bill. It would be the easiest thing in creation to notify the manufacturers of music rolls and the manufacturers of automatic piano players of these conferences. Take up any directory of manufacturers in the United States and you would find them by the dozen.

The CHAIRMAN. Let me interrupt you for a moment, Mr. O'Connell, to say that so far as I myself am concerned it does not seem necessary to continue longer upon that line, for the reason that the committees of the Senate and House are now giving you a hearing, and you shall have an ample opportunity to present your side of the case.

Mr. O'CONNELL. I simply wanted to make it clear to the whole committee, as I explained it to the chairman yesterday, that it was only last Saturday that we knew what the situation was and knew what the provisions of this bill were.

I might say at the outset that the companies which I represent are not members of that class which Mr. Putnam so delicately denominated as pirates. We are here to protect industries in which there are invested millions of dollars. It has also been said by some of these special interests which are appearing in favor of the bill, in elegant language, that we were "butters-in" at the eleventh hour, and that we are here for the purpose of a hold-up. If protecting our business makes us butters-in and hold-up artists, then we come under that definition.

I want to say furthermore, at the outset, that we have no particular controversy or quarrel with those very eminent gentlemen, Mr. Herbert and Mr. Sousa. It is perfectly proper for them to seek to get all they possibly can from the products of their genius, but we are all a great deal too sentimentally inclined toward them and their possessions because of the many hours of delight they have given to every one of us.

Here is our position, and I will try to outline it as briefly as I

possibly can: A number of years ago in the city of New York, within the last decade, a number of gentlemen interested in a manufacturing concern, one of the pioneers in the piano-playing industry, had the foresight to realize that the industry was destined to become one in which there were millions of dollars of profit, followed the conclusion that they would like to get for themselves all of the millions in that particular industry. The question was how to achieve and attain that result. Naturally they turned to the patent laws, to get monopolies under patents covering not only the machines themselves, but also the music rolls, without which the machines could not be operated, and machinery for cutting such music rolls.

Applications were made on their behalf for hundreds of patents, both on the machine and on the music rolls, and on machines for cutting the music rolls. Before they had gone very far, however, it developed that the patent laws would not afford them a monopoly of the machines or the music rolls, because of the fact that they could not get and control a basic patent, for the reasons that in the first place the operation by means of wind instruments, vacuums, etc., of an automatic playing device was as old as pipe organs, and furthermore that the perforated music roll or perforated music sheet was also as old as the very ancient hand organ. Therefore they saw that it was utterly impossible for them to obtain the monopoly which they wanted under the patent laws, and naturally the next thing for them to consider was: Can we not attain the required result through the copyright laws?

Eminent counsel were retained, and those eminent counsel, after an examination of the existing copyright laws and decisions, made this discovery: That in what is known as the McTammany case, decided by Judge Colt in the United States circuit court for the district of Massachusetts some twenty years ago, that jurist held. that the perforated music sheet used in a hand organ was not an infringement of the copyright music sheet covered by the statute. When they had reached this point it became necessary to develop a new line of action, and this was the new line of action:

Now, there existed at that time an association of music publishers, and that association included and includes practically all of the big publishing houses which turn out the classical as well as the modern and popular compositions of the day. They said to themselves: Let us make contracts with all of these houses whereby we will get from these houses the exclusive right to reproduce the compositions which they handle in music rolls and other mechanical devices. Then we will go ahead and we will institute suits and try to obtain a reversal of the decision of Judge Colt in the McTamany case, and if we fail in that, then, holding exclusive contracts as we do with the vast majority of the publishing houses, we will go before the Congress and get from it what the courts refused us.

Mr. Chairman and gentlemen, I am not speaking in the air about this. I have here with me a copy of two contracts made with one house in Chicago by this monopoly, and I now offer in evidence those two contracts.

Mr. CURRIER. What is this monopoly? You have not mentioned the name of it.

Mr. O'CONNELL. The Eolian Company, of New York, which is a Connecticut corporation.

DEFENDANT'S EXHIBIT EOLIAN-SUMMY CONTRACT.

Document No. 1.

Memorandum of agreement, made and entered into this 30th day of April, 1902, by and between Clayton F. Summy Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Æolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York in the State of New York, party of the second part, hereinafter called the Eolian Company, witnesseth:

That whereas, the publisher is the proprietor of certain copyrights for musical compositions and the owner of rights in copyrights for other musical compositions; and

Whereas, the Eolian Company is engaged in the business of manufacturing and selling automatic musical instruments controlled by perforated music sheets, and in manufacturing and selling machines for playing keyboard musical instruments, which machines are controlled by perforated music sheets, and in manufacturing and selling perforated music sheets for such automatic musical instruments and machines; and

Whereas, the Eolian Company is desirous of acquiring the exclusive right for such perforated music sheets in and to all the copyrighted musical compositions of which the publisher is the proprietor, or as to which he is the owner of any rights, and of all those other musical compositions which may hereafter be protected by copyright, and the copyrights for which or rights in which may be acquired by him;

Now, therefore, the publisher, for and in consideration of the premises, and of the sum of $1, lawful money of the United States, to him paid by the Eolian Company, receipt of which is hereby acknowledged, and for and in consideration of the true and faithful performance by the Eolian Company of its covenants hereinafter made, does hereby sell, assign, transfer, and set over unto the Eolian Company, the exclusive right for all perforated music sheets of the kinds aforesaid in and to all the copyrighted musical compositions of which the publisher is the proprietor, or in the case in which he is the owner of any less rights, to the extent of said rights, and does hereby covenant and agree with the Eolian Company to give and secure to it, the exclusive right in like manner for all perforated music sheets of the kinds aforesaid in and to all those other musical compositions which may hereafter be protected by copyright, and the copyrights or rights in which may be acquired by the publisher.

And the publisher for the consideration aforesaid hereby covenants and agrees, so far as it may be reasonably in his power, to protect the Eolian Company against any claim of any third person in respect to any and all copyrighted musical compositions which may be involved in this agreement, and the copyright of which may be owned by the publisher.

And the Eolian Company for and in consideration of the premises hereby agrees that it will keep correct and true books of account in which it will set down or cause to be set down entries of all perforated music sheets made by it for playing the copyrighted musical compositions owned or controlled by the publisher; that it will on the 20th day of each and every January and July, during the continuance of the manufacture and sale by it of the perforated music sheets for playing such musical compositions, render unto the publisher a correct and true statement of the number, names, and other designations of such perforated music sheets sold by it during the six preceding calendar months, and that at the time of rendering each and every such statement it will well and truly pay unto the publisher a license fee or royalty of 10 per cent of the list prices made by the United States publishers of the printed scores or copies of such musical compositions, but never more than 50 cents for any one of such perforated music sheets.

And the parties hereto mutually covenant and agree that nothing herein contained is to obligate the Eolian Company to pay any license fee or royalty upon such perforated music sheets as shall be made by it in the United States and sold or shipped to any other country, unless it shall have been decided by a court of competent jurisdiction of such other country that the copyright laws of that country shall be applicable to perforated music sheets of the kind herein mentioned.

And the parties hereto mutually agree and covenant that the term "perforated music sheets" is not to be construed as covering the controllers of those musical

instruments which are generally known as phonographs, or music boxes, or hand organs.

Anything herein to the contrary notwithstanding at the expiration of thirtyfive years from the payment of the first license fee hereinbefore provided, the Eolian Company shall not be entitled to license under the copyrights thereafter acquired by the publisher, but all licenses existing under copyrights theretofore acquired by him shall remain in force until the expiration of the terms of the copyrights under the terms hereinbefore provided.

During the existence of this contract, after the payment of the license fee hereunder, the Eolian Company obligates itself to prosecute diligently, as its own expense and by is own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the Æolian Company.

And the parties hereto mutually covenant and agree that all provisions of this agreement shall be binding upon and enure to the successors, executors, administrators and personal representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal and the Æolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized.

Memorandum of agreement, made and entered into this 30th day of April, 1902, by and between Clayton F. Summy Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the Eolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the Eolian Company, witnesseth

That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the Æolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling-automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and

Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith;

Now, therefore, the publisher, for and in consideration of the premises and the sum of $1 lawful money of the United States, to him by the Eolian 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 be hereafter 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 Eolian 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.

And for and in consideration of the premises the Eolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time A CL-068