faith. It does not seem to me that we could pass any such legislation as that.

A GENTLEMAN. Mr. Chairman, that is exactly the position of a great many of the interests involved and exactly the position on which we wish to be heard here to-day.

Mr. CURRIER. I do not think you need spend much time in talking about subsisting copyrights.

Mr. BURKAN. The intent of this act is to make it apply to compositions copyrighted after this act goes into effect.

Mr. CURRIER. I understand that another section provides that; but it must be in conflict with this section if the courts should hold as Mr. Fuller thinks they may.

Mr. BURKAN. But the amendment to section 3 should be that the devices and contrivances mentioned in subdivision (g) shall apply only to compositions copyrighted after this act shall have gone into effect, and say nothing about subsisting copyright.

Mr. CHANEY. It can be readily modified to suit that. There is not any question that we do not want to make it retroactive.

The CHAIRMAN. Mr. Putnam, is Mr. Davis here now?

Mr. PUTNAM. Mr. Davis is here. Mr. Davis, it is necessary to know how the hour assigned to particular opponents of the music provision, or a group of them, is to be apportioned, and whether the statement that you are to submit is part of that or not. They understand that it is distinct from the group of statements by them, and they also state that they understood that you understood that, and that your statement would be brief, something like fifteen minutes. I ask in behalf of the Chairman as to this understanding. Whom do you represent?

Mr. DAVIS. Inventors as a class of their own, and distinct from manufacturers.

Mr. PUTNAM. No particular establishment?

Mr. DAVIS. No, sir.

Mr. PUTNAM. And no particular association?

Mr. DAVIS. No, sir.

The CHAIRMAN. How much time do you wish, Mr. Davis?

Mr. DAVIS. About 20 minutes.

The CHAIRMAN. You may proceed, Mr. Davis.

STATEMENT OF G. HOWLETT DAVIS, ESQ.

The CHAIRMAN. Will you not state your name and who you represent? Mr. DAVIS. My name is G. Howlett Davis. I have been an inventor during all of my majority and represent inventors as a class. I hope to show how the passage of this act will, first, discourage invention; second, restrict patent grants already held by inventors; third, provide authority to confiscate an inventor's physical property; fourth, to abrogate the inventor's constitutional rights, and, fifth, to create a monopoly which would be practically controlled by a few to the detriment of inventors and the public.

Of course, there are a good many subjects to take up here in the limited time allowed me, and I am willing to take them up in any order you may designate.

The CHAIRMAN. I think it only fair that in your case as well as that of the other gentlemen the time devoted to questions should not be

considered as part of your time, and taken out of your time; but I would like to ask one or two questions before you begin. Do you understand that this bill proposes to interfere with existing patent rights?

Mr. DAVIS. Yes, sir.

The CHAIRMAN. Vested rights?

Mr. DAVIS. Yes, sir. I shall take that up first, if you please.

Senator SMOOт. You mean, then, that section 3 is the section that that interferes with them?

(Mr. Davis looks for the bill.)

Senator SMOOT. If you have not it there, do not bother about looking for it now. Go right on.

Mr. DAVIS. I had a marked copy here.

Senator SMOOт. We will listen to you when you come to that section, anyhow.

The CHAIRMAN. You may proceed, Mr. Davis, and we will not interrupt you during your twenty minutes.

Mr. DAVIS. Thank you, sir.

I would like to first explain that I am here without counsel and without any previous notice from the Copyright Office, and without invitation from any source whatever. I discovered the existence of the proposed bill by mere accident on Saturday last. I was then notified that a firm which operates under my patents would have to go out of business if this law passed, and would necessarily have to cancel its licenses with me. That concern is the Perforated Music Roll Company, with offices at 25 West Twenty-third street, New York City. I have also just to-day received similar intimation from another concern manufacturing under my patents in Philadelphia, the Electrelle Company, just organized for a million dollars for the manufacture under my patents for reproducing music mechanically.

I have been inventing in numerous classes during the last twenty years, including printing presses, typesetting machines, typewriting machines, clocks, stencil duplicating apparatus, etc., but about ten years ago I took up the class of self-playing musical instruments. I recognized that there was a peculiar relation of this art to copyrighted musical compositions, and I saw that in some way whatever devices I might invent for the reproduction of music mechanically might interfere with the composer's rights, because music is a necessary component part of the class of self-playing musical instruments, and you all know that this industry has become one of the greatest of the young industries of the country. You can take up any magazine and you will see many pages filled with descriptions of self-playing musical devices, including phonographs, graphophones, apollos, angeluses, cecilians, pianophones, and a hundred other devices for reproducing music automatically. As far as I am able to ascertain none of these concerns have had notice of this bill, and the two concerns who are operating under my patents not only have had no notice, but have notified me, as before stated, that in case of the passage of the bill they will have to annul their contracts with me.

From dire necessity I was compelled to work for two years with the Eolian Company, a concern which attempted to take from me without due consideration inventions which I believe have since been recognized as superior to their instrument, the pianola. During the St.

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Louis exposition the Government officials sought for a self-playing device which would represent the highest advancement of the art. Among others they considered the pianola, manufactured by the Eolian Company, and they also went further and considered the inventions of poor inventors who had no backing; and finally they selected my device as the sole exhibit. It was the only self-playing musical instrument which was exhibited in the Government building during the St. Louis exposition.

After I left the Eolian Company, declining to accept the compensation which they offered me, they have persecuted me in the courts for years. Moreover, as I can prove to you if you will only give me time to produce the documents from my attorneys (I waited for them until the last minute this morning), this concern, failing to secure a monopoly or strangle my invention through the courts, and recognizing, as a result of the Government and other indorsements of it, that it would in time be universally recognized as a superior instrument, has connived with music publishers and secured from nearly every member of the Music Publishers' Association a contract which sets forth that in case the music rolls or records are decided by the courts to come within the copyright laws, they will take over from them the exclusive right of reproducing their music for a compensation. These contracts I have seen with my own eyes. I can swear that they exist, but unfortunately I can not produce them this morning. But I will agree to produce at least two of them if you will give me a week's time to do it.

Mr. CURRIER. You will have the necessary time to put anything of that kind in the record.

Mr. DAVIS. I thank you. Now, the Eolian Company, being back of the independent members of the Music Publishers Association, have influenced in turn the music publishers as an association to insert in this bill clauses which will cover mechanical methods of reproducing music; and in proof of this I will say that as a result of Mr. Solberg's kindness yesterday afternoon in allowing me to search the records of the star-chamber proceedings presided over by the Librarian of Congress, that the first introduction of those clauses was made by Mr. Bacon for the Music Publishers' Association in the form of an amendment which now appears in all of its substantial terms as subdivision (g) page 2, of the bill. Now, the independent music publishers in turn control the great majority of composers, so that there is thus formed a complete monopolistic octopus, in which the Eolian Company forms the head and brains, the Music Publishers' Association the body, the independent publishers the writhing arms, and the composers the suckers and baiters. [Applause.]

The Eolian Company is a ten-million-dollar concern whose monopolistic game has already been uncovered in several courts, as I will show by proofs, and the music publishers are here to pull its chestnuts out of the fire. [Applause.]

Now, if the inventors of this country knew what was in, this bill there would be enough here to fill up every room in this great building, but they do not know it. It will strike them like a thunderbolt out of a clear sky when they learn that there, are clauses in this bill which not only seem to lessen or destroy the scope and commercial value of our existing patent and confiscate our physical property, etc., but also imprison us in case we infringe the proposed copyright act.

Now I will read you from

Mr. CHANEY. What is your first subheading there that you are going to talk from?

Mr. DAVIS. That it will discourage invention, but I would like to take up this bill first; I would like to take it a little out of set up in my preamble.

Mr. CURRIER. Subdivision (g) on page 2?

Mr. DAVIS. Subdivision (b) on page 1.

Mr. CHANEY. All right; "To sell, distribute, exhibit, or let for hire," etc.?

Mr. DAVIS. Yes, sir.

Mr. CURRIER. I do not see how that touches your industry.

Mr. DAVIS. No, sir; I had my marked copy here

Mr. CURRIER. I should say "(g)" was the first one that would affect

you.

Mr. DAVIS. Yes, sir "(g)," you are right, Mr. Currier.

Mr. CHANEY. That is, "To make, sell, distribute, or let for hire any device, contrivance," etc.?

Mr. DAVIS. "To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighted after this act shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work."

Now, in this art of self-playing musical instruments alone I have been granted some twenty-seven patents by this country, and have also been granted patents all over the world. My patents read very similar to this-that I shall have the exclusive right to make, use, and sell the mechanical contrivance covered by the claims of those patents, and those claims embody, in connection with the mechanism, a perforated roll, which is a controller for the instrument, and is an essential of it, and in the case of phonographs or graphophones they include the engraved record.

part

Notwithstanding that I have gone ahead in good faith under the reading of the Constitution and the laws as construed by the courts right up to date, that composers shall be limited to their "writings," intimating thereby that we inventors should have the right to any methods that we might discover for mechanically reproducing musicnotwithstanding that I have expended years of effort and all my money, time, and labor to devise these machines, and have built models and exhibited them, and companies have been formed around them-and notwithstanding that my patents give me the exclusive right to make, use, and sell these machines, this proposed act comes out and says that "any device especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any published and copyrighted work after this act shall have gone into effect," etc., shall be illegal, and subjects me to all those hardships enumerated in my preamble, and transfers to the copyrighter in almost the exact words of my patent those rights given me by the Commissioner of Patents under the authority of the Constitution.

I am not a lawyer, and never made a public speech before in my life, and can only speak to you out of the fullness of my heart. I have not even been able to get my counsel here

Mr. CHANEY. I do not think you need any. [Laughter.]

Mr. DAVIS. After destroying or limiting the patent rights already vested in me as explained, and transferring them in whole or part to the copyrighter, as contemplated in subsection (g), page 2, in the bill, I am, by another part of the bill, liable to imprisonment if I infringe a copyrighted composition, and this I will do of necessity if I proceed under the authority of my existing patents giving me the exclusive right to make, use, and sell my mechanical device for reproducing music, whether copyrighted or not, thus through two conflicting grants, one to the composer and the other to me, I may innocently

Mr. CURRIER. Not if you do it innocently. If you read it carefully you will find that that is the case.

Mr. DAVIS. There is a paragraph further over, section 25, page 18, which provides that anyone who shall knowingly and willfully infringe the proposed copyright "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year." Now, if I proceed "willfully" to exercise my full rights as vested in me by my existing patents in defiance of the conflicting and unconstitutional copyright grant proposed, then the copyrighter can put me in jail for a year and during my incarceration and during the entire life of my patents make, use, and sell my machines under the provisions of subsection (g). It is no misdemeanor for one inventor to infringe the patents of another inventor, no matter how frequent and willful such infringements may be; then why imprison an inventor for infringing a usurping copyrighter. Supposing such infringements are innocently made, then wealthy and unscrupulous corporations, such as the Eolian Company, through their unscrupulous lawyers, will succeed in jailing many poor and innocent inventors. It is hard enough now for most inventors to keep out of the poorhouse and the courts; don't add to their present hardships.

Senator SMOOT. Mr. Davis, of course you mean that that would happen if you published something after the passage of this act that was copyrighted? This act plainly says, in section G: "Any work published and copyrighted after this act shall have gone into effect." It does not affect anything at all that you have done before?

Mr. DAVIS. Yes; but it applies to machines that I have already invented and which I may use after this act, according to my patent, to mechanically reproduce any music of the past, present, or future. Mr. WEBB. It does not apply to pieces that you play on those machines now, though, even if they are now copyrighted, does it? It only applies to pieces copyrighted after this act goes into effect.

Mr. DAVIS. My machines, those that I have been inventing and patenting for years, are specially adapted to reproduce, or may be specially adapted and arranged to reproduce any particular piece, whether copyrighted to-day or hereafter. Under the Constitution, as I understand it, I have the right to use anything that is not a writing, a readable writing; and I have gone ahead under the Constitution with the full reward therein provided as an incentive for my work. The bill covers not only pieces or controller records, but also the machines which they actuate.

Mr. WEBB. You do not understand, though, Mr. Davis, that this act will destroy any of your vested rights at present, do you?

Mr. DAVIS. I do, sir; as I have explained, though perhaps not clearly.