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law. We had to work out that remedy by replevin, out of our own heads. The present law is wholly vague and indefinite upon that subject.
Mr. BONYNGE. We are attempting to model a new law now, and we do not want to leave it vague and indefinite.
Mr. Wilcox. I agree with you entirely, sir; and I suggested before that in connection with the provisions of the new law for seizing and impounding goods or infringing articles you should be quite definite and explicit in stating the remedy, and then perhaps should leave it to the courts to make their own rules as to how that remedy should be exercised. If you mean that it should be done by replevin, I think you should say so; or if you mean that it should be done by attachment, I think you should say so; or if you mean that it should be done by a direct impounding order of the court, which is the only other remedy that I can conceive of, I think you should say so, and authorize the court to make rules for giving effect to that remedy and to require security and otherwise to protect an innocent defendant from a vicious attack.
Mr. LEGARE. Which do you think is the most feasible?
Mr. Wilcox. I think replevin is the best known and the most generally applicable remedy.
Mr. CURRIER. Would you cause the destruction of all the machinery used to reproduce? Mr. Wilcox. Would I do so, sir! ? Mr. CURRIER. Yes.
Mr. Wilcox. I think it would be a very hazardous thing for a plaintiff to destroy machinery.
Mr. CURRIER. Machinery that might be used for some other pur
Mr. Wilcox. I think it would be very hazardous. I would not do that at all.
Mr. CURRIER. Would you leave that paragraph, then, as it now reads?
Mr. BONYNGE. That would be paragraph 23, subdivision d?
Mr. Wilcox. I certainly would not leave the remedy in such shape that it could be abused. I think that would not be a very dangerous remedy, because a defendant whose machinery was seized would certainly go into court immediately and ask for a bond that would indemnify him completely for the value of that machinery—his printing presses and other machinery, and even the plates, which can be melted down and used over again, or lithographic 'stones, which, after an infringing print has once been put upon them, can be erased in a very few minutes and the value of the stone restored. To destroy articles of that kind would be barbarous, I think, and this clause in reference to destruction certainly was not intended to accomplish that; and I do not think it would in practice, because the defendant would protect himself.
Mr. CURRIER. I think it would be helpful to the committee if you would formulate an amendment carrying out your idea as to how the remedy should be provided.
Mr. Wilcox. I started to do that, sir, and then it seemed to me this morning in looking at it that it was doubtful whether that
amendment should not be made in a subsequent section which provides more explicitly for the impounding process. I think that is the place where it should come rather than here—perhaps with some slight amendment to that portion of section 23. I shall be glad to do that, however, and will try to do it before I go away to-day.
I am going to submit, Mr. Chairman, in addition—this is not in the line of the remarks I have been making—a draft of an amendment to section 1 which will answer, I think, a good many of the objections which have been made to that section and which, to my mind, will very greatly improve it. But I will not take up time by discussing that now, although I shall be very glad to discuss it, either publicly or privately, with some of the gentlemen of the committee later.
In answer to a question which the chairman of the House committee asked of several gentlemen yesterday, as to whether they would object to striking out from section 1, subdivision b, relating to selling, distributing, exhibiting, etc., I would like to say that to strike out subdivision b would cut the vitals out of the entire bill, and that that would be a fatal step to take without providing some substitute for it. I say that because that is the section which embodies more of the meat of the copyright law than any other one clause in the bill. It can not be stricken out, but it plainly is susceptible of misconstruction; and I think that misconstruction can be obviated by an explanatory clause added at the end of it, permitting any person who has become lawfully the owner of a copyrighted article to use it just as he can use it to-day, either by selling it or by distributing it or by exhibiting it or by doing anything with that particular article which he owns which he can do under the law as it stands to-day. I am sure there was no intention to limit that use, and that can be so stated in a single proviso at the end of that section.
But besides that I think that subdivision a and subdivision h as they stand in that section to-day, taken in connection with one another, are confusing and that the two should be taken up and worked in together, and that the line at the head of subdivision a “ for the purposes set forth in subsection b hereof” is wholly unnecessary and misleading and should be stricken out entirely. And I will submit an amendment embodying those items.
The LIBRARIAN. Mr. Wilcox, will you communicate to us some general impressions of the bill as you see it? You have criticised certain particular sections, but you have also examined the bili as a whole ?
Mr. Wilcox. I have. I have been trying to be brief in my remarks. I fear I have exceeded the time I stated.
The CHAIRMAN. That is all right.
Mr. Wilcox. But I want to say on behalf of the clients I represent—I think I did say it—and on behalf of myself as a lawyer, as having studied the bill, that I consider the general framework of the bill excellent. I entirely disagree with the gentlemen who say that the bill is not well conceived and in general well worked out. While I do think that it needs amendment in some particulars that I have mentioned and possibly in others, and while I am impressed with some of Mr. Porterfield's suggestions that in other respects the bill may need amendment, I think you have an admirable framework to work upon, and that you should now go ahead and preserve the very carefully constructed framework of this bill and improve it and make it a model copyright law.
(Mr. Wilcox later submitted his proposed amendment to section 1, above referred to, as follows:)
That the copyright secured by this act shall include the sole and exclusive right,
(a) To make any copy of any work or material part thereof the subject of copyright under the provisions of this act, or to make any abridgment, adaptation, variation, or rearrangement thereof.
This subsection shall include translations into another language or dialect of any work which is capable thereof.
(b) To sell, distribute, exhibit, or let for hire, or offer or keep for sale, distribution, exhibition, or hire, any copy of any such work, or any abridgment, adaptation, variation, or rearrangement theeof: Provided, That this subsection shall not be deemed to prohibit anyone who has lawfully become the owner of a copy or copies of such work from selling, distributing, exhibiting, or letting for hire such copy or copies.
(c), (d), (e), (f), and (g) not changed. Omit (h), included in (a).
The LIBRARIAN. Mr. Alfred Lucking asks not exceeding six minutes, Mr. Chairman, to suggest a criticism. Mr. Lucking is from Detroit, and represents the directory publishers particularly, I believe.
Mr. LUCKING. Yes, sir; entirely.
STATEMENT OF ALFRED LUCKING, ESQ., OF DETROIT, MICH.
Mr. LUCKING. Mr. Chairman and gentlemen of the committee, I know how precious your time is, and I will not take over six or seven minutes at the outside.
The CHAIRMAN. Whom do you represent, Mr. Lucking?
Mr. LUCKING. I represent the American Association of Directory Publishers of the United States.
The CHAIRMAN. Are you here to protest against or object to any provisions of this bill?
Mr. LUCKING. I desire to protest against the elimination of some provisions which it has been suggested to eliminate, and in general to pronounce a confirmatory and satisfactory word with regard to the bill, and to direct your attention particularly to two sections, not taking more, as I say, than six or seven minutes at the outside.
Mr. BONYNGE. I understand that your association, then, is satisfied with the bill as an entirety?
Mr. LUCKING. As a whole; and even without amendment they would ratify it. There are minor criticisms which I will not stop to refer to.
As I say, they are in the main satisfied with this bill and would be glad to accept it as a large improvement over the present law. We are eminently satisfied with it so far as it fixes rights and appoints methods of securing those rights. In the matter of remedies for infringements the proposed act is a decided advance and will be of great help in preserving our rights, chiefly on account of section 25–. the misdemeanor section.
I desire, at the instruction of the American Association of Directory Publishers of the United States, to express their dissatisfaction with section 13, but to say that they yield their objections for the general good.
There were other expeditious remedies which they urged upon the authors of the bill—practical and useful ones, as they believed—but failing them, they still express satisfaction with the work as a whole.
The chief source of their contentment arises from section 25, that which makes willful and deliberate theft of their property a misdemeanor. I want to urge with all the force and strength of their united body the retention of this provision. To take out this would not only remove the backbone of the measure, but take the heart out of them. They have been robbed and cheated and swindled by irresponsible fly-by-night concerns, which have copied their works which cost them many thousands of dollars to compile, reaped their profits, and then have given them the laugh because of the utter futility of “suing a beggar and catching a louse."
The honest man need not fear section 25, and we want the dishonest ones decidedly to do so. Now, its chief value, gentlemen, will be preventive. Dramatic copyrights have been protected by such a claussince, I think, the year 1897. Mr. Bronson Howard declared before the March conference that whereas before the act of 1897 dramatic piracy was a constant and everyday practice, there had been no occasion, except in one trivial instance, to invoke the criminal law since it was passed. The fact of its existence upon the statute book had been sufficient to deter all infringements. Is this not a splendid testimonial to the efficacy of such a provision and complete proof that no harm can come of it?
I sincerely hope that there is no serious thought of eliminating that provision. It is the chief source of our indorsement of this bill.
Now, just a word with regard to section 32, Mr. Chairman.
I heard what the chairman said with respect to that section—the question of the venue of the action or suit. Now, by the instructions of my clients, I can say that they indorse the principle of paragraph 2 of section 32—that is, with reference to the venue of the action. I noted what the chairman said, that some decision had been arrived at with regard to that. I trust it will be reconsidered somewhat.
My clients indorse the principles of section 32, paragraph 2; that is, that the defendant should be suable where he issues an edition of a directory. He may do a considerable business in a city and never be there personally. He should be reachable there for all consequences of that business. The suit should not be limited to the place where he lives or may be found. But on the other hand, to drag a defendant thousands of miles to defend a suit simply because a single copy of the book is sold there would be a gross abuse of
to that. We in a measure indorse the suggestion of Judge Walker as a compromise, which is contained on page 114 of the circular or book put out by the library, entitled “Amendments Proposed to the Copyright Bill." I will not stop to argue it before you, but I want to read you a notation made by Mr. Bates, of the Trow Directory Publishing Company, of New York City, secretary of this association, which he made in pencil upon this memorandum. He says:
Example: John Brown, of St. Louis, Mo., goes to New York with a deliberate intention of infringing the copyright of the New York City Directory. When the attempt to serve Brown is made it is found that he has not a permanent office in New York and resides in St. Louis. Now, if the New York copyright proprietor is not permitted to commence action in New York, he is compelled, at great expense, to bring suit in St. Louis or be debarred from redress.
I understand, of course, that that is not exactly correct; but I read that to you merely as a suggestion. I understood the chairman to say the idea was to allow the suit to be begun where the complainant lives. But that will not reach our case. For instance, R. L. Polk & Co., of the city of Detroit, publish directories in 70 or 80 different cities, extending from Washington and Baltimore to Seattle and even to Honolulu, and in some cities where personally the members of the firm probably never go. On the other hand, others residing, for instance, in New Orleans, may publish or attempt to publish in those same cities where they seldom or never appear.
The CHAIRMAN. Where can you safely and justly draw the line?
Mr. LUCKING. I recognize that it is a very serious matter, and that section 32, as drawn, is not as it ought to be at all. It seems to me, as I said, that Judge Walker's suggestion there offers a possible solution, although it is too limited for our purposes. He says or suggests:
Actions arising under this act may be instituted in the district of which the defendant is an inhabitant, or in the district where his violation of any provision of this act has occurred, and wherein the defendant has a regular and established place of business.
The words I would criticise there are the adjectives "regular" and “ established.” If he has an agent there it should be somewhat broader.
Mr. CAMPBELL. May I ask you a question?
Mr. CAMPBELL. Suppose you desire, and it might possibly be necessary, to invoke the impounding or replevin process. Now, your defendant might not reside there at all, and yet the work might be done there.
Mr. LUCKING. Yes, sir.
Mr. CAMPBELL. How could you do it successfully in the progress of your suit if you limit your action entirely to the place where the plaintiff or defendant resides?
Mr. LUCKING. As I have said, I do not think it ought to be done. Of course if there is an edition
Mr. CAMPBELL. Does Judge Walker's amendment meet such a situation?
Mr. LUCKING. Perhaps not wholly. No; I do not think it does; but allow me to say this with regard to that: Of course if there is an edition of a work, say, 30,000 posters, in a city, somebody will be in charge of those posters and could be made a defendant, even though he were not the real owner, and that infringement would be reachable. But where a directory, for instance—and of course my remarks are largely directed from that point of view.-is issued in a city the party himself should be suable there, not merely his clerks and servants, but he should be suable there, and the courts should have jurisdiction to reach him for all the consequences of a suit, including everything which follows in case of personal service, it seems to me. And if it will be of any help to this committee, I would be glad to frame such amendments as I think might reach the case, having in mind as far as may be all cases.
The CHAIRMAN. We should be very glad to have you do so.
Mr. HINSHAW. It would be necessary for you to have service upon some individual, however, would it not ?