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not then at my command. That material is a decision of the United States circuit court of appeals for the second circuit in the case of the White-Smith Music Publishing Company v. Apollo Company, now reported in the 147th volume of the Federal Reporter at page 226, which portion of that volume was published on November 29, 1906. The decision of the court is brief, and I ask permission to read it and then comment upon it, because, as I interpret it, and I have given a good deal of thought to it, it can not be justified at all except upon the ground that the court was convinced that Congress has no power to denominate mechanical musical instruments under the copyright law. After I have read the opinion I shall explain how I deduce that conclusion from it, and to me the conclusion is unavoidable. This is the opinion and the whole of it:
The questions raised in these cases are of vast importance and involve farreaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant. But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law, and that it confers distinct and limited rights which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions either by resort to equitable considerations or to a strained interpretation of the terms of the statute. We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainants' staff notation, for the following reasons: It is not a copy in fact. It is not designed to be read or actually used in reading music, as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that, because the roll is a notation or record of the music, it is therefore a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforations in the rolls are not a varied form of symbols substituted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine or musical playing device is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's conception to the public.
I have not in my possession the particular sheet of perforated music that was involved in the Apollo case, but I have in my possession one which is not distinguishable therefrom, except by putting measuring instruments upon it; and if some one of you will hold one end of it I will manipulate the other end and indicate to the committee what one of these perforated music rolls is like.
The circuit court of appeals for the second circuit determined that that was not a copy of the staff notation of a piece of music. determining that it was not a copy the court logically and necessarily had to determine that this piece of paper is not a writing, because it lacks no other element of being a copy of the staff notation except not being a writing. When used as it is intended to be used it plays the same tune that would be played by a pianist and the same tune that was intended to be played from the original staff notation. So that when you are analyzing the characteristics of the word "writing" and the characteristics of the word "copy you will conclude that this perforated sheet of paper stops short of being a copy of the original staff notation because it is not a writing,
and for no other reason. If the court had been able to find that this was a writing they would necessarily have found it was a copy. In finding that it was not a copy they really found that it was not a writing, and it was because they thus found it was not a writing that they decided the case as they did. In finding that it was not a writing they found that the Congress of the United States has no constitutional power to denominate this kind of a valve instrument under the copyright laws of the United States.
The CHAIRMAN. Do you use the word "writing" in the strict sense?
Mr. WALKER. No; I do not at present. I am now inquiring what signification the circuit court of appeals for the second district must have given to the word "writing" in promulgating this decision.
Mr. BONYNGE. In that opinion the court declared that it would give a strict construction to the statute and that they could not give it a liberal construction. They were therefore considering the statute and not the constitutional power of Congress to enact it, were they not?
Mr. WALKER. That was the next point I was about to mention, because it was a point I consider significant. In this case, literally, the circuit court of appeals speaks of the statute; but constructively, when you interpret the decision as the result of careful analysis, you should read, wherever they use the word "statute," the words "Constitution and statute." Why so? The Constitution is itself statutory law. The only difference is that the Constitution deals with generalities and the statute with details, and in general the origin of the Constitution is in the people represented in a constitutional convention, whereas the origin of the statute is in the people represented in Congress. But in the nature of the case constitutions and statutes are alike in that they are written edicts representing the will of the people. These edicts have the same relation as each other to the common law, which is based upon immemorial usage.
Mr. BURKAN. May I ask you a question based on this decision?
Mr. BURKAN. Why did the court say in this very opinion, "We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as result from the acts of the defendant?"
Mr. WALKER. I hold that when the court here speaks of the statute they logically mean "Constitution or statute," although they do not use those words. That is a very important point, and I thank the gentleman from Colorado for questioning me upon that point. This is the language of the court:
But in view of the fact that the law of copyright is a creature of statute, and is not declaratory of the common law, and that it confers distinct and limited rights which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute.
But the law of copyright is not the creature of statute, strictly speaking. It is the creature of Constitution and statute. If there
was no Constitution no statute could be enacted to lay the foundation for any law of copyright. So that if Judge Lacombe, or any other learned jurist, tells me that the law of copyright is based upon statute, independently of the Constitution, I call his attention to the fact that he has misspoken himself, because no lawyer would venture, on second thought, to affirm any such proposition. So you should read this decision as follows: In view of the fact that the law of copyright is a creation of written law, that is to say, an aggregation of Constitution and statute, and is not declaratory of the common law, and that it confers distinct and limited rights which did not exist at common law, we are constrained to hold that it must be strictly construed, and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the Constitution and statute.
The moment you permit me to insert the words "Constitution or before the word " statute my case is made out. You can not decline to permit me to do that, because it is as certain as anything can be that when the court speak of the "statute" they mean to speak of positive law, including "the Constitution and statute," for otherwise they would be affirming the proposition that Congress could enact a statute on the subject of copyright, without any constitutional authority so to do.
This concludes what I have to say upon that subject, except upon the topic broached by Mr. Burkan, and which he sought to insert into my speech in order to break, if possible, the force of such remarks as I might make. Now, what is the language which pleases my brother so much? It is, "We are of the opinion that the rights sought to be protected by these suits belong to the same class as those covered by the specific provisions of the copyright statute, and that the reasons which led to the passage of said statutes apply with great force to the protection of right of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant."
Now, that language is obiter, and it got there because these judges, in the absence of a thorough argument of the case; took the same superficial view of the inherent rights of an author, which nearly everybody takes when he first gives his attention to the subject. Nearly everybody takes the same superficial view that my friend Mr. Sousa holds, namely, that the right which an author has in his intellectual productions is something sacred, and far above the provisions of all constitutions and statutes, and that any constitution or any statute which derogates from that right-nay, more, any constitution or statute that does not enforce that right—is a violation of his inherent property right.
That is all wrong. There is no foundation whatever for that theory. The whole copyright theory is based not upon the notion of inherent property right at all, but is based upon a convention of civilization. Civilization had to go far before that convention arose, and it never was known until long after the time of Shakespeare. It never was thought of in respect to the dominion of an inventor over his invention or the inherent ownership of an author in his writing. The common law never dreamed of such a thing until it
was brought out in the case of Millar v. Taylor in the reign of George III, and there it was brought up, not as a practical question, but as a speculative question as to whether or not there had been, anciently, such a right. Now, anciently, nobody had enjoyed such a right. It was a purely speculative proposition as to whether, prior to the reign of Anne, there had been such a right. Why not hunt back and inquire whether anybody ever asserted such a right or enjoyed such a right? If you do that, you will find the negative to your inquiry. As I said in June, in the time of Shakespeare no human being ever dreamed of any exclusive right to copy any literary work. William Shakespeare never dreamed of any law of copyright. Anybody could copy, print, and publish one of Shakespeare's plays as well as William could; and many of his plays were copied, printed, and published during his lifetime without his consent being had or thought necessary. All such a publisher had to do was to get the permision of the Crown to publish a Shakespeare play, and that permission was granted or refused according to whether the Crown thought it would harm the British people to read that play. It had no relevancy whatever to the authorship of the play.
Mr. BOWKER. Do you remember an earlier case? There was a celebrated copyright case growing out of the stealing of a copy of a manuscript, as far back as the time of St. Columba. It was brought under the common law, and there was an elaborate argument. The court decided in a very old-fashioned way that the calf must follow the cow, and the right of copyright was sustained by the court as early as that case.
Mr. WALKER. That case dealt with the ownership of the manuscript. When Milton sold Paradise Lost, what he sold was the manuscript, and the reason the man paid him the money for the manuscript was because he could not get it in any other way. The moment he published Paradise Lost there was nothing to hinder other publishers from multiplying copies as much as they pleased. Mr. SOUSA. Do you remember that there was a time when slaves were sold in this country?
Mr. WALKER. There were slaves sold; but slavery was afterwards abolished by a constitutional amendment. You can not justify this bill until you get a constitutional amendment made to furnish a foundation therefor.
These are the grounds, in brief, upon which I claim that the proposed legislation is unconstitutional.
Mr. BONYNGE. How do you justify the granting of the right, under the copyright law, to reproduce a play?
Mr. WALKER. I do not justify it.
Mr. BONYNGE. You think,it is unconstitutional?
Mr. WALKER. Certainly; plainly so. When Congress attempts to grant a monopoly, under the copyright law, to the performance of a play on the stage it is transcending its powers as plainly as possible. Mr. JOHNSON. Have the courts so held?
Mr. WALKER. It is a significant thing that although that playright statute has been upon the statute books in one form or another for fifty years no court has ever sustained it, and in my judgment, submitted with all deference, no court ever will sustain it. It will be upset just as soon as it is presented in a case where it must be decided.
Mr. BONYNGE. In principle the granting of a copyright to these mechanical instruments is the same as the granting of a monopoly for the reproduction of a play.
Mr. WALKER. Undoubtedly, and if that playwright statute is constitutional, this clause g would be constitutional.
Now, if any member of the committee has any question to ask on the subject of the constitutionality of the bill I will be glad to answer it, if I am able.
Mr. CHANEY. How do you justify the granting of a copyright on a sculpture?
Mr. WALKER. On the ground that a sculpture is a kind of writing, known anciently as picture writing. The Constitution is broad enough to cover the two kinds of writing known to man, and the earliest kind was picture writing. Later than that came symbolic writing. Sculpture is picture writing, whereas the written English language is symbolic writing.
Mr. CHANEY. Let me ask this further question: Is the term "writing" confined and limited in its meaning by the meaning at the time of the adoption of the Constitution?
Mr. WALKER. I think it can be fairly considered in the light of what it was understood to mean at the time of the adoption of the Constitution; but I believe that when we are inquiring for the meaning of a word that is in the Constitution we are not confined to the meaning at that exact date, but we should take a view of the general force of language during that period of the world's history, which in this case is substantially the same as the view taken now.
Mr. CHANEY. I mean to ask whether, in the light of subsequent civilization, the word "writings" should have any other meaning than it had at the time of the adoption of the Constitution?
Mr. WALKER. If it has you have no right to adopt it. The Constitution, as Justice Bradley said, is not a nose of wax, which you can bend around in any direction you please.
Mr. CHANEY. But in the light of our higher intelligence at this time we can conceive of a meaning which it plainly possesses, although it did not have it at that time.
Mr. SOUSA. In Johnston's History of the Library of Congress it says that the directors of the library company of Philadelphia tendered to the President and Congress, after the letters were removed to that city in 1748, " the use of the books and their library in as full and ample a manner as if they were members of the company; " and President Washington, through his secretary, Tobias Lear, returned thanks for the attention. The dictionaries in this library were Johnson's, Bailey's, Ash's, and Phillips's; and it is fair to assume that these were used by the Federal convention in framing the Constitution of the United States. Ash defines "exclusive " as "having the power of excluding, debarring, excepting." Johnson defines exclusive as "having the power of excluding, denying admission, debarring from participation." Ash defines "writing" as "playing the author." Johnson defines "writing" (from writ) as a composure, a book, for example."
Those were the dictionaries in use during the discussion of the Federal Constitution, and that was the meaning the word "writing " had at that time.