Part 14

Hon. FRANK D. CURRIER, _Chairman House Committee on Patents, House of Representatives_.

The CHAIRMAN. It seems that a Mr. Davis, who represents some manufacturers of musical devices, does not understand that he is to have any part of the hour assigned to the gentlemen mentioned yesterday. Is Mr. Davis here?

Mr. PUTNAM. I think Mr. Davis has not yet come in.

With your permission, Mr. Chairman, I will state as to the letter of Mr. Wilcox, to which I referred yesterday in connection with the suggestion from Mr. Malcomson as to the need of including lithographs in the specification of subject-matter, that the passage which I should have read if I had had the letter here (it was with the stenographer) was this:

I congratulate you that the bill has taken this definite form and is now to be given a preliminary hearing, so that it will be in shape to be urged for passage next winter. The bill is a monument to the industry and broad intelligence and information of those who have been actively concerned in drafting it. * * * As affecting the interest of my client, the Consolidated Lithograph Company, which is a large producer of lithographic and other prints, engravings, etc., especially for use as posters, the form of the bill seems satisfactory to me, and I have no doubt it will be so to my client. This refers particularly to the provisions of sections 4 and 5, defining the subject-matter of copyright and the form of applications for registration. These provisions are in the highest degree liberal and enlightened.

The copyright office has received a communication from Mr. Fritz von Briesen, requesting that in section 5, after line 7, a further subdivision, "Miscellaneous," be inserted, and that the following be added:

_And provided furthermore_, That a series of maps, drawings, photographs, prints, and pictorial illustrations, and labels and prints relating to articles of manufacture, and other subjects of copyright of an artistic nature, constituting a unit or assembled for a unitary purpose, shall be considered as the subject-matter of a single copyright registration, should the applicant so elect, whether or not they are actually joined by binding, printing on the same sheet of material, or otherwise.

I suggest this, Mr. Chairman, as appropriate to be inserted in connection with the discussion of the fees yesterday by Mr. Remicher. It bears on that point.

The CHAIRMAN. That will go in the record.

Mr. PUTNAM. I handed in, I believe, yesterday, a statement in writing from Mr. A. W. Elson, of Boston, making certain specific recommendations for changes. He telegraphs me, "Written presentation sent you fully covers my view."

That is in answer to an inquiry as to whether he wished to have a hearing before the committee.

I have received a communication from the International Brotherhood of Bookbinders, as follows:

As president of Local No. 4, of Bookbinders' Union, of this city, and representative of the International Brotherhood of Bookbinders of the United States, I would be pleased to be heard on the Currier copyright bill to-morrow, immediately after Mr. J. J. Sullivan has spoken on bill. I will not consume more than ten minutes, and possibly less than that. I will be in attendance at the hearing.

Very respectfully,

J. L. FEENEY.

The office has received, since the bill was introduced, from the Music Publishers' Association, certain proposed amendments, additional provisions in connection with the protection of the copyright on musical compositions. These, I should advise the chairman, have not been communicated to the gentlemen who are to speak in opposition to any of those provisions. They have not had them, therefore, before them in preparing their case this morning at all; and while I have manifolded copies here which are at their disposal, it is to be understood that these were not communicated to them. On the other hand, Mr. Serven, who in behalf of the music publishers handed these to me, states (if I am not correct, Mr. Serven, you will correct me) that these contain additional specifications but in the same general direction. That is all.

Mr. A. R. SERVEN. That is correct, Mr. Librarian, and simply to conform subsection G of section 1 to comply with the recent decision of the United States circuit court of appeals in the White-Smith _v._ Apollo Company case. The same idea is represented simply. The case was decided, of course, since the bill was printed.

The CHAIRMAN. Mr. Putnam, just call our attention to the proposed change.

Mr. PUTNAM. This is contained in a written communication, and it will really take less time to read it from the communication.

The CHAIRMAN. Yes.

Mr. PUTNAM. (Reading:)

Section 1, subsection G, should be amended to read as follows:

"To make, sell, distribute, or let for hire any device, contrivance, or appliance adapted in any manner whatsoever when used in connection with any mechanism to reproduce to the ear or to cause the said mechanism to reproduce to the ear the sounds forming or identifying the whole or any material part of any work copyrighted after this act shall have gone into effect, or by means of any such device, contrivance, appliance, or mechanism publicly to reproduce to the ear the whole or any material part of such work."

Omitting the explanations, the next amendment will be as follows:

Section 3 should be amended to read as follows:

"That the copyright provided by this act shall extend to and protect all the copyrightable component parts of the work copyrighted, any and all reproductions or copies thereof, in whatever form, style, or size, and all matter reproduced therein in which copyright is already subsisting, and the devices, appliances, or contrivances mentioned in section 1, subdivision (_g_) of this act, but without extending the duration of such copyright."

Section 23, subdivision (_b_)----

The CHAIRMAN. I suppose the other amendments are simply to follow if the first amendment is approved?

Mr. PUTNAM. If the first amendment is approved; that is my understanding.

Mr. SERVEN. Mr. Chairman, that is true with the exception of one amendment. The Musical Publishers' Association suggests that the same right of appeal and review in interlocutory judgments and orders should be provided for in the new bill as is provided for in the existing law. That is the only thing that is different.

Mr. HORACE PETTIT. Mr. Chairman, may I ask Mr. Serven whether he will add to his amended section 3 the clause which I suggested in my amendment to the original section 3? It would accomplish the same purpose as I had intended. My suggestion of amendment would also apply to your amended section 3, which adds:

_And provided_, That no devices, contrivances, or appliances, or dies or matrices for making the same, made prior to the date this act shall go into effect, shall be subject to any subsisting copyright.

Mr. SERVEN, Yes, Mr. Chairman; I think that is only fair to the interests represented.

Mr. PETTIT. You accept that as an addition to your amendment?

Mr. SERVEN. We are very glad to, indeed. We think that is perfectly fair.

Mr. CURRIER. A suggestion was made here the other day, the first day of the hearings, to strike out section 3, I think.

M. PETTIT. Well, either that or that my amendment be added to it.

Mr. CURRIER. Yes. Who was the gentleman who replied to you.

Mr. PETTIT. Mr. Fuller, of New York.

Mr. CURRIER. I understood Mr. Fuller to say that the question of whether subsisting copyrights covered these mechanical devices was now in the court, and they thought the court might hold that such devices were now covered. If such should be the decision of the court, would it not prohibit the use of graphophone cylinders and records already made and in use, if they were records of music covered by a subsisting copyright, under that section 3?

Mr. PETTIT. If the decision of the court were such as to include talking-machine records or other sound records within the subsisting law, of course it would prohibit that.

Mr. CURRIER. Does any gentleman here think we ought to legislate along that line?

Mr. PETTIT. Not that I know of. I do not understand that they think so, unless Mr. Fuller was misunderstood.

Mr. CURRIER. That would prevent any boy or girl in the country who has bought records and who is using them to-day from using them. Immediately, I suppose, a warning circular would go out that they must not use those records and cylinders that they had bought in good 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 SMOOT. You mean, then, that section 3 is the section 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 SMOOT. 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 Æolian 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. 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 Æolian 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 Æolian 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 Æolian 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 Æolian 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 Æolian 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 part of it, and in the case of phonographs or graphophones they include the engraved record.

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 music--notwithstanding 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 Æolian 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.