Part 15

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.

Mr. WEBB. When it says that it shall only apply to works published and copyrighted in the future? It only applies to works copyrighted and published after this act goes into effect, and I do not see how it can affect any vested right which you have on account of your past investments.

Mr. DAVIS. But the idea of inventions is to be able to produce a mechanism which can be specially adapted to any music, whether of to-day or to-morrow. My patent grant does not except new copyrighted pieces.

Mr. WEBB. I understand that; but there are two propositions involved here. The first is, you say it will destroy what you have already invented. The next is, you say it will destroy you because of your inability to get hold of these pieces that will be published and copyrighted in the future. Is that your point, now? Is that your argument?

Mr. DAVIS. I say that this practically depreciates or destroys the marketable value of my inventions or machines, which are capable of being used for mechanically reproducing either old or new music, as well as destroying in part or whole my existing patent rights.

Mr. WEBB. Because it will not let you reproduce works published and copyrighted in the future? Is that the reason, now, why you say it will destroy your invention?

Mr. DAVIS. Yes, sir; coupling this admission with my previous explanations.

Mr. WEBB. I wanted to get your meaning.

Senator SMOOT. Or, in other words, if Mr. Sousa should have a very popular air or piece produced in the future, you think that you ought, as you have in the past, to simply be permitted to reproduce that by your machine?

Mr. DAVIS. Yes, sir; either I or any other patentee.

Senator SMOOT. Without any consideration whatever?

Mr. DAVIS. Yes, sir, I do; because outside of a possible minor and remote ethical or equity right, he possesses not a vestige of a statutory or legal right to stop me.

Senator SMOOT. And whatever his brain, and his talent, and his gift has brought forward, you are entitled to use?

Mr. DAVIS. And I want to go ahead and explain, if you will allow me, why I say that.

Before I took up this art of self-playing musical instruments, as I said, I saw that there was a possible limitation, and that in order to make inventions commercially successful I would have to use musical compositions. If I used old music, they would be useless. I would have to use current music; and I read the Constitution, and the very first article of the Constitution that I came to, section 8, reads:

That the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

Mr. WEBB. Mr. Sousa insists on that, too. [Laughter.]

Senator SMOOT. Yes; I was going to say, that is just exactly what Professor Sousa insists upon.

Mr. CHANEY. That is where the other fellows claim they come in.

Mr. DAVIS. There is where Mr. Sousa and the trust, on one side, and I are going to lock horns--right here with the Constitution as our battle ground.

Mr. MCGAVIN. Would you like to amend that?

Mr. DAVIS. No, sir; I want the Constitution to stand as it is. It is not the construction Mr. Sousa puts on this word "writing" therein; it is not the construction that I put on it; but I followed this matter down, as an inventor. Every decision that has ever been made in this country and England, as I read it, has limited that word "writing" to mean some visible and readable writing; not the mere making of a wave in the air. If I invent improvements in wireless telegraphy, the Government does not grant me anything but the mechanical means of doing that, or the method. It does not give me exclusive right to use God's free air and vibrate it.

For instance, we will imagine Mr. Sousa facing an audience of ten thousand persons and behind him one hundred skilled musicians who, upon the movement of Mr. Sousa's baton perform in melodious concord upon one hundred different musical instruments. We will, for illustration, as audiences do without suggestion, forget the inventors who evolved the orchestral musical instruments and without which Sousa's band would be a nonentity, and take under consideration only one of the inventors who have formed part of the audience which has been enraptured. After the performance the thought occurs to many that it would be a blessing to mankind if such music as they had heard could be reproduced at will for their own pleasure and for that of those who are in remote sections of the world and for those who are too poor to pay for even the lowest-priced seat.

One of the inventors present determines that he can produce the great desideration to practice, and from that moment commences to evolve in his mind thousands of different apparatus which appear to him feasible for the full achievement thereof. After years of experimenting he is ready to test a machine which, in some of its structural features, resemble that of the human organism. The inventor's machine is set up within the range of the air waves, set in vibration by the instruments of Sousa's band, and which air waves are escaping into space to be lost to man forever. The ear-like diaphragm of the instrument is impinged by and set in motion, and through connecting means resembling the human oricular bones and nerves there is engraved upon a sensitive surface not far unlike the material matter of the human brain a record of every minute vibration of all the one hundred instruments.

After the performance no one in the audience, musician though he be, can simultaneously resound any two instruments, and the majority of the audience would be hissed if they attempted to resound any one of the instruments. Not so with the mechanical listener, for it is capable of resounding simultaneous and accurately all of the 100 instruments, and upon the expenditure of 50 cents for a copy of the machine-made record the poor man and his family in every part of the world can, by a slight movement of his hand, start up his $7 graphophone and thus be amused and enraptured, all owing to the inventor having caught, preserved, and provided means for mechanically reproducing the air waves which would have otherwise have escaped beyond Sousa's power to recall. Nevertheless, the bill provides that the lost chords must be all returned to Sousa by the inventor in the form of a royalty.

There is no novelty in music, nor vibrating the air as a means of transmitting musical tones, for--

Long 'ere earth was matter or had form, Music out of wind and lightning was borne; It was thus God solaced nature, And her troubles were shorn.

Now, defining an ethical or equity right which the inventor might claim with equal justice against Sousa and other composers, the common people all over the world, who listen to the mechanically reproduced lost chords of Sousa's band, do frequently order and pay for the sheet music score for the piano, banjo, violin, and other instruments which the purchaser plays or thinks he can play, and upon all these orders induced by the inventor's machine he is entitled to a commission, which in actual fact and adjustment would offset the alleged right of the royalty claimed in this bill. There are many other corelated equity rights which us inventors might set up but which it would be impracticable to secure to us.

The CHAIRMAN. Mr. Davis, if I may interrupt you, do you claim that you have the right to take one of Mr. Sousa's compositions and use it in connection with your mechanical device without compensation to him?

Mr. DAVIS. Under the Constitution and all the laws of the land, I say yes, decidedly; but I want to explain my contention and the position of inventors in a little different line of argument.

The composer of music never conceives nor produces, and never did in respect of the actual composition, conceive or produce, any means for conveying to the ear the musical composition. On the contrary, all such means from the beginning to the present time are the direct result, not of authorship, not of composition, but of invention. The composer never conceives the idea of a mechanical means for playing a piece of music. That achievement is the result of the effort of the inventor. The Constitution makes no distinction in respect of right of protection as between an author and an inventor, but both are coequal under the Constitution, and the line or field within which each may be protected is clearly marked out in the Constitution, the result of authorship being distinctly distinguished from the result of invention. The author is restricted by the Constitution to protection for "writings" and the inventor to "discoveries."

The courts have determined what may properly come within the constitutional provision of discoveries, and it has been determined a number of times that under the constitutional provision a writing does not include a mechanical contrivance. If the law under discussion be enacted it will operate to take away from the inventor the rights which are vouchsafed to him by the Constitution and by the laws of Congress enacted in pursuance thereof, and deliver his rights over to the author or composer of a literary production or a musical composition. Such a procedure would clearly annihilate the inventor, offering him up as a sacrifice to the author or composer. The Constitution intended no such thing, and in matter of every right, irrespective of the limitations provided by the Constitution, Congress ought not to pass a law which turns the inventor over to the mercy of the author or composer.

It is needless to mention to this committee the unprecedented state of prosperity and material progress attained by this country as the direct result of invention. In all arts the work of the inventor will be found at the foundation of the progress and prosperity of the country. The author or composer has to do more with the pleasure or esthetics of life, the inventor with the real necessities, and in the art allied to the fine arts has had to do with placing throughout the United States in the possession of the common people everywhere the means by which the composer as composer can never give them. It is not for a moment intended to detract from the value of the work of the author or composer, for his work is valuable, but its value has certain limitations, and these limitations are defined in the Constitution and acts of Congress heretofore passed in pursuance thereof.

The farmer or the workingman in all the small towns of this country, who are possessed of an electrical piano player or an automatic piano player, or a graphophone or a phonograph, which serves to relax the tension of their daily labor and fill their souls with music, is not because of the composer, for he rarely reached them, but it is the direct result of the inventor of the mechanical contrivances with which music may be conveyed. Yet this law attempts to reach out and take away from the inventor the product of his brain and to deliver it over to the composer. So far as the mass of the people of this country is concerned, the work of the composer is infinitesimal as compared with the work of the inventor, and the inventor is willing that the composer shall have his just rights under the Constitution; that is to say, shall have full protection in his writings, but does protest that a law should not be passed which will enable the composer to overstep the field of protection to which he is entitled under the Constitution and usurp that which the Constitution has particularly provided shall be with the inventor.

Mr. CURRIER. Would you object to paying a reasonable royalty to a musical author or the proprietor of the copyright if all companies would get the right to use that piece of copyrighted music upon the same terms?

Mr. DAVIS. Most assuredly not--no, sir; I would not, provided----

Mr. CURRIER. You would not object to paying a reasonable royalty if that right was given to all upon the same terms?

Mr. DAVIS. Provisionally I would not object, but your proposition is one which mainly interests the manufacturers of my machine, whom I do not represent. As an inventor I approve of the bill as a whole and only seek to strike out therefrom those comparatively few words covering mechanical devices, the insertion of which vitally affects our present vested rights.

Mr. CURRIER. If it could be worked out along the lines suggested, you would not object to that?

Mr. DAVIS. No, sir; no, sir. But, in my opinion, you will never be able to draw a better or more workable line of demarkation between the inventor and composer than that now set up by the Constitution, particularly if you follow the lines of the present bill as regards mechanical devices, in respect to which collusive elements have been at work behind the drafting of the bill. I will give you my word of honor to produce evidence of it.

The CHAIRMAN. Of what character?

Mr. DAVIS. That Mr. Sousa, or rather the majority of composers, have been sold out by their publishers to this monopolistic octopus, the Æolian Co. and lesser satellites, and that contracts exist which anticipate and control benefits designed primarily for the composers, with whom us inventors have no direct fight.

Mr. CHANEY. The idea is now, you know, to try to protect these people who produce the music to the public, and all that. They have rights which we are bound to respect, as well as the inventor.

Mr. DAVIS. Yes, sir; and I would help you in all reasonable and lawful efforts.

Mr. CHANEY. And the idea now is to try to evolve something that will treat everybody fairly.

Mr. DAVIS. Yes, sir. But if the Constitution has led inventors on, given an incentive to them to go ahead and work and devote their funds and lives to developing these industries, which are second to none in the world as young industries, it would be wrong to come in at this stage and either curtail the incentive or subtract from rights already vested in them.

Mr. CURRIER. Yes; but that very clause gives the same incentive and protection to the musical author, does it not, as to the inventor? He is protected on his writings as you are on your discovery?

Mr. DAVIS. Yes, sir; there is a line of demarcation set up in the Constitution. I went in to try to get the line of demarcation between an inventor and a composer. I went in, as I thought, intelligently. I have studied the laws right down to the last decision of the 25th ultimo, that of the court of appeal for the second circuit, and all confirm the contention which I have made here that the only incentive held up to the composer is a specific protection for his "writings," not on machines.

The CHAIRMAN. Would you object to Mr. Sousa taking your invention and combining it with his composition and putting it upon the market?

Mr. DAVIS. If there was some fair, equitable way of doing that, no sir, I would not. But unfortunately, we inventors and composers are the ones that are generally imposed on, and naturally I am fearful that any change in the laws as they now exist will prove disadvantageous to both our interests.

Mr. MCGAVIN. If I understand your position correctly, you feel that Mr. Sousa has no more right to require any further compensation from a phonograph company, if it be a phonograph company, for the use of any particular piece of music which has been copyrighted, and of which he has received the benefit, than an inventor of a drum would have a right, after he has been protected by a patent right, to require Mr. Sousa to pay further for the use of that right. That is your position, is it not?

Mr. DAVIS. Well, you can look at that in two different lights. From the legal standpoint he has no right whatever. From an ethical standpoint there seems to be a sort of remote ethical right. I am not a lawyer, and not used to legal verbiage, and am not sure that I can clearly differentiate between legal and ethical rights.

Mr. CHANEY. Well, this is the "Constitution between friends," you know.

Mr. DAVIS. As inventors we proceeded under the laws of the land as they exist.

Mr. MCGAVIN. That is just what I say.

Mr. DAVIS. Mr. Sousa, through his publishers, has tried in the various courts to have the word "writing" broadened, but he has failed to do so, and he now comes to you to do it. In no copyright act or law has there ever been introduced before--you will not find it anywhere--one word or clause or phrase, before this one, that covers mechanical devices.

Mr. CHANEY. Under that word "writing" you want to exclude such people as Mr. Sousa entirely from its operation in respect to self-playing musical instruments?

Mr. DAVIS. If you are going to work under the Constitution; yes.

Mr. CHANEY. Then, is it not high time that we were giving it a little wider construction than that?

Mr. DAVIS. I think it is rather late in the day, after we inventors have spent our lives at this art and created a new industry. I think you ought to have done it soon after 1789, if at all, and if the law had been passed then there is no inventor in the land that would have gone ahead developing this particular art.

Mr. CAMPBELL. Why not, Mr. Davis?

Mr. DAVIS. Because we would have been dominated by composers, as I have explained at great length.

Mr. CAMPBELL. Mr. Sousa can not use your machine nor your process.

Mr. DAVIS. But we would have gone into other fields or arts not dominated by composers. We would have left this art undeveloped. He may make use of machines if he can construct them with "writings" or musical tones and infringe only a remote correlative ethical right of the inventors.

Mr. CAMPBELL. Well, now if there is a mercantile demand, a commercial demand, for your method of reproducing music, why would you not have gone into it for exactly the same reason? If Mr. Sousa's music, played upon your machine, meets a public demand, he must use your instrument just exactly the same as you use his music.

Mr. CURRIER. But suppose there are half a dozen of these concerns and one of them, by an arrangement with the musical publishers of the country, gets control of all the copyrights?

Mr. DAVIS. That is what they have done, sir.

Mr. CURRIER. Then would the competing concerns be able to use their instruments at all?

Mr. DAVIS. They might use, but could not sell, and over their pecuniary misery would weep alone. [Applause.]

Mr. CAMPBELL. The proposition here is that this bill, as I understand it, does not affect what has already been done. It applies to the future. You all stand upon the same level, and that relates right back to the contractual rights of the parties. If Mr. Sousa desires to make a contract with some machine producing music independent from yours, why should his right to do so be restricted by us under the law? That is the question I would like to have you answer.

Mr. DAVIS. Well, sir, I am not a lawyer----

Mr. CAMPBELL. No; but that is a practical question.

Mr. DAVIS. I have been trying to get counsel here. He would probably have advised me in my opening speech for the opposition to imitate Mr. Sousa in making a bid for your sympathy and avoid a discussion of fine legal points, but I will give you my practical ideas of that. I am an inventor who has studied the law, but without being a lawyer I am ready to say that as the law now stands----

Mr. CAMPBELL. I am speaking of the future. This bill affects the future.

Mr. DAVIS. Well, "this bill affects the future," but has it the right to affect the future? Has it the right to change a situation which has existed since 1789? The bill proposes a change, not merely amend the Constitution, therefore I challenge the authority of Congress to enact it. At present the composer has no contractual right as regards a machine, and Congress can not give it to him.

Mr. CAMPBELL. That is the very proposition we are trying to get at.

The CHAIRMAN. We can not very well change the Constitution.

Mr. CHANEY. It is not a question of changing the Constitution; it is a question of giving the Constitution its fullest scope.

Mr. DAVIS. Well, a gentleman speaking here yesterday, Mr. Stephen H. Olin, counsel for the American Publishers' Copyright League, although favoring this bill as a whole, gave you a warning that if this bill attempted to broaden the word "writing" so as to include a machine, then the bill in this respect might be held by the Supreme Court to be unconstitutional, and I have already traced the introduction of the terms "machine" or "device" in the bill direct to the monopolistic octopus. Mr. Olin made that statement here yesterday voluntarily.

Mr. CHANEY. I know that.

Mr. DAVIS. Proceeding further, Mr. Olin said he was not interested in the introduction of any clause restricting the mechanical reproduction of music; that he was satisfied to leave that to the courts, and let the courts give the construction of that word "writing" in the Constitution. They have been at work at it for many years, with the result that a machine remains a machine and not a "writing."

Mr. WEBB. Mr. Davis, your idea is that if the composer or publisher copyrights a piece of music and sells it and in the sale gets whatever price his copyright or royalty gives him, and you buy it, or anybody else buys it, that that purchaser has a right to play it or sing it in public or private, or anywhere else he pleases?

Mr. DAVIS. No, sir; I do not say that, exactly, sir----

Mr. WEBB. What is your position, then, if that is not your position?

Mr. DAVIS. Your proposition brings up the question of public performance. I say that the composer's rights are limited under existing laws to all benefits which he may receive from his visible, readable "writings" expressing his original musical conceptions, and that he can make copies of it in any manner he sees fit; but he has not the right to usurp the rights of an inventor to reproduce that music through self-acting mechanical means in public or private. The inventor has a peculiar field here. The Constitution, as I would translate it, in layman's language, says: "Now, Mr. Inventor, if you can come in and invent a machine in which the melodies that would otherwise be lost can be forever preserved and reproduced to the public for the public benefit, you shall be protected." This includes public performances. We do this in a way that does not decrease Mr. Sousa's income, but increases it, as I have explained.

Mr. WEBB. If a man goes to a store and buys a piece of copyrighted music he expects to have the right to sing it and play it anywhere he pleases; otherwise, what does he want to buy it for?

Mr. DAVIS. That is the human agency. Mr. Sousa's compensation may or may not cover all human agencies for reproducing that music, including public performances, and concerning which the inventor is not specially interested. The inventor should have the right to all mechanical agencies, where the human agency does not enter into it in any way whatever, including public performance.

Mr. WEBB. Well, they say you can use your mechanical devices wherever you please, just so you do not use their music.