Part 17

Mr. CURRIER. I want to ask you the question that I asked Mr. Davis a moment ago: Would the people whom you represent object to paying a reasonable royalty to the author or proprietor of the musical composition if that right was given to all upon the same terms?

Mr. O'CONNELL. Primarily, I appear, sir, for the independent manufacturers of automatic piano players. Here, to-day, as I understand, I am expected to speak for the interests of the independent cutters of music rolls as well. Speaking for the clients that I originally and personally represent, I answer that provided you have the power to pass such a law we have no objection to paying a reasonable royalty to the composers, provided we are put on an equal basis with everybody else and provided our business interests are protected. That is our attitude. We do not wish to be unfair to anybody.

The CHAIRMAN. Protection in what way? How far do you wish that protection to extend?

Mr. O'CONNELL. In this way: It is difficult to devise a plan--in answer to the question of Mr. Currier--which will protect us, and for this reason----

Mr. CURRIER. I realize the difficulties.

Senator SMOOT. You have no idea of being protected any more than any other concern?

Mr. O'CONNELL. No, sir; we want to have only the same rights as anybody else.

You must understand, Mr. Chairman, that the Æolian Company is by far the largest manufacturer of automatic piano players. If they control the output of the device, without which those players can not be operated, it is perfectly clear that it is the easiest thing on earth for them to put one after the other of the independent manufacturers down and out. I have not thought up a plan which could be devised to protect them, because that is a very difficult thing to do, and the time given for preparation has been extremely brief.

In line with what Mr. Herbert said a few moments ago, we are perfectly clear that neither Mr. Herbert nor Mr. Sousa can be controlled by this combination. They are too big. But they are the only composers in the United States to-day of whom that can be said.

Mr. BURKAN. How about De Koven, and how about Julian Edwards; and how about----

Mr. O'CONNELL. That being so, it seems strange to me that those eminently respectable gentlemen, Mr. Herbert and Mr. Sousa, have been put forward here as advocates of this bill, when the very men who will be the greatest gainers by it have sedulously kept themselves in the background, and do not appear to be represented here, even nominally.

What will be the result if these features of the bill are put through? Mr. Herbert and Mr. Sousa will get some benefits from it. Ninety-nine per cent of the composers will get absolutely nothing from it. The Æolian Company and the concerns affiliated with it will have millions of dollars turned into their coffers. And the net result is that the public will pay and the independent manufacturers whom we represent will either go out of business, or will have to transact business in such a way that it will be without any profit to themselves, or entirely on sufferance. That is the broad, general question that is before you, gentlemen, of these committees. We only want a square deal. We want no rights that anybody else does not get.

But we do not want to have others put in a position where they can take away our right to do business on a reasonable basis. That being the broad general proposition, I shall expect during the summer vacation to supply your committees with as much information as I possibly can on these various matters, and I ask the committees to do what they can toward investigating how far I am right in this matter. I can say that those charges have been made in the White-Smith suits in the circuit court and circuit court of appeals, and they have not been answered in anyway by the representatives of the monopoly to which I refer, nor have they been denied.

On the bill itself----

Mr. CHANEY. What section?

Mr. O'CONNELL. I will take it from the beginning, if you please.

The CHAIRMAN. Before you proceed with the bill: Have the companies that you represent made any effort to secure contracts with Mr. Sousa and Mr. Herbert and the other composers that have been mentioned?

M. O'CONNELL. The companies that I represent do not make contracts with composers. The companies that I represent primarily, the 10 manufacturers, do not cut perforated music. They buy it. They buy it either from the Æolian Company, or from one of the many independent manufacturers of such rolls. So that we are not brought into direct contact with Mr. Sousa, Mr. Herbert, or any composers. We want to be in a position where the independents will not be forced out of the field, or where we can be forced to buy this perforated music at an exorbitant figure, or where they can be in the position of refusing to give it to us at any price.

The CHAIRMAN. These companies, as I understand, under existing law simply go to the store offering the music for sale, which is music, and then put it upon the rolls. Is that right?

Mr. O'CONNELL. I do not know what the particular arrangements are that the composers have with the publishers, or the publishers with the music companies.

The CHAIRMAN. Under existing law, is it necessary for the manufacturer to do more than I have stated?

Mr. O'CONNELL. Under the existing law, as it has been decided in the White-Smith suit, the cutter of music rolls can go anywhere and take a piece of music, copyrighted or uncopyrighted, and cut the roll from it. That is my understanding of it, without paying any royalty to anybody.

The CHAIRMAN. And the gentlemen and concerns you represent desire the law to remain in that condition?

Mr. O'CONNELL. I have not said that, sir. What we say is this: We want to be able to go out in the open market and buy our music rolls. We will not be in that position if this bill goes through, because with these contracts that I speak of we can not go into the open market, as there will be no open market whatever. The distribution of these music rolls will be in the hands of one house, and that house can put its own price on them, or refuse to sell them to us at all at any price. In other words, in passing this bill in its present shape, you are fostering too great a centralization of power, or putting an absolute monopoly into the hands of one group of men. That is our objection. If some means can be devised whereby we get in on the same basis, whereby we can buy our records or our perforated music sheets as Mr. Currier said, on the same terms as anybody else, we have no fault to find, then.

The CHAIRMAN. How can law prevent Mr. Sousa from making a contract with the Æolian people or any other concern that he may desire to deal with?

Mr. O'CONNELL. The law can not prevent him from making any contracts he chooses with them, provided he does not contravene the law of the land itself. He can make any contract he chooses for any price he chooses. But there is the unfortunate situation: Mr. Sousa and Mr. Herbert, and gentlemen situated as they are, naturally ought to be in a position, I suppose, where they have liberty of contract; but in passing a law the greatest good to the greatest number must always be considered. If you pass this bill you do some good to these gentlemen, you do a great deal of good to the monopoly, you do absolutely no good to the vast majority of the authors, and you do a great deal of damage to a great many millions of dollars interested and invested in manufacturing industries in this country, even if you leave the purchasing public out of consideration altogether. It is a question of which you will take, unless some means can be devised to eliminate those particular features.

Taking the bill itself, it was stated here by Mr. Putnam the other day that the object of this bill was to give a copyright on music rolls as to musical compositions composed after the passage of this act. That was my understanding of what he said.

Mr. PUTNAM. Copyrighted afterwards, I think I said.

Mr. O'CONNELL. Then I assumed, from the remarks made by some members of the committee, that they considered the act to apply only to compositions originally composed after the passage of this act, and originally copyrighted after the passage of this act. I do not believe, therefore, that the members of the committee are aware of the very many peculiar features of the bill in that regard.

Mr. CHANEY. The bill is only submitted as a tentative proposition, to get at the right thing. It is not the result of our genius at all. It belongs to some of the rest of you fellows.

Mr. O'CONNELL. It does not belong, Mr. Chaney, to me or the rest of my fellows; and we are here trying to oppose the genius of the other men, the specially interested ones who did submit it to your committee. [Laughter.]

Mr. CHANEY. Well, we fellows are not trying to shut out you fellows.

Mr. O'CONNELL. I know that you are not, and all we want is a fair, full, and complete hearing.

Taking first, Mr. Chairman and gentlemen of the committees, subdivision F of the first paragraph. There is still a subdivision B in that subdivision F:

To make any arrangement or setting of such work, or of the melody thereof, In any system of notation.

Mr. CHANEY. On page 2?

Mr. O'CONNELL. I am reading from the House bill.

Mr. CHANEY. We have the Senate bill here. What is the section?

Mr. O'CONNELL. Section 1, subdivision F.

Senator SMOOT. It is on page 2.

Mr. O'CONNELL. It gives the right--

to make any arrangement or setting of such work, or of the melody thereof, in any system of notation.

Then it goes on (subdivision G):

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 the 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.

Mr. WEBB. Before you leave that, do you not think that section G prohibits the sale of the instrument itself, rather than the reproduction of the music or the work? You are a lawyer.

Mr. O'CONNELL. It would seem that it prohibits both, sir.

Mr. BURKAN. We will submit an amendment to cover that.

Mr. WEBB. It seems that that is a prohibition of the sale of any instrument.

Mr. CURRIER. Clearly so.

Mr. O'CONNELL. I have not seen the proposed amendment, because it was only handed in this morning after we got here.

Turning to section 6, it says--and this is very important:

That additions to copyrighted works and alterations, revisions, abridgments, dramatizations, translations, compilations, arrangements, or other versions of works, whether copyrighted or in the public domain, shall be regarded as new works, subject to copyright under the provisions of this act.

Now, if you please, turn to section 18, subdivision B. It gives a copyright for fifty years after the first publication, and you will find at line 13 of the House bill, which I hold, that it gives a copyright for fifty years after the date of the first publication, in "any arrangement or reproduction in some new form of a musical composition." Then, you will find further down, in subsection C of that section 18, where it gives a copyright for the lifetime of the author and for fifty years afterwards in the case of an original musical composition, thus making it clear, from a reading of all those sections together, that first, where there is an original composition, say of Mr. Sousa or Mr. Herbert, which has been already copyrighted under the present act, under the provisions of this new act they have the right to prohibit the cutting of music rolls for the period of fifty years from those original compositions which they have already copyrighted; and, secondly, the most dangerous provision of the bill, that any music-cutting establishment--this monopoly, for instance--can take any old work, that has never been cut to this day into a music roll, which is in the public domain--one of Beethoven's sonatas, or the Star Spangled Banner, if that has not already been done--and they can cut a music roll and can copyright that, and they can get the exclusive right because of such cutting, notwithstanding that everybody is free to perform that particular piece in every other way. This bill gives the right to cut it into a music roll and get a copyright for fifty years after the first publication in the form of a perforated music sheet. That, I submit, Mr. Chairman and gentlemen, is a very iniquitous provision--very iniquitous.

Mr. CHANEY. That starts in on page 4 and concludes on page 14?

Mr. O'CONNELL. Yes.

Mr. CHANEY. I think you are right about that.

Mr. O'CONNELL. Thank you for agreeing with me.

Then, there is another provision of section 19, which was covered yesterday by Mr. Ogilvie, in regard to book publishing, to which I have the same objection, and that is that where the author dies his family can not get the continued copyright for fifty years unless the assignee or licensee shall join in the application for such renewal and extension. Some provision ought to be made there so that in case the licensee or assignee refuses, at the instance of the widow or orphans of the author, to apply for an extension of the contract, the widow and orphans shall have the right to proceed independently of the assignee or licensee. As Mr. Ogilvie very well said, where the publisher has the right to reproduce on the payment of a royalty of 20 per cent he may very well say now, after the author dies, "I will not apply with you for this extension unless you permit me to pay you merely a royalty of 2 per cent."

I simply point that out as one of the injustices of the act, as showing that only special interests apparently seem to have been considered in the framing of the bill.

There is another question there, which will probably be covered by Mr. Walker in what he has to say to the committee afterwards, and that is as to the constitutionality of these provisions as a whole. I will merely point out what the Constitution provides in that respect.

Article 1, section 8, subdivision 8, gives the right to Congress--

to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

It has been held, in the case of the Lithograph Company v. Sarony, 111 U.S., 53, at page 58, that the only thing which appears to infringe upon copyrighted matter would be--

some visible form of writing, printing, engraving, etching, by which the ideas in the mind of the author are given visible expression.

Mr. Sousa pointed out the ordinary system of notation with the various notes, and he also held up to you a music roll with the perforations, slits, dots, and dashes, and he claimed, apparently, that those slits, dots, and dashes are visible and can be read. I doubt very much if Mr. Sousa can tell one note from another there.

Mr. CURRIER. I could tell the notes on that sheet just as well as I could on the other. [Laughter.]

Mr. O'CONNELL. All I have to say then is that apparently music is not one of your many accomplishments. [Laughter.] Some of us can not read Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that we can not read at all, nor that such languages can not be read. There are many of us that do understand the ordinary diatonic notation of music, and many of us that do not. The fact that the vast majority of people can not read music does not prevent it from being a writing.

The CHAIRMAN. Do you contend that it is beyond the power of Congress to make that roll copyrightable?

Mr. O'CONNELL. My contention is, sir, that it is absolutely beyond the power of Congress to make that roll copyrightable.

Senator SMOOT. Are there people that can read that roll--that is, the same as Mr. Sousa can pick up that piece of music there [indicating] and read that music? In other words, every slit or cut or dash in that paper represents a note, does it not, just the same as the notes are differently represented upon the paper that Mr. Sousa exhibited--or a musical tone is represented?

Mr. O'CONNELL. It may be, but I do not think that there is a person, firm, or corporation in the United States or elsewhere to-day that can take that music roll and tell you what particular note any particular slit or dot or dash represents. If I am wrong, I want to be corrected.

Mr. CHANEY. It is a notation of tone, then?

Mr. O'CONNELL. It is simply by relation to what is called the tracker board. This roll goes over a tracker board in which there are little holes. Each hole in the tracker board is connected with a little tube which carries the air through a bellows and to a device which strikes a hammer. As this roll goes over the tracker board of the instrument, when it strikes a hole corresponding to any particular one of those slits there is an ingress of air, because there is a vacuum underneath. That little tube is connected with a hammer which strikes the note A, B, C, and so forth, whatever it might be. They are differently arranged in different rolls. The roll that will play in one instrument will not play in another; and you can see, gentlemen, that there is a different-sized roll, different-sized slits [exhibiting sample rolls] notwithstanding that they are both the same piece of music, composed by Mr. Sousa. [Laughter.]

Senator SMOOT. In looking at those two rolls, there is no question but what anybody can tell that they are the same piece of music.

Mr. O'CONNELL. But look at the difference across----

Senator SMOOT. That is only as to the size. You can take that same sheet of music that Mr. Sousa exhibited and have it four inches wide or you can have it eight inches wide, and it would be just the same music.

Mr. O'CONNELL. But can anybody tell me, if you please, sir, or will anybody tell us, what those notes are?

Senator SMOOT. That is the question that I asked you.

Mr. BOWKER. I can, by taking a scale corresponding to that instrument and putting it on the paper. By doing that you can tell what the note is.

Mr. WALKER. I was counsel in the Apollo case, and the question whether those rolls could be read by inspection was litigated at great expense in that case, and the circuit court of appeals for the second circuit decided, a week ago last Friday, that the overwhelming preponderance of the evidence was that they could not be read.

Mr. WEBB. And further, that that is not a copy of the music from which it is taken.

Mr. WALKER. They so decided. Judge Colt decided in 1888 that these perforated rolls are not copies of music filed in the office of the Librarian of Congress. That decision was always acquiesced in until the Æolian Company invented its ingenious scheme to monopolize the business of mechanical musical instruments; and in pursuance of that event they endeavored to secure from the circuit court of appeals in the southern district of New York a reversal of Judge Colt's decision. After years of litigation the circuit court of appeals for the second circuit affirmed Judge Colt's decision, and held that these do not infringe the copyright on the sheet music, and, as the foundation for that holding, they stated the overwhelming preponderance of evidence was that they could not be read by anybody; and they stated for that reason that they were not copies, and were not infringements.

Mr. O'CONNELL. I have been informed, while Mr. Walker was speaking, in response to what Mr. Bowker said, that in this White-Smith suit the complainants tried in every possible way to prove the truth of the assertion which Mr. Bowker has just made, and that they utterly and totally failed to sustain that assertion that those sheets could be read, even with the use of any kind of a scale. That has just been stated to me by a gentleman who is interested.

If you please, Mr. Chairman, the portion of the decision relating to that particular point has been handed to me, and here it is----

Mr. CHANEY. We have that decision.

Mr. O'CONNELL. I want to call attention briefly to just this point in it:

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 it were true, would establish merely a theory of possibility of use as distinguished from an actual use.

In deciding those cases, courts and committees of Congress do not act on possibilities.

Here is another method of reproduction [exhibiting disk] of the same march of Mr. Sousa's. It is for use in a music box. I do not know what the name of the music box is. The disk was only handed to me this morning. That shows another method of reproducing, and I do not suppose that even Mr. Bowker, with the aid of a scale, can read the notes on it. [Laughter.]

Again, there is still another one here [exhibiting cylinder], which has been handed to me by Mr. Walker, a phonograph record, which he unfortunately says he broke, and which contains the same march by Mr. Sousa. And I do not believe that even Mr. Bowker, with the aid of any kind of a scale, can read that.

Mr. BOWKER. My name has been mentioned, and may I say that the character of the phonograph record which uses the very word "graph," meaning "writing," represents the earliest form of writing, that of incised character writing.

Mr. CHANEY. Of the time of Rameses.

Mr. DAVIS. May I state that it remained for the inventor to first devise that scale to which that perforated music was made, and, second, to devise a machine which would interpret that music to Mr. Currier, or all of the other members of the public, as a medium by which any music could be read. That is the only practicable way of reading it, and that was left to the inventor. A mere reversal of that scale, to read backwards, would not be requisite.

Mr. SOUSA. I would like to ask the gentleman a question. What value would these various records have if my march was not on them--if I had never written that march?

Mr. O'CONNELL. I will say to Mr. Sousa with perfect frankness that the only object of that particular record is to produce his march. [Laughter.]

Mr. SOUSA. Without my consent.

Mr. O'CONNELL. I shall not try to hedge. I merely state facts.

Mr. CHANEY. Do you think you should do that without compensating him for the genius he displayed?

Mr. O'CONNELL. Very early in my remarks I disavowed any such intention. I did say that we were in the position--the independent manufacturers that I represent--where we could be forced to the wall because of these contracts, and that the resulting benefits to Mr. Sousa and Mr. Herbert, if Congress had power to and did pass such an act, would be vastly offset by the great detriment to our manufacturing interests and to the public.

While I am on that point I would ask leave to digress and to submit also a copy of a letter from the Æolian Company to the Chicago Music Company, dated the 5th of May, 1902, and offer it in evidence here.

(The letter referred to is as follows:)

THE ÆOLIAN COMPANY, _New York, May 5, 1902_.

The CHICAGO MUSIC COMPANY, _Music Publishers, Chicago, Ill_.

DEAR SIRS: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect.

Looking forward to profitable and pleasant business relations, we remain,