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STATEMENT OF MR. WILLIAM B. HALE.
Mr. HALE. Mr. Chairman and gentlemen of the committee, I am interested in the practical enforcement of this law, and with that in view I wish to invite your attention to some of the procedure provisions by which this property right must be enforced in the courts. I call your attention to section 38 of the Smoot bill, which provides that an action may be brought in any district of which the defendant or his agent is an inhabitant, or in which either of them may be found.
I wish to protest against a provision under which suit may be brought against a principal in a district where his agent may be found and served. That is contrary to the tendency of the Federal law. It is a provision in section 38 of the Smoot bili.
Representative CURRIER. Do you think it has that effect as it now stands?
Mr. HALE. I think that a principal doing business in New York might be sued in California or wherever a book agent is selling his goods.
Representative CURRIER. You would eliminate the words “ agents”?
Mr. Hale. Yes; and if you eliminate those words that will leave the law as it now is.
Representative LEGARE. What is your reason for that?
Mr. Hale. There is no reason for changing the present law. A suit now may be brought in any district where the defendant may be found and served. That is the present law.
Representative LEGARE. My recollection is that it was desired to be
Representative CURRIER. The bill as originally introduced provided that a suit may be brought anywhere, with the result that a man living in New York might be sued in Manila.
Mr. Hale. There is a very great hardship in taking publishers who have an established place of business and requiring them to defend in distant places infringement suits. There are all sorts of objects in bringing suits. The judiciary act provides distinctly that no person shall be sued in any district other than that of which he is an inhabitant, with the single exception that when there is a diverse citizenship the suit may be brought in either.
Representative Currier. I believe it was the makers of directories that wanted that in.
Mr. Hale. To sue a principal and serve his agent would, I think, be an anomaly in the law, and I would suggest that that be omitted.
Then as to section 39. I favor and commend as useful the first part of that section, which provides that injunctions that are granted may be served and enforced in any district of the United States, but I think the clause should end with the word " defendants" upon line 7 of page 23, and that the remainder of that clause, which provides that a motion may be made by the defendant in any other district to dissolve that injunction, certainly should be omitted. I think that is an anomaly. When an injunction is issued, the defendant has had his day in court. There is a speedy remedy granted by appeal to the circuit court, and he should be confined to his remedy by appeal, and should not have recourse to another judge in a distant district. I think that is an anomaly.
Then, even if some such provision should be desirable to be copied into the law, I think it should be made a little clearer. In the first place, that says “ any ” injunction. It is not confined to a preliminary injunction or temporary restraining order. Then, again, it is not made clear what effect an order
granted in another district would have on an appeal taken from, for instance, a preliminary injunction. Suppose a preliminary injunction is granted in one district and the record sent up on appeal, and before that is heard a motion is made to dissolve the injunction. What becomes of it? Suppose there is an injunction granted on final hearing! The law is uncertain. Now, does it say anything about an appeal from an order made in another circuit?
There will be a great deal of confusion in the law if it is allowed to stand as it is. So I would respectfully petition against that.
Just one word upon the rental provisions. I am authorized by Mr. Jenner to state that he concurs in the idea that composite works prepared by a multitude of employees, such as dictionaries, directories, legal digests, encyclopedias, etc., should not have these rental provisions applied to them. In that connection he ridicules the idea that the publishers' interests in plates is one demanding consideration. That is not the main thing. The main thing is the work in new and revised editions. It is just that class of work that will be renewed, because the labor of going back and making a new edition is prohibited unless you can build up on what went before. You can see how, otherwise, a great property would be sacrificed.
ADDITIONAL STATEMENT OF MR. ALBERT H. WALKER.
Mr. WALKER. Mr. Chairman and gentlemen, there are a few points to which I wish to call the attention of the committee. First as to section 16—the manufacturing clause. I do not wish to submit to the committee any argument in favor of any particular programme, but only say that it is important in drafting that section to use phraseology that shall be free from ambiguity: I suggested yesterday the substitution of the word “other” for the word “ lithographic.”
My suggestion has been antagonized; and perhaps it is too comprehensive, but if you stop short of using the word "other" it is absolutely essential that you use correct phraseology. That word “lithographic” is too general. Originally it was confined to lithographing on stone. Recently planographic printing was done on aluminum and sometimes on zinc. Some gentlemen will say that one of those forms of printing is the same as the other. There can be no lithographic printing, however, except printing on stone.
I am very clearly of opinion-and I am acquainted with all those branches of photomechanical printing—that aluminum printing and zinc printing should either go in or go out with lithographic. But in order to make it clear you should use some other word than “ lithographic."
There are other methods of photomechanical printing, such as relief printing, intaglio printing, etc. It is impossible to take time to explain these distinctions now, because the committee can not spare the time. But the matter should be attended to with technical accuracy.
Then, as to section 19, in respect to the notice that should be given on copyrighted articles, I have only one criticism to make on that section. I would suggest that on line 17, of page 10, a pencil be drawn through the words “ or the abbreviation Copr.'” The section provides that in respect to photographs the notice shall be given by a circle around the letter. The purpose of the notice is to give information, and while I, having read this bill, would know what “ Copr." means, when I find it on a bill, some other person would never know and would never find out what “ Copr.” means. There is no reason why, in the case of a book, the entire word “ Copyright” should not be written out.
Representative LEGARE. The “ Copr.” might be taken for “incorporated.”
Mr. WALKER. Yes.
Section 28 is the section that prescribes penalties for infringements. Near the bottom of page 16 and at the top of page 17 I read the following:
(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright.
Now, it is easy to allege that articles infringe a copyright. That is altogether too drastic. We have never had any such law in this country, and I hope we never shall have. A man should have his day in court before his property is taken from him.
Representative CTRRIER. The Kittredge bill, I think, says that a man “must deliver up" and so forth, as the court may order."
Mr. Walker. I was just coming to that. That is the next paragraph.
Representative LEGARE. What would you do with that word “alleged?" Mr. WALKER. I would cut the whole section out.
Representative LEGARE. But that was strongly urged before the committee.
Mr. WALKER. Certainly; there are men who want "the earth and the fullness thereof," but the question is, Will Congress give it to them?
Representative LEGARE. If we change that word “ alleged ” would that do?
Mr. WALKER. No. “To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order."
When I appeared before the committee a year ago last June that phraseology “as the court may order ” was not in the paragraph. There the statute provided that all this personal property should be absolutely destroved from the face of the earth. But gentlemen modified it last year, perhaps in response to my criticism, by providing that this be done only so far as the court may order. But I do not think that Congress will place upon the court the duty of saying that anyone infringing
The CHAIRMAX. But it was not used at that particular time for any other purpose.
Mr. Walker. But it might be used.
The next section to which I wish to call attention is section 31, on page 20. That is the paragraph that was the subject of the eloquent speech of Mr. Jenner. I wish to state to the committee that having heard all that Mr. Jenner said and all that Mr. Putnam said, and having studied the subject of copyright so long that my hair has grown white, I wish the committee could see its way to changing it so that it would read that books might be imported not more than one copy at one time for use and not for sale.
Representative CURRIER. Would you confine that altogether to books of foreign authors?
Mr. WALKER. Certainly, and one copy only.
Now, section 37 on page 22 deals with an important matter. The section reads as follows:
That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the district and circuit courts of the United States, the district courts of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.
As to that I would recommend you to exclude the words “district and." so as to confine jurisdiction to the circuit courts. I was in-. formed that the words " district and” were inserted there by request. Some gentleman supposed that there are more district courts than circuit courts, whereas in every district of the United States there are a district court and a circuit court, and they are held in the same room, and by the same judge. One minute he is a circuit judge and another minute a district judge.
Now I come to section 41, because that must be understood in connection with section 37. Section 41 says:
That the orders, judgments, or decrees of any court mentioned in section 37 of this act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectfully.
Now, there is plenty of law that provides for appeals from district to circuit courts. From the district court a man can appeal to the circuit court, and from that to the circuit court of appeals, and from that to the United States Supreme Court-making too many appeals.
Representative LEGARE. Are you certain as to your statement about district and circuit courts?
Mr. WALKER. Absolutely certain. There is not a district court in the United States anywhere without a circuit court being in the same district.
Mr. JENNER. That is right.
Mr. Walker. I could give you the list of the States that belong to that circuit, but I will not take the time to do it. Some of the States of the ninth circuit compose only one district in all-Washington, Oregon, Nevada, Utah, Montana, and Idaho; and California is divided into two districts, so that in the ninth circuit there is a district and circuit court for every State except California, and for that State there are two circuit courts and two district courts. I have been familiar with the circuit court for thirty years, and have kept track of the change in the several circuits.
Mr. JENXER. How about the northern and southern divisions of Ohio ?
Mr. WALKER. The judge may hold court in either Toledo or Cleveland, but his jurisdiction is coextensive with ủis district.
Mr. JENNER. I think you are right.
There is one more important suggestion that I have to make tonight.
The Currier bill and the Smoot bill seem to me to be objectionable in the sixty-sixth section. The phraseology of the Kittredge bill and the Barchfeld bill is not quite technical in character.
The CHAIRMAN. That is the repealing section?
Mr. WALKER. Yes; and relates to the retroactive effect-a very important matter. I can hardly think that Mr. Smoot and Mr. Currier contemplated what would be the effect of the language they adopted. It reads:
That all laws or parts of laws in conflict with the provisions of this act are hereby repealed, but nothing in this act shall affect causes of action for infringement of copyright heretofore committed, now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted in the manner heretofore provided by law.
I see that my criticism should have been aimed at Mr. Barch feld and not at Senator Smoot or Mr. (urrier, because I find on reading that section that it seems to be correct.
But under the Barchfeld provision there would be a retroactive effect, which, although not contrary to the constitutional provision about ex post facto laws, would have a very injurious effect by surprising people after they have effected their infringement by imposing penalties and other evils upon them of which they had no knowledge at the time. I wish to say that time does not permit me to call attention to other criticisms which I could pass upon all these bills if I had opportunity to do so, but I do wish to submit this to the gentlemen of the committee, namely, that a writing that proposes to deal with the copyright law so elaborately as either of these bills is a necessarily elaborate machine. Copyright is a science, and a science can not be mastered in a few minutes, however intellectual we may be. Such mastery can only result from contemplation and effort. When a man like Cooley sits down to write a book like “ Constitutional Limitations” he concentrates his mind on it month after month and year after year, and when the book is finished it is a science. And nobody will ever furnish the American people with a great work on copy, right law without giving the subject weeks and weeks of hard mental labor and investigation.
I have appeared before patent committees from time to time for thirty years, and have had some experience in that line; and I will say that I have never appeared before a committee that devoted to the work in hand so high a degree of intelligence and industry as this committee for the past two years.
You gentlemen are human and you are also Members of Congress. You are distracted by a large number of employments and demandssometimes almost beyond human capacity. So that it seems to me, if I may be permitted to make a suggestion, that Congress onght not to enact any of these bills at this session, because it is impossible for you gentlemen to give the time to eliminate the injustices that the bills will certainly operate if enacted hastily. I should say that you are the very men to do it, and I should add that you should do it in the summer time, when you can give it leisure for thorough consideration.