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Gotha, Germany, where the Steck piano is made for the continental market. Financial and commercial standing unquestioned.
Eriola.-The "Eriola" is a cabinet piano player made by the Eolian Company (to which refer), a popular and reliable player, one of the numerous and excellent line of instruments of this noted house, designed to meet the demand for a popular-priced player. Also refer to Eolian, Weber Piano and Pianola Company.
Notwithstanding that the provisions of the Berne convention of 1886 provided that mechanical reproducing devices should not come under the domain of the copyright, the German courts, in 1900, decided that a phonograph record did come under the copyright act. The legislature at once took up the question and reversed the decision of the court. They brought in a sweeping law, covering everything.
At the last moment a little joker was put in, to the effect that devices which expressed, if I may use the term, the expression of the piece are not free. The Eolian Company has always claimed that they produced expression, and that they are the only ones who could produce expression. There were no other manufacturers of piano players in Germany at that time, so there was no opposition to the claim, and so that provision was put in the law because it did no damage. The result is that if you have a piano player to sell and claim for it that you can get expression from it, you have got to go to the captain's desk and settle. If you admit that it does not give expression, and that it is purely mechanical, you keep your player in your show window until it becomes molded. What is the result? They come to the captain's desk and settle.
Now, gentlemen, we have not come here looking for copyright legislation. We are here to protect our rights. The people I represent only want a fair field and no favor. They do not cut music. They do not make records, but they want an open market to buy it in.
It will obviate all objections, and everybody will be protected, if you adopt the provision for a universal royalty. That will satisfy us. The CHAIRMAN. Mr. Pettit, you have been allotted a half hour.
STATEMENT OF MR. HORACE PETTIT, OF PHILADELPHIA, PA., REPRESENTING THE VICTOR TALKING MACHINE COMPANY.
Mr. Chairman and gentlemen of the committee, I appear here on behalf of the Victor Talking Machine Company. Mr. Walker, who represents the Connorized Music Company, will also speak in behalf of the interests of the Victor Company.
I wish to say a few words, primarily, so that the Victor Company's position shall not be misunderstood. At a former meeting of the committee the Victor Company did not oppose the then presented bill, but I suggested an amendment providing for a copyright of individual records, provided this committee believed that such a provision, subjecting talking machines to protection under a copyright act, was constitutional.
I want to say to the committee that, since reading and studying the Smoot and Currier bills, our position is that we are in favor of the bills as they are presented; and I do not know that we have any suggestions to make other than those that have already been made.
The decision of the Supreme Court of the United States in the case of White-Smith v. The Apollo Company, recently decided, to my mind very strongly indicates that the court does not consider the subjection of musical instruments to a copyright act to be constitutional.
The CHAIRMAN. Would you object to the royalty proposition? Mr. PETTIT. I want to say that I am doubtful as to the constitutionality of a clause in a copyright bill subjecting talking machines to the copyright act. If this committee should, however, see fit under the circumstances to incorporate a compulsory license clause and believes that such a bill subjecting mechanical instruments to the copyright law is constitutional, then we will fall in line very gracefully. If that provision of the law is settled favorably in your minds, we will not oppose it.
I doubt whether a compulsory license clause would be entirely without question, and yet if the other question should be decided, that musical instrument copyrights are properly and constitutionally subject to the copyright law, we would raise no question regarding compulsory license. The Victor Company does not occupy the position of a pirate in this proposition. We would like the committee to fully understand our position.
The talking machine interests were established, and the Victor Company's interests were established, under patent rights granted by the Government of the United States, and under those exclusive rights granted this company, as other companies, have built up a large business and have spent several million dollars in its plant, its patents, and in its establishment generally. The copyright proposition is a new one which comes up after the Victor Company and some of the other companies have established their plants and have acted in good faith and put their good money in the enterprise; and, in fact, the Victor Company very carefully inquired into the proposition as to whether or not they were invading any legal copyrights or any rights of copyright holders under the law. It also went so far as to try to register its records in the copyright office here in order to test the question of records made by it in order to protect itself in the ownership of certain particular records, for which it paid to the talent for some as much as a thousand dollars a selection, and which I say it attempted to register here in the copyright office, but registration was refused as not copyrightable matter.
The CHAIRMAN. That was done, however, for this purpose-that in case this White-Smith suit was decided in favor of the Apollo Company you would have the popular pieces in the office of the Librarian on which you could immediately secure copyright.
Mr. PETTIT. No, sir; it was not done with that intention. We made an attempt several years ago, I think, through Mr. Berliner, with one of the disk records, to test the question. Our position, therefore, is entirely one of fairness, and we are not in the position of having come into this business to attempt to steal or purloin any rights of any composer.
Representative BARCHFELD. Would you allow anyone to use your patent on the payment of a royalty?
Mr. PETTIT. No, sir; I do not think that we would.
Representative CURRIER. If you were an inventor and that was the only way you could get your patent, you would?
Mr. PETTIT. Perhaps. I would like to refer to some of the questions analogous to that.
Senator BRANDEGEE. You say you do not want to take anybody's composition without paying for it?
Mr. PETTIT. I say we are not here in any position of unfairness. After considering the question from all points we proceeded, and this attempt of authors to bring us within the copyright law is one of recent date.
Senator BRANDEGEE. But, as a matter of fact, you do not pay royalty?
Mr. PETTIT. We pay Caruso, as an illustration, as much as a thousand dollars, perhaps, to sing for us one selection.
Senator BRANDEGEE. But you are at liberty at present to transpose anybody's music, under the law?
Mr. PETTIT. Exactly. That is the position as we understand the law to-day, and the question to-day before this committee is whether the law can be changed under the Constitution to make these machines subservient to the copyright act.
Senator BRANDEGEE. But that is the thing that these other people, the composers, call pirating, is it not?
Mr. PETTIT. Yes; they say that, but we pirate nothing.
Senator BRANDEGEE. But you say you do not want to do any pirating?
Mr. PETTIT. I say we want to do what the committee considers right-and what we are legally obliged to do.
Senator BRANDEGEE. Are you obliged to pay them royalty?
Mr. PETTIT. I was coming to that. The view I wish to express to the committee is that I have a grave doubt as to the constitutionality of any such act. Article 1, section 8, of the Constitution of the United States provides for two things. It provides for the protection of authors in their writings and for the protection of inventors for discoveries.
Now, I wish to submit to the committee, especially in the light of the decision in the case of White-Smith against Apollo Company, that it was not the intention of the Constitution to bring mechanical instruments within the purview of the copyright act or of an act for the protection of authors to prevent the copying of their writings. Turning now for a moment to the decision in the Apollo case, I would like briefly to call attention to the indications on the part of the Supreme Court of the United States that it does not regard mechanical mechanisms as within the purview or the province of copyright. I think your committee will want to consider this proposition, because if it should appear to be unconstitutional you would not want to do anything that would be subsequently upset by the Supreme Court.
Representative CURRIER. You are not referring now to the compulsory license matter, but to the question whether this is a copyright at all?
Mr. PETTIT. Yes; in the first place, the court reverts to the decisions in three cases where these mechanical instruments, the talkingmachine records, and the organs and perforated rolls had been before the courts. These cases are, Kennedy v. McTammany (33 Fed. Rep., 584); Stern v. Rosey (18 App, D. C., 562), and the English case
of Boosey v. Whight (1 Ch., 836; 80 L. T. R., 561). The Supreme Court said that while these decisions are not binding upon the court as testimony, they make a bearing which must be considered. The courts in those cases evidently construe what a talking-machine record and what a perforated roll is. Judge Cole, in the case against Kennedy, which is cited in the decision, held that a perforated sheet of music is a part of a mechanical instrument, and not, therefore, within the purview of the idea of copyright.
The CHAIRMAN. But within the purview of the patent law?
Mr. PETTIT. Yes, and the case of Stern against Rosey, also cited in the Apollo case, was to the same effect. That was also a case where phonograph records were alleged to infringe the copyright law. There the court said the same thing, that they were mechanical devices, and did not come within the idea of copyright. So, also, in the case of Boosey v. Whight the court said that to play an instrument with a perforated sheet, which itself is part of a mechanism which produces the music, is quite another proposition-that it is not a sheet-music proposition. In other words, these three decisions are to the effect that these things are mechanical instruments, and that talking-machine records and perforated rolls are pieces of mechanical mechanisms. The talking-machine records, for instance, are made with lateral and with vertical grooves, and the stylus which operates in the record groove by these undulations is mechanically operated up and down or goes back and forth, as the case may be, and passes through the entire spiral groove, vibrating up and down or back and forth until the selection is completed. The stylus vibrates mechanically by the cam-like action imparted by the record groove. The sound record is a piece of mechanical mechanism, as is also the perforated roll in operating the valves of the organ.
There is, I say, a strong indication on the part of the Supreme Court in quoting these decisions referred to that a sound record comes within the purview of "inventions" under article 1, section 8, of the Constitution, and not under "writings" relating to the protection of authors.
Representative LEGARE. Give me the book and page for that. Mr. PETTIT. They are all cited in the decision of the Supreme Court.
The CHAIRMAN. You would not object to having the decision of the Supreme Court in the White-Smith . Apollo case put in the record?
Mr. PETTIT. Certainly not. I will now offer the decision in that case of White-Smith against Apollo Company.
The decision is as follows:
Supreme Court of the United States. Nos. 110 and 111.-October term, 1907. White-Smith Music Publishing Company, appellant, v. Apollo Company. On appeals from and writs of certiorari to the United States circuit court of appeals for the second circuit. February 24, 1908.
Mr. Justice DAY delivered the opinion of the court.
These cases may be considered together. They are appeals from the judgment of the circuit court of appeals of the second circuit (147 Fed., 226), affirming the decree of the circuit court of the United States for the southern district of New York, rendered August 4, 1905 (139 Fed., 427), dismissing the bills of the complainant (now appellant) for want of equity. Motions have been made to dismiss the appeals, and a petition for writ of certiorari has
been filed by appellant. In view of the nature of the cases the writ of certiorari is granted, the record on the appeals to stand as a return to the writs. Montana Mining Co. v. St. Louis Mining Co. (204 U. S., 204).
The actions were brought to restrain infringement of the copyrights of two certain musical compositions, published in the form of sheet music, entitled, respectively, "Little Cotton Dolly" and "Kentucky Babe." The appellee, defendant below, is engaged in the sale of piano players and player pianos, known as the "Apollo," and of perforated rolls of music used in connection therewith. The appellant, as assignee of Adam Geibel, the composer, alleged compliance with the copyright act, and that a copyright was duly obtained by it on or about March 17, 1897. The answer was general in its nature, and upon the testimony adduced a decree was rendered, as stated, in favor of the Apollo Company, defendant below, appellee here.
The action was brought under the provisions of the copyright act, section 4952 (3 U. S. Comp. Stat. Sup., 1907, p. 1021), giving to the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical composition the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same. The circuit courts of the United States are given jurisdiction under section 4970 (3 U. S. Comp. Stat., 3416) to grant injunctions according to the course and principles of courts of equity in copyright cases. The appellee is the manufacturer of certain musical instruments adapted to be used with perforated rolls. The testimony discloses that certain of these rolls, used in connection with such instruments, and being connected with the mechanism to which they apply, reproduce in sound the melody recorded in the two pieces of music copyrighted by the appellant.
The manufacture of such instruments and the use of such musical rolls has developed rapidly in recent years in this country and abroad. The record discloses that in the year 1902 from seventy to seventy-five thousand of such instruments were in use in the United States, and that from one million to one million and a half of such perforated musical rolls, to be more fully described hereafter, were made in this country in that year.
It is evident that the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers. The case was argued with force and ability, orally and upon elaborate briefs.
Without entering into a detailed discussion of the mechanical construction of such instruments and rolls, it is enough to say that they are what has become familiar to the public in the form of mechanical attachments to pianos, such as the pianola, and the musical rolls consist of perforated sheets, which are passed over ducts connected with the operating parts of the mechanism in such manner that the same are kept sealed until, by means of perforations in the rolls, air pressure is admitted to the ducts which operate the pneumatic devices to sound the notes. This is done with the aid of an operator, upon whose skill and experience the success of the rendition largely depends. As the roll is drawn over the tracker board the notes are sounded as the perforations admit the atmospheric pressure, the perforations having been so arranged that the effect is to produce the melody or tune for which the roll has been cut.
Speaking in a general way, it may be said that these rolls are made in three ways. First. With the score or staff notation before him the arranger, with the aid of a rule or guide and a graduated schedule, marks the position and size of the perforations on a sheet of paper to correspond to the order of notes in the composition. The marked sheet is then passed into the hands of an operator who cuts the apertures, by hand, in the paper. This perforated sheet is inspected and corrected, and when corrected is called "the original." This original is used as a stencil and by passing ink rollers over it a pattern is prepared. The stenciled perforations are then cut, producing the master or templet. The master is placed in the perforating machine and reproductions thereof obtained, which are the perforated rolls in question. Expression marks are separately copied on the perforated music sheets by means of rubber stamps. Second. A perforated music roll made by another manufacturer may be used from which to make a new record. Third. By playing upon a piano to which is attached an automatic recording device producing a perforated matrix from which a perforated music roll may be produced.
It is evident, therefore, that persons skilled in the art can take such pieces of sheet music in staff notation, and by means of the proper instruments make drawings indicating the perforations, which are afterwards outlined and cut