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Mr. Pound. No, no. This is my time. Just sit down until I get through. [To Representative Currier:] There have been a number of interviews given by these men in the New York and other papers about you and other members of these committees, criticising and abusing and even caricaturing you. Did Mr. Harris ever deny his interview ?
Representative CURRIER. I neither know nor care.
Mr. Pound. The further we get into this argument the more convinced I am that the only thing is to make a separate bill, if there is to be a bill, for this mechanical-instrument feature. After this experience here with regard to De Koven—the man these people themselves elected as their “honorable secretary "-if we can bring home to him these two noted plagiarisms (we were attracted to him by his excessive vituperation, and so we thought we would look him up a little), the public have a right to be protected against men like him. Let the "honorable” secretary, Mr. Reginald De Koven, file an affidavit that the song " Oh, Promise Me” is his own composition, if
would have copyright on it. Mr. O'CONNELL. Let him perjure himself.
Mr. Pound. And let Mr. De Koven say as to the air in the “ Fencing Master” that he did not pirate the air from the Alibi Club.
Let us have a substantial mechanical instrument copyright bill here. As it is now they send over to the Library of Congress the copies and 50 cents in money and get protection for many years. No investigation is made in the copyright oflice as to whether the statement of the person sending the article is true or false, and of course we know that such investigation can not be made. But I insist that something more than 50 cents should be remitted; let the remitter remit also an affidavit.
Senator BRANDEGEE. I think that is a very good suggestion.
Mr. Pound. I am instructed by my clients to say, and I have said it for two years before this committee and its predecessors, that we are entirely willing to do justice, but that we do not want to be turned over to this monopoly. We know more than I have told you here of the nature of it. We know things that I dare not charge here openly. We know that it reaches far, far beyond these mere contracts, and we do not want to have our life work and our life property turned over to that concern. We do not want to be foreclosed of all rights.
If there is some way by which you can give to the composer something fair and equitable as between man and man, we do not say “ No.” During all the days of what was known as “ the Black Horse Cavalry” in Albany I never saw a bill so iniquitous as the bill brought here by the music composers, and which they have asked to have passed. A man in Honolulu might, for say a dollar, purchase a roll containing what purported to be a song, and upon his simple affidavit that he was injured in his property rights he could commence an action over there and put seal on every machine we have and close our factories, and all this without any notice to us and without any bond of indemnity what-oever.
Representative ('URRIER. And make you try the case in Honolulu. Mr Pound. Yes. That is the sort of thing we do not want.
We come here to ask you that this conspiracy, conceived in iniquity and in wrong, shall not be fastened upon us. We simply want fair
play here, and when gentlemen come before this committee and say that they are not willing to accept any compromise—that they must have everything or nothing—I say there is something to it.
I call your attention to all that has been done to create legislation here; I call your attention to that fund of $75,000 put up by the backers of these men; I call your attention to the perforated paper rolls of "My Kentucky Babe" on file here; I call your attention to the attitude of these people before your committee.
In the name of the 35,000 men depending upon us for support, and in behalf of every dollar that represents a life of toil—that represents as much “imperial genius” as Mr. Reginald De Koven ascribes to himself-just as much genius as it took Reginald De Koven to plagiarize most things he ever published, I ask you gentlemen carefully to consider these matters. When they talk about“ imperial genius and say that a man who composes some march is entitled to a right which no other class of people enjoy, when they say that he and his children and his children's children must be taken care of by a paternal government for a hundred and two years, then you will ask him at least to come here with clean hands and to do and abide by the right if he is himself seeking the right. We have an abiding faith that that is what you will do, and we are content to leave the question in your hands. I believe that the spirit of fair play will appeal to every fair-minded man. And I assert that so long as the conditions which I have depicted prevail just so long you will refuse to give to these gentlemen anything like the Kittredge or Barchfeld bill. I believe you will refuse to say to us, “ We are going to take away from you a vested right which the law has given you for all time and which no other civilized nation in the world has taken away; we are going to take away from you all this work of your lifetime and relegate all those people to idleness and distress in order that a half-dozen fellows down in New York City may realize on their corruption fund of $75,000.” [Applause in the hall.]
Representative BARCHFELD. I wish you would tell this committee something about this $75,000 “ corruption fund.” We would like to know all about it.
Mr. POUND. Shall I be frank about it?
Mr. Pound. You will remember that it was conceded at the hearings last December that a fund of $40,000 had been set aside by the Æolian Company to fight these cases in the court and create sentiment in behalf of the bill.
Representative BARCHFELD. I do not know anything of the kind.
Mr. BURKAN. No.
Mr. BURKAN. As I understand it, the fact was that between forty and fifty thousand dollars was expended in fees. I stated that they had expended between forty and fifty thousand dollars to get up the best record of the matters. They had engaged the best experts they could obtain and had produced the best evidence that could be got throughout the country and all over the world. I never stated that
these gentlemen had ever put up a dollar improperly to have these things done.
Mr. Pound. I read here same clauses of these contracts. The Æolian Company in all these contracts covenant and agree that they will protect the other parties, that they will pay all expenses of litigation, and in these very contracts they anticipate this attempt at legislation. But they overdid it. The litigation failed and the legislation went awry. Some ships pass in the night.
Section 5, third subdivision, is as follows:
It is expressly understood and agreed that if the perforated music is made the subject of copyright by statute, or it is adjudged by any trial or appellate court to be the subject of a copyright, then, in either or both of these events, the company may, at its option, at any time, and as often as is necessary, increase the price thereof, so as to cover royalties paid by the .company, including expenses of accounting therefor; all other expenses incurred by reason of copyright by any increase as above shall likewise operate as to all contracts similar to this one with other parties.
Section 1, second subdivision, says:
That he will not purchase for his own use or for sale, directly or indirectly, or through his branches, any perforated music rolls, except those manufactured by the company, and that he will not offer for sale, sell, or deal in, directly, or through his branches, any perforated music rolls, except those so manufactured by the company.
And section 2, second subdivision, provides that “should any manufacturer or dealer at any time decline to handle the company's rolls exclusively, * and provided further, the said manufacturer or dealer shall not at all times maintain the prices," then such independent dealer shall not be sold any more rolls.
Section 4, second subdivision, reads:
That he will not engage in the manufacture of perforated music rolls in any form, either directly or indirectly.
And following up their invariable rule to always doubly tie the other fellow, they add an extra and further “ agreement," in which the dealer covenants, “in consideration of being permitted (permitted, you observe)“ to purchase perforated music manufactured by this company," as follows:
I therefore agree to at all times sell rolls purchased under this agreement at the catalogue prices, and I will in no manner, either directly or indirectly, cut such prices, and will handle for sale or otherwise no perforated rolls other than those manufactured by the said company.
This contract is set out in full in my remarks at the December hearings (page 301).
STATEMENT OF MR. ARTHUR STEUART, OF BALTIMORE, MD.,
MEMBER OF THE AMERICAN BAR ASSOCIATION. Mr. STEUART. Mr. Chairman and gentlemen of the committee, I appear before you as a member of the American Bar Association in the position of amicus curia to the committee. I represent no interest except the general interest of the country in the attempt to prepare a bill which will be most satisfactory to everybody concerned.
We have given a great deal of study to the subject. We are sure that many things need yet to be considered and that many things are needed in the bill. There are a few things to which I ask the attention of the committee.
In the first section of the bill it provides that the copyright secured by this act shall include the exclusive right to print, reprint, publish, copy, and vend the copyrighted work.
If the music provision is to be included in this bill with no modification as to a compulsory license, then it would be necessary that the bill should contain terms which would largely protect the copyright owners against all forms in which copyrighted music might be used upon a perforated roll or graphophone disk. It is possible that the word “vend” as it here appears might not include leasing; therefore I suggest that at some place in the bill the word “vend” be defined as including leasing.
Representative CURRIER. Do you mean as applied to musical compositions generally?
Mr. STEUART. As applied to all copyrighted matter. Representative C'URRIER. I should be afraid of such a provision.
The CHAIRMAN. If we are going to define that at all, would it not be necessary for us to define it in such a way as to cover every point possible? Perhaps if that is not done, the author would lose by our not doing so. In other words, if we are going to define it at all, what may be left out would be taken for granted as not applying.
Mr. STEUART. That is true, and some words might be used to include all forms of disposition. I used the word “ leasing " as an illustration. Since there has been a copyright statute on the books it has been the custom that the copyrights are leased. In the case of copyrighted books before publication it has been usual that they are leased for a term of years to publishers. The publisher pays royalty to the copyright owner who has the legal title. That is not provided for by this statute, or it may not be. It is possible that the word vend may include it.
Representative CURRIER. The Supreme Court has held that the word" dispose ” would include the word “ lease.”
Mr. STELART. I can not recall as to that case, but the BobbsMerrill case held that the statute did not include leasing. The courts have taken such a very narrow view of the meaning of words used in the statute that if you intend that the copyright owner shall have the right, even subject to this compulsory license provision, then words should be used broad enough to cover all applications. Take the copyright disk or roll. It is a practice, I believe, for the companies to establish in districts where there are large numbers of machines using those rolls circulating libraries of rolls. Not one of them is for sale. They belong to the original manufacturer. They are sent to a dealer who handles them for the manufacturer. The people get tired of one roll and go and exchange it for another, and they hire the other. In no case would that proceeding be a violation of technical vending if vending is to be interpreted only as selling.
I notice that in one of the bills—the bill introduced by Senator Smoot—the section which appears in the Barchfeld and Kittredge bill as section 44, has been stricken out.
The CHAIRMAN. Section 44 of what bill?
Mr. STEUART. Section 44 of the Kittredge bill has been stricken out of the Smoot bill. It does not appear in the Smoot bill at all. It reads:
SEC. 44. That each of the rights specified in section 1 of this act shall be deemed a separate estate subject to assignment, lease, gift, bequest, inheritance, descent, or devolution.
propose that at the end of that clause there should be added: Vending will include leasing or other disposition.
The purpose of that clause was that the right to print might be leased, sold, given away as a gift, left by will, passed by inheritance or descent or other form of legal devolution. So the right to reprint, in the same way, might have all these legal incidents. The right to publish might be divided off from the right to print. The copyright owner has a right, or would presumably have a right, to make a contract with a printer to print and give that printer no right to publish. He might give a right to a publisher to publish but not to print. He might give a right to copy, if copying meant making music rolls, in one form, or reprint in another form, or making phonograph disks in a third form of copying
The CHAIRMAN. Would not that be the case now when the exclusive right is given to him to print, reprint, or copy-would not that give him the right to make whatever contract he desired, whether it be to print or otherwise for some term, as may be agreed upon ?
Mr. STEUART. It might and it might not; if it does, then my suggestion would do no harm.
The CHAIRMAN. When we come to specify and name just what that section (or “ subsection A” of section 1) of the bill means, we must name them all.
Senator BRANDEGEE. How would it do to say “And vend or otherwise dispose of ?"
Representative CURRIER. You would have to think pretty carefully about it.
The CHAIRMAN. Yes; so as to be sure just how far to go.
Senator BRANDEGEE. If you want to reach that point, I think that would do it.
Representative CURRIER. There are some things that we do not want to reach.
(To Mr. Steuart.) This is really an attempt to put in the statute law what you think the courts have declared to be law, is it not?
Mr. STEUART. No. It is an attempt to put into the statute law rather what the courts have declared to be not the law. In the BobbsMerrill case the courts said (I think unfortunately) that in the copyright law “ vend” does not include the right to lease. Yet that is so universal a practice among publishers that I can hardly think the court intended that.
The CHAIRMAN. Read that again, carefully.
SEC. 44. That each of the rights specified in section 1 of this act shall be deemed a separate estate subject to assignment, lease, license, gift, bequest inheritance, descent, or devolution.
The CHAIRMAN. Would not that permit the copyright owner to never vend or sell but merely license with such restrictions as he saw fit, either as to private use or something else?
Mr. STET ART. Of course it would, unless the bill contained some provision for compulsory license. If the estate is to be absolute, he must give absolute control. If to be limited, the estate must be subject to that limitation. If you put in the bill a compulsory-license provision, then these people will be subject to compulsory license.