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Representative LEGARE. To return to page 16, where the provision is made for the delivering up of the articles to be impounded or destroyed as the court may prescribe, why is not that proper? Could not the court prescribe that the plaintiff give bond?
Mr. WALKER. Courts are not infallible, and it is entirely out of accord with American jurisprudence to confer such power on judges. I have had great experience with courts, and I would say that Congress should go extremely slow in conferring such great power on Federal judges, which they have never had before. It is a dangerous power.
Representative LEGARE. They have such power in other cases. They can require a bond in other cases.
Mr. WALKER. But there is no statute on the books of any State that authorizes any judge to do anything analogous to that.
Representative LEGARE. “Upon such terms and conditions as the court may prescribe.” We put that in after very careful consideration. It was strongly urged. It seems to me that in circumstances where a bond should be given to cover damages sustained by the defendant, action of that kind could be taken, in the discretion of the court.
Senator BRANDEGEE. I do not think they ought to be allowed to hale in any article that the plaintiff may allege to infringe, but only such articles as the court may deem are an infringement.
Mr. WALKER. Out of an experience of thirty years I recommend the committee not to interfere with private property in that way. I should not think it right to allow a court to put its strong hand on private property on a mere allegation that may not even be sworn to.
Representative LEGARE. It says “ upon oath."
Mr. WALKER. The defendant may make oath, but not the complainant.
Mr. CUTTER. Section 28 says, “If any person shall infringe the copyright."
Mr. WALKER. I hold that that is altogether too remote. You hark back two pages before you find that language.
Representative CURRIER. But in the same section.
The CHAIRMAN. It is under subsection (a) of section 28, and subsection (6) is then divided into four paragraphs-first, second, third, and fourth.
Mr. WALKER. Very well.
The CHAIRMAX. And this is subsection (c) of section 28. So I think the suggestion is correct—that if any person shall infringe the copyright in any work—then under subsection (6) what is he to do, to deliver up on oath, all articles alleged to infringe the copyright.
Mr. WALKER. The first condition is satisfied where there is one infringing article; then all the articles are alleged to be infringed.
The CHAIRMAN. I wish to say that this point has been carefully considered at different times, and I will say further, that it was decided by the committee that it should remain as provided in this section.
Senator BRANDEGEE. But why should they be ordered to deliver up goods that did not have anything to do with the infringement?
The CHAIRMAN. In the printing business, for example, say in the printing of posters, there may be one article or part of one process
that is an infringement, and it was decided the only way to stop the repetition of infringement was to deliver up the whole of the paraphernalia.
Mr. WALKER. I have not been permitted yet to make clear the point that where a court finds that a defendant has infringed by making or selling one book of one particular kind this bill requires that he should surrender all books that the complainant claims he has infringed. The difficulty is with the word " all.”
Representative LEGARE. But you said strike the whole thing out as too drastic.
Mr. WALKER. It is too drastic; but, given proof of one thing of one kind, the court gets authority to deliver up a great many things, which is not right.
ADDITIONAL STATEMENT OF MR. NATHAN BURKAN.
Mr. BURKAN. As to section 27 of the Kittredge bill, I wish to say a word. That section refers, among other things, to infringement of a dramatic or dramatico-musical composition, and requires a payment of $100 for the first and $50 for every subsequent infringing performance; and in the case of other musical compositions, $10 for every infringing performance. In that short paragraph (the fourth) we find the expression “ dramatico-musical composition.” Who can tell what is a dramatico-musical composition, or a choral or orchestral composition ? ” It may be an orchestral composition and also a vocal composition.
In construing this particular provision, the people who have to construe it would refer to this bill or act. Now, the question is how should this owner of the copyright register?
Representative CURRIER. That could be cured by the insertion of a new class.
Mr. BURKAN. “ Dramatico-musical ? "
Mr. BURKAN. Take a composition like the “Merry Widow "-the thing that makes the play attractive, I believe, is the waltz. In copyrighting an opera the custom is to copyright the vocal score and also to copyright each number.
Representative CURRIER. Do you not think there should be a difference in penalties?
Mr. BURKAN. It depends on the composition.
Representative CURRIER. Would you not think that it would be a more serious wrong to a man to infringe the whole than to infringe any part of it? If the numbers are copyrighted separately, as you suggest they are, I think there should be a distinction between the production of the entire opera and of a single song.
Mr. BURKAN. Only the other day I brought an action against a manager for taking three numbers of the “Red Mill.”
Representative CURRIER. The committee came to the conclusion that it was a greater damage to the composer to reproduce an entire opera than any air from it.
Mr. BURKAN. It would be in the discretion of the court to say what damages that would involve.
Representative CURRIER. Would you not have to proceed against a man with a civil remedy-if you had drastic remedies!
Mr. BURKAN. We have those remedies now. I have proceeded civilly in every case in the past four years.
Representative CURRIER. Because you realized probably that the penalites now are so drastic that you could not otherwise succeed?
Mr. BURKAX. Not at all. The CHAIRMAN. What is your object? Mr. BURKAN. To provide that the penalty shall be $100 in the case of all musical compositions.
The CHAIRMAN. But the occasion may be for the benefit of a church or some similar organization, or to assist some worthy cause.
Mr. BURKAN. If it were for a church, I doubt very much if the court would decide it to be for profit.
Thereupon the joint committee adjourned until to-morrow, Saturday, March 28, 1908, at 10 o'clock a. m.
WASHINGTON, D. C., Saturday, March 28, 1908. The committee met at 10 o'clock a. m., at the Senate Reading Room, Library of Congress.
Present: Senators Smoot(chairman), Brandegee, and Gary; Representatives Currier (chairman), Barchfeld, Henry, Washburn, Law, Legare, Pratt, and Leake.
The CHAIRMAN. To-day has been set apart for the presentation of the views of the parties interested in the provisions of this bill relating to musical reproductions by mechanical devices. The committee have decided that we can give eight hours, during the day and evening, to the consideration of this subject, and we have also decided as to the division of that time. We want the parties taking the affirmative of this argument to open the argument, and we will give them three hours. The respondents will then have four hours, and those in the affirmative an hour in reply, making eight hours in all.
I want to say further that the committee does not care whether one man takes the four hours or whether there are 20 men to occupy that time. I also desire to say, on behalf of the committee, that any interruptions that may occur during the argument of any person who is addressing the committee will count on the time that is assigned to him, and therefore if he does not wish to be interrupted he must say so at the time a question may be asked him, otherwise it will be counted against him.
Representative CURRIER. I would not want a rule made here, Mr. Chairman, that would prevent any member of the committee from asking a question.
The CHAIRMAN. The gentlemen will understand, of course, that that applies only to outside parties, so that there will be no opportunity for any discussion to arise here between interested parties. I take it that no gentleman who is addressing this committee would object to a question being asked him by any member of the committee.
Mr. Johnson. That being the case, we should prefer that all inquiries should be limited directly to the committee, because our time otherwise might be wholly sacrificed by unnecessary questions, and if the chairman will make a rule that questions are to be put only by members of the committee we will be entirely satisfied.
The CHAIRMAN. Mr. O'Connell, are you satisfied with that arrangement !
Mr. O'CONNELL. Yes, sir.
The CHAIRMAN. That rule will then be made, to govern the discussion during this hearing.
Mr. Johnson. Several petitions will come into the committee and I desire to offer them. I know of several myself, which will come, asking a denial of the right of mechanical reproduction.
The CHAIRMAN. If they are any different from those sent to members of the committee I have no objection whatever to having them in the record; but I do not feel like encumbering the record with petitions of which every single Member in both Houses of Congress has already received copies.
Mr. Johnson. These petitions are petitions drawn up by the petitioners themselves. I know nothing about them or what they contain and I have had nothing to do with the drafting of them.
The CHAIRMAN. With the understanding that they are different from the ones that have already been presented to the members of the committee, we have no objection to their being offered in the record.
The petitioners referred to are, by direction of the committee, inserted in the record, and are as follows:
To the Senate and House Committee on Patents.
The Lambs Club, comprising a membership of over 500 authors, composers, actors, playwrights, and dramatists, resident in every part of the Union, most respectfully request your favorable consideration of the Kittredge bill (Senate bill 2900), paragraph E of which seeks to protect the author and composer against the appropriation of his musical works in the form of phonograph records and perforated rolls without the payment of any royalty. A condition which permits the manufacturers of these devices to reap the fruits of the intellectual labor of the American composers without compensation is unfair and most oppressive and should be remedied without any delay.
A bill to perpetuate this iniquity has been introduced in the House by Mr. Currier (H. R. 243) and in the Senate by Senator Smoot (Senate bill 2499), both of which we urge you to disapprove.
Augustus Thomas, George Broadhurst, Victor Herbert, Harry Rowe
Shelley, Glen MacDonough, Forrest Robinson, Wm. B. Mack,
ALBANY, N. Y., March 25. The following members of the honorable senate of the State of New York do hereby respectfully petition the members of the Joint Committee on Patents, in the House of Representatives at Washington, to report favorably the KittredgeBarchfeld bills, which seek to amend the patent laws, in order that the composer and author may receive some compensation from the work of their brain, and further restricting “phonograph and other mechanical musical instrument corporations” from using compositions without a fair and equitable compensation to both the author and composer.
P. H. McCarren, Thos. F. Grady, Wm. T. O'Neil, S. P. Hooker, George
H. Cobb, Francis W. Gates, Eugene M. Trans, D. F. Mullaney,
Gilchrist, James A. Thompson. Mr. WALKER. Mr. Chairman, permit me to suggest that these petitions ought to be filed during the three hours allotted to that side, so that the opponents of them may know what is in the petitions.
The CHAIRMAN. I suppose they will be here in due time.
Mr. Johnson. I have no objection to that suggestion. I suppose they will be here within that time.
The CHAIRMAN. We will now hear from Mr. Ligon Johnson.
STATEMENT OF MR. LIGON JOHNSON, REPRESENTING THE
NATIONAL ASSOCIATION OF THEATRICAL PRODUCING MANAGERS, AND ALSO THE DRAMATIC AUTHORS, OF NEW YORK CITY, N. Y.
Mr. Chairman and gentlemen of the committee, in beginning my statement to the committee I will first say that in our desire to present the facts involved clearly and fairly to this committee we wish to do so not through the medium of attorneys, but directly through the individuals involved. There are several interests represented. There are, of course, the dramatic authors, and there are the dramatic producers, who are necessarily partners to a great degree with the authors, in that the author furnishes the book and the producer furnishes the necessary funds to make the production and assumes the work and worry incident to that production. Then there are the theater owners, who are, in fact, partners with the producers, in that their compensation is not by rental of their theaters, but is received by sharing in the gross receipts. Then there are the White Rats, the vaudeville producers, the Words and Music Club, representing the musical authors, and the musical printers.
In my statement I will confine myself directly to the interests that I represent, the dramatic author and the dramatic producer—the theater interests.
I want to state, before proceeding with the argument, that in reply to an inquiry made a few days ago as to whether or not any of these bills was entirely satisfactory to the dramatic producer, my reply was that it was not; but that reply was given, as you recollect, with a reservation as to the mechanical reproducing end of it. I considered that no bill fully covered the interests of the dramatic author and the dramatic producer. The question was then asked whether the Kittredge bill fully covered their interests, and my reply was that it did not and that we desired additional protection.