Arguments before the Committee on Patents of the House of Representatives Part 30

Mr. DAVIS. No, sir; I had my marked copy here----

Mr. CURRIER. I should say "(_g_)" was the first one that would affect you.

Mr. DAVIS. Yes, sir "(_g_);" you are right, Mr. Currier.

Mr. CHANEY. That is, "To make, sell, distribute, or let for hire any device, contrivance," etc.?

Mr. DAVIS. "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 any 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."

Now, in this art of self-playing musical instruments alone I have been granted some twenty-seven patents by this country, and have also been granted patents all over the world. My patents read very similar to this--that I shall have the exclusive right to make, use, and sell the mechanical contrivance covered by the claims of those patents, and those claims embody, in connection with the mechanism, a perforated roll, which is a controller for the instrument, and is an essential part of it, and in the case of phonographs or graphophones they include the engraved record.

Notwithstanding that I have gone ahead in good faith under the reading of the Const.i.tution and the laws as construed by the courts right up to date, that composers shall be limited to their "writings,"

intimating thereby that we inventors should have the right to any methods that we might discover for mechanically reproducing music--notwithstanding that I have expended years of effort and all my money, time, and labor to devise these machines, and have built models and exhibited them, and companies have been formed around them--and notwithstanding that my patents give me the exclusive right to make, use, and sell these machines, this proposed act comes out and says that "any device especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any published and copyrighted work after this act shall have gone into effect,"

etc., shall be illegal, and subjects me to all those hards.h.i.+ps enumerated in my preamble, and transfers to the copyrighter in almost the exact words of my patent those rights given me by the Commissioner of Patents under the authority of the Const.i.tution.

I am not a lawyer, and never made a public speech before in my life, and can only speak to you out of the fullness of my heart. I have not even been able to get my counsel here----

Mr. CHANEY. I do not think you need any. [Laughter.]

Mr. DAVIS. After destroying or limiting the patent rights already vested in me as explained, and transferring them in whole or part to the copyrighter, as contemplated in subsection (_g_), page 2, in the bill, I am, by another part of the bill, liable to imprisonment if I infringe a copyrighted composition, and this I will do of necessity if I proceed under the authority of my existing patents giving me the exclusive right to make, use, and sell my mechanical device for reproducing music, whether copyrighted or not, thus through two conflicting grants, one to the composer and the other to me, I may innocently----

Mr. CURRIER. Not if you do it innocently. If you read it carefully you will find that that is the case.

Mr. DAVIS. There is a paragraph further over, section 25, page 18, which provides that anyone who shall knowingly and willfully infringe the proposed copyright "shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year." Now, if I proceed "willfully" to exercise my full rights as vested in me by my existing patents in defiance of the conflicting and unconst.i.tutional copyright grant proposed, then the copyrighter can put me in jail for a year and during my incarceration and during the entire life of my patents make, use, and sell my machines under the provisions of subsection (_g_). It is no misdemeanor for one inventor to infringe the patents of another inventor, no matter how frequent and willful such infringements may be; then why imprison an inventor for infringing a usurping copyrighter. Supposing such infringements are innocently made, then wealthy and unscrupulous corporations, such as the aeolian Company, through their unscrupulous lawyers, will succeed in jailing many poor and innocent inventors. It is hard enough now for most inventors to keep out of the poorhouse and the courts; don't add to their present hards.h.i.+ps.

Senator SMOOT. Mr. Davis, of course you mean that that would happen if you published something after the pa.s.sage of this act that was copyrighted? This act plainly says, in section G: "Any work published and copyrighted after this act shall have gone into effect." It does not affect anything at all that you have done before?

Mr. DAVIS. Yes; but it applies to machines that I have already invented and which I may use after this act, according to my patent, to mechanically reproduce any music of the past, present, or future.

Mr. WEBB. It does not apply to pieces that you play on those machines now, though, even if they are now copyrighted, does it? It only applies to pieces copyrighted after this act goes into effect.

Mr. DAVIS. My machines, those that I have been inventing and patenting for years, are specially adapted to reproduce, or may be specially adapted and arranged to reproduce any particular piece, whether copyrighted to-day or hereafter. Under the Const.i.tution, as I understand it, I have the right to use anything that is not a writing, a readable writing; and I have gone ahead under the Const.i.tution with the full reward therein provided as an incentive for my work. The bill covers not only pieces or controller records, but also the machines which they actuate.

Mr. WEBB. You do not understand, though, Mr. Davis, that this act will destroy any of your vested rights at present, do you?

Mr. DAVIS. I do, sir; as I have explained, though perhaps not clearly.

Mr. WEBB. When it says that it shall only apply to works published and copyrighted in the future? It only applies to works copyrighted and published after this act goes into effect, and I do not see how it can affect any vested right which you have on account of your past investments.

Mr. DAVIS. But the idea of inventions is to be able to produce a mechanism which can be specially adapted to any music, whether of to-day or to-morrow. My patent grant does not except new copyrighted pieces.

Mr. WEBB. I understand that; but there are two propositions involved here. The first is, you say it will destroy what you have already invented. The next is, you say it will destroy you because of your inability to get hold of these pieces that will be published and copyrighted in the future. Is that your point, now? Is that your argument?

Mr. DAVIS. I say that this practically depreciates or destroys the marketable value of my inventions or machines, which are capable of being used for mechanically reproducing either old or new music, as well as destroying in part or whole my existing patent rights.

Mr. WEBB. Because it will not let you reproduce works published and copyrighted in the future? Is that the reason, now, why you say it will destroy your invention?

Mr. DAVIS. Yes, sir; coupling this admission with my previous explanations.

Mr. WEBB. I wanted to get your meaning.

Senator SMOOT. Or, in other words, if Mr. Sousa should have a very popular air or piece produced in the future, you think that you ought, as you have in the past, to simply be permitted to reproduce that by your machine?

Mr. DAVIS. Yes, sir; either I or any other patentee.

Senator SMOOT. Without any consideration whatever?

Mr. DAVIS. Yes, sir, I do; because outside of a possible minor and remote ethical or equity right, he possesses not a vestige of a statutory or legal right to stop me.

Senator SMOOT. And whatever his brain, and his talent, and his gift has brought forward, you are ent.i.tled to use?

Mr. DAVIS. And I want to go ahead and explain, if you will allow me, why I say that.

Before I took up this art of self-playing musical instruments, as I said, I saw that there was a possible limitation, and that in order to make inventions commercially successful I would have to use musical compositions. If I used old music, they would be useless. I would have to use current music; and I read the Const.i.tution, and the very first article of the Const.i.tution that I came to, section 8, reads:

That the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

Mr. WEBB. Mr. Sousa insists on that, too. [Laughter.]

Senator SMOOT. Yes; I was going to say, that is just exactly what Professor Sousa insists upon.

Mr. CHANEY. That is where the other fellows claim they come in.

Mr. DAVIS. There is where Mr. Sousa and the trust, on one side, and I are going to lock horns--right here with the Const.i.tution as our battle ground.

Mr. MCGAVIN. Would you like to amend that?

Mr. DAVIS. No, sir; I want the Const.i.tution to stand as it is. It is not the construction Mr. Sousa puts on this word "writing" therein; it is not the construction that I put on it; but I followed this matter down, as an inventor. Every decision that has ever been made in this country and England, as I read it, has limited that word "writing" to mean some visible and readable writing; not the mere making of a wave in the air. If I invent improvements in wireless telegraphy, the Government does not grant me anything but the mechanical means of doing that, or the method. It does not give me exclusive right to use G.o.d's free air and vibrate it.

For instance, we will imagine Mr. Sousa facing an audience of ten thousand persons and behind him one hundred skilled musicians who, upon the movement of Mr. Sousa's baton perform in melodious concord upon one hundred different musical instruments. We will, for ill.u.s.tration, as audiences do without suggestion, forget the inventors who evolved the orchestral musical instruments and without which Sousa's band would be a nonent.i.ty, and take under consideration only one of the inventors who have formed part of the audience which has been enraptured. After the performance the thought occurs to many that it would be a blessing to mankind if such music as they had heard could be reproduced at will for their own pleasure and for that of those who are in remote sections of the world and for those who are too poor to pay for even the lowest-priced seat.

One of the inventors present determines that he can produce the great desideration to practice, and from that moment commences to evolve in his mind thousands of different apparatus which appear to him feasible for the full achievement thereof. After years of experimenting he is ready to test a machine which, in some of its structural features, resemble that of the human organism. The inventor's machine is set up within the range of the air waves, set in vibration by the instruments of Sousa's band, and which air waves are escaping into s.p.a.ce to be lost to man forever. The ear-like diaphragm of the instrument is impinged by and set in motion, and through connecting means resembling the human oricular bones and nerves there is engraved upon a sensitive surface not far unlike the material matter of the human brain a record of every minute vibration of all the one hundred instruments.

After the performance no one in the audience, musician though he be, can simultaneously resound any two instruments, and the majority of the audience would be hissed if they attempted to resound any one of the instruments. Not so with the mechanical listener, for it is capable of resounding simultaneous and accurately all of the 100 instruments, and upon the expenditure of 50 cents for a copy of the machine-made record the poor man and his family in every part of the world can, by a slight movement of his hand, start up his $7 graphophone and thus be amused and enraptured, all owing to the inventor having caught, preserved, and provided means for mechanically reproducing the air waves which would have otherwise have escaped beyond Sousa's power to recall. Nevertheless, the bill provides that the lost chords must be all returned to Sousa by the inventor in the form of a royalty.

There is no novelty in music, nor vibrating the air as a means of transmitting musical tones, for--

Long 'ere earth was matter or had form, Music out of wind and lightning was borne; It was thus G.o.d solaced nature, And her troubles were shorn.

Now, defining an ethical or equity right which the inventor might claim with equal justice against Sousa and other composers, the common people all over the world, who listen to the mechanically reproduced lost chords of Sousa's band, do frequently order and pay for the sheet music score for the piano, banjo, violin, and other instruments which the purchaser plays or thinks he can play, and upon all these orders induced by the inventor's machine he is ent.i.tled to a commission, which in actual fact and adjustment would offset the alleged right of the royalty claimed in this bill. There are many other corelated equity rights which us inventors might set up but which it would be impracticable to secure to us.

The CHAIRMAN. Mr. Davis, if I may interrupt you, do you claim that you have the right to take one of Mr. Sousa's compositions and use it in connection with your mechanical device without compensation to him?

Mr. DAVIS. Under the Const.i.tution and all the laws of the land, I say yes, decidedly; but I want to explain my contention and the position of inventors in a little different line of argument.

The composer of music never conceives nor produces, and never did in respect of the actual composition, conceive or produce, any means for conveying to the ear the musical composition. On the contrary, all such means from the beginning to the present time are the direct result, not of authors.h.i.+p, not of composition, but of invention. The composer never conceives the idea of a mechanical means for playing a piece of music. That achievement is the result of the effort of the inventor. The Const.i.tution makes no distinction in respect of right of protection as between an author and an inventor, but both are coequal under the Const.i.tution, and the line or field within which each may be protected is clearly marked out in the Const.i.tution, the result of authors.h.i.+p being distinctly distinguished from the result of invention. The author is restricted by the Const.i.tution to protection for "writings" and the inventor to "discoveries."

The courts have determined what may properly come within the const.i.tutional provision of discoveries, and it has been determined a number of times that under the const.i.tutional provision a writing does not include a mechanical contrivance. If the law under discussion be enacted it will operate to take away from the inventor the rights which are vouchsafed to him by the Const.i.tution and by the laws of Congress enacted in pursuance thereof, and deliver his rights over to the author or composer of a literary production or a musical composition. Such a procedure would clearly annihilate the inventor, offering him up as a sacrifice to the author or composer. The Const.i.tution intended no such thing, and in matter of every right, irrespective of the limitations provided by the Const.i.tution, Congress ought not to pa.s.s a law which turns the inventor over to the mercy of the author or composer.