Arguments before the Committee on Patents of the House of Representatives Part 49

The CHAIRMAN. What was his reply--raising questions of law?

Mr. WALKER. I do not think his reply amounted to a row of pins.

The CHAIRMAN. Is that a matter of printed record?

Mr. WALKER. His reply? I have a copy of his brief in my office in New York.

The CHAIRMAN. Will you send that to the committee?

Mr. WALKER. I will; yes.

Senator CLAPP. And your pet.i.tion?

Mr. WALKER. Yes.

Mr. SULZER. He raised the question of jurisdiction in his reply, did he not?

Mr. WALKER. No; not at all.

Mr. SULZER. What was his reply, if you remember?

Mr. WALKER. I would rather not tell, because I do not think it is particularly creditable to Mr. Hughes.

Mr. SULZER. You just complimented him very highly.

Mr. WALKER. And I do not desire to deduct anything from that compliment.

Mr. BONYNGE. You are going to file a copy of it, are you not?

Mr. WALKER. Yes; but my time is limited, and if I gave the honorable gentleman from New York an account of that it would take me ten minutes to do so.

The CHAIRMAN. You will have an opportunity to inspect his reply and that pet.i.tion when we have the records here.

Mr. WALKER. Now, let me tell you the rest of the story. His reply did not contain a word controverting my statements of fact in the pet.i.tion. He did not take any issue with the statements of fact in the pet.i.tion at all--not the slightest. But so far as his reply contained any matter at all, it was first of all an attempt to show that my client was not ent.i.tled to be admitted as a defendant anyway, and that, if I was ent.i.tled to be heard, he took the ground that my argument was not very conclusive. He did not reflect upon the pet.i.tion at all; his reply applied entirely to my argument.

Judge Hazel afterwards overruled the pet.i.tion, and the same day that he overruled the pet.i.tion he decided the case in favor of the defendant, and followed my brief in his decision. So that the intellectual origin of Judge Hazel's decision can be traced back to the brief that I filed in pursuance of the pet.i.tion which he overruled.

Very well. The aeolian people then caused that case to be appealed to the circuit court of appeals. When the case came up there I filed a pet.i.tion in that court to be permitted to argue the case on behalf of the defendant, and also file a brief, both of which pet.i.tions were granted. In that pet.i.tion I repeated the whole aeolian story over again, and I served a copy of that pet.i.tion on Mr. Hughes a week before the argument came up, and he had abundant opportunity to reply to it. I also called him up and asked him if he was going to reply to it, and he said "No." And when he came to the argument he was as silent as the grave; though he had nearly two hours for his speech, he was as silent as was the grave in respect to all the allegations I had made about the inherent character of the aeolian scheme, and confined himself entirely to attempting to persuade the court that a perforated paper roll was an infringement of sheet music, and that however unconscientious the aeolian scheme might be as the representative of the aeolian company it was ent.i.tled to the pound of flesh.

And that was the way he met the second presentation of the aeolian scheme. Afterwards, two weeks ago yesterday, the circuit court of appeals for the second circuit decided against him again.

Mr. BONYNGE. How long ago?

Mr. WALKER. Two weeks ago yesterday.

Mr. CURRIER. The decision is in the record already.

Mr. WALKER. Certainly.

Now, I wish to say this to the committee, that that aeolian scheme is the most ingenious scheme that I ever knew to be invented by anybody in this country for the purpose of acquiring wealth by means of a patent or a copyright monopoly. And, further than that, I wish to say that the aeolian scheme is so ingenious that it does not violate any law whatever except one, and that is the golden rule. You can not square the aeolian scheme with the Sermon on the Mount, but you can square it with the Sherman ant.i.trust act, and you can square it with every statute on the statute books. They have dodged a violation of every statute in inventing their scheme. And now they lack nothing at all to consummate their scheme except for Congress to pa.s.s this bill in the form in which it is drawn. That will place the capstone upon the monument, and will give to the aeolian Company a million of dollars a year out of the pockets of the people of the United States. And of that million of dollars they will keep at least $900,000, and about $90,000 of the rest will go to the music publishers, and not one cent over $10,000 of the whole million will go into the pockets of any music composers during their natural lives.

In the nature of the case it must be so. My statements are not based alone upon any special contracts or facts; but as long as human nature remains as it is, as long as the business problem involved in mechanical playing instruments remains as it is, it must be true that a proposition, if enacted and enforced, to subject perforated music rolls to copyright protection will enormously burden the American people for the benefit of corporations and middlemen, and only very slightly for the benefit of musical composers.

These distinguished gentlemen--Mr. Herbert and Mr. Sousa--are so distinguished that they can make their own terms, and this bill would enrich them. I do not see that they need to be enriched. I believe that these gentlemen, for amusing the American people, are each one of them receiving more money than Theodore Roosevelt is receiving for regulating the affairs of mankind. [Laughter.] And I myself have contributed many a dollar to their coffers, and I have always obtained full value therefor. I have had the pleasure of listening to two of their operas lately, and if any of you gentlemen get a chance to hear one of them I hope you will not miss it, because it is worth the price.

But this business problem that I am expounding is one of great complexity, and while the result of many years of experience with this general topic and the result of many months of special investigation of this subject convinces me that all my statements as to how the thing must work are correct, I can not, in any brief period of time, prove these statements to be true by depositions or testimony of witnesses.

Mr. CHANEY. Can you give us an ill.u.s.tration of the respect in which the mere copyrighting of the music roll will do all that?

Mr. WALKER. Yes; I can. I think I can do it in three or four minutes.

The music that the American people want to play now is made up of two kinds--cla.s.sic music, uncopyrighted music, and the current music that comes out. Now, if this scheme were carried out the aeolian people would have the exclusive right to perforate paper rolls in accordance with all the current music covered by their contracts with the music publishers; and those contracts cover at least nine-tenths of all the music being produced month by month and year by year.

Now, inasmuch as the aeolian Company would have the exclusive right to perforate sheets for half the music that the people want, n.o.body could sell a music-playing instrument unless it was manufactured by the aeolian Company, because the aeolian Company as a part of their policy would refuse to sell their perforated sheets except for use in connection with their own instruments; and this would be the situation: You want to buy a pianola. You go to New York and call on the aeolian people. They say: "We will sell you a pianola, and if you buy it from us you can use it to play any tune known to man, cla.s.sical or modern. Go over to our neighbor across the street, and he will sell you a pianola, too, but he can only sell you music rolls to represent cla.s.sic music and uncopyrighted music. If you are contented with Beethoven and Mozart and the masters, and do not care for Sousa and Victor Herbert and their contemporaries, go across the street and buy your pianola. But if you want a pianola that will enable you to play any copyrighted music at all, you must buy it from us; for there is not another party in the United States that can sell you one of those machines."

So that the pa.s.sage and enforcement of this bill would practically give the aeolian Company, of Meriden, Conn., a permanent patent on an old machine, namely, the automatically played piano, and all other musical instruments played by perforated paper roll.

I a.s.sure you, gentlemen, that this bill must in the nature of the case have that operation. So that the moment that the Congress pa.s.ses that bill, if it were to be enforced by the courts afterwards, Congress would be giving to the aeolian Company, of Meriden, Conn., a permanent patent on that great industry, without those people ever having invented a solitary part of the origin of the business, and without ever having composed a single piece of music played in their machines.

The CHAIRMAN. Mr. Walker, had you intended to speak specifically about the provisions of this bill?

Mr. WALKER. I had, but I have been interrupted so much that I have not been able to do so up to this point. Now I am going to devote myself entirely to that.

The CHAIRMAN. You have only twenty-five minutes.

Mr. WALKER. I realize that.

Mr. CHANEY. You were going to speak of the const.i.tutionality of the bill, also.

Mr. WALKER. That is what I am going to take up now.

The Const.i.tution provides that copyrights may be granted on writings.

This bill provides that copyrights may be granted on works. The fourth section of this bill reads as follows:

That the works for which copyright may be secured under this act shall include all the works of an author.

Although this bill purports to be founded on the Const.i.tution, and although the Const.i.tution is confined to the word "writings," that word "writings" does not appear among the 8,000 words of that bill. It is not there once. This bill is based upon the theory that Congress has power to grant an exclusive right to works, and the word "works"

is used more than 30 times where the word "writings" ought to have been used, and the word "writings" is not printed in that bill from its beginning to its end.

I am not reflecting upon any gentleman who drafted the bill in that way, because the bill was drawn upon the theory that the Const.i.tution justifies copyright upon an author's works. Now, the word "works"

includes "writings" and is far more comprehensive than "writings."

Take the case of Theodore Roosevelt. He has published and printed 15 volumes of original works, and he has delivered without writing more than 1,500 speeches. Now, those books that he has printed and those speeches that he has delivered are equally his works, but they are not equally his writings, because he never has reduced those speeches to writing. So that there is a plain distinction between works and writings, and that distinction is recognized in this bill, as follows.

(Now I will devote myself for the rest of the time to strict a.n.a.lysis.)

SEC. 4. That the works for which copyright may be secured under this act shall include all the works of an author.

Then twelve cla.s.ses of works are enumerated. The third of those cla.s.ses of works is said to be "oral lectures, sermons, and addresses." Now, those productions come under the head of works, and do not come under the head of writings, confessedly.