Arguments before the Committee on Patents of the House of Representatives Part 35

Mr. O'CONNELL. Thank you for agreeing with me.

Then, there is another provision of section 19, which was covered yesterday by Mr. Ogilvie, in regard to book publis.h.i.+ng, to which I have the same objection, and that is that where the author dies his family can not get the continued copyright for fifty years unless the a.s.signee or licensee shall join in the application for such renewal and extension. Some provision ought to be made there so that in case the licensee or a.s.signee refuses, at the instance of the widow or orphans of the author, to apply for an extension of the contract, the widow and orphans shall have the right to proceed independently of the a.s.signee or licensee. As Mr. Ogilvie very well said, where the publisher has the right to reproduce on the payment of a royalty of 20 per cent he may very well say now, after the author dies, "I will not apply with you for this extension unless you permit me to pay you merely a royalty of 2 per cent."

I simply point that out as one of the injustices of the act, as showing that only special interests apparently seem to have been considered in the framing of the bill.

There is another question there, which will probably be covered by Mr.

Walker in what he has to say to the committee afterwards, and that is as to the const.i.tutionality of these provisions as a whole. I will merely point out what the Const.i.tution provides in that respect.

Article 1, section 8, subdivision 8, gives the right to Congress--

to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.

It has been held, in the case of the Lithograph Company v. Sarony, 111 U.S., 53, at page 58, that the only thing which appears to infringe upon copyrighted matter would be--

some visible form of writing, printing, engraving, etching, by which the ideas in the mind of the author are given visible expression.

Mr. Sousa pointed out the ordinary system of notation with the various notes, and he also held up to you a music roll with the perforations, slits, dots, and dashes, and he claimed, apparently, that those slits, dots, and dashes are visible and can be read. I doubt very much if Mr.

Sousa can tell one note from another there.

Mr. CURRIER. I could tell the notes on that sheet just as well as I could on the other. [Laughter.]

Mr. O'CONNELL. All I have to say then is that apparently music is not one of your many accomplishments. [Laughter.] Some of us can not read Sanskrit, nor Hebrew, nor Greek, perhaps, but that does not mean that we can not read at all, nor that such languages can not be read. There are many of us that do understand the ordinary diatonic notation of music, and many of us that do not. The fact that the vast majority of people can not read music does not prevent it from being a writing.

The CHAIRMAN. Do you contend that it is beyond the power of Congress to make that roll copyrightable?

Mr. O'CONNELL. My contention is, sir, that it is absolutely beyond the power of Congress to make that roll copyrightable.

Senator SMOOT. Are there people that can read that roll--that is, the same as Mr. Sousa can pick up that piece of music there [indicating]

and read that music? In other words, every slit or cut or dash in that paper represents a note, does it not, just the same as the notes are differently represented upon the paper that Mr. Sousa exhibited--or a musical tone is represented?

Mr. O'CONNELL. It may be, but I do not think that there is a person, firm, or corporation in the United States or elsewhere to-day that can take that music roll and tell you what particular note any particular slit or dot or dash represents. If I am wrong, I want to be corrected.

Mr. CHANEY. It is a notation of tone, then?

Mr. O'CONNELL. It is simply by relation to what is called the tracker board. This roll goes over a tracker board in which there are little holes. Each hole in the tracker board is connected with a little tube which carries the air through a bellows and to a device which strikes a hammer. As this roll goes over the tracker board of the instrument, when it strikes a hole corresponding to any particular one of those slits there is an ingress of air, because there is a vacuum underneath. That little tube is connected with a hammer which strikes the note A, B, C, and so forth, whatever it might be. They are differently arranged in different rolls. The roll that will play in one instrument will not play in another; and you can see, gentlemen, that there is a different-sized roll, different-sized slits [exhibiting sample rolls] notwithstanding that they are both the same piece of music, composed by Mr. Sousa. [Laughter.]

Senator SMOOT. In looking at those two rolls, there is no question but what anybody can tell that they are the same piece of music.

Mr. O'CONNELL. But look at the difference across----

Senator SMOOT. That is only as to the size. You can take that same sheet of music that Mr. Sousa exhibited and have it four inches wide or you can have it eight inches wide, and it would be just the same music.

Mr. O'CONNELL. But can anybody tell me, if you please, sir, or will anybody tell us, what those notes are?

Senator SMOOT. That is the question that I asked you.

Mr. BOWKER. I can, by taking a scale corresponding to that instrument and putting it on the paper. By doing that you can tell what the note is.

Mr. WALKER. I was counsel in the Apollo case, and the question whether those rolls could be read by inspection was litigated at great expense in that case, and the circuit court of appeals for the second circuit decided, a week ago last Friday, that the overwhelming preponderance of the evidence was that they could not be read.

Mr. WEBB. And further, that that is not a copy of the music from which it is taken.

Mr. WALKER. They so decided. Judge Colt decided in 1888 that these perforated rolls are not copies of music filed in the office of the Librarian of Congress. That decision was always acquiesced in until the aeolian Company invented its ingenious scheme to monopolize the business of mechanical musical instruments; and in pursuance of that event they endeavored to secure from the circuit court of appeals in the southern district of New York a reversal of Judge Colt's decision.

After years of litigation the circuit court of appeals for the second circuit affirmed Judge Colt's decision, and held that these do not infringe the copyright on the sheet music, and, as the foundation for that holding, they stated the overwhelming preponderance of evidence was that they could not be read by anybody; and they stated for that reason that they were not copies, and were not infringements.

Mr. O'CONNELL. I have been informed, while Mr. Walker was speaking, in response to what Mr. Bowker said, that in this White-Smith suit the complainants tried in every possible way to prove the truth of the a.s.sertion which Mr. Bowker has just made, and that they utterly and totally failed to sustain that a.s.sertion that those sheets could be read, even with the use of any kind of a scale. That has just been stated to me by a gentleman who is interested.

If you please, Mr. Chairman, the portion of the decision relating to that particular point has been handed to me, and here it is----

Mr. CHANEY. We have that decision.

Mr. O'CONNELL. I want to call attention briefly to just this point in it:

It is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if it were true, would establish merely a theory of possibility of use as distinguished from an actual use.

In deciding those cases, courts and committees of Congress do not act on possibilities.

Here is another method of reproduction [exhibiting disk] of the same march of Mr. Sousa's. It is for use in a music box. I do not know what the name of the music box is. The disk was only handed to me this morning. That shows another method of reproducing, and I do not suppose that even Mr. Bowker, with the aid of a scale, can read the notes on it. [Laughter.]

Again, there is still another one here [exhibiting cylinder], which has been handed to me by Mr. Walker, a phonograph record, which he unfortunately says he broke, and which contains the same march by Mr.

Sousa. And I do not believe that even Mr. Bowker, with the aid of any kind of a scale, can read that.

Mr. BOWKER. My name has been mentioned, and may I say that the character of the phonograph record which uses the very word "graph,"

meaning "writing," represents the earliest form of writing, that of incised character writing.

Mr. CHANEY. Of the time of Rameses.

Mr. DAVIS. May I state that it remained for the inventor to first devise that scale to which that perforated music was made, and, second, to devise a machine which would interpret that music to Mr.

Currier, or all of the other members of the public, as a medium by which any music could be read. That is the only practicable way of reading it, and that was left to the inventor. A mere reversal of that scale, to read backwards, would not be requisite.

Mr. SOUSA. I would like to ask the gentleman a question. What value would these various records have if my march was not on them--if I had never written that march?

Mr. O'CONNELL. I will say to Mr. Sousa with perfect frankness that the only object of that particular record is to produce his march.

[Laughter.]

Mr. SOUSA. Without my consent.

Mr. O'CONNELL. I shall not try to hedge. I merely state facts.

Mr. CHANEY. Do you think you should do that without compensating him for the genius he displayed?

Mr. O'CONNELL. Very early in my remarks I disavowed any such intention. I did say that we were in the position--the independent manufacturers that I represent--where we could be forced to the wall because of these contracts, and that the resulting benefits to Mr.

Sousa and Mr. Herbert, if Congress had power to and did pa.s.s such an act, would be vastly offset by the great detriment to our manufacturing interests and to the public.

While I am on that point I would ask leave to digress and to submit also a copy of a letter from the aeolian Company to the Chicago Music Company, dated the 5th of May, 1902, and offer it in evidence here.

(The letter referred to is as follows:)