Arguments before the Committee on Patents of the House of Representatives Part 38

CHICAGO MUSIC COMPANY, [SEAL.]

PLATT P. GIBBS.

THE aeOLIAN COMPANY. [SEAL.]

By E. S. VOTEY, _Director_.

Signature of publisher witnessed by--

J. F. BOWERS, PAULINE FLAHERTY.

Memorandum of agreement made and entered into this 30th day of April, 1902, by and between Chicago Music Company, of Chicago, in the State of Illinois, party of the first part, hereinafter called the publisher, and the aeolian Company, a corporation organized under the laws of the State of Connecticut, and having a place of business in the city of New York, in the State of New York, party of the second part, hereinafter called the aeolian Company, witnesseth:

That whereas the parties hereto have, of even date herewith, entered into an agreement whereby the aeolian Company is to have the exclusive right for all perforated music sheets intended for use in controlling automatic musical instruments or machines for playing musical instruments, in and to the copyrighted musical compositions of which the publisher is the proprietor or as to which he is the owner of any rights, and in and to all those other musical compositions which may hereafter be protected by copyright and the copyrights or rights in which may be acquired by him; and

Whereas the parties hereto are desirous of entering into a further agreement with reference to the matters and things expressed in the above-mentioned agreement of even date herewith;

Now, therefore, the publisher, for and in consideration of the premises and the sum of $1, lawful money of the United States, to him by the aeolian Company in hand paid, receipt whereof is hereby acknowledged, does hereby covenant and agree that no charge shall be exacted from or be due from the aeolian Company for the manufacture or sale by it, or any of its customers, of any perforated music sheets of either of the kinds aforesaid, for playing any of the copyrighted musical compositions which are owned or controlled, or which shall hereafter be owned or controlled in whole or in part by the publisher, until a decision of the court of last resort in a suit which is to be inst.i.tuted against some manufacturer or user, other than the aeolian Company, of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to such perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid.

And for and in consideration of the premises the aeolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit for the purpose of testing the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid, and that if the court of last resort shall in such suit decide that the United States copyright laws are applicable to such perforated music sheets, then and in such case and from that time forward the aeolian Company will keep books of account, render statements, and pay royalties, as provided by the aforesaid agreement of even date herewith, but shall be free from obligation to make payments for the past.

And it is mutually understood and agreed by the parties hereto that neither party hereto is to be obligated in any way by any of the provisions of this agreement, or of the aforesaid agreement of even date herewith, until the aeolian Company shall notify the publisher that a number of copyright owners, satisfactory to the aeolian Company, have made similar agreements with said company.

And the parties hereto mutually covenant and agree that all the provisions of this agreement shall be binding upon and inure to the successors, executors, administrators, and personal representatives of both the parties hereto.

In witness whereof the publisher has on the day and year first hereinabove written hereunto set his hand and seal, and the aeolian Company has caused its name and corporate seal to be hereunto affixed by its proper officer thereunto duly authorized.

CHICAGO MUSIC CO., [SEAL.]

PLATT P. GIBBS, _President_.

THE aeOLIAN CO. [SEAL.]

By E. S. VOTEY, _Director_.

Witnessed by--

PAULINE FLAHERTY.

J. F. BOWERS.

THE aeOLIAN COMPANY, _New York, May 5, 1902._

The CHICAGO MUSIC COMPANY, _Music Publishers, Chicago, Ill._

DEAR SIRS: Pursuant to the provision of the agreement granting us the exclusive right under your United States copyrights for all perforated music sheets intended for use in controlling automatic musical instruments and machines for playing musical instruments, we hereby notify you that a number of copyright owners satisfactory to us have made with us agreements similar to our agreement with you. From this date, therefore, our agreement goes into effect.

Looking forward to profitable and pleasant business relations, we remain,

Yours, truly,

THE aeOLIAN COMPANY, E. R. PERKINS, _General Manager_.

Mr. CHANEY. I would like to have this gentleman who has just spoken to us (Mr. Low) submit a typewritten statement relating to the various sections in the bill to which he objects, and setting out his objections.

The ACTING CHAIRMAN. Without objection that privilege will be accorded to him.

WAs.h.i.+NGTON, D.C., _June, 12, 1906_.

_To the Committees on Patents of the United States Senate and House of Representatives._

GENTLEMEN: I file herewith in typewriting specific suggestions for the amendment of the said bill, in pursuance of the resolution of the joint committee, pa.s.sed on the 8th day of June, 1906; these remarks or this statement to follow in the record the exhibit contracts which I presented to your committees at that time.

Very respectfully,

H. N. LOW.

SUGGESTIONS AS TO THE AMENDMENT OF THE PENDING COPYRIGHT BILL.

_To the Committees on Patents of United States Senate and House of Representatives._

GENTLEMEN: If the allegations which have been made before the committee, and not denied, and which can not be successfully denied, that there has been effected a combination in the nature of a trust to secure practically all of the commercial business of this country in the manufacture, sale, and use of mechanical records or controllers for the production of music, etc., by mechanical means are true, then a very serious situation confronts you.

The agencies relied upon to make said combination of publishers and manufacturers successful are--

1. The contracts which have heretofore been entered into in antic.i.p.ation of this legislation, four of which contracts have been filed in connection with the remarks of Mr. O'Connell and of Mr. Low.

2. New legislation of the character proposed by this copyright bill and especially by paragraph (g) of section 1.

In one of the contracts referred to, dated April 30, 1902, between the Chicago Music Company and the aeolian Company, it is provided--

"During the existence of this contract, after the payment of the license fee thereunder, the aeolian Company obligates itself to prosecute diligently, at its own expense and by its own counsel, in the name of the proprietors of the copyright, all infringers of the rights granted to it, the aeolian Company."

In the other contract of the same date and between the same parties, a facsimile of which has been filed with your committees, it is provided--

"That no charge shall be exacted from or be due from the aeolian Company * * * until a decision of the court of last resort in a suit which is to be inst.i.tuted against some manufacturer or user other than the aeolian Company of such perforated music sheets for the purpose of testing the applicability of the United States copyright laws to perforated music sheets, and not then unless such decision shall uphold the applicability of the United States copyright laws to perforated music sheets of the kinds aforesaid.

And for and in consideration of the premises the aeolian Company hereby covenants and agrees to pay all proper expenses of conducting said suit," etc.

Such test suit was inst.i.tuted ent.i.tled The White-Smith Music Publis.h.i.+ng Company _v._ The Apollo Company by and at the expense of the aeolian Company, the real complainant, and decided against the aeolian Company, the holding of the court of last resort, the United States circuit court of appeals for the second circuit, being that such perforated music sheets were not infringements of the copyrights of the nominal complainant.

Although defeated so far, it is not reasonable to suppose that the combination of the aeolian Company and its "number of copyright owners satisfactory" to that company would rest without further effort to make effective for profit the agreement into which they had entered. The only remaining means was by new legislation, and I submit that the aim and end of the pending bill is to be a subst.i.tute for that favorable decision of a court of last resort which the aeolian Company failed after strenuous efforts to obtain.

Certain provisions of the bill here and there--for example, the lengthening of the copyright term--have attracted to the support of the bill various interests who are totally indifferent one way or the other to the question of perforated music sheets or phonographic records, but I submit that these other provisions are more or less unimportant, do not improve the present law, and most of them would never have been heard of except for the desire of the special interests above referred to to obtain new legislation as to the mechanical producers of sound.

In the spring of 1904 attempt was made by this same combination to obtain the legislation desired by the insertion of a specific provision in the law to substantially this effect:

"_Provided_, That in the case of a musical composition authors or their a.s.signs shall have the exclusive right to use said copyright musical compositions in the form of perforated rolls for playing attachments, copyright on which music rolls may be obtained by said author or his a.s.signs in the same manner as now provided by law for copyright on musical compositions."

I have not been able to discover that this proposed amendment of the law was ever introduced in the form of a bill into either House of Congress. It may have been. But I am informed that it was formulated for the purpose of introduction as a bill in Congress in the terms above set forth.

It was found impracticable to obtain the new legislation in such specific and undisguised form, and resort is now had to a pretended revision or codification of the entire copyright law, for which there is not the slightest necessity and which will inevitably give rise to a great amount of litigation before the meaning and effect of the words used in the new law can be legally understood, for the sole purpose that the aeolian Company may have with its contracting publishers and copyright owners "pleasant and profitable business relations," as expressed in the notice from the aeolian Company to the contracting publishers, dated May 5, 1902 (a facsimile of which I have filed with your committees).

This notice states "a number a copyright owners satisfactory to us have made with us agreements similar to our agreement with you."

Although the matters above referred to have been opened up before your committee in the remarks of Mr. O'Connell, I have felt it my duty to give my view of the matter in brief form, both in confirmation of what Mr. O'Connell has said, and for the purpose of indicating that the bill itself and proposed amendments thereto must be scrutinized by your committees with the greatest care before it is reported.