The talking machine world (Jan-Dec 1908)

THE TALKING MACHINE WORLD. 19 DECISION IN FAMOUS COPYRIGHT SUIT. United States Supreme Court Upholds Decision of Lower Courts in Suit of White-Smith Co. ■ Against Apollo Co. — Maintain That Reproductions by Means of Perforated Music Rolls Is Not Violation of Copyright — Decision of Great Importance to the Manufacturers of Talking Machine Records — In Keeping with Rulings of European Courts — Opinion Appears Below. When the case of the White-Smith Music Publishing Co., Boston, Mass., against the Apollo Co., Chicago, was instituted the talking machine trade knew nothing and cared less about the suit. About six years ago the taking of testimony was begun. This procedure covered pretty nearly two years, shifting from New York and Boston to Chicago and Philadelphia. The case came on for hearing before Judge Hazel, United States Circuit Court, Southern District of New York, December 6 to 8, 1904. On June 21, 1905, a decision was rendered in favor of the defendants. An appeal was taken to the United States Circuit Court of Appeals, Second Circuit, argued March 26, 1906, and an opinion was handed down on May 25 following, the lower court being sustained. Then the case was taken to the Supreme Court of the United States on a writ of certiorari. The hearing came on January 16, 1908, the decision being filed February 24. Counsel of eminence were engaged on both sides, especially for the complainant, the present Governor of the State of New York, Charles E. Hughes, who has since become a national figure in political life, arguing the case for the plaintiffs in the Circuit Court as well as in the Court of Appeals. Of course, his official position precluded his appearance in the Supreme Court of the United States. This is only a part of the history of this celebrated case. With this brief recital of the bare facts to elucidate the record, and bring this famous controversy up to date, or rather to the time when the talking machine trade began to figure; that is to say about the time the bill for the revising, amending and consolidating the copyright laws was introduced in Congress during the Fiftyninth Congress. Then the record manufacturers or their attorneys got busy, and from that time on they were on the job. When the bills were reported out of committee all of them failed of passage with the expiration of that Congress. As soon as the present or Sixtieth Congress convened new bills were introduced almost immediately. 'Shortly afterward the White-Smith case was argued in the Supreme Court, and the chairmen of the Senate and House Patents Committees, to whom bills relative to copyrights are referred for consideration and a report, deemed it best to await the decision of the highest tribunal in the land to clear up moot points hefore taking action. Now that the opinion, which is final, is before them, they will doubtless pursue the usual course; that is to say, hold hearings, only for the submission of new testimony, however, as the subject as a whole has been pretty well thrashed out, and then recommend for passage such a bill as they deem, in their judgment, suitable for passage. Subsequently, when the bill is reached on the calendar in its regular order, the fight will be in open session, and what the outcome will be no one can find out. The decision, of which the complete text is subjoined, is by a unanimous vote of the court, and was written by Justice Day. A brief separate opinion, written by Justice Holmes, "specifically concurs" with his associates, and so far as the existing law is concerned the question of Infringement by record manufacturers Is finally and definitely settled adversely to the contentions of their opponents. In other words, composers and music publishers have contended all along that the right of copyright included all forms of mechanical reproduction of the copyrighted musical work. The decision by the Supreme Court completely knocks this idea in the head. The court declares that mechanical reproduction is not infringement under existing law. It remains for Congress to determine whether the scope of copyright shall he broadened to cover perforated rolls, talking machines and piano-playing devices. The court's decision is in entire harmony with the contention, held all along, by Chairman Currier of the House Patent Committee, and by Chairman Smoot, of the Senate Patent Committee, that mechanical reproauction does not constitute infringement. The decision follows: Full Text of the Decision. The action was brought under the proTislons of the copyright act, section 4952, giving to the author, inventor, designer or proprietor of any book, map, chart, dramatic or musicai composition the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending the same. The Circuit Courts of the United States are given jurisdiction under section 4970 to grant injunctions, according to the course and principles of courts of equity in copyright cases. The appellee (Apollo Co.) is the manufacturer oi certain musical Instruments adapted to be used with perforated ro'ls. The testimony discloses that certain of these rolls, used in connection with such Instruments, and being connected with the mechanism to which they apply, reproduce in sound the melody recorded in the two pieces of music copyrighted by the appellant (White-Smith Music Publishing Co.). The manufacture of such instruments and the use of such musical rolls has developed rapidly In recent years in this country and abroad. The record discloses that in 1902 from seventy to seventy-five thousand of such Instruments were in use in the United States, and that from one million to one million and a half of such perforated music rolls were made in this country In that year. It is evident tbat the question involved in the use of such rolls is one of very considerable importance, involving large property interests, and closely touching the rights of composers and music publishers. The case was argued with force and ability, orally and upon elaborate briefs. WHBR'3 THE PIANOLA PIGUEES. Without entering into a detailed discussion of the mechanical construction of such instruments and rolls, it is enough to say that they are what has become familiar to the public in the form of mechanical attachments to pianos, such as the pianola ; and the musical rolls consist of perforated sheets, which are passed over ducts connected with the operating parts of the mechanism in such manner that the same are liept sealed until, by means of perforations in the rolls, air pressure is admitted to the ducts which operate the pneumatic devices to sound the notes. This is done with the aid of an operator, upon whose skill and experience the success of the rendition largely depends. As the roll is drawn over the tracker board the notes are sounded as the pei'forations admit the atmospheric pressure, the perforations having been so arranged that the effect is to produce the melody or tune for which the roll has been cut. HOW MUSIC ROLLS ARE MADE. Speaking in a general way, it may be said that these rolls are made in three ways: First — With the score or staff notation before him the arranger, with the aid of a rule or guide and a graduated schedule, marks the position and size of the perforations on a sheet of paper to correspond to the order of notes in the composition. The marked sheet is then passed into the hands of an operator who cuts the apertures, by hand, in the paper. This perforated sheet is Inspected and corrected, and when corrected Is called "the original." This original is used as a stencil and by passing ink rollers OT^er It a pattern is prepared. The stenciled perforations are then cut, producing the master or templet. The master is placed in the perforating machine and reproductions thereof obtained, which are the perforated rolls in question. Expression marks are separately copied on the perforated music sheets by means of rubber stamps. Second — A perforated music roll made by another manufacturer may be used from which to make a new record. Third — By playing upon a piano to which Is attached an automatic recording device producing a perforated matrix from which a perforated roll may be produced. It Is evident, therefore, that persons skilled In the art can take such pieces of sheet music In staff notation, and by means of the proper instruments make drawings indicating the perforations, which are afterward outlined and cut upon the rolls In such wise as to reproduce, with the aid of other mechanism, the music which is recorded in the copyrighted sheets. THEORIES ADVANCED BY LEARNED COONSBL. The learned counsel for the parties to this action advance opposing theories as to the nature and extent of the copyright given by statutory laws enacted by Congress for the protection of copyright, and a determination of which is the true one will go far to decide the rights of the parties In this case. On behalf of the appellant it is insisted that It Is the Intention of the copyright act to protect the Intellectual conception which has resulted in the compilation of notes which, when properly played, produces the melody which is the real invention of the composer. It is insisted that this is the thing which Congress Intended to protect, and that the protection covers all means of expression of the order of notes which produce the air or melody which the composer has Invented. INTENTION OF COPYRIGHT ACT. Music, It is argued, is Intended for the ear as writing is for the eye, and that It Is the Intention of the copyright act to prevent the multiplication of every means of reproducing the music of the composer to the ear. On the other hand, it is contended that while it is true that copyright statutes are Intended to reward mental creations and conceptions, that the extent of this protection is a matter of statutory law, and that it has been extended only to the tangible results of mental conception and that only the tangible thing Is dealt with by the law, and Its multiplication or reproduction is all that is protected by the statute. DOCTRINE OF STARE DECISIS INVOKED. Before considering the construction of the statute as an independent question the appellee Invokes the doctrine of stare decisis in its favor, and it is its contention that in all the cases in which this question has been up for judicial consideration it has been held that such mechanical producers of musical tones as are Invoked in this case have not been considered to be within the protection of the copyright act : and that. If within the power of Congress to extend protection to such subjects, the uniform holdings have been that it is not Intended to include them in the statutory protection given. While it may be that the decisions have not been of that binding character that would enable the appellee to claim the protection of the doctrine of stare decisis to the extent of precluding further consld Trade Is Brightening Of course it is and you can help it along if you carry a briglit, fresh stock and push things. <jf We have the stock, an endless variety of talking machines, records, acces= scries of all kinds, etc. <]f Our aim has been to supply the New England dealer quickly and accurately. (If Our plan has been to place everything salable within his reach within the briefest possible time. ^ We are manufacturers and jobbers and do no retail business. <If Our sole efforts are concentrated in meeting the merchant's wants. <If We know something about the business and dealers who have been buying stock of us for years say there is nothing lacking in our service. CAN WE HELP YOU? Boston Cycle & Sundry Co. 48 Hanover Street, Boston, Mass.