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209 U.S.

Argument for Appellee.

not made a test of copyrightability or of infringement by the statute. So long as it can be read or reproduced in any way, it makes no difference what assistance the person calls in from means known in the art.

Whether a musical composition, in addition to the musical function performed by the order of its notes, does, or does not, perform also a mechanical function is not made a test of copyrightability or of infringement by the statute.

It is impossible to say that the order of the perforated notes is the mere adjunct of a valve mechanism, because the valve mechanism would work with the perforations in · whatever order. It is not the machine that puts or requires the perforations in this order, but the appellee.

There is no controlling authority opposed to complainant's contention. The two decisions in this country relied upon by the appellee are neither binding upon this court nor apposite to the facts disclosed by this record. Kennedy v. McTammany, 33 Fed. Rep. 584, and Stern v. Rosey, 17 App. D. C. 562, discussed and distinguished. The English decision of Boosey v. Whight, L. R. 1900, 1 Ch. 122, was based upon the narrow wording of the English statute, and in view of the amendment of that statute in 1902, can no longer be regarded as authority, even in England.

Mr. Charles S. Burton and Mr. John J. O'Connell for appellee:

Copyright is strictly statutory in the United States. If a common law-right ever existed it was taken away by the statute of Anne, and that statute and those amendatory of it are now in England the only source of an author's right. There never existed any common law right of copyright in the United States. Copyright in this country is the creature of statute pure and simple. Wheaton v. Peters, 8 Pet. 591, see p. 664 quotation; Banks v. Manchester, 128 U. S. 244; Thompson v. Hubbard, 131 U. S. 123.

Existing by virtue of statute only, the limitations of copyright are those which the statute fixes, or, more accurately

Argument for Appellee.

209 U.S.

speaking, its extent is only that which the statute gives. Ewer v. Coxe, Fed. Cases 4,584; S. C., 4 Wash. C. C. 487; Holmes v. Hurst, 174 U. S. 82; Perris v. Hexamer, 99 U. S. 674.

The statutes creating and covering copyright must be strictly construed in all respects. Banks v. Manchester, 128 U. S. 244; Bolles v.Outing Co., 175 U. S. 268.

Departure from this rule of strict construction cannot be justified on the ground of extending the statute by analogy from things expressed, to things thought to be similar; or from rights named, and defined in respect to named subjects, to analogous rights in respect to subjects thought to be analogous.

As the legislature alone created the right and set its bounds in the first instance, so the legislature may, as civilization and art develop and the considerations governing legislative discretion change, extend or contract those bounds from year to year and from generation to generation, but as the creation of the right waited, so the extension, as much as its contraction, must wait upon the legislative act.

If the invention of automatic musical instruments and the graphophone have opened new fields and methods for the exploitation, promulgation, or what may be called "publication” of musical compositions which did not exist or were not in contemplation of the legislature when the present statutes were enacted, it is not for the courts to enter the domain of legislation to weigh the considerations either of equity or expediency which might move for or against such proposed extensions. All arguments directed to the supposed reasonableness of treating copyright as covering automatic means of audible reproduction of speech and music are utterly irrelevant and beside the question. See Osgood v. Aloe Instrument Co., 69 Fed. Rep. 291; Higgins v. Keuffel, 140 U. S. 428; Werckmeister v. American Lithograph Co., 117 Fed. Rep. 360; Tompkins v. Rankin, Fed. Cases, 14,090; Thompson v. Hubbard, 131 U. S. 123; Littleton v. Oliver Ditson Co., 62 Fed. Rep. 597, affirmed, 67 Fed. Rep. 905; Ilood v. Abbott, Fed. Cases, 17,938; Hills v. Austrich, 120 Fed. Rep. 862.

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Musical compositions mentioned as the subject of copyright are tangible and legible embodiments of the intellectual product of the musician, and not the intangible intellectual product itself.

“Copies” which infringe à musical copyright must be tangible embodiments of the intellectual product of the composer in the same sense and for the same purpose as tangible embodiment which constitutes the copyrighted "musical composition."

The primary use and adaptation of the thing determines its copyrightability or infringement of copyright. Intention as to use is material and may be controlling.

Things intended for mechanical function-for use in themselves—will not infringe copyright, and are not copyrightable merely because of incidentally being able to perform some part of the function of things copyrightable. Baker v. Selden, 101 U. S. 99; Amberg File Co. v. Shea, 82 Fed. Rep. 314, aff’g 78 Fed. Rep. 429; Rosenbach v. Dreyfuss, 2 Fed. Rep. 217.

The protection designed to be afforded to the composer by copyright of a musical composition is only the monopoly of the multiplication and selling of copies, and this applies to musical compositions as it does to all other subjects of copyright.

As to this definition of the monopoly see Stephens v. Cady, 14 How. 529; Stowe v. Thomas, Fed. Cases, 13,514; Lawrence v. Dana, Fed. Cases, 8,136; Perris v. Hexamer, 99 U. S. 674.

That perforated sheets and other mechanical means of automatically producing music audibly are not infringements of copyrights upon the musical compositions which are thus audibly reproduced, has been the conclusion of every court of England and America before which this question has ever come for decision. Stern v. Rosey, 17 App. D. C. 562; Kennedy v. McTammany, 33 Fed. Rep. 584; Boosey v. Whight, 15 L. T. R. 322 (1899); 1 Ch.836 (1899); 80 L. T. R. (N. S.) 561.

These prior decisions have established a rule of property and of business, and should be sustained under the doctrine of stare decisis, unless greater injury would result from sustaining than from reversing them. Every enactment of Congress is

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properly interpreted by reference to established public policy and then known existing conditions. .

The existence at the time of the enactment of the United States copyright law of 1891, of the Berne convention of 1886 compels the conclusion that said law of 1891 was not intended by Congress to subject perforated rolls to copyright.

By leave of court, the following briefs were filed in these cases on behalf of parties interested in the decision:

By Mr. Nathan Burkan for Victor Herbert sustaining the contentions of the appellant.

By Mr. Albert H. Walker for the Connorized Music Company; by Mr. George W. Pound for the De Kleist Musical Instrument Manufacturing Company and the Rudolph-Wurlitzer Company, sustaining the contentions of the appellee.

MR. JUSTICE Day delivered the opinion of the court.

These cases may be considered together. They are appeals from the judgment of the Circuit Court of Appeals for the Second Circuit (147 Fed. Rep. 226), affirming the decree of the Circuit Court of the United States for the Southern District of New York, rendered August 4, 1905 (139 Fed. Rep. 427), dismissing the bills of the complainant (now appellant) for want of equity. Motions have been made to dismiss the appeals, and à petition for writ of certiorari has been filed by appellant. In view of the nature of the cases the writ of certiorari is granted, the record on the appeals to stand as a return to the writ. Montana Mining Co. v. St. Louis Mining Co., 204 U. S. 204.,

The actions were brought to restrain infringement of the copyrights of two certain musical compositions, published in the form of sheet music, entitled, respectively, “Little Cotton Dolly” and “Kentucky Babe.” The appellee, defendant below, is engaged in the sale of piano players and player pianos, known as the "Apollo," and of perforated rolls of music used

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in connection therewith. The appellant, as assignee of Adam Geibel, the composer, alleged compliance with the copyright act, and that a copyright was duly obtained by it on or about March 17, 1897. The answer was general in its nature, and upon the testimony adduced a decree was rendered, as stated, in favor of the Apollo Company, defendant below, appellee here.

The action was brought under the provisions of the copyright act, 8 4952 (3 U. S. Comp. Stat. Sup. 1907, p. 1021), giving to the author, inventor, designer or proprietor of any book, map, chart, dramatic or musical 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 4970 (3 U. S. Comp. Stat. 3416) to grant injunctions according to the course and principles of courts of equity in copyright cases. The appellee is the manufacturer of certain musical instruments adapted to be used with perforated roHs. 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.

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 the year 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 musical rolls, to be more fully described hereafter, were made in this country in that year.

It is evident that 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.

Without entering into a detailed discussion of the mechanical

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