CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1907. WHITE SMITH MUSIC PUBLISHING COMPANY APPEALS FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 110, 111. Argued January 16, 17, 1908.—Decided February 24, 1908. While this court is not bound under the doctrine of stare decisis by the decisions of lower Federal courts which have not been reviewed by this court, as to the construction of a Federal statute, or by the decisions of the highest courts of foreign countries construing similar statutes of those countries, where all of such decisions express the same views on the subject involved, the omission of Congress, when subsequently amending the statute, to specifically legislate concerning that subject may be regarded by this court as an acquiescence by Congress in the judicial construction so given to the statute. While the United States is not a party to the Berne Copyright Convention of 1886, this court will hesitate to construe the copyright act as amended March 3, 1891, in such manner that foreign authors and composers can obtain advantages in this country which, according to that convention, are denied to our citizens abroad. What is included within the protection of the copyright statute depends upon the construction of the statute itself, as the protection given to copyright in this country is wholly statutory. The amendment of § 4966, Rev. Stat., by the act of January 6, 1897, 29 Stat. 481, providing penalties for infringements of copyrighted dramatic or musical compositions, did not enlarge the meaning of previous and unamended sections. A "copy" of a musical composition within the meaning of the copyright (1) VOL. CCIX-1 statute is a written or printed record of it in intelligible notation and this does not include perforated rolls which when duly applied and properly operated in connection with musical instruments to which they are. adapted produce the same musical tones as are represented by the signs and figures on the copy in staff notation of the composition filed by the composer for copyright. The existing copyright statute has not provided for the intellectual conception, even though meritorious, apart from the thing produced; but has provided for the making and filing of a tangible thing against the duplication whereof it has protected the composer. Considerations of the hardships of those whose published productions are not protected by the copyright properly address themselves to Congress and not to the courts. 147 Fed. Rep. 226, affirmed. THE facts are stated in the opinion. Mr. Livingston Gifford for appellant: Appellant's interpretation is in accord, with the policy of the law and appellee's interpretation is not. The policy of the law is to protect the author against every form of piracy without distinction, and the piracy of a musical composition by reproducing and selling it in the form of perforated music is just as culpable as in any other form. The Constitution purports to secure to authors "the exclusive right to their respective writings," and it is obviously not compatible with this to protect them only against the sale of their writings in a form which requires no assistance of mechanism for reading. As this interpretation is the only one which will carry out its policy, the statute should certainly be so interpreted, unless such interpretation is inconsistent with its terms or with the terms of the Constitution. Article I, § 8 of the Constitution, as interpreted by the decisions, is broad enough to include perforated music. See the copyright law in which Congress has included as writings (§ 4952), books, maps, charts, dramatic or musical compositions, engravings, etc. In principle we ask for no broader interpretation here. And see also Lithograph Co. v. Sarony, 111 U. S. 53; Holmes v. Hurst, 174 U. S. 86; Bleistein 209 U. S. Argument for Appellant. v. Donaldson Co., 188 U. S. 239; American Mutoscope Co. v. Edison Co., 137 Fed. Rep. 262. The mutuality of the contract which the Constitution evidently contemplates between the Government, on the one hand, and the author or inventor on the other, also leads to the same conclusion. If an author has among his writings a musical composition, the only possible way of "securing" to him the "exclusive right" thereto is by giving him the monopoly of this musical composition, no matter in what form it may be represented; otherwise, he gets only a partial exclusive right thereto. No composer can be truly said to have "the exclusive right" to his musical composition writings secured to him so long as others have the right to publish, and sell them without his consent, in the form of perforated music. "Musical composition," the term of the statute under which this case comes, is broad enough to include perforated music. As applicable to this case, the right conferred by the statute is the "sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing and vending" the "musical composition." The undeniable policy of the law is to cover all forms of piracy. This court has substantially decided that the subject of property in a copyrighted musical composition is the order of the notes in the author's composition, by adopting in Holmes v. Hurst, 174 U. S. 86, Mr. Justice Erle's definition of the subject of property in a book or literary composition as being "the order of the words in the author's composition." And the same thing must also be true as to the notes of a musical composition. The only thing that has to be copied to constitute a copy of the copyright property is the order in which the notes were set down. Appellee's witnesses admit that in making the infringing perforated music they copy the order of the notes. It is immaterial that in the year 1831, when the term "musical composition" was first placed in the copyright statute the Argument for Appellant. 209 U. S. perforated form of musical compositions was not known. See Edison v. Lubin, 122 Fed. Rep. 240, holding that while the advance in the art of photography has resulted in a different type of photograph, yet it is none the less a photograph. So, as to music, while the perforated notation is a different type of notation, yet it is none the less a "musical composition;" none the less a perfect record, and none the less a "writing." Where the order of the notes or words is copied, infringement of literary or musical compositions is not avoided by variations in other respects. Jollie v. Jacques, 1 Blatch. 625; Blume v. Spear, 30 Fed. Rep. 631; Daly v. Palmer, 6 Blatch. 266; Nicols v. Pitman, 26 Ch. Div. 374; Edison v. Lubin, 122 Fed. Rep. 240; Fishel v. Leuckel, 53 Fed. Rep. 499; Falk v. Howell, 37 Fed. Rep. 202; Falk v. Donaldson, 57 Fed. Rep. 32; Turner v. Robinson, 10 Ir. Ch. 121, 510; Drone on Copyright, 385; Scrutton on Copyright, ed. 1903, 135, note. The meaning of "musical composition" in § 4952, must be read in the light of its manifest meaning in § 4966 wherein it is the subject of protection against public performance. The prohibition of the public performance of a copyrighted "musical composition" is the prohibition of the public reproduction of that order or succession of notes which constitutes the composition. It is the musical composition that is publicly performed, and not a sheet of music. Public performance is prohibited, whether or not any notation or record be used. And it cannot be questioned that a performance in public of a musical composition upon an Aeolian organ or pianola, by means of perforated music, would be as much a public performance of a musical composition as if it had been played in public from a printed sheet of music in staff notation, and as such would be equally within the condemnation of the statute, provided the musical composition had been copyrighted. One who, like the appellee, sells the musical composition is a contributory infringer with the infringer under § 4952 who plays it in public. Readability by the person without mechanical assistance is |