Page:United States Reports, Volume 209.djvu/28

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2  

OCTOBER TERM, 1907.

  209 U.S.

Argument for Appellant.

 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