Sunday-school book——

Mr. Furness. It does not cover that at all.

The Chairman. You state that this law refers to the use of these books for a public performance for profit. I do not understand the law that way.

Mr. Chaney. I do not, either.

The Chairman. The committee has suggested yesterday and to-day an amendment which would put the law as you state it, and you object to that.

Mr. Serven. For this reason: It is proposed to make certain exceptions, to allow privileges to certain beneficiaries under this law, which would really defeat the law, because that sort of a proposition is solely for financial profit, the sort of entertainment that is referred to. Upon investigation it will be found that nearly every entertainment of the kind referred to is really for profit; that instead of lending or renting for a charitable enterprise pure and simple, it will be found that it is a money-making enterprise; there is hardly an exception. You will find that such an entertainment is not a social affair. It is not that sort of a thing. It is an institution solely devised as an expedient to raise money for certain specific purposes, whatever they may be. Now, if we simply give, as, for instance, for the benefit of the occupants of a hospital, or something of that kind, where there is no charge or anything of that sort, we give simply for the entertainment of a company of gentlemen and ladies, where the public is not shut out unless they had the price, then I am sure these gentlemen would not have the slightest objection to it whatever; in fact, they like to encourage that sort of thing, and they even lend their music for such purposes.

Mr. Chaney. But you want the power of doing that lending yourselves?

Mr. Serven. Yes; if our music is gone, we like to do the lending.

Mr. Chaney. Suppose I buy this composition [holding up musical composition]: haven't I a right to sing it, and have not my friends a right to sing it at my expense?

Mr. Serven. You have, so far as any private performance is concerned.

Mr. Chaney. Well, in public?

Mr. Serven. I don't think so.

Mr. Chaney. Ought I not to have that right?

Mr. Serven. That depends on what the contract is when you buy it.

Mr. Furness. You could not sing that yourself [referring to musical composition]; that requires more than one voice.

Mr. Gill. How was the use of that restricted when it was purchased?

Mr. Furness. The law says that if he does that willfully, or for profit—I think the words "for profit" are in the statute—that he is guilty of a misdemeanor, and, upon conviction, is subject to imprisonment not less than a year, I think, the same as for the dramatic public performance; it is the same remedy for both.

Mr. Gill. You sell that without any restriction?

Mr. Serven. Without any notice of restriction.

Mr. Gill. Without any restriction?

Mr. Serven. No.

Mr. Gill. Is it not a matter of fact that you make the sale without any contract? I concede that if you make a contract of course you can restrict its use, the same as you can make a contract for the use of a patent; you can give the whole use of a patent or limit it to a town or a county, or you may restrict the patent as to whom it shall be sold, or in any way you please, and I admit that you could restrict this; but I ask, as a matter of fact, what are the contracts? It is a matter of contract?

Mr. Serven. It is solely a matter of contract.

Mr. Gill. You sell it without any contract.

Mr. Serven. No——

Mr. Gill. Does not that, then, give the man a property right which he can use as he pleases—where you have made no restrictions whatever?

Mr. Serven. We have done everything the law says we shall do in order to put this matter under the protection of 4966.

Mr. Gill. Have the courts interpreted this in any way?

Mr. Serven. This penalty clause of it?

Mr. Gill. Has this been brought up?

Mr. Serven. This penalty clause has not been interpreted, for this reason: That so far as the music publishers are concerned, probably the same as the dramatic producers, they have not endeavored to press the penal provisions; they have felt that if the provision was in the law it was a warning to the man who was attempting to violate that provision, and that the moral effect, possibly, of such a paragraph ought to pretty largely protect their interests; yet they have a number of times considered that question, and I am not at all sure but what some day they may reach the conclusion that they would like to have the court pass upon the question whether Mr. Tams is violating the law.

Mr. Gill. But there is no practical notice or warning to a person who goes into a music store and buys that, because there is nothing on the book you sell that indicates that there is any limitation or restriction in regard to its use by the purchaser?

Mr. Furness. The only way that has been brought before us publishers is this: That when they have asked for a public performance, or probably to rent the orchestral part, then we have asked them, "Have you got the score yet?" They may reply, "Yes; we have rented the score," from such and such a man. Then we refuse to give them permission to render the public performance; we say to them, "You must buy the books from the publishers—the owner of the copyright or his authorized agent, the music dealer." So far as an individual goes, and so far as a society goes, we have never brought any suit at all, and the only suit that has been brought on a question of this kind emanates from Mr. Tams, who brings a suit for $200,000 against the music publishers for trying to restrain him from renting these books for public performances.

The Chairman. The committee does not get a clear idea of what the law is from your statement of it. My understanding of that law is this: That so far as the civil remedy is concerned it makes no difference at all whether the performance is given for profit or not. You can sue them and recover damages, no matter whether it is given for profit or not; but it must be given for profit in order to subject them to the criminal remedies.

Mr. Serven. Yes; that is it, willfully and for profit.

The Chairman. So far as the civil remedy is concerned, it makes no difference.

Mr. Bonynge. As far as I understand, there has been no prosecution under the penal clause.

Mr. Serven. So far there has not; no.

Mr. Bonynge. And the only use of the penal clause so far has been that it has been a sort of a club to enforce damages.

Mr. Serven. No; no action has been taken under that; it has simply been held there, and we have sent broadcast such notices as this which you have in your record, notice to people who were in the habit of violating that section, telling them that we might at some time be compelled to proceed under that section.

Mr. Chaney. That is, you have threatened them with that penalty.

Mr. Serven. If that is the proper word; we have given them specific notice that there is a law