Page:United States Reports, Volume 209.djvu/34



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 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.

Author:William R. 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 a 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