delivered the opinion of the Court.
These suits were brought in the federal court for western Missouri by the American Society of Composers, Authors and Publishers, and one of its members, against the Jewell-LaSalle Realty Company, which operates the LaSalle Hotel at Kansas City. The hotel maintains a master radio receiving set.whiсh is wired to each of the public and private rooms. As part of the service offered to its guests, loud-speakers or head-phones are provided so that a program received on the master set can, if desired, be simultaneously heard throughout the building. Among the programs received are those transmitted by Wilson Duncan who operates a duly licensed commercial broadcasting station in the same city. Duncan sel&cts his own programs and broadcasts them for profit. There is no arrangement of any kind between him and the hotel. Both were notified by the plaintiff sоciety of the existence of its copyrights and were advised that unless a license were obtained, performance of any copyrighted musical composition owned by its members was forbidden. Thereafter, a copyrighted popular song, owned by the plaintiffs, was repeatedly broadcast by Duncan and was received by the hotel company and made available to its guests. Suits were brought for an injunction and damages for the alleged infringements. 1 After a hearing on stipulated facts, relief against the hotel company was denied on the ground that its acts did not constitute a “ performance ” within the Copyright Act. Buck v. Duncan, 32 F. (2d) 366. Plaintiffs appealed to the Circuit Court of Appeals which certified the following question:
“ Do the acts of a. hotel proprietor, in making available to his guests, through the instrumentality of a radio re *196 ceiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of 17 USC Sec. 1 (e) ? ”
The provision referred to is § 1 of thе Copyright Act of March 4, 1909, c. 320, 35 Stat. 1075, which provides that: “Any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right: ...(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performanсe for profit.”
The parties agree that the owner of a private radio receivipg set who in his own home invites friends to hear a musical composition which is being broadcast, would not be liable for infringement. For even if this be deemed a performance, it is neither public nor fоr profit. Compare
Herbert
v.
Shanley Co.,
First.
The defendant contends that the Copyright Act may not reasonably be construed as applicable to one who merеly receives a composition which is being broadcast. Although the art of radio broadcasting was unknown at the time the Copyright Act of 1909 was passed, and the means of transmission and reception now employed are wholly unlike any then in use,
2
it is not denied that such
*197
broadcasting may be within the scope of the Act.
3
Compare
Kalem Co.
v.
Harper Bros.,
222 U. S.
55; Gambart
v.
Ball,
14 C. B. (N. S.) 306, 319. The argument here urged, however, is that since the transmitting of a musical composition by a commercial broadcasting station is a public performance for profit, control of the initial radio rendition exhausts the monopolies conferred—both that of making copies (including records) and that of giving public performanсes-i or profit (including mechanical performances from a record); and that a monopoly of the reception, for commercial purposes, of this same rendition is not warranted by the Act. The analogy is invoked of the rule under which an author who permits copies оf his writings to be made cannot, by virtue of his copyright, prevent or restrict the transfer of such copies. Compare
Bobbs-Merrill
v.
Straus,
The defendant next urges that it did not perform, because there can be but one actual performance each time
*198
a copyrighted selection is rendered; and that if the broadcaster is held to be a performer, one who, without connivance, rеceives and distributes the transmitted selection cannot also be held to have performed it. But nothing in the Act circumscribes the meaning to be attributed to the term “ performance,” or prevents a single rendition of a copyrighted selection from resulting in more than one public performance for profit. While this may not have been possible before the development of radio broadcasting, the novelty of the means used does not lessen the duty of the courts to give full protection to the monopoly of public performance for profit which Congress has secured to the composer. Compare
Kalem Company
v.
Harper Bros.,
The defendant contends further that the acts of the hotel company were not a performance because no detailed choice of selections was given to it. In support of this contention it is pointed out that the operator of a radio receiving set cannot render at will a performance of any composition but must accept whatever program is transmitted during the broadcasting period. Intention to infringe is not essential under thе Act. Compare
Hein
v.
Harris,
Second. The defendant сontends that there was no performance because the reception of a radio broadcast is no different from listening to a distant rendition of the same program. 7 We are satisfied that the reception of a *200 radio broadcast and its translation into audible sound is not a mere audition of the original program. It is essentiаlly a reproduction. As to the general theory of radio transmission there is no disagreement. All sounds consist of waves of relatively low frequencies which ordinarily pass through the air and are locally audible. Thus music played at a distant broadcasting studio is not directly heard at the recеiving set. In the microphone of the radio transmitter the sound waves are used to modulate electrical currents of relatively high frequencies which are broadcast through an entirely different medium, conventionally known as the “ ether.” These radio waves are not audible. 8 In the recеiving set they are rectified; that is, converted into direct currents which actuate the loudspeaker to produce again in the air sound waves of audible frequencies. The modulation of the radio waves in the transmitting apparatus, by the audible sound waves is comparable to thе manner in which the wax phonograph record is impressed by these same waves through the medium of a recording stylus. 9 The transmitted radio waves require a receiving set for their detection and trans *201 lation into audible sound waves, just as the record requires another mechanism for the reproduction of the recorded composition. In neither case> is the original program heard; and, in the former, complicated electrical instrumentalities are necessary for its adequate reception and distribution. Reproduction in both cases amounts to a perfоrmance. Compare Buck v. Heretis, 24 F. (2d) 876; Irving Berlin, Inc., v. Daigle, 31 F. (2d) 832, 833. In addition, the ordinary receiving set, and the distributing apparatus here employed by the hotel company, are equipped to amplify the broadcast program after it has been received. Such acts clearly are more than the use of mere mechanical acoustic devices for the better hearing of the original program. The guests of the hotel hear a reproduction brought about by the acts of the hotel in (1) installing, (2) supplying electric current to, and (3) operating the radio receiving set and loud-speakers. Thеre is no difference in substance between the case where a hotel engages an orchestra to furnish the music and that where, by means of the radio set and loud-speakers here employed, it furnishes the same music for the same purpose. In each the music is produced by instrumentalities under its control. 10
*202 Third. The defendant contends that there was no performance within the meaning of the Act because it is not shown that the hotel operated the receiving set and loudspeakers for profit. Unless such acts were carried on for profit, there can, of course, be no liability. But whether there was a performance does not depend upon the existence of the profit motive. The question submitted does not call for a determination whether the acts of the hotel company recited in the certificate constitute oрeration for profit.
The question certified is answered: Yes.
Notes
In No. 138, Duncan was joined as a defendant and a decree pro confesso for failure to answer was entered against him. In No. 139, the hotel company was the only defendant. See also No. 140, post, p. 202.
Station KDKA, erected in Pittsburgh in 1920, was the pioneer commercial broadcasting station in the world. The Radio Industry, Harvard Graduate School of Business Administration Lectures, 1927-28, pp. 195-209. The latest amendment of the Copyright Act which added new classes of copyrights was that of August 24, 1912, c. 356, 37 Stat. 488.
See
M. Witmark & Sons
v.
L. Bamberger Co.,
The rule of the
Bobbs-Merrill
case was enacted into the Copyright Act of March 4, 1909, c. 320, § 41, 35 Stat. 1075, 1084. See H. Rep. No. 2222, 60th Cong., 2d Sess., February 22, 1909, p. 19. It is' applicable only where there is no relation between the manufacturer of the copy and the purchaser which might make the latter liable as a contributory infringer. Compare
Scribner
v.
Straus,
If the copyrighted composition had been broadcast by Duncan with plaintiffs’ consent, a license for its commercial reception and distribution by the hotel company might possibly have been implied. Compare Buck v. Debaum, 40 F. (2d) 734. But Duncan was not licensed; and the position of the hotel company is not unlike that of one who publicly performs for profit by the use of an unlicensed phonograph record.
See the so-called Vestal Copyright bill, which failed of passage in the Seventy-first Congress. H. R. 12549,71st Cong., 2d Sess., § 15 (d). Compare Note 10, infra. See also arguments concerning the broadcasting of copyrighted selections as set forth in Joint Hearings before the Committees on Patents, on S. 2328 and H. R. 10353,69th Cong., 1st Sess., April 5-9,1926; Hearings before the Senate Committee on Patents, on H. R. 12549, 71st Cong., 3d Sеss., January 28-29, 1931, pp. 52, et seq.; Sen. Rep. No. 1732, id., February 17, 1931, p. 29.
This argument is based upon an elaborate discussion of the theory of radio transmission and reception. Defendant’s hypothesis is that the energy which actuates the receiving apparatus—that is, which varies the currents in the receiver to produce audible sound—is part of the original energy exerted upon the air by the performer. .Hence it is urged that the radio receiving set is no more than a mechanical or electrical ear-trumpet for the better audition of a distant performance.
Sound waves, which can pass through air, watеr, or solids, and radio or other electromagnetic waves, which operate in the " ether,” behave similarly in many respects. Yet not only are the latter inaudible but they travel at relatively tremendous speeds. Sound waves travel, at ordinary temperatures, approximately 1100 fеet a second, electromagnetic waves with the speed of light, or about 186,000 miles per second. This velocity is dependent solely upon the particular medium through which the various kinds of waves travel. See Morecroft, Principles of Radio Communication, c. IV. Thus, broadcast time-signals can be heard practically simultaneously on receiving sets hundreds of miles apart; ordinary sound signals cannot. Compare as to the general theory of radio communication, Radio Corp. of America v. Twentieth Century Radio Corp., 19 F. (2d) 290, 291; Chappell & Co., Ltd., v. Associated Radio Co. (1925), 50 Victoria Law Reports 350, 357-8.
The impressions on the phonograph disc are of course permanent, whereas the mоdulations of the carrier radio waves, continually emitted by the sending station, are ephemeral. But in both cases the *201 means used to transmit the selection being played are wholly different from the musical sounds themselves, and require an additional mechanism, not under the control of the рerformer, for the re-creation of the original music.
At the present time there are renewed proposals for the revision of the Copyright Act in the light of new conditions. See summaries in the Annual Report of the Register of Copyrights (1928), pp. 6-13; id. (1929), pp. 16-24; id. (1930), pp. 8-13. See also the so-called Vestаl Bill, the most recent of these, introduced in the Seventy-first Congress on May 22, 1930. H. R. 12549, 71st Cong., 2d Sess., § 1 (d), (g); Sen. Rep. No. 1732, id., 3d Sess., Feb. 17,1931, pp. 4-5, 29. Compare Hearings before the Senate Committee on Patents on H. R. 12549, id., January 28-29, 1931, pp. 25, passim. This measure was debated at length in the Senate, but was not reached on the final calendar. See 74 Cong. Rec., Pt. IV, pp. 6213-6849; id., Pt. V, p. 33.