[Federal Register: July 23, 2001 (Volume 66, Number 141)]
[Notices]
[Page 38324-38326]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2000-9 CARP DTRA1&2]
Digital Performance Rights in Sound Recordings and Ephemeral
Recordings
AGENCY: Copyright Office, Library of Congress.
ACTION: Initiation of arbitration and announcement of the schedule for
the proceeding.
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SUMMARY: The Copyright Office of the Library of Congress is announcing
the initiation of and schedule for the 180-day arbitration period to
set the rates and terms for two compulsory licenses. One license allows
certain eligible nonsubscription services to perform sound recordings
publicly by means of digital audio transmissions and the other allows a
transmitting organization to make an ephemeral recording of a sound
recording for the purpose of making a permitted public performance.
EFFECTIVE DATE: July 23, 2001.
ADDRESSES: All hearings and meetings for the proceeding to set rates
and terms for the sections 112 and 114 licenses shall take place in the
James Madison Memorial Building, Room LM-414, First and Independence
Avenue, S.E., Washington, D.C. 20540.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Gina Giuffreda, CARP Specialist, P.O. Box 70977, Southwest Station,
Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: (202) 252-
3423.
SUPPLEMENTARY INFORMATION:
Background
This notice fulfills the requirement of 37 CFR 251.64 and 17 U.S.C.
803(a)(1). Section 251.64 of the CARP rules, 37 CFR provides that:
After the end of the 45-day precontroversy discovery period, and
after the Librarian has ruled on all motions and objections filed
under Sec. 251.45, the Librarian will determine the sufficiency of
the petition, including, where appropriate, whether one or more of
the petitioners' interests are ``significant.'' If the Librarian
determines that a petition is significant, he or she will cause to
be published in the Federal Register a declaration of a controversy
accompanied by a notice of initiation of an arbitration proceeding.
On November 27, 1998, the Library of Congress published a notice,
pursuant to 17 U.S.C. 112(e)(4) and 114(f)(2)(A), initiating a
voluntary negotiation period for the purpose of establishing rates and
terms for the digital public performance of sound recordings license
(as it pertains to webcasters) under section 114 and for the making of
ephemeral copies in furtherance of a digital public performance under
section 112 for the period beginning on October 28, 1998, and ending on
December 31, 2000. 63 FR 65555 (November 27, 1998). No voluntary
agreements were reached. On July 23, 1999, the Recording Industry of
America, Inc. (``RIAA'') filed a petition in accordance with 17 U.S.C.
112(e)(5) and 114(f)(2)(B) to convene a Copyright Arbitration Royalty
Panel (``CARP'') for the purpose of setting rates and terms for these
licenses.
After the filing of the petition, the Library requested the filing
of notices of intent to participate in the proceeding and set the
schedule for the 45-day precontroversy discovery period. 64 FR 52108
(September 27, 1999). After the filing of notices of intent to
participate and upon a party's request to extend the filing date for
direct cases, the Library vacated the schedule set forth in the
September 27, 1999, notice. See Order, Docket No. 99-6 CARP DTRA
(December 22, 1999).
During the pendency of the proceeding, the Library published a
notice, in accordance with 17 U.S.C. 112(e)(6) and 114(f)(2)(C)(i)(II),
initiating a voluntary negotiation period for the purpose of
establishing rates and terms for the two licenses for the period 2001
and 2002. 65 FR 2194 (January 13, 2000). On August 8, 2000, the RIAA
again filed a petition to convene a CARP to set these rates. RIAA
asserted that it has a significant interest in such a proceeding
because it has ``established a collective that is comprised of more
than 200 different recording labels and artists, including all of the
major record companies in the United States * * * [and its] members own
the copyrights in approximately 90% of the legitimate sound recordings
sold in the United States.'' Petition at 2.
Prior to the establishment of a new precontroversy discovery
schedule for the 1998-2000 proceeding and the establishment of a
precontroversy discovery schedule for the 2001-2002 proceeding, the
Library consolidated the two proceedings before a single CARP and
assigned a single docket number applicable to both proceedings. Order,
Docket Nos. 99-6 CARP DTRA and 2000-3 CARP DTRA2 (December 4, 2000).
The Library has conducted a precontroversy discovery period under
Sec. 251.45 of the rules. See 65 FR 77394 (December 11, 2000); Orders,
Docket No. 2000-9 CARP DTRA1&2 (January 18, 2001, and March 16, 2001).
While the 45-day precontroversy discovery period is complete, a few
motions are pending before the Library. However, the disposition of
these motions will in no way affect the Librarian's determination
regarding the sufficiency of the petitions filed in this proceeding;
and the motions will be ruled upon in advance of July 30, 2001, the
beginning of the 180-day arbitration period. Consequently, the
Librarian is announcing the initiation of this proceeding at this time
so that the schedule of the proceeding may be published in the Federal
Register within seven calendar days of the first meeting as required by
Sec. 251.11(b) of the rules.
[[Page 38325]]
Determination of Petitioner's Significant Interest in Proceeding
The Librarian has considered the petitions of the RIAA and
determines that RIAA has a significant interest in the CARP proceedings
to establish the rates and terms of the section 112 and 114 licenses
for the periods 1998-2000 and 2001-2002. RIAA has set up a collective
comprised of more than 200 different recording labels and artists,
including all of the major record companies in the United States, and
its members own the copyrights in approximately 90% of the legitimate
sound recordings sold in the United States. Petition at 2 (August 8,
2000). Further, the former Copyright Royalty Tribunal recognized that
RIAA had a significant interest in copyright compulsory license rate
proceedings affecting the recording industry. See Recording Industry
Association of America v. Copyright Royalty Tribunal, 662 F.2d 1 (D.C.
1981) (17 U.S.C. 115 license). Consequently, the Librarian determines
that RIAA has a significant interest in this proceeding within the
meaning of 17 U.S.C. 803(a)(1).
Selection of Arbitrators
In accordance with Sec. 251.6 of the CARP rules, the arbitrators
have been selected for this proceeding. They are:
The Honorable Eric E. Van Loon (Chairperson)
The Honorable Jeffrey S. Gulin
The Honorable Curtis E. von Kann
Initiation of the Proceeding
Pursuant to Sec. 251.64 of the CARP rules, the Librarian is
formally announcing the existence of a controversy as to the
establishment of rates and terms for the digital public performance of
sound recordings license (as it pertains to webcasters ) under 17
U.S.C. 114 and for the making of ephemeral copies in furtherance of a
digital public performance under 17 U.S.C. 112 and is initiating an
arbitration proceeding under chapter 8 of title 17 of the United States
Code to set the rates and terms for these licenses. The arbitration
proceeding commences on July 30, 2001, and runs for a period of 180
days. The arbitrators shall file their written report with the
Librarian by January 28, 2002, the end of the 180-day period, in
accordance with Sec. 251.53 of the rules.
Schedule for Proceeding
Section 251.11(b) of the regulations governing the Copyright
Arbitration Royalty Panels (``CARPs''), 37 CFR subchapter B, provides
that:
At the beginning of each proceeding, the CARP shall develop the
original schedule of the proceeding which shall be published in the
Federal Register at least seven calendar days in advance of the
first meeting. Such announcement shall state the times, dates, and
place of the meetings, the testimony to be heard, whether any of the
meetings, or any portion of a meeting, is to be closed, and if so,
which ones, and the name and telephone number of the person to
contact for further information.
This notice fulfills the requirements of Sec. 251.11(b) for the
proceeding to set rates and terms for the digital public performance of
sound recordings license (as it pertains to webcasters ) under 17
U.S.C. 114 and for the making of ephemeral copies in furtherance of a
digital public performance under 17 U.S.C. 112.
On June 25, 2001, the parties to this proceeding met with the
arbitrators for the purposes of discussing the mechanism for payment of
the arbitrators and of setting a schedule for this proceeding. At that
meeting, the parties and the arbitrators agreed to the following
schedule:
Opening Statements: July 30, 2001.
Presentation of Direct Cases: July 31-September 13, 2001.
Witnesses for the Copyright Owners and Performers: \1\
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\1\ ``Copyright Owners and Performers'' consist of the Recording
Industry Association of America, the American Federation of
Television and Radio Artists, the American Federation of Musicians
of the United States and Canada, and the Association for Independent
Music.
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July 31-August 2, 2001: Cary Sherman, Hilary Rosen, David Altschul,
Linda McLaughlin, Paul Katz, Charles Ciongoli.
August 6-10, 2001: James Griffin, Ronald Wilcox, Paul Vidich,
LaVerne Evans, Jay Samit, Lawrence Kenswil, Anthony Pipitone, Gregory
Hessinger, Gary Himelfarb.
August 13-16, 2001: Jennifer Warnes, Kevin Dorsey, Harold Bradley,
Steven Marks, Thomas Nagle, Robert Yerman, Steven Wildman.
Witnesses for Broadcasters/Webcasters;\2\ DMX Music, Inc.; AEI
Music Network; and National Public Radio (``NPR''):
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\2\ ``Broadcasters/Webcasters'' consist of Clear Channel
Communications, Inc.; the National Religious Broadcasters Music
License Committee; Salem Communications Corp.; Bet.com; Comedy
Central; Infinity Broadcasting Corp.; Launch Media, Inc.;
Listen.com; Live365.com; the MTVi Group LLC; MusicMatch, Inc.;
Myplay, Inc.; Netradio Corp; RadioActive Media Partners, Inc.;
Radiowave.com, Inc.; Spinner Networks, Inc.; Susquehanna Radio
Corp.; Univision Online; Westwind; and XACT Radio Network, LLC.
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For Broadcasters: Dan Halyburton (Susquehanna Radio Corp.), Stephen
F. Fisher (Entercom Communication Corp.), Dan Mason (Infinity
Broadcasting Corp.), James Patrick Donahue (Clear Channel Radio Group),
Joe Davis (Salem).
For Webcasters: Scott Mills (BET Interactive), Joe Lyons (Comedy
Central), Michael Peterson (Coollink Broadcast Network), Tuhin Roy
(Echo Networks, Inc.), Robert D. Roback (Launch Media, Inc.), David
Goldberg (Launch Media, Inc.), Rob Reid (Listen.com, Inc.), John O.
Jeffrey (Live365, Inc.), Brad Porteus (MTVi Radio of the MTVi Group,
Inc.), Quincy McCoy (MTVi Group), Robert Ohlweiler (MusicMatch, Inc.),
David Bean (MusicMatch, Inc.), David Pakman (Myplay, Inc.), Michael
Wise (NetRadio Corp.), Charlie Moore (RadioActive Media Partners,
Inc.), Nathan W. Pearson, Jr. (RadioWave.com, Inc.), Fred McIntyre (AOL
Music/ Spinner), Diego Ruiz (Univision Online, Inc.), Clifton Gardiner
(Westwind Media.com, Inc.), David Juris (XACT Radio LLC), David Fagin
(singer, songwriter, recording and performing artist), Alanis
Morissette (singer, songwriter, recording and performing artist).
For Background Music: \3\ Barry Knittel (AEI Music Network, Inc.)
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\3\ ``Background Music'' consist of AEI Music Network, Inc. and
DMX Music, Inc.
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Experts: William W. Fisher III, Jonathan Zittrain, Adam B. Jaffe,
Michael Fine, Paul William Kempton, Michael Mazis.
For NPR: Kenneth P. Stern (NPR), Dr. Jane Murdoch (Charles River
Associates), Dr. John Woodbury (Charles River Associates).
Filing of Written Rebuttal Testimony: October 4, 2001.
Presentation of Rebuttal Cases: October 15-20, 22-25, 2001.
Filing of Proposed Findings of Fact and Conclusions of Law:
November 14, 2001.
Filing of Replies to Proposed Findings of Fact and Conclusions of
Law: December 3, 2001.
Oral Argument: December 7, 2001.
Close of 180-day period: January 28, 2002.
Opening statements will begin at 1 p.m. on July 30. Thereafter, all
hearings will begin at 9:00 a.m.
At this time, the parties have not moved to close any portion of
the proceeding to the public. Further refinements to the schedule will
be announced in open meetings and issued as orders to the parties
participating in the proceeding. All changes will be noted in the
docket file of the proceeding, as required by the Copyright Office
regulations governing the administration of CARP proceedings. 37 CFR
251.11(c).
[[Page 38326]]
Dated: July 18, 2001.
Marilyn J. Kretsinger,
Assistant General Counsel.
[FR Doc. 01-18338 Filed 7-20-01; 8:45 am]
BILLING CODE 1410-33-P