[Federal Register Volume 66, Number 141 (Monday, July 23, 2001)]
[Notices]
[Pages 38324-38326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18338]


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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