[Federal Register Volume 82, Number 75 (Thursday, April 20, 2017)]
[Rules and Regulations]
[Pages 18563-18574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07928]



[[Page 18563]]

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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Parts 301, 350 and 351

[Docket No. 16-CRB-0015-RM]


Procedural Regulations for the Copyright Royalty Board: 
Organization, General Administrative Provisions

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Royalty Judges are amending and augmenting 
procedural regulations governing the filing and delivery of documents 
to allow for electronic filing of documents.

DATES: Effective April 20, 2017.

FOR FURTHER INFORMATION CONTACT: Kimberly Whittle, Attorney Advisor, by 
telephone at (202) 707-7658 or email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction

    On November 23, 2016, the Copyright Royalty Judges (Judges) 
published a proposed rule in the Federal Register seeking comments on 
proposed amendments relating to an automated system, designated 
``eCRB.'' The rules address electronic filing of documents and related 
matters such as the form and content of documents that are filed with 
the Judges.\1\ The Judges received comments from the following 
interested parties: The Commercial Television Claimants (CTV); \2\ 
Independent Producers Group and Multigroup Claimants (IPG); Joint 
Sports Claimants (JSC); \3\ the Music Community Participants (Music 
Community); \4\ the Performing Rights Organizations (Music PROs); \5\ 
the Program Suppliers; \6\ and the Settling Devotional Claimants 
(SDC).\7\ All interested parties supported the Judges' decision to 
implement an electronic filing system and to adopt rules concerning the 
use of that system, though most recommended some changes to the 
proposed rules.
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    \1\ See 81 FR 84526.
    \2\ CTV does not identify its constituent members in its 
comments. In a Petition to Participate filed in a recent cable 
distribution proceeding, CTV is identified as ``U.S. commercial 
television broadcast stations'' represented by the National 
Association of Broadcasters, through its counsel (the same counsel 
that prepared the CTV Comments). See Joint Petition to Participate 
of the National Association of Broadcasters at 1, Docket No. 14-CB-
0010-CD (2013). The Judges assume that ``CTV'' denominates the same 
or a similar group of entities in this rulemaking. It would have 
assisted the Judges and provided a more complete record if the CTV 
Comments had identified CTV and its interest in this rulemaking.
    \3\ The JSC is comprised of Office of the Commissioner of 
Baseball, National Football League, National Basketball Association, 
Women's National Basketball Association, National Hockey League, and 
the National Collegiate Athletic Association. The JSC did not 
comment on any specific provisions, merely noting that they ``have 
no objection or suggested revisions to the proposed rules.'' 
Comments of the Joint Sports Claimants at 1.
    \4\ The Music Community Participants consist of SoundExchange, 
Inc., the Recording Industry Association of America, Inc., the 
American Association of Independent Music, the American Federation 
of Musicians of the United States and Canada, The Screen Actors 
Guild--American Federation of Television and Radio Artists, and the 
National Music Publishers' Association.
    \5\ The Music PROs consist of Broadcast Music, Inc., the 
American Society of Composers, Authors and Publishers, and SESAC, 
Inc.
    \6\ The Program Suppliers are comprised of The Motion Picture 
Association of America, Inc., its member companies and ``other 
producers and/or syndicators of syndicated movies, series, specials, 
and non-team sports broadcast by television stations.'' Program 
Suppliers Comments at 1.
    \7\ The Settling Devotional Claimants are comprised of: Amazing 
Facts, Inc., American Religious Town Hall Meeting, Inc., Catholic 
Communications Corporation, Christian Television Network, Inc., The 
Christian Broadcasting Network, Inc., Coral Ridge Ministries Media, 
Inc., Cornerstone Television, Inc., Cottonwood Christian Center, 
Crenshaw Christian Center, Crystal Cathedral Ministries, Inc., 
Family Worship Center Church, Inc. (D/B/A Jimmy Swaggart 
Ministries), Free Chapel Worship Center, Inc., In Touch Ministries, 
Inc., It Is Written, Inc., John Hagee Ministries, Inc. (aka Global 
Evangelism Television), Joyce Meyer Ministries, Inc. (F/K/A Life In 
The Word, Inc.), Kerry Shook Ministries (aka Fellowship of the 
Woodlands), Lakewood Church (aka Joel Osteen Ministries), Liberty 
Broadcasting Network, Inc., Living Word Christian Center, Living 
Church of God (International), Inc., Messianic Vision, Inc., New 
Psalmist Baptist Church, Oral Roberts Evangelistic Association, 
Inc., Philadelphia Church of God, Inc., RBC Ministries, Rhema Bible 
Church (aka Kenneth Hagin Ministries), Ron Phillips Ministries, St. 
Ann's Media, The Potter's House Of Dallas, Inc. (d/b/a T.D. Jakes 
Ministries), Word of God Fellowship, Inc., d/b/a Daystar Television 
Network, Billy Graham Evangelistic Association, and Zola Levitt 
Ministries. SDC Comments at 1 n.1.
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II. Comments on Proposed Rules and Judges' Findings

    The Judges address the comments on a section-by-section basis. The 
Judges will adopt without change those sections that no interested 
party commented on.\8\
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    \8\ The Judges received no comments on proposed sections 301.2, 
350.1, 350.2, 350.3(a)(3), 350.3(b)(1), 350.3(b)(4), 350.3(b)(7), 
350.5(b), 350.5(d), 350.5(e), 350.5(f), 350.5(g), 350.6(d), 
350.6(e), 350.7(a), 350.7(b), and 350.8.
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Section 350.3(a)(1): Format--Caption and Description

    The Music Community recommended that the proposed rule be modified 
so that filers would not be required to put a footer on the first page 
of a filed document, noting that the first page includes a caption that 
conveys the same information that would be in the footer. Comments of 
the Music Community Participants (Music Community Comments) at 9. The 
Judges find this recommendation to be reasonable and will adopt it in 
the final rule.
    Commenter Music PROs recommended that the requirement for a footer 
be eliminated from the rules. In the view of the Music PROs, eCRB 
should be designed to add a footer automatically. Comments of 
Performing Rights Organizations (Music PRO Comments) at 2-3.
    eCRB will add a stamp to the first page of each filed document that 
includes, inter alia, the date and time the document was filed. It will 
not add a footer to each page, however. While the Judges may revisit 
this design choice in a future revision of the system, filers will be 
required to add footers to their documents for the time being. The 
Judges note that the burden of adding footers to documents created in a 
word processing program is minimal. However, the Music PROs' concern is 
well-taken that adding footers to some document exhibits (e.g., 
exhibits that are reproductions of paper documents) might not be 
technologically feasible. The Judges will adopt language limiting the 
application of the requirement for including footers on exhibits to the 
extent it is technologically feasible to do so using software available 
to the general public.

Section 350.3(a)(2): Format--Page Layout

    The Music PROs object to this provision's requirement that exhibits 
or attachments to documents reflect the docket number of the proceeding 
and that the pages are numbered appropriately, opining that ``[m]ost if 
not all electronic filing systems automatically create a legend on each 
page of a filed document. . . .'' Music PRO Comments at 3. eCRB will 
not create a legend on each page of a filed document. Consequently, the 
Judges will retain the requirement in the final rule. As discussed 
above, however, the Judges recognize that in certain instances (e.g., 
when attachments or exhibits are reproductions of paper documents) 
there may be technological impediments to adding footers to an 
attachment or exhibit.\9\ The Judges will,

[[Page 18564]]

therefore, modify the final rule to limit the application of the 
requirement for including footers on attachments or exhibits to the 
extent it is technologically feasible to do so using readily available 
software.
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    \9\ The Judges note that Adobe Acrobat software permits users to 
add headers and footers to scanned PDF documents, and permits users 
to shrink the document to avoid overwriting the document's text and 
graphics.
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    The Music Community raised a similar concern about adding footers 
to ``exhibits in non-traditional formats'' such as non-PDF files, and 
recommended that the Judges adopt an exception. Music Community 
Comments at 9. The Judges acknowledge this concern, and believe that it 
is addressed by the modification to this provision that the Music PROs 
proposed and the Judges adopted.
    It has also come to the Judges' attention that the phrase ``clear 
black image'' in this section may cause confusion in light of the 
requirement in section 350.3(b)(5) to scan exhibits in color. The 
Judges have modified the provision to clarify that, as with electronic 
copies of exhibits, any document that uses color to convey information 
or enhance readability must be reproduced in color.

Section 350.3(b)(2): File Type for Electronic Filings

    As proposed, section 350.3(b)(2) requires all pleadings and 
documents to be filed in Portable Document Format (PDF), with the 
exception of proposed orders. The proposed rule also permits filers to 
provide certain documents in their native electronic formats.
    The Music Community noted that it is unclear whether the second two 
sentences of this section are intended to be exceptions from the 
requirement for PDF files, or to permit filers to provide native files 
in addition to PDF versions of those files. See id. at 10. They pointed 
out that, for audio and video files, conversion to PDF is impossible. 
See id. In addition, the Music Community expressed concern that the 
proposed language would prohibit filers from providing the Copyright 
Royalty Board with the full range of electronic materials that could 
potentially be provided as exhibits in future filings. See id. They 
recommend revising the proposed section ``to extend it to the full 
range of file types that cannot usefully be provided in PDF format and 
to state clearly that such files do not need to be delivered in PDF 
format.'' Id.
    The Judges' intent in drafting the proposed provision was to 
require filers to convert to the PDF file format any document that can 
be converted legibly, and to give filers the option of also providing 
those documents in their native format if doing so would assist the 
Judges. The Judges also intended to exclude from the requirement for 
PDF files those files (such as audio and audiovisual files) that cannot 
be converted to PDF.
    The Judges agree with Music Community that the proposed provision 
requires clarification as to when filing documents in their native form 
is to be in lieu of, or in addition to filing a PDF file. The Judges 
have modified the final rule accordingly.\10\
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    \10\ As a result of this change, section 350.3(b)(4) through (8) 
have been redesignated as section 350.3(b)(5) through (9). The 
narrative will continue to refer to the paragraph numbers in the 
proposed rule in order to correspond to the paragraph numbers in the 
comments.
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    In addition, the Judges recognize that it would be helpful to 
filers if the provision gave guidance as to which specific file formats 
the system is able to accept. However, this is likely to change over 
time as technology progresses. Consequently, apart from PDF and Word 
format, the regulations will not specify particular file types, and 
will refer to ``audio,'' ``video,'' and similar generic file formats. 
While the system will accept a wide variety of file formats as exhibits 
to pleadings or as hearing exhibits, the Judges caution that they might 
not have software to render and view all file types.
    The Program Suppliers noted that the rule should provide guidance 
to filers as to the maximum file size that the eCRB system can accept. 
See Program Suppliers Comments at 2. The Judges agree with this comment 
and, after consulting with the system developers, have modified section 
350.3(b)(2) to include a maximum allowable file size. The Judges note, 
however, that this provision does not override any applicable page or 
word limit. Nor is this a guarantee that filers will be able to upload 
files at or near the maximum allowable file size, given the multitude 
of factors that may affect a transmission across the Internet before it 
is received by eCRB.
    The Program Suppliers also noted that proposed section 350.3(b)(2) 
does not ``provide guidance as to whether exhibits and attachments must 
be submitted as filings separate from the principal document.'' Id. The 
eCRB system will be able to accept multiple files (e.g., a motion and 
exhibits) in a single filing. As the system is currently under 
development, the Judges can provide no further detail at this time. The 
eCRB documentation will provide further details about the filing 
process, and the Judges will supplement that information, either with 
informal guidance posted on the CRB Web site, or additional 
regulations, as the need arises.

Section 350.3(b)(3): Proposed Orders

    Proposed section 350.3(b)(3) requires parties filing or responding 
to motions to provide a proposed order as a Word document. The Settling 
Devotional Claimants (SDC) suggest that, as to a party responding to a 
motion, the requirement be limited to cases where the responding party 
is seeking alternative relief, rather than merely seeking denial of the 
motion. Comments of the Settling Devotional Claimants (SDC Comments) at 
2. IPG recommend that the requirement for a proposed order be dispensed 
with entirely. Comments of Independent Producers Group and Multigroup 
Claimants (IPG Comments) at 1. IPG argues that ``more often than not it 
is impossible to anticipate what the adjudicating entity will want the 
final order to say with specificity.'' Id.
    The Judges find a party's proposed order to be a useful starting 
point for drafting an order, even in circumstances in which the Judges' 
resolution of the motion is not precisely what the moving party or the 
responding party anticipated. Consequently, the Judges will retain the 
requirement for a moving party to file a proposed order in the final 
rule. The Judges agree with the SDC that there is little utility in a 
proposed order that merely denies the relief sought by the moving 
party. The Judges have modified this provision to require responding 
parties to file a proposed order when they seek alternative relief, and 
have relocated the requirement to section 350.4.

Section 350.3(b)(5): Scanned Exhibits

    Proposed section 305.3(b)(5) seeks to ensure that scanned exhibits 
are as useful as possible to the Judges by requiring that (1) they are 
scanned at an appropriate resolution; (2) they are rendered searchable; 
and (3) any exhibits that use color to convey information are scanned 
in color. The Music PROs expressed concern that rendering scanned 
exhibits searchable is not always technically feasible. See PRO 
Comments at 3. Noting the difficulties that a filer might encounter 
when, for example, an original contains text that is too small or too 
blurred to be ``read'' by optical character recognition (OCR) software, 
the Music PROs find that ``an unqualified requirement that all scanned 
documents be `searchable' poses a technical challenge and places 
parties at risk of violating the rules if a given document cannot 
readily be made searchable.'' Id. at 3-4. The Music PROs

[[Page 18565]]

recommend limiting the requirement ``to the extent technologically 
feasible through software programs available to the general public.'' 
Id. No other commenter commented on this provision.
    The Judges find that the Music PROs' concern is unfounded. The 
Judges recognize that OCR software is not perfect, and that it might do 
a poor job of extracting text from certain documents. The draft 
provision does not require perfection; it does, however, require that 
filers use OCR functionality that is available to them to render 
searchable any text that it is capable of rendering. OCR functionality 
is broadly available, either as stand-alone applications, built into 
commercially-available software for creating and editing PDF files, or 
embedded into scanner/copier hardware. Nevertheless, it has been the 
Judges' experience that parties frequently submit scanned documents 
without processing them through OCR software, shifting the burden onto 
the Judges and their staff to process the documents into a usable form. 
The proposed provision is intended to end this practice. The Judges 
will adopt the provision as drafted.

Section 350.3(b)(6): Bookmarks

    The Music PROs objected to this provision's requirement that 
electronic documents include bookmarks as an ``unwarranted'' burden. 
Id. at 4. They recommend that the proposed rule be eliminated or 
limited to documents exceeding 20 pages in length. No other commenter 
objected to this provision.
    As with the other provisions of proposed section 350.3(b), proposed 
section 350.3(b)(6) seeks to ensure that documents submitted to the CRB 
in electronic form are at least as useful as their paper equivalents. 
It was proposed to address problems that the Judges frequently have 
encountered in the past. Electronic documents that contain no bookmarks 
are more difficult to navigate--particularly when accessed on a mobile 
device from the bench. The Judges find the Music PROs objection 
concerning ``burden'' to be outweighed by the Judges' need for useful 
electronic documents. The Judges will adopt the proposed rule as 
drafted.

Section 350.3(b)(8): Signature

    The Music Community expressed concern that this proposed rule, 
together with proposed sections 350.5(d) and (e), is undesirable from 
the perspective of information security. See Music Community Comments 
at 10-11. These three provisions address the issue of how counsel must 
sign documents they submit using eCRB. Section 350.3(b)(8) eliminates 
the need for a manual (i.e., ``wet'') signature on an electronically-
filed document. Instead, the document must bear a signature line 
identifying the person responsible for signing the document, and that 
name must match the name of the person whose eCRB account is used to 
file the document. Section 350.5(e) specifies that logging onto an eCRB 
account and submitting a document constitutes the signature of the 
account holder (i.e., the person to whom the eCRB login password was 
assigned) and imposes on the account holder the ethical obligations 
associated with his or her signature. Section 350.5(d) states the 
general rule that only the account holder may log in to his or her 
account. It creates an exception, however, that permits an attorney to 
authorize another employee or agent of the attorney's law firm to use 
his or her password to log in and file documents. That provision 
further states that the account holder remains responsible for any 
documents filed using that account.
    The Music Community correctly discerned that the purpose of the 
exception in section 350.5(d) is to accommodate the practice in some 
firms of requiring the responsible partner to sign litigation 
documents, while delegating the task of carrying out the electronic 
filing to others within the firm. See id. While the Music Community 
supports this accommodation, they ``believe it would be preferable to 
issue eCRB passwords liberally to persons associated with a firm 
appearing in a proceeding, and allow filings to be uploaded by an eCRB 
user other than the signing attorney, so long as the signer and 
uploader are part of the same firm.'' Id. at 11.
    Sections 350.3(b)(8), 350.5(d) and 350.5(e) seek to address two 
aspects of the issue of signatures on electronic documents: Ready 
identification of the responsible party, and a manifestation of the 
responsible party's consent to filing the document. The Music 
Community's recommendation addresses the first aspect, but not the 
second. Their proposal would identify the responsible party on the 
signature line of the document. But an entirely different person would 
manifest his or her consent to the filing by using a separate account 
and password.
    The Judges find that the provision as proposed strikes an 
appropriate balance among information security needs, the Judges' 
requirement for a manifestation of assent by the responsible party, and 
the flexibility that law firms desire. With one exception, the Judges 
will adopt these provisions as proposed.
    In the course of developing the eCRB system it has come to the 
Judges' attention that, by placing a ``filed'' stamp on the first page 
of a filed document, the system will alter the document and thus 
invalidate any verifiable digital signature. Consequently, the Judges 
have deleted the final sentence of proposed section 350.3(b)(8), which 
would have permitted parties to sign documents with a verifiable 
electronic signature if they had the capability of doing so.

Section 350.3(c): Length of Submissions

    The SDC, IPG, the Music PROs, and the Program Suppliers all 
commented on the Judges' proposal to impose page limits on parties 
filing motions, responses, and replies. IPG opposed the proposal, 
arguing that ``strict page limits present a problem when dealing with 
certain levels of complexity'' and ``can prejudice a party with a 
valid, but complex, point to make . . . .'' IPG Comments at 1. No other 
commenter opposed the imposition of page limits, and the SDC supported 
them in principle. See SDC Comments at 2. Particularly in light of the 
fact that the proposed regulation expressly states that a party can 
seek an enlargement of the page limitations by motion, the Judges do 
not find the imposition of page limits to be an unwarranted burden. The 
Judges find that the imposition of reasonable page limits is desirable 
from the standpoint of administrative efficiency and will adopt them in 
the final rule.
    The SDC, the Music PROs and the Program Suppliers each seek 
clarification of the language of section 305.3(c). The SDC state that 
the proposed rule ``creates and ambiguity if the motion is more than 20 
pages and but less than 5,000 words or vice versa,'' and recommend that 
the Judges revise the rule to eliminate the ambiguity. Id. The Music 
PROs state that the phrase ``exclusive of exhibits, proof of delivery, 
and the like'' is ambiguous. Music PROs Comments at 4. The Music PROs 
and the Program suppliers both recommended that the Judges state with 
greater particularity the material that does not count against the page 
limit. See id.; Program Suppliers Comments at 3. The Judges find these 
recommendations to be reasonable and will adopt them in the final rule.
    The Program Suppliers also recommended that ``the Judges modify the 
proposed rule so that if a page limit extension is granted as to a 
motion or opposition, that same page limit expansion will automatically 
apply to any responsive pleadings . . . .'' Id. The Judges find the 
Program Suppliers'

[[Page 18566]]

recommendation to be fair and reasonable and will adopt it in the final 
rule.
    Finally, the Program Suppliers argued that the Judges should expand 
the proposed page limits if they adopt a mandatory form for motions as 
proposed in section 350.4. See Program Suppliers Comments at 3. The 
Judges note that the proposed page limits are longer than most of the 
pleadings that the Judges currently receive. Also, as discussed below, 
the Judges have decided not to adopt a mandatory form for motions and 
responsive pleadings at this time. Moreover, the proposed provision 
expressly permits parties to seek an enlargement of the page 
limitations. The Judges find that their proposed page limits are 
sufficiently generous and that the Program Suppliers' recommendation is 
unnecessary. The Judges will not adopt it.

Section 350.4: Form of Motion and Responsive Pleadings

    The SDC, IPG, the Music Community, the Music PROs, and the Program 
suppliers commented on this provision. Apart from the Program 
Suppliers, all who commented on this provision opposed it.
    The SDC observed that ``the format requirement appears more 
appropriate for appellate level briefs'' and opined that, in some 
cases, ``the required format would enlarge documents without making it 
any clearer.'' SDC Comments at 2. The SDC recommended that the Judges 
retain the portion of section 350.4 that sets forth the required 
content, but strike the language ``and conform to the following 
format.'' Id. at 3.
    IPG viewed the requirement for mandatory subsections in pleadings 
as ``unnecessary'' because ``the parties have historically demonstrated 
an ability to adequately address each of these topics in past 
briefings.'' IPG Comments at 1. Like the SDC, IPG opined that the 
proposed mandatory format would increase the length of submissions. See 
id.
    The Music Community expressed confusion about whether the proposal 
was intended to apply to motions and replies (it was) and whether it 
was intended to require separate sections in filings to address the 
matters identified in the various subsections of section 350.4 (it 
was). Music Community Comments at 12. The Music Community offered the 
Judges the following tidbit of advice: ``To obtain documents written as 
they want, the Judges may wish to make their intentions in these 
regards clearer.'' Id. Substantively, the Music Community argued that 
``the proposed rule indicate[s] a format and level of formality that 
seems appropriate for certain documents . . . but not others'' and 
recommended that the Judges ``provide guidance for the preparation of 
documents that is outside the rules or drafted in less mandatory terms 
. . . .'' Id. at 12-13.
    The Music PROs also expressed confusion as to ``whether this 
section requires that all filings must always include these specific 
five sections within a pleading, as opposed to, for example, merely 
requiring the inclusion of the content specified.'' Music PROs Comments 
at 5. They opine that ``the content and ordering of these sections is, 
in some respects, inconsistent with the format typical of motions and 
responsive briefs in filings made in proceedings before the Judges'' 
and could ``impair the clear presentation of motions and responsive 
pleadings.'' Id. at 4-5. The Music PROs recommend that the provision 
either be deleted in its entirety, or altered by deleting the words 
``and conform to the following format,'' eliminating the language 
regarding a statement of issues and evidence relied upon, and 
reorganizing the provision. See id. at 5.
    The Program Suppliers ``[did] not oppose the imposition of a set of 
required contents and structural formats for pleadings,'' but noted 
that the requirements could ``overly complicate simple pleadings and 
would very likely lengthen pleadings (particularly short ones).'' 
Program Suppliers Comments at 4. The Program Suppliers recommended that 
the format specifications should apply only to pleadings longer than 10 
pages or 2500 words, that several of the proposed sections be 
consolidated under the heading ``Argument,'' and that the page 
limitations be enlarged to 25 pages or 6,250 words for motions and 
responses, and 15 pages or 3750 words for replies. See id. at 4-5.
    The Judges proposed section 350.4 to improve the quality and 
organization of the pleadings that parties submit to the Judges. 
Submission of pleadings that lack essential elements, or are organized 
in a way that makes it difficult for the Judges to discern those 
elements, is not a universal problem, but does occur all too 
frequently.
    The Judges acknowledge the concerns that the commenters have 
raised, and that this provision requires further consideration and 
refinement. Rather than delay the remainder of the proposed regulations 
while working through these concerns, the Judges withdraw the proposed 
language for the time being, and will adopt a more general requirement 
that pleadings ``must, at a minimum, state concisely the specific 
relief the party seeks from the . . . Judges, and the legal, factual, 
and evidentiary basis for granting that relief (or denying the relief 
sought by the moving party).'' As noted above, the Judges have also 
relocated to this provision the requirement to accompany a motion with 
a proposed order.

Section 350.5(a): Documents To Be Filed by Electronic Means

    The Music Community, while generally supportive of the proposed 
requirement that all documents filed by attorneys be filed through 
eCRB, expressed concern that ``it is occasionally necessary to file 
documents with the Judges that do not related to an active proceeding 
with an established docket number.'' Music Community Comments at 13. 
The Music Community recommended that, in those cases, eCRB should be 
designed to permit filings without an active docket number, or the 
rules should permit a paper filing. See id.
    The eCRB system will permit filing of documents without an active 
docket number when the filer is seeking to initiate a new proceeding. 
The filer will select a proceeding type from a list (e.g., 
``Distribution Proceeding-Cable TV,'' or ``Rulemaking'') and will 
select ``Add New'' from the list of existing docket numbers. The CRB 
will assign a docket number as part of its internal business process.
    The eCRB system will also permit a filer to fill in a comment field 
when filing a document. This will provide filers with the opportunity 
to convey pertinent information to the CRB, including whether a 
document for which the selected docket number is ``Add New'' should in 
fact be associated with a an existing, inactive docket number.
    With that explanation, the Judges find that the Music Community's 
proposed alternative of permitting paper filings is unnecessary and 
they will not adopt it.
    The Judges have, however, modified the language of section 
350.5(a)(1) to have the transition period end September 30, 2017, 
rather than six-months after the as yet undetermined date of initial 
deployment of eCRB. The Judges find that having the transition period 
end on a date certain will avoid any possible confusion over when the 
transition rules cease to apply.

Section 350.5(c)(1): Obtaining an Electronic Filing Password for 
Attorneys

    The Music Community raised concerns with the portion of this 
proposed section that requires all attorneys to complete eCRB training.

[[Page 18567]]

See id. at 14. Specifically, the Music Community noted that the 
training requirement ``puts a premium on having such training readily 
available, including for counsel outside the Washington, DC area . . . 
.'' Id. They recommend that the Judges make training available to 
attorneys online. See id.
    The Judges agree that online training would be an effective 
solution that would be available to attorneys throughout the country. 
Unfortunately, online training will not be available at the time eCRB 
becomes operational. The Judges will, however, make documentation 
including ``frequently asked questions'' available on their Web site. 
In light of the unavailability of online training at the time eCRB 
becomes operational, the Judges will delete the training requirement 
from the final rule.

Section 350.5(c)(2): Obtaining an Electronic Filing Password for Pro Se 
Participants

    The Music Community did not object to this proposed section which 
gives the Judges discretion to provide or deny pro se participants 
access to eCRB. Music Community Comments at 14. The Music Community 
urges the Judges, however, ``to grant such access liberally,'' noting 
that ``non-use of eCRB . . . would burden participants who are 
represented by counsel, as well as the Judges and their staff . . . .'' 
Id.
    As the Music community has pointed out, there are competing 
concerns at play regarding access by pro se participants to eCRB. On 
one hand, pro se participants' level of technological knowledge and 
access to technology resources varies widely.\11\ The Judges must avoid 
a situation where a pro se participant opts to use eCRB without being 
fully-aware of the responsibilities that entails or capable of meeting 
them. On the other, the Judges and all parties will benefit if eCRB is 
utilized to the fullest. The Judges will bear these considerations in 
mind when exercising their discretion under this provision, which they 
will adopt unchanged in the final rule.
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    \11\ For example, one participant until recently has filed only 
handwritten submissions.
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Section 350.5(c)(3): Obtaining an Electronic Filing Password for Claims 
Filers

    Commenter Commercial Television Claimants (CTV) noted that proposed 
section 350.5(c)(3) states that ``claimants `desiring to file a claim 
with the Copyright Royalty Board for copyright royalties may obtain an 
eCRB password for the limited purpose of filing claims' '' and states 
that ``CTV reserves its right to submit comments when the Judges 
propose full rules relating to electronic filing of July claims, 
including whether claimants should be required to obtain passwords for 
filing claims. CTV requests that the Judges do not issue any rules 
relating to the filing of July claims until a full set of proposed 
rules is noticed for comment.'' Commercial Television Claimants 
Comments on Electronic Filing of Documents (CTV Comments) at 1-2. No 
other party commented on this provision.
    CTV had an opportunity to raise a substantive objection to proposed 
section 350.5(c)(3) but opted instead to ask the Judges to defer 
consideration of the proposal until a later rulemaking. Nevertheless, 
because the next window for filing claims is not until July, section 
350.5(c)(3) need not go into effect before the eCRB system becomes 
operational. The Judges will accede to CTV's request and defer 
consideration of section 350.5(c)(3) until after the comment period for 
proposed regulations regarding filing of claims under 17 U.S.C. 111, 
119 and 1007.

Section 350.5(h): Accuracy of Docket Entry

    The Music PROs were the only party to comment on this proposed 
section, which states that eCRB filers are responsible for ensuring the 
accuracy of docket entries. The Music PROs sought clarification ``as to 
whether or how the filer has the ability to control or cause revisions 
to the docket if errors are found'' and the applicable time frame for 
doing so. Music PROs Comments at 6.
    eCRB will generate docket entries based on the information that the 
filer enters when filing the document. The purpose of this proposed 
rule is to inform filers that the accuracy of the docket is critically 
dependent on the information that the filer enters. eCRB will not 
permit filers to change docket entries once a document has been filed; 
rather, this will be an administrative function available only to CRB 
staff. As with any circumstance in which a party desires the Judges to 
take a particular action, if the filer wishes the Judges to correct an 
inaccuracy in the docket, the filer should file a motion to that 
effect. The Judges will not impose a time limit on filing such a 
motion.
    With that explanation, the Judges will adopt proposed section 
350.5(h) without change.

Section 350.5(i): Documents Subject to a Protective Order

    CTV, the Music Community and the Music PROs commented on this 
proposed section which states that filers are responsible for 
identifying restricted documents as such to the eCRB system.
    CTV proposed an amendment to require that parties filing restricted 
documents to file a redacted public version of the document at the same 
time. CTV Comments at 2. This is already a standard requirement of the 
protective orders that the Judges issue in proceedings. See, e.g., 
Protective Order at 3 (section IV.C) Docket No. 16-CRB-003-PR (2018-
2022) (``When a Participant refers to Restricted materials in any 
filings with the Judges, the Participant shall file the Restricted 
materials under seal and file concurrently suitably redacted papers for 
inclusion in the Judges' public record.''). This practice has worked 
well in the past, and the Judges find no need to alter it. 
Consequently, the Judges find CTV's proposal to be unnecessary and will 
not adopt it.
    The Music Community recommended that the provision be stated in 
mandatory terms, rather than in terms of assigning responsibility as 
currently proposed. Music Community Comments at 15-16. The willingness 
of parties to participate in CRB proceedings is critically dependent on 
their confidence that doing so will not result in unauthorized public 
disclosure of their confidential business information. The Music 
Community's recommendation would provide additional assurance to 
participants that restricted information will be protected 
appropriately. The Judges thus find this change to be appropriate and 
will adopt it.
    The Music PROs expressed concern that the proposal does not state 
``how such restricted documents should be `identified' by the filer. 
For example, the proposed language does not state whether the filing 
itself should be marked or designated in some manner, and if so, how.'' 
Music PROs Comments at 6. They recommended that the Judges revise this 
section to clarify these matters. Id.
    Filers will designate documents as ``restricted'' to eCRB by 
clicking a check box at the time of filing. Requirements concerning the 
marking of the documents themselves presently are, and will continue to 
be determined by the terms of the applicable protective order which, 
according to the draft regulation, remain full applicable. The Judges 
do not find it necessary or appropriate to codify the details of the 
eCRB user interface in the regulations.

[[Page 18568]]

The Judges will not adopt the Music PROs' recommendation.

Section 350.5(j): Exceptions to Requirement of Electronic Filing

    The Program Suppliers were the only party to comment on this 
proposed section, which would exempt certain materials from the 
requirement for filing electronically. The Program Suppliers sought 
clarification of what constitutes ``oversized'' for purposes of the 
regulation (e.g., whether a digital file that exceeds the maximum 
allowable file size would qualify as ``oversized'') and what the due 
date would be for a paper submission permitted or required under this 
provision. Program Suppliers Comments at 5.
    This provision was primarily intended to provide an alternative 
means of filing materials that are difficult or impossible to reproduce 
usably as a PDF file.\12\ Examples of exempt materials might include 
spreadsheets with too many columns to fit legibly on a page, documents 
with small or indistinct type, or three-dimensional objects. The Judges 
drafted the provision with sufficient flexibility to apply to a broad 
number of unanticipated circumstances in which electronic filing would 
be impossible, impractical, or excessively burdensome. The Judges find 
that it would be a disservice to filers to make this provision more 
rigid by making it more specific, and remind filers that, if necessary, 
they can seek guidance from the Judges by motion.
---------------------------------------------------------------------------

    \12\ In many instances the filer could file the document through 
eCRB in an alternative electronic format under section 350.3(b)(4), 
which would be the preferred course of action.
---------------------------------------------------------------------------

    As noted, the Judges have accepted the Program Suppliers' 
recommendation to include maximum allowable file sizes as part of 
section 350.3(b)(2). While section 350.5(j) could permit parties to use 
an alternative means of filing oversized or unmanageable materials, the 
Judges discourage the practice. It would be preferable for parties to 
reduce the size of their filings, or divide them into multiple, smaller 
files.
    Proposed section 350.7(a)(5) makes clear when a document that is 
not filed through eCRB is considered to be timely filed. The separate 
requirement under section 350.5(j) to file electronically a notice of 
filing is subject to the rule governing timeliness of electronic 
filings generally, i.e., section 350.7(a)(5)(i). The Judges find that 
the proposed regulations require no clarification.
    Finally, the Program Suppliers note that proposed section 
350.5(j)(1) includes an erroneous cross reference to section 
350.5(a)(2). Program Suppliers Comments at 6. The correct cross 
reference is to section 350.6(a)(2). The Judges will include the 
correct cross reference in the final rule.

Section 350.5(k): Privacy Requirements

    The Music Community found the protections for personal information 
contained in this proposed section to be inadequate, and recommended 
that they be strengthened. Music Community Comments at 16. 
Specifically, in addition to some minor changes to the wording of the 
existing proposal, the Music Community recommended that the Judges 
include the following additional paragraph:

    Protection of personally identifiable information. If any 
information identified in paragraph (k)(1) of this section must be 
included in a filed document, the filing party must treat it as 
confidential information subject to the applicable protective order. 
Parties may treat as confidential information subject to the 
applicable protective order other personal information that is not 
material to the proceeding.

Id.
    The Judges find the Program Suppliers' recommendation provides 
prudent, additional protection in those exceedingly rare instances when 
parties find it necessary to include personally identifiable 
information in their filings. The Judges will adopt the Program 
Suppliers' recommendation and will include it as section 350.5(k)(2).

Section 350.5(l)(3): Technical Difficulties

    The Music Community and the Program Suppliers commented on this 
proposed section which establishes a procedure for filers to follow in 
the event of technical difficulties that prevent them completing 
electronic filing, and states that those difficulties may constitute 
``good cause'' justifying an extension of the filing deadline or 
``excusable neglect'' for excusing a late filing. As with many of the 
other proposed rules, the Judges modelled this provision closely on the 
Local Rules for the U.S. District Court for the District of Columbia. 
See LCvR 5.4(g)(3) (D. D.C. Apr. 2016).
    The Music Community, referring to severe technical problems that 
the U.S. Copyright Office experienced in 2015, asserted that the 
``[e]ven if hosting arrangements for eCRB may be different . . . system 
issues have to be viewed as a realistic possibility'' \13\ and argued 
that ``it is cold comfort to know that the system issue `may' 
constitute good cause for a late filing.'' Music Community Comments at 
17-18. The Music Community also asserted that ``it is unfair for the 
Judges' rules to require filing through eCRB and provide no alternative 
when a systems issue would cause a party to miss a statutory deadline 
that the Judges cannot extend.'' Id. at 18. They propose two changes to 
the proposed section. First, for nonstatutory filing deadlines they 
would require the Judges to consider technical problems to be a good 
cause for an extension or delay. See id. Second, when technical 
problems would cause a party to miss a statutory deadline, they propose 
that ``either the notification required by Section 350.5(l)(3) should 
be considered the time of filing, or the Judges should accept filing by 
means of electronic mail.'' Id.
---------------------------------------------------------------------------

    \13\ Hosting arrangements will be different. eCRB will not be 
hosted on Library of Congress servers. Instead eCRB will be a cloud-
based system hosted by Amazon Web Services. It is hoped that hosting 
eCRB entirely in the AWS government-only cloud will address the 
reliability, scalability, and security concerns that the Music 
Community and others have expressed and that the Judges share. 
Nevertheless, the Judges acknowledge that technical problems are 
always a possibility, see, e.g., Disruption in Amazon's Cloud 
Service Ripples Through Internet, N.Y. Times (Feb. 28, 2017, 7:24 
p.m. E.S.T.), https://www.nytimes.com/reuters/2017/02/28/technology/28reuters-amazon-com-aws-outages.html (visited Mar. 1, 2017), which 
is why the Judges proposed section 350.5(l)(3).
---------------------------------------------------------------------------

    The Judges find that the existing language giving the Judges 
discretion to accept filings that are late due to a technical problem 
with eCRB to be an adequate and appropriate means of dealing with any 
potential failures of technology. It would be both imprudent and 
unnecessary for the Judges to adopt a rule that categorically makes any 
technical glitch that contributes to a party's failure to meet a 
deadline an automatic basis for extension. The Judges thus reject the 
Music Community's first proposal.
    The Judges find that the Music Community has raised a valid concern 
regarding technological issues that could prevent a party from meeting 
a statutory (i.e., non-extendible) deadline. However, the Judges find 
their proposed solution of deeming a filing to be made when the party 
gives the notification required by section 350.5(l)(3) to be 
problematic. It is not clear to the Judges that a filing that is made 
after a statutory deadline can be deemed by regulation to have been 
made earlier. By contrast, the Judges find the Music Community's 
suggestion that the Judges accept email filings in those circumstances 
to be a practical and appropriate solution. The Judges will include 
language in the final rule that permits electronic mail filing with the 
Judges and (to the extent

[[Page 18569]]

required) electronic mail delivery to other parties in the event a 
technical problem prevents filing through eCRB by a statutory deadline. 
In addition, the Judges will revise the provision to permit filers to 
file by electronic mail when a technical problem prevents them from 
filing through eCRB by a non-statutory deadline as well. In either 
event, the Judges may require the filer to refile the document through 
eCRB once the technical problem is resolved, but the filing date of the 
document will be the date that it was sent to the CRB by electronic 
mail.
    The Program Suppliers comment sought clarification whether after-
hours technical support will be available, and sought a ``default rule 
. . . for what a party is to do with a filing that it intends to file'' 
after hours on the eve of a filing deadline. Program Suppliers Comments 
at 6. Customer support will be available during standard business 
hours. The modifications to the proposed provision described in the 
preceding paragraph constitute the ``default rule'' that the Program 
Suppliers requested.

Section 350.6(f): Deadlines for Responses and Replies

    Proposed section 350.6(f) preserves the existing deadlines for 
filing of responses and replies of five business days from filing of 
the motion and four days from filing of the response, respectively. The 
SDC, IPG, and the Program Suppliers all recommend enlarging that time 
period. The SDC recommends ten days for responses and seven days for 
replies. SDC Comments at 3. IPG recommends ten days for response and 
five days for replies. IPG Comments at 1. The Program Suppliers 
recommend ``a reasonable enlargement of the response and reply 
deadlines provided that such an enlargement is not likely to result in 
any hindrance of or delay to the timely distribution of cable and/or 
satellite royalties.'' Program Suppliers Comments at 7.
    The Judges recognize that, from the parties' perspective, the 
existing deadlines are tight and, in some instances, unnecessarily so. 
The Judges find that a modest increase in the response time for 
responses and replies is appropriate, with the understanding that the 
Judges may shorten the response time by order as necessary. In this 
rulemaking, the Judges extend motion response times to ten days for 
responses and five days for replies.

Section 350.6(g): Participant List

    CTV and the Program Suppliers both recommended that this provision 
be modified to clarify that the participant list will indicate whether 
a party receives documents through eCRB, or whether other parties must 
deliver documents to that party by other means. See CTV Comments at 3; 
Program Suppliers Comments at 7.
    The participant list maintained in eCRB will indicate which parties 
do and do not receive filed documents through eCRB. In addition, at the 
time a document is filed, eCRB will inform the filer of the identity of 
any parties on the participant list to whom the filer must deliver the 
document outside the eCRB system. The Judges find CTV's proposed 
modification to section 350.6(g) to reflect the items of information 
maintained in the participant list to be reasonable and appropriate and 
will adopt it.

Section 350.6(h): Delivery Method and Proof of Delivery

    The SDC noted that ``participants in royalty distribution 
proceedings have adopted an informal procedure to serve each party 
electronically on the same day that pleadings are filed.'' SDC Comments 
at 3. The SDC recommended that the rules allow email in lieu of paper 
delivery for documents filed outside of eCRB.
    The Judges find that proposed section 350.6(h)(2) already permits 
parties to deliver documents to other parties ``by such other means as 
the parties may agree in writing among themselves.'' The Judges 
recognize, however, that the heading ``Paper filings'' at the beginning 
of this paragraph may be interpreted to preclude delivery by electronic 
mail. The Judges did not intend to preclude parties from agreeing among 
themselves to exchange documents by electronic mail. Consequently, the 
Judges will change the paragraph heading to read ``Other filings.''
    The Music Community expressed concern that proposed section 
350.6(h)(2) ``might be read as applying to discovery responses that are 
served on other participants'' and not filed with the CRB. Music 
Community Comments at 19-20. The Judges do not find that to be a 
reasonable interpretation of the language they proposed. Nevertheless, 
the Judges find the Music Community's proposed language to be 
reasonable, clear, concise, and in accordance with the Judges' 
intention. The Judges will modify section 350.6(h)(2) accordingly.

Section 351.1: Initiation of Proceedings

    The Program Suppliers recommended that section 351.1 be amended to 
``clarify whether, at the point of filing an initial Petition to 
Participate, any party needs to be served . . . .'' Program Suppliers 
Comments at 8. The only change that the Judges are proposing to this 
provision is to make reference to the ability of filers to make payment 
of the $150 filing fee through a portal provided by eCRB to the CRB's 
payment processor. Under current rules and practices, parties file 
Petitions to Participate with the CRB only. That will not change once 
the parties are able to file Petitions to Participate through eCRB. The 
Judges find that no further change to section 351.1 is needed.

General Comments

    Some commenters offered general comments, unrelated to any of the 
specific proposed rules. For example, CTV proposed that attorneys 
representing participants, and approved pro se participants, be granted 
access to eCRB to retrieve all non-restricted pleadings and orders in 
all cases before the CRB. See CTV Comments at 3-4. Similarly, the Music 
Community and the Music PROs recommended that all non-restricted 
materials be made available to the general public through eCRB. See 
Music Community Comments at 5; Music PROs Comments at 2.
    The Judges can confirm that eCRB is being designed to allow 
attorneys, pro se participants, and members of the general public to 
search for and retrieve non-restricted documents stored in the system. 
During the current, initial phase of the project, only documents filed 
from and after the date the system becomes operational will be stored 
in eCRB. The system is being designed to permit inputting of documents 
that were filed with the CRB prior to that date, but the task of 
uploading of those documents is not within the scope of the current 
phase of the project. The Judges plan to input those documents at some 
time in the future, subject to budgetary and personnel constraints. No 
commenter requested any specific regulatory language relating to this 
issue. The Judges, therefore, will not adopt any regulatory language at 
this time.
    The Music Community professed confusion concerning the Judge's use 
of the term ``delivery'' in the proposed regulations, and recommended 
that the Judges revert to using the term ``service'' as in the existing 
regulations. See Music Community Comments at 19. The Judges substituted 
the term ``delivery'' for ``service'' in recognition of the fact that 
formal service of documents is not a requirement in CRB proceedings. 
Instead, participants are merely required to provide copies of filed 
documents to the other participants. The Judges use ``delivery'' in its 
sense of ``giving forth'' or ``dispatching;'' they do not intend to 
imply that a party is obliged to guaranty

[[Page 18570]]

receipt of the document. In light of that explanation, the Judges find 
no need to replace the words ``deliver'' and ``delivery'' where they 
appear in the proposed regulations.
    The Music Community exhorted the Judges to include strong 
protection for confidential business information in eCRB, and to allow 
users to test those protections before the system becomes operational. 
See id. at 7-8. In addition, they recommended that the Judges impose a 
five-business-day waiting period between the filing of non-restricted 
documents with eCRB, and public availability of those documents through 
the system, in order to give parties an opportunity to intervene if one 
of them improperly fails to identify a document as ``restricted'' to 
the system. See id.
    eCRB is being designed and implemented with security in mind, and 
will comply with applicable federal information security standards as 
well as the very rigorous standards required by the Library of 
Congress. After completion and before launch, the system will be 
subject to an assessment and authorization process conducted by an 
independent contractor of the Library of Congress (separate from the 
contractor that is building the system). The Judges find that it is 
neither necessary nor appropriate to allow prospective users to carry 
out their own security assessment on the system.
    The CRB is an office of public record and the Judges take seriously 
their obligation to provide timely public access to the record of CRB 
proceedings. The Judges also recognize the importance of protecting 
confidential business information against unauthorized disclosure. In 
the past, these sometimes competing interests have been balanced 
through the operation of the protective orders that the Judges have 
adopted. Among other things, these protective orders specify the steps 
to be taken to mitigate any damage that might be caused when 
confidential information is not properly designated and treated as 
restricted. The Judges anticipate that future protective orders, as 
they may be revised from time to time, will continue to provide 
adequate means for addressing any inadvertent disclosures of 
information that should have been designated restricted. The Judges 
find that the Music Community's proposal to impose a mandatory waiting 
period before the disclosure of every non-restricted document is 
unnecessary, overbroad, and an unjustified infringement on the public's 
right of access to the record of CRB proceedings. The Judges will not 
adopt the Music Community's proposal.
    Having considered all comments from interested parties, the Judges 
adopt as final rules the changes and additions to parts 301, 350, and 
351 detailed in this Final Rule.

List of Subjects

37 CFR Part 301

    Copyright, Organization and functions (government agencies).

37 CFR Part 350

    Administrative practice and procedure, Copyright, Lawyers.

37 CFR Part 351

    Administrative practice and procedure, Copyright.

Final Regulations

    For the reasons set forth in the preamble, and under the authority 
of chapter 8, title 17, United States Code, the Copyright Royalty 
Judges amend parts 301, 350, and 351 of Title 37 of the Code of Federal 
Regulations as follows:

PART 301--ORGANIZATION

0
1. The authority citation for part 301 continues to read as follows:

    Authority:  17 U.S.C. 801.


Sec.  301.2  [Amended]

0
2. Revise Sec.  301.2 to read as follows:


Sec.  301.2  Official addresses.

    All claims, pleadings, and general correspondence intended for the 
Copyright Royalty Board and not submitted by electronic means through 
the electronic filing system (``eCRB'') must be addressed as follows:
    (a) If sent by mail (including overnight delivery using United 
States Postal Service Express Mail), the envelope should be addressed 
to: Copyright Royalty Board, P.O. Box 70977, Southwest Station, 
Washington, DC 20024-0977.
    (b) If hand-delivered by a private party, the envelope must be 
brought to the Copyright Office Public Information Office, Room LM-401 
in the James Madison Memorial Building, and be addressed as follows: 
Copyright Royalty Board, Library of Congress, James Madison Memorial 
Building, 101 Independence Avenue SE., Washington, DC 20559-6000.
    (c) If hand-delivered by a commercial courier (excluding Federal 
Express, United Parcel Service and similar courier services), the 
envelope must be delivered to the Congressional Courier Acceptance Site 
(CCAS) located at Second and D Street NE., Washington, DC, addressed as 
follows: Copyright Royalty Board, Library of Congress, James Madison 
Memorial Building, 101 Independence Avenue SE., Washington, DC 20559-
6000.
    (d) Subject to paragraph (f) of this section, if sent by electronic 
mail, to [email protected].
    (e) Correspondence and filings for the Copyright Royalty Board may 
not be delivered by means of:
    (1) Overnight delivery services such as Federal Express, United 
Parcel Service, etc.; or
    (2) Fax.
    (f) General correspondence for the Copyright Royalty Board may be 
sent by electronic mail. Claimants or Parties must not send any claims, 
pleadings, or other filings to the Copyright Royalty Board by 
electronic mail without specific, advance authorization of the 
Copyright Royalty Judges.

PART 350--GENERAL ADMINISTRATIVE PROVISIONS

0
3. The authority citation for part 350 continues to read as follows:

    Authority:  17 U.S.C. 803.


0
4. Revise Sec.  350.3 to read as follows:


Sec.  350.3  Documents: format and length.

    (a) Format--(1) Caption and description. Parties filing pleadings 
and documents in a proceeding before the Copyright Royalty Judges must 
include on the first page of each filing a caption that identifies the 
proceeding by proceeding type and docket number, and a heading under 
the caption describing the nature of the document. In addition, to the 
extent technologically feasible using software available to the general 
public, Parties must include a footer on each page after the page 
bearing the caption that includes the name and posture of the filing 
party, e.g., [Party's] Motion, [Party's] Response in Opposition, etc.
    (2) Page layout. Parties must submit documents that are typed 
(double spaced) using a serif typeface (e.g., Times New Roman) no 
smaller than 12 points for text or 10 points for footnotes and 
formatted for 8\1/2\ by 11 inch pages with no less than 1 inch margins. 
Parties must assure that, to the extent technologically feasible using 
software available to the general public, any exhibit or attachment to 
documents reflects the docket number of the proceeding in which it is 
filed and that all pages are numbered appropriately. Any party 
submitting a document to the Copyright Royalty Board in paper format 
must submit it unfolded and produced on opaque 8\1/2\ by 11 inch white 
paper using clear black text, and color to the extent the document uses

[[Page 18571]]

color to convey information or enhance readability.
    (3) Binding or securing. Parties submitting any paper document to 
the Copyright Royalty Board must bind or secure the document in a 
manner that will prevent pages from becoming separated from the 
document. For example, acceptable forms of binding or securing include: 
Ring binders; spiral binding; comb binding; and for documents of fifty 
pages or fewer, a binder clip or single staple in the top left corner 
of the document. Rubber bands and paper clips are not acceptable means 
of securing a document.
    (b) Additional format requirements for electronic documents--(1) In 
general. Parties filing documents electronically through eCRB must 
follow the requirements of paragraphs (a)(1) and (2) of this section 
and the additional requirements in paragraphs (b)(2) through (10) of 
this section.
    (2) Pleadings; file type. Parties must file all pleadings, such as 
motions, responses, replies, briefs, notices, declarations of counsel, 
and memoranda, in Portable Document Format (PDF).
    (3) Proposed orders; file type. Parties filing a proposed order as 
required by Sec.  350.4 must prepare the proposed order as a separate 
Word document and submit it together with the main pleading.
    (4) Exhibits and attachments; file types. Parties must convert 
electronically (not scan) to PDF format all exhibits or attachments 
that are in electronic form, with the exception of proposed orders and 
any exhibits or attachments in electronic form that cannot be converted 
into a usable PDF file (such as audio and video files, files that 
contain text or images that would not be sufficiently legible after 
conversion, or spreadsheets that contain too many columns to be 
displayed legibly on an 8\1/2\'' x 11'' page). Participants must 
provide electronic copies in their native electronic format of any 
exhibits or attachments that cannot be converted into a usable PDF 
file. In addition, participants may provide copies of other electronic 
files in their native format, in addition to PDF versions of those 
files, if doing so is likely to assist the Judges in perceiving the 
content of those files.
    (5) No scanned pleadings. Parties must convert every filed document 
directly to PDF format (using ``print to pdf'' or ``save to pdf''), 
rather than submitting a scanned PDF image. The Copyright Royalty Board 
will NOT accept scanned documents, except in the case of specific 
exhibits or attachments that are available to the filing party only in 
paper form.
    (6) Scanned exhibits. Parties must scan exhibits or other documents 
that are only available in paper form at no less than 300 dpi. All 
exhibits must be searchable. Parties must scan in color any exhibit 
that uses color to convey information or enhance readability.
    (7) Bookmarks. Parties must include in all electronic documents 
appropriate electronic bookmarks to designate the tabs and/or tables of 
contents that would appear in a paper version of the same document.
    (8) Page rotation. Parties must ensure that all pages in electronic 
documents are right side up, regardless of whether they are formatted 
for portrait or landscape printing.
    (9) Signature. The signature line of an electronic pleading must 
contain ``/s/'' followed by the signer's typed name. The name on the 
signature line must match the name of the user logged into eCRB to file 
the document.
    (10) File size. The eCRB system will not accept PDF or Word files 
that exceed 128 MB, or files in any other format that exceed 500 MB. 
Parties may divide excessively large files into multiple parts if 
necessary to conform to this limitation.
    (c) Length of submissions. Whether filing in paper or 
electronically, parties must adhere to the following space limitations 
or such other space limitations as the Copyright Royalty Judges may 
direct by order. Any party seeking an enlargement of the applicable 
page limit must make the request by a motion to the Copyright Royalty 
Judges filed no fewer than three days prior to the applicable filing 
deadline. Any order granting an enlargement of the page limit for a 
motion or response shall be deemed to grant the same enlargement of the 
page limit for a response or reply, respectively.
    (1) Motions. Motions must not exceed 20 pages and must not exceed 
5000 words (exclusive of cover pages, tables of contents, tables of 
authorities, signature blocks, exhibits, and proof of delivery).
    (2) Responses. Responses in support of or opposition to motions 
must not exceed 20 pages and must not exceed 5000 words (exclusive of 
cover pages, tables of contents, tables of authorities, signature 
blocks, exhibits, and proof of delivery).
    (3) Replies. Replies in support of motions must not exceed 10 pages 
and must not exceed 2500 words (exclusive of cover pages, tables of 
contents, tables of authorities, signature blocks, exhibits, and proof 
of delivery).


Sec. Sec.  350.4 through 350.6   [Redesignated]

0
5. Redesignate Sec. Sec.  350.4 through 350.6 as Sec. Sec.  350.6 
through 350.8, respectively.

0
6. Add new Sec. Sec.  350.4 and 350.5 to read as follows:


Sec.  350.4   Content of motion and responsive pleadings.

    A motion, responsive pleading, or reply must, at a minimum, state 
concisely the specific relief the party seeks from the Copyright 
Royalty Judges, and the legal, factual, and evidentiary basis for 
granting that relief (or denying the relief sought by the moving 
party). A motion, or a responsive pleading that seeks alternative 
relief, must be accompanied by a proposed order.


Sec.  350.5  Electronic filing system (eCRB).

    (a) Documents to be filed by electronic means--(1) Transition 
period. For the period commencing with the initial deployment of the 
Copyright Royalty Board's electronic filing and case management system 
(eCRB) and ending January 1, 2018, all parties having the technological 
capability must file all documents with the Copyright Royalty Board 
through eCRB in addition to filing paper documents in conformity with 
applicable Copyright Royalty Board rules. The Copyright Royalty Board 
must announce the date of the initial deployment of eCRB on the 
Copyright Royalty Board Web site (www.loc.gov/crb), as well as the 
conclusion of the dual-system transition period.
    (2) Subsequent to transition period. Except as otherwise provided 
in this chapter, all attorneys must file documents with the Copyright 
Royalty Board through eCRB. Pro se parties may file documents with the 
Copyright Royalty Board through eCRB, subject to Sec.  350.4(c)(2).
    (b) Official record. The electronic version of a document filed 
through and stored in eCRB will be the official record of the Copyright 
Royalty Board.
    (c) Obtaining an electronic filing password--(1) Attorneys. An 
attorney must obtain an eCRB password from the Copyright Royalty Board 
in order to file documents or to receive copies of orders and 
determinations of the Copyright Royalty Judges. The Copyright Royalty 
Board will issue an eCRB password after the attorney applicant 
completes the application form available on the CRB Web site.
    (2) Pro se parties. A party not represented by an attorney (a pro 
se party) may obtain an eCRB password from the Copyright Royalty Board 
with permission from the Copyright Royalty Judges, in their discretion. 
To obtain permission, the pro se party must

[[Page 18572]]

submit an application on the form available on the CRB Web site, 
describing the party's access to the Internet and confirming the 
party's ability and capacity to file documents and receive 
electronically the filings of other parties on a regular basis. If the 
Copyright Royalty Judges grant permission, the pro se party must 
complete the eCRB training provided by the Copyright Royalty Board to 
all electronic filers before receiving an eCRB password. Once the 
Copyright Royalty Board has issued an eCRB password to a pro se party, 
that party must make all subsequent filings by electronic means through 
eCRB.
    (d) Use of an eCRB password. An eCRB password may be used only by 
the person to whom it is assigned, or, in the case of an attorney, by 
that attorney or an authorized employee or agent of that attorney's law 
office or organization. The person to whom an eCRB password is assigned 
is responsible for any document filed using that password.
    (e) Signature. The use of an eCRB password to login and submit 
documents creates an electronic record. The password operates and 
serves as the signature of the person to whom the password is assigned 
for all purposes under this chapter III.
    (f) Originals of sworn documents. The electronic filing of a 
document that contains a sworn declaration, verification, certificate, 
statement, oath, or affidavit certifies that the original signed 
document is in the possession of the attorney or pro se party 
responsible for the filing and that it is available for review upon 
request by a party or by the Copyright Royalty Judges. The filer must 
file through eCRB a scanned copy of the signature page of the sworn 
document together with the document itself.
    (g) Consent to delivery by electronic means. An attorney or pro se 
party who obtains an eCRB password consents to electronic delivery of 
all documents, subsequent to the petition to participate, that are 
filed by electronic means through eCRB. Counsel and pro se parties are 
responsible for monitoring their email accounts and, upon receipt of 
notice of an electronic filing, for retrieving the noticed filing. 
Parties and their counsel bear the responsibility to keep the contact 
information in their eCRB profiles current.
    (h) Accuracy of docket entry. A person filing a document by 
electronic means is responsible for ensuring the accuracy of the 
official docket entry generated by the eCRB system, including proper 
identification of the proceeding, the filing party, and the description 
of the document. The Copyright Royalty Board will maintain on its Web 
site (www.loc.gov/crb) appropriate guidance regarding naming protocols 
for eCRB filers.
    (i) Documents subject to a protective order. A person filing a 
document by electronic means must ensure, at the time of filing, that 
any documents subject to a protective order are identified to the eCRB 
system as ``restricted'' documents. This requirement is in addition to 
any requirements detailed in the applicable protective order. Failure 
to identify documents as ``restricted'' to the eCRB system may result 
in inadvertent publication of sensitive, protected material.
    (j) Exceptions to requirement of electronic filing--(1) Certain 
exhibits or attachments. Parties may file in paper form any exhibits or 
attachments that are not in a format that readily permits electronic 
filing, such as oversized documents; or are illegible when scanned into 
electronic format. Parties filing paper documents or things pursuant to 
this paragraph must deliver legible or usable copies of the documents 
or things in accordance with Sec.  350.6(a)(2) and must file 
electronically a notice of filing that includes a certificate of 
delivery.
    (2) Pro se parties. A pro se party may file documents in paper form 
and must deliver and accept delivery of documents in paper form, unless 
the pro se party has obtained an eCRB password.
    (k) Privacy requirements. (1) Unless otherwise instructed by the 
Copyright Royalty Judges, parties must exclude or redact from all 
electronically filed documents, whether designated ``restricted'' or 
not:
    (i) Social Security numbers. If an individual's Social Security 
number must be included in a filed document for evidentiary reasons, 
the filer must use only the last four digits of that number.
    (ii) Names of minor children. If a minor child must be mentioned in 
a document for evidentiary reasons, the filer must use only the 
initials of that child.
    (iii) Dates of birth. If an individual's date of birth must be 
included in a pleading for evidentiary reasons, the filer must use only 
the year of birth.
    (iv) Financial account numbers. If a financial account number must 
be included in a pleading for evidentiary reasons, the filer must use 
only the last four digits of the account identifier.
    (2) Protection of personally identifiable information. If any 
information identified in paragraph (k)(1) of this section must be 
included in a filed document, the filing party must treat it as 
confidential information subject to the applicable protective order. In 
addition, parties may treat as confidential, and subject to the 
applicable protective order, other personal information that is not 
material to the proceeding.
    (l) Incorrectly filed documents. (1) The Copyright Royalty Board 
may direct an eCRB filer to re-file a document that has been 
incorrectly filed, or to correct an erroneous or inaccurate docket 
entry.
    (2) After the transition period, if an attorney or a pro se party 
who has been issued an eCRB password inadvertently presents a document 
for filing in paper form, the Copyright Royalty Board may direct the 
attorney or pro se party to file the document electronically. The 
document will be deemed filed on the date it was first presented for 
filing if, no later than the next business day after being so directed 
by the Copyright Royalty Board, the attorney or pro se participant 
files the document electronically. If the party fails to make the 
electronic filing on the next business day, the document will be deemed 
filed on the date of the electronic filing.
    (m) Technical difficulties. (1) A filer encountering technical 
problems with an eCRB filing must immediately notify the Copyright 
Royalty Board of the problem either by email or by telephone, followed 
promptly by written confirmation.
    (2) If a filer is unable due to technical problems to make a filing 
with eCRB by an applicable deadline, and makes the notification 
required by paragraph (m)(1) of this section, the filer shall use 
electronic mail to make the filing with the CRB and deliver the filing 
to the other parties to the proceeding. The filing shall be considered 
to have been made at the time it was filed by electronic mail. The 
Judges may direct the filer to refile the document through eCRB when 
the technical problem has been resolved, but the document shall retain 
its original filing date.
    (3) The inability to complete an electronic filing because of 
technical problems arising in the eCRB system may constitute ``good 
cause'' (as used in Sec.  350.6(b)(4)) for an order enlarging time or 
excusable neglect for the failure to act within the specified time, 
provided the filer complies with paragraph (m)(1) of this section. This 
section does not provide authority to extend statutory time limits.

0
7. Revise newly redesignated Sec. Sec.  350.6 and 350.7 to read as 
follows:


Sec.  350.6  Filing and delivery.

    (a) Filing of pleadings--(1) Electronic filing through eCRB. Except 
as described in Sec.  350.5(l)(2), any document filed by

[[Page 18573]]

electronic means through eCRB in accordance with Sec.  350.5 
constitutes filing for all purposes under this chapter, effective as of 
the date and time the document is received and timestamped by eCRB.
    (2) All other filings. For all filings not submitted by electronic 
means through eCRB, the submitting party must deliver an original, five 
paper copies, and one electronic copy in Portable Document Format (PDF) 
on an optical data storage medium such as a CD or DVD, a flash memory 
device, or an external hard disk drive to the Copyright Royalty Board 
in accordance with the provisions described in Sec.  301.2 of this 
chapter. In no case will the Copyright Royalty Board accept any 
document by facsimile transmission or electronic mail, except with 
prior express authorization of the Copyright Royalty Judges.
    (b) Exhibits. Filers must include all exhibits with the pleadings 
they support. In the case of exhibits not submitted by electronic means 
through eCRB, whose bulk or whose cost of reproduction would 
unnecessarily encumber the record or burden the party, the Copyright 
Royalty Judges will consider a motion, made in advance of the filing, 
to reduce the number of required copies. See Sec.  350.5(j).
    (c) English language translations. Filers must accompany each 
submission that is in a language other than English with an English-
language translation, duly verified under oath to be a true 
translation. Any other party to the proceeding may, in response, submit 
its own English-language translation, similarly verified, so long as 
the responding party's translation proves a substantive, relevant 
difference in the document.
    (d) Affidavits. The testimony of each witness must be accompanied 
by an affidavit or a declaration made pursuant to 28 U.S.C. 1746 
supporting the testimony. See Sec.  350.5(f).
    (e) Subscription--(1) Parties represented by counsel. Subject to 
Sec.  350.5(e), all documents filed electronically by counsel must be 
signed by at least one attorney of record and must list the attorney's 
full name, mailing address, email address (if any), telephone number, 
and a state bar identification number. See Sec.  350.5(e). Submissions 
signed by an attorney for a party need not be verified or accompanied 
by an affidavit. The signature of an attorney constitutes certification 
that the contents of the document are true and correct, to the best of 
the signer's knowledge, information, and belief, formed after an 
inquiry reasonable under the circumstances and:
    (i) The document is not being presented for any improper purpose, 
such as to harass or to cause unnecessary delay or needless increase in 
the cost of litigation;
    (ii) The claims, defenses, and other legal contentions therein are 
warranted by existing law or by a nonfrivolous argument for the 
extension, modification, or reversal of existing law or the 
establishment of new law;
    (iii) The allegations and other factual contentions have 
evidentiary support or, if specifically so identified, are likely to 
have evidentiary support after a reasonable opportunity for further 
investigation or discovery; and
    (iv) The denials of factual contentions are warranted by the 
evidence or, if specifically so identified, are reasonably based on a 
lack of information or belief.
    (2) Parties representing themselves. The original of all paper 
documents filed by a party not represented by counsel must be signed by 
that party and list that party's full name, mailing address, email 
address (if any), and telephone number. The party's signature will 
constitute the party's certification that, to the best of his or her 
knowledge and belief, there is good ground to support the document, and 
that it has not been interposed for purposes of delay.
    (f) Responses and replies. Responses in support of or opposition to 
motions must be filed within ten days of the filing of the motion. 
Replies to responses must be filed within five days of the filing of 
the response.
    (g) Participant list. The Copyright Royalty Judges will compile and 
distribute to those parties who have filed a valid petition to 
participate the official participant list for each proceeding, 
including each participant's mailing address, email address, and 
whether the participant is using the eCRB system for filing and receipt 
of documents in the proceeding. For all paper filings, a party must 
deliver a copy of the document to counsel for all other parties 
identified in the participant list, or, if the party is unrepresented 
by counsel, to the party itself. Parties must notify the Copyright 
Royalty Judges and all parties of any change in the name or address at 
which they will accept delivery and must update their eCRB profiles 
accordingly.
    (h) Delivery method and proof of delivery--(1) Electronic filings 
through eCRB. Electronic filing of any document through eCRB operates 
to effect delivery of the document to counsel or pro se participants 
who have obtained eCRB passwords, and the automatic notice of filing 
sent by eCRB to the filer constitutes proof of delivery. Counsel or 
parties who have not yet obtained eCRB passwords must deliver and 
receive delivery as provided in paragraph (h)(2). Parties making 
electronic filings are responsible for assuring delivery of all filed 
documents to parties that do not use the eCRB system.
    (2) Other filings. During the course of a proceeding, each party 
must deliver all documents that they have filed other than through eCRB 
to the other parties or their counsel by means no slower than overnight 
express mail sent on the same day they file the documents, or by such 
other means as the parties may agree in writing among themselves. 
Parties must include a proof of delivery with any document delivered in 
accordance with this paragraph.


Sec.  350.7  Time.

    (a) Computation. To compute the due date for filing and delivering 
any document or performing any other act directed by an order of the 
Copyright Royalty Judges or the rules of the Copyright Royalty Board:
    (1) Exclude the day of the act, event, or default that begins the 
period.
    (2) Exclude intermediate Saturdays, Sundays, and federal holidays 
when the period is less than 11 days, unless computation of the due 
date is stated in calendar days.
    (3) Include the last day of the period, unless it is a Saturday, 
Sunday, federal holiday, or a day on which the weather or other 
conditions render the Copyright Royalty Board's office inaccessible.
    (4) As used in this rule, ``federal holiday'' means the date 
designated for the observance of New Year's Day, Inauguration Day, 
Birthday of Martin Luther King, Jr., George Washington's Birthday, 
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, 
Thanksgiving Day, Christmas Day, and any other day declared a federal 
holiday by the President or the Congress.
    (5) Except as otherwise described in this Chapter or in an order by 
the Copyright Royalty Judges, the Copyright Royalty Board will consider 
documents to be timely filed only if:
    (i) They are filed electronically through eCRB and time-stamped by 
11:59:59 p.m. Eastern time on the due date;
    (ii) They are sent by U.S. mail, are addressed in accordance with 
Sec.  301.2(a) of this chapter, have sufficient postage, and bear a 
USPS postmark on or before the due date;
    (iii) They are hand-delivered by private party to the Copyright 
Office Public Information Office in accordance with Sec.  301.2(b) of 
this chapter and

[[Page 18574]]

received by 5:00 p.m. Eastern time on the due date; or
    (iv) They are hand-delivered by commercial courier to the 
Congressional Courier Acceptance Site in accordance with Sec.  301.2(c) 
of this chapter and received by 4:00 p.m. Eastern time on the due date.
    (6) Any document sent by mail and dated only with a business postal 
meter will be considered filed on the date it is actually received by 
the Library of Congress.
    (b) Extensions. A party seeking an extension must do so by written 
motion. Prior to filing such a motion, a party must attempt to obtain 
consent from the other parties to the proceeding. An extension motion 
must state:
    (1) The date on which the action or submission is due;
    (2) The length of the extension sought;
    (3) The date on which the action or submission would be due if the 
extension were allowed;
    (4) The reason or reasons why there is good cause for the delay;
    (5) The justification for the amount of additional time being 
sought; and
    (6) The attempts that have been made to obtain consent from the 
other parties to the proceeding and the position of the other parties 
on the motion.

PART 351--PROCEEDINGS

0
8. The authority citation for part 351 continues to read as follows:

    Authority: 17 U.S.C. 803.

0
9. In Sec.  351.1, revise paragraph (b)(4) to read as follows:


Sec.  351.1  Initiation of proceedings.

* * * * *
    (b) * * *
    (4) Filing fee. A petition to participate must be accompanied with 
a filing fee of $150 or the petition will be rejected. For petitions 
filed electronically through eCRB, payment must be made to the 
Copyright Royalty Board through the payment portal designated on eCRB. 
For petitions filed by other means, payment must be made to the 
Copyright Royalty Board by check or by money order. If a check is 
subsequently dishonored, the petition will be rejected. If the 
petitioner believes that the contested amount of that petitioner's 
claim will be $1,000 or less, the petitioner must so state in the 
petition to participate and should not include payment of the $150 
filing fee. If it becomes apparent during the course of the proceedings 
that the contested amount of the claim is more than $1,000, the 
Copyright Royalty Judges will require payment of the filing fee at that 
time.
* * * * *

    Dated: March 3, 2017.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-07928 Filed 4-19-17; 8:45 am]
 BILLING CODE 1410-72-P