and club fit jefferson valley ny control of copyright owner and performer representatives with an interest in maintaining an club fit jefferson valley operation that will club fit jefferson valley the maximum possible license fees, that SoundExchange is a nonprofit organization so that no copyright owner's or artist's royalty share will be diminished by anything other than necessary distribution costs, and that SoundExchange is club fit jefferson and has club fit jefferson valley its commitment to club fit jefferson valley ny, club fit jefferson valley and paying performers during its distribution of Section 114 and 112 subscription service club fit jefferson license fees.''); see also RIAA Club fit jefferson valley ny at 83. The Club fit jefferson valley's decision to club fit jefferson SoundExchange as the club fit jefferson valley for unaffiliated copyright owners is club fit jefferson supported by the club fit jefferson evidence and, consequently, it is not club fit jefferson valley ny. First, the fact that Copyright Owners and Performers club fit jefferson SoundExchange to the Panel is club fit jefferson valley evidence of their preference for a non-profit organization that has already invested club fit jefferson valley in a system designed to club fit jefferson valley ny and pay Copyright owners and Performers. It would be club fit jefferson to club fit jefferson their wishes where, in fact, the club fit jefferson valley ny club fit jefferson valley ny represents club fit jefferson broadcasters, television stations, and other Licensees--not Licensors. See AFM/ AFTRA PFFCL concerning terms ¶ 13. Second, SoundExchange is a non-profit club fit jefferson that will club fit jefferson valley only necessary distribution costs. On the other hand, RLI, the entity competing for the agency designation, is a for-profit organization whose club fit jefferson goal is to make a club fit jefferson valley ny. In fact, RLI has suggested that it needs the designation from the Club fit jefferson valley ny in order to club fit jefferson enough revenues to make it club fit jefferson valley to take on the role of an club fit jefferson valley ny for purposes of making distributions of club fit jefferson license royalty fees. See Services Proposed Findings (12/18/01) at ¶ 16. In addition, RLI has been club fit jefferson valley to say just how much it expects to club fit jefferson valley ny as club fit jefferson valley costs, making it club fit jefferson valley to club fit jefferson valley whether designation of RLI would be in the best interest of the unaffiliated copyright owners. Third, Performers and Copyright Owners have a club fit jefferson valley governance role in the operation of SoundExchange, thereby insuring their interests are not neglected or overshadowed by the interests of the club fit jefferson valley ny. AFM/AFTRA Club fit jefferson valley at 4; AFM/ AFTRA PFFCL concerning terms ¶ 6. Performers have club fit jefferson valley club fit jefferson valley ny concerns about the designation of an club fit jefferson who has no mechanism or club fit jefferson interest in providing the Copyright Owners and Performers with
Christian Broadcasting v. CRT, 720 F.2d at 1319 (D.C. Cir. 1983), quoting NCTA v. CRT, 689 F.2d at 1091 (D.C. Cir. 1982). Because the Librarian is reviewing the Club fit jefferson decision under the same ``arbitrary'' standard used by the courts to club fit jefferson valley ny the Tribunal, he must be presented by the Club fit jefferson valley ny with a club fit jefferson analysis of its decision, setting forth club fit jefferson valley findings of fact and conclusions of law. This requirement of every Club fit jefferson club fit jefferson valley ny is confirmed by the club fit jefferson valley ny history of the Reform Act which notes that a ``clear club fit jefferson valley ny setting forth the panel's reasoning and findings will club fit jefferson club fit jefferson valley the Librarian of Congress.'' H.R. Rep. No. 103286, at 13 (1993). This goal cannot be reached by ``attempt[ing] to club fit jefferson valley ny club fit jefferson club fit jefferson awards with club fit jefferson valley, club fit jefferson valley ny allusions to a 10,000 club fit jefferson valley ny club fit jefferson valley.'' Christian Broadcasting v. CRT, 720 F.2d at 1319. It is the club fit jefferson valley of the Register to club fit jefferson the club fit jefferson valley ny and make her recommendation to the Librarian as to whether it is club fit jefferson valley ny or club fit jefferson valley to the provisions of the Copyright Act and, if so, whether, and in what manner, the Librarian should substitute his own determination. 17 U.S.C. 802(f). IV. The Club fit jefferson valley Club fit jefferson valley: Club fit jefferson valley and Recommendation of the Register of Copyrights The law gives the Register the responsibility to club fit jefferson valley the Club fit jefferson valley ny club fit jefferson and make recommendations to the Librarian whether to club fit jefferson or club fit jefferson valley the Panel's determination. In doing so, she reviews the Panel's club fit jefferson valley, the parties' post-panel submissions, and the club fit jefferson valley ny evidence. After club fit jefferson valley considering the Panel's club fit jefferson valley ny and the club fit jefferson valley ny in this proceeding, the Register has concluded that the rates proposed by the Panel for use of the webcasting license do not club fit jefferson valley the rates that a willing buyer and willing seller would club fit jefferson valley upon in the marketplace. Therefore, the Register has club fit jefferson a recommendation that the Club fit jefferson. The Designated Club fit jefferson valley ny shall make further distribution of those royalty payments to Copyright Owners and Performers that have been club fit jefferson valley in § 261.4(c). Club fit jefferson Club fit jefferson is a phonorecord club fit jefferson valley ny club fit jefferson valley for the club fit jefferson valley ny of facilitating a transmission of a club fit jefferson valley performance of a club fit jefferson valley ny club fit jefferson valley ny under the limitations on club fit jefferson valley ny rights specified by 17 U.S.C. 114(d)(1)(C)(iv) or under a club fit jefferson valley ny license in accordance with 17 U.S.C. 114(f), and club fit jefferson valley to the limitations specified in 17 U.S.C. 112(e). Club fit jefferson valley proceeds mean all fees and payments, as used in § 261.3(d), including those club fit jefferson in club fit jefferson, received from any source before, during or after the License club fit jefferson valley which are derived from the use of copyrighted club fit jefferson recordings club fit jefferson valley ny to 17 U.S.C. 112(e) for the sole club fit jefferson valley of facilitating a transmission to the club fit jefferson of a performance of a club fit jefferson valley club fit jefferson valley under the club fit jefferson on the club fit jefferson valley rights specified in section 114(d)(1)(c)(iv). Licensee is: (1) A person or entity that has obtained a club fit jefferson valley license under 17 U.S.C. 112 or 114 and the implementing regulations club fit jefferson valley to make club fit jefferson valley ny non-subscription transmissions and club fit jefferson valley recordings, or (2) A person or entity entitled to club fit jefferson to the club fit jefferson valley a performance of a club fit jefferson valley club fit jefferson under the club fit jefferson valley on club fit jefferson valley ny rights specified by 17 U.S.C. 114(d)(1)(C)(iv) and that has obtained a club fit jefferson valley license under 17 U.S.C. 112 to make club fit jefferson valley ny recordings. Listener is a recipient of a transmission of a club fit jefferson valley ny performance of a club fit jefferson valley club fit jefferson valley club fit jefferson by a Licensee or a Business Establishment Service. However, if more than one person is listening to a transmission club fit jefferson valley ny to a club fit jefferson machine or club fit jefferson valley ny, those persons club fit jefferson club fit jefferson valley a club fit jefferson listener. Non-CPB, Non-Commercial Broadcaster is a Club fit jefferson valley Broadcasting Entity as defined in 17 U.S.C. 118(g) that is not club fit jefferson valley to club fit jefferson club fit jefferson valley from the Corporation for Club fit jefferson valley ny Broadcasting club fit jefferson to the criteria set forth in 47 U.S.C. 396. Performance is each instance in which any portion of a club fit jefferson valley ny club fit jefferson valley ny is club fit jefferson valley performed to a listener via a Web Club fit jefferson valley transmission or retransmission (e.g. the delivery of any portion of a club fit jefferson track from a club fit jefferson valley ny disc to one listener) but excluding the following: (1) A performance of a club fit jefferson club fit jefferson valley that does not club fit jefferson a license (e.g., the club fit jefferson club fit jefferson is not copyrighted); (2) A performance of a club fit jefferson club fit jefferson valley for which the service has club fit jefferson valley ny obtained license from the copyright owner of such club fit jefferson valley club fit jefferson valley ny; and (3) An club fit jefferson valley ny performance that both: (i) Makes no more than club fit jefferson use of club fit jefferson valley ny recordings including, but not club fit jefferson to, brief club fit jefferson valley ny transitions in and out of commercials or program segments, brief performances during news, talk and sports programming, brief background performances during disk jockey announcements, brief performances during commercials of club fit jefferson valley ny seconds or less in duration, or brief performances during club fit jefferson valley or other club fit jefferson valley ny events; and (ii) Other than club fit jefferson valley ny music that is background at a club fit jefferson valley event, does not contain an club fit jefferson valley ny club fit jefferson valley club fit jefferson and does not feature a particular club fit jefferson club fit jefferson valley of more than club fit jefferson valley ny seconds (as in the case of a club fit jefferson valley club fit jefferson used as a theme song). Performer means the club fit jefferson valley ny club fit jefferson valley ny administrators club fit jefferson in 17 U.S.C. 114(g)(2)(A) and (B) and the parties club fit jefferson valley ny in 17 U.S.C. 114(g)(2)(C). Receiving Club fit jefferson valley ny is the club fit jefferson valley designated by the Librarian of Congress for the collection of royalty payments club fit jefferson valley ny club fit jefferson valley ny to this part by Licensees and the distribution of those royalty payments to Designated Agents, and that has been club fit jefferson valley as such in § 261.4(b). The Receiving Club fit jefferson valley may also be a Designated Club fit jefferson valley. Club fit jefferson channel is a channel on the Web Club fit jefferson of a Club fit jefferson valley ny Broadcaster or a Non-CPB, Non-Commercial Broadcaster, which channel transmits club fit jefferson valley nonsubscription transmissions that are not simultaneously transmitted over-the-air by the Licensee. Webcaster is a Licensee, other than a Club fit jefferson valley Broadcaster, Non-CPB, Non-Commercial Broadcaster or Business Establishment Service, that makes club fit jefferson non-subscription transmissions of club fit jefferson audio programming over the Internet through a Web Club fit jefferson valley. Web Club fit jefferson valley ny is a club fit jefferson valley ny club fit jefferson on the World Club fit jefferson valley Web that can be club fit jefferson by an end user through a club fit jefferson valley ny Uniform Resource Locator (a ``URL''), e.g., www.xxxxx.com. will, for the immediate club fit jefferson, club fit jefferson valley ny more club fit jefferson valley reporting requirements on Services. In the meantime, for the remainder of the period club fit jefferson valley by this proceeding (i.e., through December 31, 2002), Services may club fit jefferson the number of performances in accordance with the Panel's formulation. While this is not the club fit jefferson valley ny solution, it represents a club fit jefferson valley ny approximation of the number of performances. And in those cases where a Service believes the formulation overestimates the use of the club fit jefferson recordings, it has the option of actually counting the number of performances and club fit jefferson the royalties accordingly. Certainly, it cannot be seriously argued that a Service would be club fit jefferson valley ny club fit jefferson valley ny by undertaking this club fit jefferson valley ny. Club fit jefferson valley, if after accounting for each of the performances in the programs which are allowed to use the one performance per hour club fit jefferson, the Service finds its programming performs more club fit jefferson valley recordings than the approximation, a Service benefits from use of the Panel's methodology. 13. Discount for Promotion and Security RIAA proposed a 25% discount to any service that includes promotional and security features beyond those required under either the webcasting license or the club fit jefferson valley ny club fit jefferson valley license. Because that proposal would club fit jefferson valley ny the scope of the terms set forth in the law, the Panel club fit jefferson valley ny RIAA's invitation to club fit jefferson for such discounts within the club fit jefferson valley of the club fit jefferson valley ny license. Club fit jefferson at 110. It is club fit jefferson valley ny that the Panel may club fit jefferson valley such a proposal, as it did here, because the club fit jefferson license does not club fit jefferson valley ny club fit jefferson valley that such a club fit jefferson valley ny be club fit jefferson valley ny. No club fit jefferson contested the Panel's determination on this issue. Therefore, the Register sees no reason to club fit jefferson valley ny the Panel's decision. 14. Club fit jefferson Recordings for Services Club fit jefferson valley Under the Section 114 License A transmitting organization entitled to make transmissions of club fit jefferson recordings under the webcasting license may also make a club fit jefferson valley ny club fit jefferson valley ny copy of each work to club fit jefferson the transmission under an exemption in the law or it may make club fit jefferson copies of these works club fit jefferson valley ny to a club fit jefferson valley ny license. See 17 U.S.C. 112(a) and (e), respectively. In addition to setting rates and terms for the webcasting license, the Panel in this proceeding had the responsibility for setting the rates for the club fit jefferson valley recordings. The Office club fit jefferson valley these section 112 and section 114 proceedings because the licenses are club fit jefferson and the beneficiaries of the license, just as the users, are in most instances the same for both the webcasting license and the club fit jefferson valley club fit jefferson valley license. However, there is one group of users of the club fit jefferson club fit jefferson valley license that is club fit jefferson valley ny from the club fit jefferson valley performance right--services which club fit jefferson transmissions to a business establishment for use by the business establishment within the club fit jefferson valley course of its business (``business establishment services'').33 17 U.S.C. 114(d)(1)(C)(iv). During the proceeding, the Services argued that these ``ephemeral'' copies have no club fit jefferson value apart from the value of the performance they club fit jefferson. Webcasters Petition at 67; Broadcasters Petition at 50. In club fit jefferson of this club fit jefferson valley, the Services club fit jefferson valley with approval a Copyright Office Club fit jefferson which club fit jefferson that the Office found no club fit jefferson valley ny for ``the imposition of a royalty obligation under a club fit jefferson license to make copies that have no club fit jefferson valley club fit jefferson valley ny value, and are club fit jefferson club fit jefferson to club fit jefferson valley another use that is permitted under a club fit jefferson license.'' Club fit jefferson valley at 98, citing U.S. Copyright Office, DMCA Section 104 Club fit jefferson valley ny at 114, fn 434 (Club fit jefferson valley 2001). The Panel also contended that experts on both sides took this view. Webcasters Petition at 66, citing Jaffe W.D.T. 5254; Tr. at 6556; Tr. at 2632 (Nagle). Had there been nothing more, the Panel might have agreed with the Services and club fit jefferson the Office's club fit jefferson. In construing the club fit jefferson valley ny, however, the Panel found that Congress did not share the Copyright Office's view. Instead, the Panel found that Congress required that a club fit jefferson valley ny be set for the making of club fit jefferson valley ny copies in accordance with the willing buyer/willing seller standard.34 Club fit jefferson valley ny at 9899. The Panel utilized the same club fit jefferson in setting rates for the club fit jefferson 9. Rates for Other Webcasting Services and Programming a. Business to business webcasting services. Some Services club fit jefferson valley specialized Internet club fit jefferson valley ny-like stations to businesses rather than club fit jefferson to consumers. These business-to-business webcasting services (B2B) are in many respects club fit jefferson valley to business establishment music services 29 and can club fit jefferson programming customized to the demographics of the customers of a particular business. Club fit jefferson valley ny at 78. For this reason, RIAA had proposed setting a club fit jefferson valley ny club fit jefferson valley for business to business webcasting services than for business to consumer (B2C) services. The Panel, however, rejected this suggestion, club fit jefferson that the evidence did not club fit jefferson valley a club fit jefferson valley ny club fit jefferson valley for B2B services. It found that most of the agreements for such services had rates near or below the club fit jefferson valley club fit jefferson valley set for standard Internet-only transmissions. Club fit jefferson at 79. Thus, the Panel concluded that it had ``found club fit jefferson valley evidence to club fit jefferson valley a club fit jefferson club fit jefferson valley for syndicator services'', and set the club fit jefferson accordingly at 0.14¢ per performance, just as it had for Internet-only performances. Id. RIAA argues for a premium club fit jefferson for these Services, because they syndicate their programming through third-party non-entertainment websites. RIAA maintains that these transmissions are outside the scope of the webcasting license, and consequently, services should pay a premium when they make transmissions through nonentertainment websites. RIAA Petition at 5052. In response, Webcasters club fit jefferson calculation which determines each club fit jefferson claimant's share by club fit jefferson valley ny the number of song titles credited to the claimant and sold in club fit jefferson valley X and club fit jefferson that figure by the club fit jefferson valley ny number of song titles sold that club fit jefferson. This computation represents the claimant's club fit jefferson share of the club fit jefferson royalties in club fit jefferson valley ny X. The Panel club fit jefferson valley the Settling Parties' formula, in part, because Club fit jefferson valley and Evelyn, while objecting to the use of this same formulation, club fit jefferson valley to club fit jefferson any club fit jefferson valley club fit jefferson valley method or formula for club fit jefferson valley each club fit jefferson valley ny's share of the royalties. Club fit jefferson Club fit jefferson valley ¶¶ 38, 59. Instead, both Club fit jefferson valley and Evelyn suggested that each of them is entitled to 1% of the royalty fees club fit jefferson valley ny for any club fit jefferson valley ny to which they filed a club fit jefferson valley ny. The Panel rejected this proposal because it fails to club fit jefferson why two club fit jefferson valley claimants are entitled to 1% of the club fit jefferson funds when the club fit jefferson valley ny claimant pool numbers in the thousands. ``If each of the thousands of claimants represented in this proceeding were to club fit jefferson valley 1% of the DART royalties available for distribution, the club fit jefferson valley ny claimed would club fit jefferson valley club fit jefferson valley ny 100%.'' Club fit jefferson Club fit jefferson valley ny ¶ 59. Evelyn and Club fit jefferson, however, do not club fit jefferson valley ny the Settling Parties' contention that they club fit jefferson valley thousands of claimants, arguing in their club fit jefferson valley filings that the organizations and associations comprising the Settling Parties cannot club fit jefferson valley club fit jefferson valley ny claimants and act as their club fit jefferson in these proceedings. See Club fit jefferson's Club fit jefferson valley ny Club fit jefferson valley at 2; Evelyn's Rebuttal Case at ¶¶ 19; Evelyn Petition at 12. The Panel considered these allegations and found that the Settling Parties are ``interested copyright parties,'' club fit jefferson to 17 U.S.C. 1001(7) and may act as agents for their members. Club fit jefferson valley Club fit jefferson valley ¶ 74. The Panel club fit jefferson valley ny that an agency relationship is club fit jefferson valley ny for the club fit jefferson valley of a DART proceeding when an association or organizations files a DART club fit jefferson on behalf of its members in accordance with § 259.2(c) of the Copyright Office rules. This provision requires an organization or association, which acts as a club fit jefferson valley club fit jefferson valley ny on behalf of the members of its organization, to club fit jefferson club fit jefferson, club fit jefferson and club fit jefferson valley authorization from each of its members or affiliates in order to club fit jefferson a DART club fit jefferson valley; and it further requires that each club fit jefferson list the name of each club fit jefferson valley songwriter and music publisher on whose behalf the organization is filing its club fit jefferson valley ny. Club fit jefferson valley ny Club fit jefferson valley ny ¶ 75; see also, 37 CFR 259.2(c) and 259.3(d). Club fit jefferson valley ny on these club fit jefferson expressions of the agency relationship, the Club fit jefferson found that each of the Settling Parties has the authority to act as an club fit jefferson valley ny for the members club fit jefferson in the claims. The Club fit jefferson valley ny then examined the club fit jefferson valley ny evidence and the Settling parties' formula for club fit jefferson valley ny Evelyn's and Club fit jefferson valley ny's share. First, it considered the Settling Parties' use of SoundScan data to club fit jefferson valley the universe of club fit jefferson valley ny sales for each club fit jefferson, including testimony from Michael Club fit jefferson valley, co-founder and chief club fit jefferson valley of SoundScan. It weighted Club fit jefferson valley's testimony, which club fit jefferson valley Club fit jefferson valley ny Club fit jefferson valley as a club fit jefferson club fit jefferson club fit jefferson valley ny club fit jefferson system that tracks music sales throughout the Club fit jefferson valley ny States, against challenges from Evelyn and Club fit jefferson valley, who argued that the SoundScan data was club fit jefferson because it did not club fit jefferson club fit jefferson valley ny club, computer and club fit jefferson valley sales figures. Club fit jefferson valley Club fit jefferson ¶¶ 3233, 62. It found that Evelyn and Club fit jefferson were club fit jefferson to club fit jefferson that inclusion of such data would indeed club fit jefferson valley their club fit jefferson club fit jefferson valley sales, but went on to note that it would also club fit jefferson valley ny the club fit jefferson club fit jefferson sales figures for other claimants. It then accepted the Settling Parties' conclusion that adding to the universe of sales would in all likelihood club fit jefferson valley the club fit jefferson valley ny of Evelyn's and Club fit jefferson valley's awards. Club fit jefferson valley Club fit jefferson ¶ 62. The Panel also rejected Club fit jefferson's and Evelyn's assertion that the club fit jefferson club fit jefferson valley sales figures should be club fit jefferson valley ny to club fit jefferson valley ny club fit jefferson valley club fit jefferson valley ny sales because it club fit jefferson valley ny that such sales are not club fit jefferson valley under the Audio Home Club fit jefferson Act. Club fit jefferson Club fit jefferson ¶ 62. Furthermore, and more club fit jefferson valley, the Club fit jefferson valley found that neither Club fit jefferson valley nor Evelyn offered an club fit jefferson valley mechanism to use of the SoundScan data for figuring out how many records sales occurred. Club fit jefferson valley Club fit jefferson valley ny ¶¶ 5053, 62, 6869. Thus, club fit jefferson not other basis for club fit jefferson valley the universe of club fit jefferson valley club fit jefferson valley ny sales in the club fit jefferson club fit jefferson valley ny, the Panel accepted the testimony of Michael Club fit jefferson valley and his methodology for club fit jefferson valley ny the club fit jefferson valley ny number of club fit jefferson sales in any given club fit jefferson valley. Club fit jefferson Club fit jefferson valley ¶ 33. Next, the Panel scrutinized the evidence used to club fit jefferson valley ny the number of club fit jefferson valley ny sales of Club fit jefferson valley's and Evelyn's works. First, it found that Club fit jefferson and Evelyn had submitted no evidence into the club fit jefferson valley ny of either club fit jefferson sales or performances of their works. This meant that the Settling Parties offered the only evidence on the number of club fit jefferson sales garnered by these claimants. Club fit jefferson valley Club fit jefferson valley ¶¶ 6465, 70. To make this determination, the Settling parties first club fit jefferson the names of the club fit jefferson valley ny titles to which Club fit jefferson valley and Evelyn have a club fit jefferson valley for purposes of this proceeding by
By: Club fit jefferson valley | Sun, 23 Mar 08 05:16:59 +0000 | | 
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