II 

112TH CONGRESS 

2D SESSION S. 3609 

To adopt fair standards and procedures by which determinations of Copyright 

Royalty Judges are made with respect to webcasting, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 21, 2012 

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To adopt fair standards and procedures by which determinations of Copyright Royalty Judges are made with respect 

to webcasting, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Internet Radio Fair5 ness Act of 2012’’. 

6 SEC. 2. APPOINTMENT OF COPYRIGHT ROYALTY JUDGES 

7 AND QUALIFICATIONS. 

8 Chapter 8 of title 17, United States Code, is amend9 ed— 

10 (1) in section 801(a)— 


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1 (A) in the first sentence, by striking ‘‘Li2 brarian of Congress’’ and inserting ‘‘President 

3 of the United States, by and with the advice 

4 and consent of the Senate,’’; and 

5 (B) by striking the second sentence; and 

6 (2) in section 802— 

7 (A) in subsection (a)(1), by striking 

8 ‘‘Each’’ and all that follows through ‘‘econom9 ics.’’ and inserting the following: ‘‘Each Copy10 right Royalty Judge shall be an attorney who 

11 has not fewer than 10 years of legal experience 

12 and has significant experience in adjudicating 

13 arbitrations or court trials. The Chief Copyright 

14 Royalty Judge shall have not fewer than 7 

15 years of experience in adjudicating court trials 

16 in civil cases.’’; and 

17 (B) in subsection (d)— 

18 (i) in paragraph (1), in the first sen19 tence, by striking ‘‘Librarian’’ and all that 

20 follows through ‘‘section.’’ and inserting 

21 ‘‘President of the United States shall act 

22 expeditiously to fill the vacancy.’’; and 

23 (ii) in paragraph (2), by striking ‘‘Li24 brarian of Congress’’ and inserting ‘‘PresiVerDate Mar 15 2010 02:50 Sep 27, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3609.IS S3609

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1 dent of the United States, by and with the 

2 advise and consent of the Senate,’’. 

3 SEC. 3. COMPUTATION OF ROYALTY FEES FOR INTERNET 

4 RADIO SERVICES OFFERING DIGITAL PER5 FORMANCES OF SOUND RECORDINGS AND 

6 REPORTING OBLIGATIONS. 

7 (a) STANDARD FOR DETERMINING RATES AND

8 TERMS; BURDEN OF PROOF.— 

9 (1) EPHEMERAL RECORDINGS.—Section 112(e) 

10 of title 17, United States Code, is amended— 

11 (A) in paragraph (3), by striking the sec12 ond sentence and inserting the following: ‘‘Such 

13 rates may include a minimum annual fee for 

14 each type of service offered by the transmitting 

15 organization.’’; 

16 (B) in paragraph (4), by striking ‘‘Such 

17 rates shall’’ and all that follows through ‘‘para18 graphs (2) and (3).’’ and insert the following: 

19 ‘‘In establishing rates and terms under this 

20 paragraph, the Copyright Royalty Judges shall 

21 apply the objectives set forth in section 

22 801(b)(1), in accordance with subparagraphs 

23 (C) and (D) of section 114(f)(1). In any pro24 ceeding under this paragraph, the burden of 

25 proof shall be on the copyright owners of sound 


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1 recordings to establish that the fees and terms 

2 that they seek satisfy the requirements of this 

3 paragraph, and do not exceed the fees to which 

4 most copyright owners and users would agree 

5 under competitive market circumstances. To the 

6 extent the Copyright Royalty Judges consider 

7 marketplace benchmarks to be relevant, they 

8 shall limit those benchmarks to benchmarks re9 flecting the rates and terms that have been 

10 agreed under competitive market circumstances 

11 by most copyright users.’’; and 

12 (C) in paragraph (5), by striking ‘‘in lieu 

13 of any’’ and all that follows and inserting the 

14 following: ‘‘and be binding upon the parties to 

15 any such agreements in lieu of any determina16 tion by the Copyright Royalty Judges.’’. 

17 (2) DIGITAL SOUND RECORDING PERFORM18 ANCES.—Section 114(f) of title 17, United States 

19 Code, is amended— 

20 (A) in paragraph (1)— 

21 (i) in subparagraph (A)— 

22 (I) in the first sentence— 

23 (aa) by striking ‘‘subscrip24 tion transmissions by preexisting 

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1 missions by preexisting satellite 

2 digital audio radio’’; and 

3 (bb) by striking ‘‘, except in 

4 the case of a different transi5 tional period provided under sec6 tion 6(b)(3) of the Copyright 

7 Royalty and Distribution Reform 

8 Act of 2004,’’; and 

9 (II) by striking ‘‘Such terms and 

10 rates’’ and all that follows and insert11 ing the following: ‘‘Such terms and 

12 rates shall distinguish among the dif13 ferent types of digital audio trans14 mission services then in operation and 

15 may take into account the different 

16 characteristics of such services, and 

17 may include a minimum annual fee of 

18 not more than $500 for each provider 

19 of services that is subject to such 

20 rates and terms, which may be the 

21 only minimum fee for such provider 

22 and may be assessed only once annu23 ally to that provider. Any copyright 

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1 fected by this paragraph may submit 

2 to the Copyright Royalty Judges for 

3 consideration in such rate-setting pro4 ceedings licenses covering such non5 interactive sound recording perform6 ances. The parties to each proceeding 

7 shall bear their own costs.’’; 

8 (ii) in subparagraph (B)— 

9 (I) in the first sentence— 

10 (aa) by striking ‘‘paragraph 

11 (3)’’ and inserting ‘‘paragraph 

12 (2)’’; and 

13 (bb) by striking ‘‘, a transi14 tional period provided under sec15 tion 6(b)(3) of the Copyright 

16 Royalty and Distribution Reform 

17 Act of 2004,’’; and 

18 (II) by striking the second sen19 tence and inserting the following: ‘‘In 

20 establishing rates and terms under 

21 this paragraph, the Copyright Royalty 

22 Judges shall apply the objectives set 

23 forth in section 801(b)(1) and may 

24 also consider the rates and terms for 

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1 mission services under voluntary li2 cense agreements described in sub3 paragraph (A) that were entered into 

4 under competitive market cir5 cumstances. In any proceeding under 

6 this subsection, the burden of proof 

7 shall be on the copyright owners of 

8 sound recordings to establish that the 

9 fees and terms that they seek satisfy 

10 the requirements of this subsection, 

11 and do not exceed the fees to which 

12 most copyright owners and users 

13 would agree under competitive market 

14 circumstances.’’; 

15 (iii) by redesignating subparagraph 

16 (C) as subparagraph (E); 

17 (iv) by inserting after subparagraph 

18 (B) the following: 

19 ‘‘(C)(i) In construing the objectives set 

20 forth in section 801(b)(1), the Copyright Roy21 alty Judges shall take into consideration— 

22 ‘‘(I) the public’s interest in both the 

23 creation of new sound recordings of musi24 cal works and in fostering online and other 


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1 digital performances of sound recordings; 

2 and 

3 ‘‘(II) the income necessary to provide 

4 a reasonable return on all relevant invest5 ments, including investments in prior peri6 ods for which returns have not been 

7 earned. 

8 ‘‘(ii) To the extent the Copyright Royalty 

9 Judges consider marketplace benchmarks to be 

10 relevant, the Copyright Royalty Judges shall 

11 limit those benchmarks to benchmarks reflect12 ing the rates and terms that have been agreed 

13 under competitive market circumstances by 

14 most copyright users. 

15 ‘‘(D) In applying the objectives set forth in 

16 section 801(b)(1), the Copyright Royalty 

17 Judges— 

18 ‘‘(i) shall not disfavor percentage of 

19 revenue-based fees; 

20 ‘‘(ii) shall establish license fee struc21 tures that foster competition among the 

22 licensors of sound recording performances 

23 and between sound recording performances 

24 and other programming, including per-use 

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1 enue or other fees that include carve-outs 

2 on a pro-rata basis for sound recordings 

3 the performance of which have been li4 censed either directly with the copyright 

5 owner or at the source, or for which a li6 cense is not necessary; 

7 ‘‘(iii) shall give full consideration for 

8 the value of any promotional benefit or 

9 other non-monetary benefit conferred on 

10 the copyright owner by the performance; 

11 ‘‘(iv) shall give full consideration to 

12 the contributions made by the digital audio 

13 transmission service to the content and 

14 value of its programming; and 

15 ‘‘(v) shall not take into account either 

16 the rates and terms provided in licenses for 

17 interactive services or the determinations 

18 rendered by the Copyright Royalty Judges 

19 prior to the enactment of the Internet 

20 Radio Fairness Act of 2012.’’; and 

21 (v) by amending subparagraph (E), as 

22 so redesignated, to read as follows: 

23 ‘‘(E) The procedures under subparagraph 

24 (A) may also be initiated pursuant to a petition 

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1 ings, or any entity performing sound recordings 

2 affected by this paragraph, indicating that a 

3 new type of digital audio transmission service 

4 engaged in the public performance of sound re5 cordings is or is about to become operational, 

6 for the purpose of determining reasonable terms 

7 and rates of royalty payments with respect to 

8 such new type of transmission service for the 

9 period beginning with the inception of such new 

10 type of service and ending on the date on which 

11 the royalty rates and terms for the most com12 parable digital audio transmission services most 

13 recently determined under subparagraph (A) 

14 and chapter 8 expire, or such other period as 

15 the parties may agree.’’; 

16 (B) by striking paragraph (2); 

17 (C) by redesignating paragraphs (3), (4), 

18 and (5) as paragraphs (2), (3), and (4), respec19 tively; and 

20 (D) in paragraph (2), as so redesignated— 

21 (i) by inserting ‘‘or their authorized 

22 representatives’’ after ‘‘owners of sound re23 cordings’’; and 

24 (ii) by striking ‘‘in lieu of any’’ and 

25 all that follows and inserting the following: 


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1 ‘‘and be binding upon the parties to any 

2 such agreements in lieu of any determina3 tion by the Copyright Royalty Judges.’’. 

4 (3) DEFINITION.—Section 114(j) of title 17, 

5 United States Code, is amended— 

6 (A) by redesignating paragraphs (4) 

7 through (15) as paragraphs (5) through (16), 

8 respectively; and 

9 (B) by inserting after paragraph (3) the 

10 following: 

11 ‘‘(4) ‘Competitive market circumstances’ are 

12 circumstances in which a licensee enters into a li13 cense for the noninteractive performance of sound 

14 recordings with a licensor that does not possess mar15 ket power resulting from the aggregation of copy16 rights, either by a licensing collective or individual 

17 copyright owners.’’. 

18 (b) PRECEDENTIAL VALUE OF SETTLEMENTS.—Sec19 tion 114(f)(4) of title 17, United States Code, as so redes20 ignated by subsection (a)(2), is amended— 

21 (1) in subparagraph (B), by striking the second 

22 sentence; 

23 (2) by striking subparagraphs (C) and (F); 

24 (3) by redesignating subparagraphs (D) and 

25 (E) as subparagraphs (C) and (D), respectively; and 


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1 (4) by adding at the end the following: 

2 ‘‘(E) The rates and terms of any settle3 ments made pursuant to the amendments made 

4 by the Webcaster Settlement Act of 2009 (Pub5 lic Law 111–36; 123 Stat. 1926) that were to 

6 expire before December 31, 2015, shall be ex7 tended through December 31, 2015, according 

8 to the rates and terms applicable to 2014.’’. 

9 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

10 Chapter 8 of title 17, United States Code, is amended— 

11 (1) in section 801(b)(7)(B), by striking 

12 ‘‘114(f)(3)’’ and inserting ‘‘114(f)(2)’’; 

13 (2) in section 803(c)(2)(E)(i)(II)— 

14 (A) by striking ‘‘section 114(f)(1)(C) or 

15 114(f)(2)(C)’’ and inserting ‘‘section 

16 114(f)(1)(E)’’; and 

17 (B) by striking ‘‘section 114(f)(4)(B)’’ and 

18 inserting ‘‘section 114(f)(3)(B)’’; and 

19 (3) in section 804(b)(3)(C)— 

20 (A) in clause (i), by striking ‘‘section 

21 114(f)(1)(C) and 114(f)(2)(C)’’ and inserting 

22 ‘‘section 114(f)(1)(E)’’; 

23 (B) in clause (iii)(II), by striking ‘‘section 

24 114(f)(4)(B)(ii) and (C)’’ and inserting ‘‘subVerDate Mar 15 2010 02:50 Sep 27, 2012 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3609.IS S3609

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1 paragraphs (B)(ii) and (C) of section 

2 114(f)(3)’’; and 

3 (C) in clause (iv), by striking ‘‘section 

4 114(f)(1)(C) or 114(f)(2)(C)’’ and inserting 

5 ‘‘section 114(f)(1)(E)’’. 

6 SEC. 4. MODERNIZATION OF CONDITIONS GOVERNING 

7 EPHEMERAL RECORDING EXEMPTION AND 

8 STATUTORY LICENSES. 

9 (a) EPHEMERAL RECORDING EXEMPTION.—Section 

10 112(a)(1) of title 17, United States Code, is amended by 

11 striking ‘‘no more than’’ and all that follows and inserting 

12 the following: ‘‘1 or more copies or phonorecords embody13 ing the performance or display, if— 

14 ‘‘(A) the copies or phonorecords are re15 tained and used solely by the transmitting orga16 nization that made them, and no further copies 

17 or phonorecords are reproduced from them, ex18 cept as may be incidental to the operation of 

19 the transmission technology used by the trans20 mitting organization; and 

21 ‘‘(B) the copies or phonorecords are used 

22 solely for the transmitting organization’s own 

23 transmissions originating in the United States, 

24 or for purposes of archival preservation or secu25 rity.’’. 


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1 (b) EPHEMERAL RECORDING STATUTORY LI2 CENSE.—Section 112(e)(1) of title 17, United States 

3 Code, is amended— 

4 (1) in the matter preceding subparagraph (A)— 

5 (A) by striking ‘‘or under a statutory li6 cense in accordance with section 114(f)’’; and 

7 (B) by striking ‘‘ if the following condi8 tions are satisfied:’’ and inserting ‘‘if—’’; 

9 (2) in subparagraph (A)— 

10 (A) by striking ‘‘The’’ and inserting ‘‘the’’; 

11 and 

12 (B) by striking the period at the end and 

13 inserting ‘‘, except as may be incidental to the 

14 operation of the transmission technology used 

15 by the transmitting organization;’’; 

16 (3) in subparagraph (B)— 

17 (A) by striking ‘‘The’’ and inserting ‘‘the’’; 

18 (B) by striking ‘‘a statutory license in ac19 cordance with section 114(f) or’’; and 

20 (C) by striking the period at the end and 

21 inserting ‘‘, or for purposes of archival preser22 vation or security; and’’; 

23 (4) by striking subparagraph (C); 

24 (5) by redesignating subparagraph (D) as sub25 paragraph (C); and 


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1 (6) in subparagraph (C), as so redesignated, by 

2 striking ‘‘Phonorecords’’ and inserting 

3 ‘‘phonorecords’’. 

4 (c) SOUND RECORDING PERFORMANCE STATUTORY

5 LICENSE.—Section 114(d)(2)(C) of title 17, United 

6 States Code, is amended— 

7 (1) in clause (i), by striking ‘‘of a broadcast 

8 transmission’’ and all that follows and inserting the 

9 following: ‘‘or simultaneous transmission of a broad10 cast transmission in any medium, which may include 

11 programming substituted for programming con12 tained in the broadcast transmission with respect to 

13 which the transmitting entity lacks the requisite li14 censes or clearances to make the transmission in the 

15 medium, or for advertisements contained in the 

16 broadcast transmission, or the transmission of any 

17 programming previously included in a broadcast 

18 transmission as an archived program in conformance 

19 with clause (iii);’’; 

20 (2) by striking clause (ii) and inserting the fol21 lowing: 

22 ‘‘(ii) the transmitting entity 

23 does not cause to be published in 

24 writing by means of an advance 

25 program schedule the titles of the 


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1 specific sound recordings or 

2 phonorecords embodying such 

3 sound recordings to be trans4 mitted at particular times, except 

5 that this clause does not dis6 qualify a transmitting entity that 

7 publishes in writing— 

8 ‘‘(AA) such a program 

9 schedule that identifies 

10 sound recordings, 

11 phonorecords or artists that 

12 will be featured within a pe13 riod of time greater than 3 

14 hours or within an unspec15 ified future time period; or 

16 ‘‘(BB) an advance pro17 gram schedule that is that is 

18 a schedule of classical music 

19 programming to be per20 formed as part of a retrans21 mission or simultaneous 

22 transmission of a broadcast 

23 transmission, which may in24 clude programming sub25 stituted for programming 


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1 contained in the broadcast 

2 transmission with respect to 

3 which the transmitting enti4 ty lacks the requisite li5 censes or clearances to make 

6 the transmission in the me7 dium, or for advertisements 

8 contained in the broadcast 

9 transmission;’’; 

10 (3) in clause (iii)— 

11 (A) in subclause (II), by adding ‘‘or’’ at 

12 the end; and 

13 (B) beginning in subclause (III), by strik14 ing ‘‘or’’ and all that follows through ‘‘require15 ment;’ ’’ 

16 (4) in clause (vii)— 

17 (A) by striking ‘‘and the transmitting enti18 ty’’ through ‘‘of the copyright owner,’’; and 

19 (B) by striking ‘‘of a broadcast trans20 mission’’ and all that follows and inserting ‘‘or 

21 simultaneous transmission of a broadcast trans22 mission, which may include programming sub23 stituted for programming contained in the 

24 broadcast transmission with respect to which 

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1 censes or clearances to make the transmission 

2 in the medium, or for advertisements contained 

3 in the broadcast transmission;’’; and 

4 (5) by amending clause (ix) to read as follows: 

5 ‘‘(ix) the transmitting entity identifies 

6 in textual data the sound recording during, 

7 but not before, the time it is performed, in8 cluding the title of the sound recording 

9 and the featured recording artist, in a 

10 manner to permit it to be displayed to the 

11 transmission recipient by the device or 

12 technology intended for receiving the serv13 ice provided by the transmitting entity, ex14 cept that the obligation in this clause shall 

15 not apply to the extent that the transmit16 ting entity does not have the technology or 

17 information necessary to provide such tex18 tual data.’’. 

19 SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE. 

20 (a) LIMITATION OF ANTITRUST EXEMPTIONS.— 

21 (1) EPHEMERAL RECORDINGS.—Section 

22 112(e)(2) of title 17, United States Code, is amend23 ed— 

24 (A) by inserting ‘‘, on a nonexclusive 

25 basis,’’ after ‘‘common agents’’; and 


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1 (B) by adding at the end the following: 

2 ‘‘Nothing in this paragraph shall be construed 

3 to permit any copyright owners of sound re4 cordings acting jointly, or any common agent or 

5 collective representing such copyright owners, to 

6 take any action that would prohibit, interfere 

7 with, or impede direct licensing by copyright 

8 owners of sound recordings in competition with 

9 licensing by any common agent or collective, 

10 and any such action that affects interstate com11 merce shall be deemed a contract, combination 

12 or conspiracy in restraint of trade in violation 

13 of section 1 of the Sherman Act (15 U.S.C. 

14 1).’’. 

15 (2) DIGITAL SOUND RECORDING PERFORM16 ANCES.—Section 114(e) of title 17, United States 

17 Code, is amended by adding at the end the fol18 lowing: 

19 ‘‘(3) Nothing in this subsection shall be con20 strued to permit any copyright owners of sound re21 cordings acting jointly, or any common agent or col22 lective representing such copyright owners, to take 

23 any action that would prohibit, interfere with, or im24 pede direct licensing by copyright owners of sound 

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1 mon agent or collective, and any such action that af2 fects interstate commerce shall be deemed a con3 tract, combination or conspiracy in restraint of trade 

4 in violation of section 1 of the Sherman Act (15 

5 U.S.C. 1). 

6 ‘‘(4) In order to obtain the benefits of para7 graph (1), a common agent or collective representing 

8 copyright owners of sound recordings must make 

9 available at no charge through publicly accessible 

10 computer access through the Internet the most cur11 rent available list of sound recording copyright own12 ers represented by the organization and the most 

13 current list of sound recordings licensed by the orga14 nization.’’. 

15 SEC. 6. PROCEEDINGS OF THE COPYRIGHT ROYALTY 

16 JUDGES AND JUDICIAL REVIEW. 

17 (a) PROCEEDINGS AND PRECEDENTIAL VALUE.— 

18 Section 803(a)(1) of title 17, United States Code, is 

19 amended— 

20 (1) by striking the first sentence and inserting 

21 the following: ‘‘ ‘In carrying out the purposes set 

22 forth in section 801, all proceedings of the Copyright 

23 Royalty Judges shall be conducted in accordance 

24 with this title and, unless contrary to a procedure 

25 set forth in subsection (b), according to the Federal 


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1 Rules of Civil Procedure and the Federal Rules of 

2 Evidence.’’; and 

3 (2) by adding at the end the following: ‘‘Not4 withstanding the preceding sentence, in any rate-set5 ting proceeding under section 112(e)(4) or section 

6 114(f)(2)(B), the Copyright Royalty Judges may 

7 only consider as precedent and act in accordance 

8 with determinations and interpretations that are 

9 made under the objectives set forth in section 801(b) 

10 for the statutory licenses under sections 112(e) and 

11 114(d)(2).’’. 

12 (b) REGULATIONS.—Section 803(b)(6) of title 17, 

13 United States Code, is amended— 

14 (1) in subparagraph (C), by striking ‘‘RE15 QUIREMENTS.—Regulations’’ and inserting ‘‘RE16 QUIREMENTS IN CASES NOT INVOLVING DIGITAL

17 PERFORMANCES OF SOUND RECORDINGS.—In pro18 ceedings other than proceedings to determine terms 

19 and rates of royalty payments under section 112 or 

20 114, regulations’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(D) REQUIREMENTS IN PROCEEDINGS IN23 VOLVING DIGITAL PERFORMANCES OF SOUND

24 RECORDINGS.—In proceedings to determine 


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1 terms and rates of royalty payments under sec2 tion 112 or 114, the following shall apply: 

3 ‘‘(i) INITIAL DISCLOSURES.—Not later 

4 than 30 days after the date on which the 

5 voluntary negotiation period is initiated 

6 pursuant to paragraph (3)(A)(i), each par7 ticipant shall make an initial disclosure to 

8 the other participants by providing cop9 ies— 

10 ‘‘(I) of all license agreements en11 tered into by that participant, its 

12 members, or any licensor or licensee 

13 represented in the proceeding by that 

14 participant during the applicable 5- 

15 year period or covering any portion of 

16 the period for which the rates are to 

17 be set, relating to— 

18 ‘‘(aa) in a proceeding under 

19 section 112, the making of 

20 ephemeral recordings; or 

21 ‘‘(bb) in a proceeding under 

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1 corporating recorded musical 

2 works; or 

3 ‘‘(II) of any other license agree4 ment or document upon which the 

5 participant intends to rely, in whole or 

6 in part, in its ratemaking proposal, as 

7 well as all license agreements entered 

8 into by the participant, its members, 

9 or any licensor or licensee represented 

10 in the proceeding by that participant 

11 for the same or similar rights during 

12 the applicable 5-year period or cov13 ering any portion of the period for 

14 which the rates are to be set. 

15 ‘‘(ii) PROTECTIVE ORDER; SANC16 TIONS.—Disclosures under clause (i) and 

17 other confidential information produced by 

18 a participant or third party during dis19 covery, or used during the proceeding, 

20 shall be subject to a protective order, en21 tered by the Copyright Royalty Judges in 

22 the proceeding, that prohibits use of the 

23 disclosures and the confidential informa24 tion for any purpose other than the pro25 ceeding and that prohibits disclosure of the 


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1 licenses or other documents included in the 

2 disclosure or of other confidential informa3 tion to any person that is not counsel of 

4 record in the proceeding. The Copyright 

5 Royalty Judges may impose appropriate 

6 sanctions for failure to comply in a timely 

7 manner with the matters required to be 

8 disclosed under clause (i). 

9 ‘‘(iii) STATEMENTS OF THE CASE.— 

10 Statements of the case shall be filed by a 

11 date specified by the Copyright Royalty 

12 Judges, which for licensor participants 

13 shall be no earlier than the end of the 90- 

14 day period beginning on the date on which 

15 the voluntary negotiation period concludes, 

16 and for licensee participants shall be no 

17 earlier than the end of the 60-day period 

18 beginning on the date on which the state19 ments of the case are required to be sub20 mitted by licensor participants. 

21 ‘‘(iv) SUBPOENA POWER.—The Copy22 right Royalty Judges shall have the power 

23 to issue subpoenas at the request of a par24 ticipant to non-participants, subject to the 

25 Federal Rules of Civil Procedure. Orders 


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1 by the Copyright Royalty Judges to en2 force such subpoenas may be enforced by 

3 the requesting participant in an action in 

4 the district court in which the subpoenaed 

5 party resides. 

6 ‘‘(v) SCHEDULING CONFERENCE.— 

7 The Copyright Royalty Judges shall order 

8 a scheduling conference no sooner than 45 

9 days following the submission to the Copy10 right Royalty Judges of the statement of 

11 the case of the licensee participants. Par12 ticipants shall submit jointly a proposed 

13 discovery plan no later than 21 days before 

14 the conference. Following the conference, 

15 the Copyright Royalty Judges shall issue 

16 an initial scheduling order governing pre17 trial procedures, and permitting discovery 

18 that is reasonable and sufficient, giving 

19 due consideration to the proposals of the 

20 participants and the magnitude of the po21 tential royalty payments at issue during 

22 the license period covered by the pro23 ceeding. The period to conduct discovery 

24 shall be no shorter than 90 days, plus the 

25 time needed to complete discovery ordered 


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1 by the Copyright Royalty Judges in con2 nection with the resolution of motions, or3 ders, and disputes pending at the end of 

4 such period. 

5 ‘‘(vi) SETTLEMENT CONFERENCE.— 

6 The Copyright Royalty Judges shall order 

7 a settlement conference among the partici8 pants in the proceeding to facilitate the 

9 presentation of offers of settlement among 

10 the participants. The settlement conference 

11 shall be held during the 21-day period be12 ginning on the day after the last day of the 

13 discovery period ordered pursuant to clause 

14 (iv) and shall take place outside the pres15 ence of the Copyright Royalty Judges. 

16 ‘‘(vii) JOINT PRETRIAL ORDER.—If 

17 the conference required in clause (v) does 

18 not result in a settlement among all par19 ties, not later than 60 days after the last 

20 day of the settlement conference, the re21 maining participants shall propose a joint 

22 pretrial order— 

23 ‘‘(I) stating the rates and terms 

24 proposed by each participant and setVerDate Mar 15 2010 02:50 Sep 27, 2012 Jkt 019200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S3609.IS S3609

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1 ting forth, in detail, the grounds for 

2 such proposals; 

3 ‘‘(II) setting forth admissions 

4 and stipulations about facts and docu5 ments; 

6 ‘‘(III) avoiding unnecessary proof 

7 and cumulative evidence and limiting 

8 the use of testimony under rule 702 of 

9 the Federal Rules of Evidence; 

10 ‘‘(IV) identifying the witnesses to 

11 be offered by each party, and attach12 ing all witness statements, testimony, 

13 and exhibits to be presented in the 

14 proceeding and such other information 

15 that is necessary to establish terms 

16 and rates; 

17 ‘‘(V) listing the evidence to be of18 fered by each party, and identifying 

19 any objections to any such evidence; 

20 ‘‘(VI) identifying any pending 

21 motions, including motions in limine 

22 and attaching any such motions that 

23 have not yet been filed; 


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1 ‘‘(VII) proposing a reasonable 

2 limit on the time allowed to present 

3 evidence; and 

4 ‘‘(VIII) proposing other ways to 

5 facilitate the just, speedy, and inex6 pensive disposition of the proceeding. 

7 ‘‘(viii) PRETRIAL ORDER.—The Copy8 right Royalty Judges shall hold a pre9 hearing conference to address the issues 

10 set forth in the proposed joint pretrial 

11 order, and shall issue an order reciting the 

12 action taken. The order shall allocate to 

13 the licensor participants and licensee par14 ticipants sufficient, reasonable, and equal 

15 time in which to present their respective 

16 cases, and shall afford each set of partici17 pants an opportunity for rebuttal. The 

18 order issued by the Copyright Royalty 

19 Judges under this clause shall control the 

20 course of the action unless the Judges 

21 modify it. 

22 ‘‘(ix) DEFINITIONS.—In this subpara23 graph: 


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1 ‘‘(I) APPLICABLE 5-YEAR PE2 RIOD.—The term ‘applicable 5-year 

3 period’ means— 

4 ‘‘(aa) the period of 5 cal5 endar years preceding the year in 

6 which the applicable voluntary 

7 negotiation period begins; and 

8 ‘‘(bb) the period of the cur9 rent calendar year through the 

10 date on which the initial disclo11 sure under clause (i) is made. 

12 ‘‘(II) LICENSEE.—The term ‘li13 censee’ means a person or entity that 

14 exercises rights under a statutory li15 cense under section 112 or 114. 

16 ‘‘(III) LICENSEE PARTICIPANT.— 

17 The term ‘licensee participant’ means 

18 a participant that is, or is an author19 ized representative of, a licensee. 

20 ‘‘(IV) LICENSOR.—The term ‘li21 censor’ means a person or entity enti22 tled to receive royalty payments under 

23 section 112 or 114. 

24 ‘‘(V) LICENSOR PARTICIPANT.— 

25 The term ‘licensor participant’ means 


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1 a participant that is, or that is an au2 thorized representative of, a licensor. 

3 ‘‘(VI) STATEMENT OF THE

4 CASE.—The term ‘statement of the 

5 case’ means a short and plain state6 ment that— 

7 ‘‘(aa) identifies all partici8 pants and licensors or licensees 

9 on whose behalf the statement is 

10 being submitted; 

11 ‘‘(bb) states the proposed 

12 rate or rates and terms of the 

13 participants for each right at 

14 issue in the proceeding and sets 

15 forth in detail the basis of each 

16 such proposed rate and term; 

17 ‘‘(cc) identifies each witness 

18 that the participant intends to 

19 call in support of its rate and 

20 terms proposal and summarizes 

21 the anticipated testimony of each 

22 witness; and 

23 ‘‘(dd) includes any reports, 

24 including expert reports, and any 


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1 documents upon which the par2 ticipant relies.’’. 

3 (c) TIMING OF DETERMINATION.—Section 803(c)(1) 

4 of title 17, United States Code, is amended by striking 

5 ‘‘subsection (b)(6)(C)(x)’’ and inserting ‘‘subparagraph 

6 (C)(x) or (D)(v) of subsection (b)(6) (as the case may 

7 be)’’. 

8 (d) JUDICIAL REVIEW.—Section 803(d)(3) of title 

9 17, United States Code, is amended by striking the first 

10 sentence and inserting the following: ‘‘Conclusions of law, 

11 and determinations of rates in which the Copyright Roy12 alty Judges are required to apply the facts of record to 

13 the objectives set forth in section 801(b) shall be subject 

14 to de novo review. Findings of fact by the Copyright Roy15 alty Judges shall be subject to review for clear error. All 

16 other actions by the Copyright Royalty Judges shall be 

17 subject to review for abuse of discretion.’’. 

18 SEC. 7. GLOBAL MUSIC RIGHTS DATABASE. 

19 For purposes of facilitating compensation to artists 

20 of musical works and combating copyright infringement, 

21 not later than 180 days after the date of enactment of 

22 this Act, the Librarian of Congress, in consultation with 

23 the Intellectual Property Enforcement Coordinate and the 

24 United States Patent and Trademark Office, shall submit 

25 to Congress a report that provides a set of recommendaVerDate Mar 15 2010 02:50 Sep 27, 2012 Jkt 019200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S3609.IS S3609

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1 tions about how the Federal Government can facilitate, 

2 and possibly establish, a global music registry that is 

3 sustainably financed and consistent with World Intellec4 tual Property Organization obligations. Such registry 

5 should, to the extent practicable, include all known or 

6 copyrighted musical works, the writers of the work, the 

7 owners of the rights, the entity on behalf of those owners 

8 who can licenses such rights on a territory-by-territory 

9 basis, and all known sound recording data. 

10 SEC. 8. EFFECTIVE DATE AND TRANSITIONAL RULES. 

11 (a) IN GENERAL.—Except as provided in subsection 

12 (c), the amendments made by this Act shall take effect 

13 on the date of enactment of this Act and shall apply to 

14 any proceeding that is pending on, or that begins on or 

15 after the date of enactment. The Copyright Royalty 

16 Judges in office as of the date of enactment shall have 

17 only such continuing authority as is provided in para18 graphs (1) and (2) of subsection (c). 

19 (b) REGULATIONS.—Not later than 60 days after the 

20 date on which not less than 2 Copyright Royalty Judges 

21 are appointed and confirmed pursuant to section 2, the 

22 Copyright Royalty Judges shall propose regulations imple23 menting the amendments set forth in section 6(b), by no24 tice in the Federal Register, providing 30 days for com25 ments and 15 days for reply comments. Not later than 


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1 45 days after date on which the 15-day period for reply 

2 comments ends, the Copyright Royalty Judges shall pro3 mulgate final regulations. 

4 (c) APPLICABILITY TO PENDING PROCEEDINGS.— 

5 (1) PROCEEDINGS IN WHICH THE HEARING ON

6 THE MERITS HAS CONCLUDED.—The Copyright Roy7 alty Judges sitting on the date of enactment shall 

8 have authority to decide any pending proceeding in 

9 which the hearing on the merits has concluded, 

10 under the standards, procedures, and regulations in 

11 effect prior to the enactment of this Act. This au12 thority shall include the authority to decide any mo13 tion for rehearing under section 803(c)(2) of title 

14 17, United States Code, in any such proceeding. 

15 (2) PROCEEDINGS IN WHICH THE HEARING ON

16 THE MERITS HAS COMMENCED BUT NOT CON17 CLUDED.—The Copyright Royalty Judges sitting on 

18 the date of enactment shall have authority to decide 

19 any pending proceeding in which the hearing on the 

20 merits has commenced but not concluded, under the 

21 standards, procedures, and regulations in effect 

22 prior to the enactment of this Act, except that this 

23 authority may only be exercised with the consent of 

24 all participants in any proceeding to determine 

25 terms and rates of royalty payments under section 


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1 112 or 114 of title 17, United States Code. This au2 thority shall include the authority to decide any mo3 tion for rehearing under section 803(c)(2) of title 

4 17, United States Code, in any such proceeding. 

5 (3) ALL OTHER PENDING PROCEEDINGS.—The 

6 Copyright Royalty Judges appointed pursuant to 

7 section 2 shall assume authority over any pending 

8 proceeding in which the hearing on the merits has 

9 not commenced. The Copyright Royalty Judges shall 

10 recommence any pending proceeding to determine 

11 terms and rates of royalty payments under section 

12 112 or 114 of title 17, United States Code, under 

13 the procedures, standards and regulations set forth 

14 in this Act, and the requirement set forth in section 

15 803(c)(1) of title 17, United States Code, that the 

16 proceeding be concluded no later than 15 days be17 fore the expiration of the then current statutory 

18 rates and terms, shall not apply. The Copyright 

19 Royalty Judges shall set a reasonable schedule for 

20 the continuation of any pending proceeding other 

21 than a proceeding to determine the terms and rates 

22 of royalty payments under section 112 or 114 of 

23 title 17, United States Code. 

Æ 


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