Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 4537 

1The Register cites to the regulations in the final 

determination, 37 CFR 385.1–385.17, by the 

references adopted by the CRJs. As of the date of 

this review, they have not been codified in the Code 

of Federal Regulations. 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. 2009–1] 

Review of Copyright Royalty Judges 

Determination 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Notice; correction. 

SUMMARY: The Register of Copyrights 

issues the following decision identifying 

and correcting erroneous resolutions of 

material questions of substantive law 

under title 17 that underlie or are 

contained in the Copyright Royalty 

Judges’ final determination regarding 

adjustment of reasonable rates and 

terms of royalty payments for the 

making and distribution of 

phonorecords of musical works, Docket 

No. 2006–3 CRB DPRA. The Register 

concludes that the Copyright Royalty 

Judges erroneously did not refer two 

novel questions of law as required 

under the statute; that they were in error 

in their conclusions regarding both their 

and the Register’s authority to review 

regulations submitted to them under an 

agreement by the participants; and that 

their conclusion that they could not 

review the agreement submitted by the 

participants led to the inclusion of 

regulations that constitute erroneous 

resolution by the CRJs of material 

questions of substantive law under title 

17. This decision corrects such errors 

and shall be made part of the record of 

the proceeding (Docket No. 2006–3 CRB 

DPRA). 

FOR FURTHER INFORMATION CONTACT: 

Tanya M. Sandros, Deputy General 

Counsel, and Stephen Ruwe, Attorney 

Advisor, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. 

SUPPLEMENTARY INFORMATION: 

Background 

The Copyright Royalty Judges 

(‘‘CRJs’’) are required by 17 U.S.C. 

115(c)(3)(C) and Chapter 8 to make and 

issue determinations and adjustments of 

reasonable rates and terms of royalty 

payments for the making and 

distribution of phonorecords of musical 

works in accordance with the provisions 

of 17 U.S.C. 115. Under 17 U.S.C. 

802(f)(1)(D), the Register of Copyrights 

may review for legal error the resolution 

by the CRJs of a material question of 

substantive law under title 17 that 

underlies or is contained in a final 

determination of the CRJs. If the Register 

of Copyrights concludes, after taking 

into consideration the views of the 

participants in the proceeding, that any 

resolution reached by the CRJs was in 

material error, the Register of Copyrights 

shall publish such decision correcting 

such legal errors in the Federal Register, 

together with a specific identification of 

the legal conclusion of the CRJs that is 

determined to be erroneous, which shall 

be made part of the record of the 

proceeding. 

On November 24, 2008, the CRJs 

issued to the participants, posted to 

their Web site, and transmitted to the 

Register of Copyrights a copy of their 

final determination setting such rates 

and terms. Final Determination of Rates 

and Terms in the Matter of Mechanical 

and Digital Phonorecord Delivery Rate 

Determination Proceeding, Docket No. 

2006–3 CRB DPRA (November 24, 

2008). The Register of Copyrights, 

pursuant to section 802(f)(1)(D), has 

reviewed the CRJs’ final determination. 

The Register concludes that the 

resolution of certain material questions 

of substantive law under title 17 that 

underlie or are contained in the final 

determination were in error and issues 

this decision correcting such errors. 

In the course of their proceeding to set 

rates and terms of royalty payments for 

the making and distribution of 

phonorecords of musical works in 

accordance with the provisions of 17 

U.S.C. 115, the CRJs addressed several 

material questions of substantive law 

that were properly referred to the 

Register of Copyrights under 17 U.S.C. 

802(f)(1)(A)(ii) and 802(f)(1)(B). 

However, the Register determines that 

they erroneously did not refer two 

additional novel questions of law as 

required under the statute. The Register 

also finds that the CRJs were in error in 

their conclusions regarding both their 

and the Register’s authority to review 

regulations submitted to them under an 

agreement by the participants. The CRJs’ 

conclusion that they could not review 

these regulations led to the inclusion of 

regulations that constitute erroneous 

resolutions of material questions of 

substantive law under title 17, which as 

stated, are corrected herein. 

The regulations ultimately contained 

in the CRJs’ final determination 

establishing rates and terms of royalty 

payments for the activities under 

section 115, i.e. ‘‘making and 

distributing phonorecords, including by 

means of digital phonorecord 

deliveries,’’ are divided into two 

subparts. The first portion, Subpart A, is 

the product of the findings and 

deliberations of the CRJs, and delineates 

the rates and terms for three distinct 

categories of phonorecords under the 

section 115 license. These particular 

categories identify phonorecords made 

under specific conditions and are 

categorized as ‘‘Physical phonorecord 

deliveries,’’ ‘‘Permanent digital 

downloads’’ and ‘‘Ringtones.’’ See 37 

CFR 385.1–385.4.1 The second portion, 

Subpart B, is the product of settlement 

negotiations among the participants, 

and delineates the rates and terms for 

two additional distinct categories 

identifying phonorecords made under 

the section 115 license. These particular 

categories identify phonorecords made 

under specific conditions and are 

identified as ‘‘Interactive streaming’’ 

and ‘‘Limited downloads.’’ Subpart B 

also indicates specific conditions under 

which ‘‘promotional royalty rates’’ are 

applicable to ‘‘Interactive streaming’’ 

and ‘‘Limited downloads.’’ See 37 CFR 

385.10–385.17. The Register observes 

that although the participants informed 

the CRJs that their agreement would 

address Limited downloads and 

Interactive streaming, including all 

known incidental digital phonorecord 

deliveries, their agreement ultimately 

only addressed ‘‘Interactive streaming’’ 

and ‘‘Limited downloads,’’ thus 

addressing less activity than might 

reasonably have been expected. 

The Register has also concluded that 

in setting forth rates and terms for these 

five distinct categories of phonorecords, 

the CRJs’ final determination does not 

include rates and terms for certain 

ongoing activities which may be 

licensable under the section 115 license, 

e.g., phonorecords made during the 

course of a non-interactive stream. 

Nevertheless, if a licensee makes and 

distributes phonorecords that do not fall 

within any of the five distinct categories 

of phonorecords for which specific rates 

have been set, the making and 

distribution of these phonorecords may 

still be covered by the section 115 

license, so long as the licensee operates 

within the statutory terms of the license, 

including the provisions addressing 

Notice of Intention to Use and 

Statements of Account, but the licensee 

would incur no obligation to pay 

royalties for such activity during the 

relevant time period. However, under 

certain circumstances, which are 

dictated by section 803(d)(2)(B), royalty 

rates may be set retroactively in future 

proceedings. 

Procedural Background of the CRJs’ 

Proceeding 

On January 9, 2006, the CRJs issued 

a Notice announcing commencement of 

this proceeding with a request for 

4538 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 

Petitions to Participate, which was 

published in the Federal Register. 71 FR 

1453. In response to the Notice, the 

following parties submitted petitions to 

participate: Royalty Logic, Inc. (‘‘RLI’’); 

the Songwriters Guild of America 

(‘‘SGA’’); the National Music 

Publishers’’ Association, Inc. 

(‘‘NMPA’’), the Songwriters Guild of 

America, and the Nashville Songwriters 

Association International, jointly 

(collectively, ‘‘Copyright Owners’’); 

Apple Computer, Inc.; America Online, 

Inc.; RealNetworks, Inc.; Napster, LLC; 

Sony Connect, Inc.; Digital Media 

Association (‘‘DiMA’’); Yahoo! Inc.; 

MusicNet, Inc.; MTV Networks, Inc.; 

and Recording Industry Association of 

America (‘‘RIAA’’). 

On August 1, 2006, prior to the filing 

of written direct statements, RIAA 

sought from the CRJs a referral of a 

novel question of law to the Register of 

Copyrights (‘‘Register’’). See Motion of 

[RIAA] Requesting Referral of a Novel 

Question of Substantive Law (filed 

August 1, 2006). RIAA asserted that the 

CRJs were compelled to refer the novel 

question of law to the Register under 

section 802(f)(1)(B). After considering 

the views of all of the participants, the 

CRJs granted RIAA’s motion in part and 

referred to the Register two novel 

questions of law regarding (1) whether 

ringtones—regardless of whether the 

ringtone is monophonic, polyphonic or 

a mastertone—constitute delivery of a 

digital phonorecord subject to statutory 

licensing under section 115 and (2) if so, 

what legal conditions and/or limitations 

would apply. See Order Granting in Part 

the Request for Referral of a Novel 

Question of Law, Docket No. 2006–3 

CRB DPRA (August 18, 2006). On 

October 16, 2006, the Register 

transmitted a Memorandum Opinion to 

the CRJs that addressed the novel 

questions of law. The Register’s 

Memorandum Opinion was published 

in the Federal Register on November 1, 

2006. 71 FR 64303. 

On January 7, 2008, DiMA requested 

referral to the Register of what it 

described as a novel question of law as 

to whether ‘‘interactive streaming’’ 

constituted a digital phonorecord 

delivery (‘‘DPD’’), asserting that the CRJs 

were compelled to refer the novel 

question of law to the Register under 

section 802(f)(1)(B). See Motion of 

[DiMA] Requesting Referral of a Novel 

Material Question of Substantive Law 

(‘‘DiMA Motion’’) (January 7, 2008). 

Copyright Owners opposed DiMA’s 

motion and RIAA took no position on it. 

The CRJs heard oral arguments on the 

motion on January 28, 2008. On 

February 4, 2008, the CRJs denied 

DiMA’s motion, finding that the matter 

of what is ‘‘interactive streaming’’ 

presented a question of fact and not a 

question of law as required by section 

802(f)(l)(B). See Order Denying Motion 

of [DiMA], for a Referral of a Novel 

Material Question of Substantive Law, 

Docket No. 2006–3 CRB DPRA (February 

4, 2008). 

Subsequent to the presentation of the 

rebuttal phase of their case, on May 15, 

2008, the participants informed the CRJs 

that they had reached a settlement 

regarding the rates and terms for 

‘‘limited downloads and interactive 

streaming, including all known 

incidental digital phonorecord 

deliveries’’ and agreed to submit the 

agreement to the CRJs at a later date. See 

Joint Motion to Adopt Procedures for 

Submission of Partial Settlement at 1 

(filed May 15, 2008). 

On July 2, 2008, after the evidentiary 

phase addressing the remaining issues 

in the proceeding, the participants filed 

their respective Proposed Findings of 

Fact and Conclusions of Law. The 

participants filed replies on July 18, 

2008. Closing arguments occurred on 

July 24, 2008, after which time the 

record was closed. 

On July 25, 2008, after closing 

arguments, the CRJs, on their own 

motion and under authority established 

in section 802(f)(1)(A)(ii), referred to the 

Register a material question of 

substantive law concerning the division 

of authority between the CRJs and the 

Register to establish terms under the 

section 115 statutory license. See Order 

Referring Material Question of 

Substantive Law, Docket No. 2006–3 

CRB DPRA (July 25, 2008). On August 

8, 2008, the Register transmitted a 

Memorandum Opinion to the CRJs that 

addressed the material question of 

substantive law. The Register’s 

Memorandum Opinion was published 

in the Federal Register on August 19, 

2008. 73 FR 48396. 

On September 22, 2008, the 

participants filed their partial settlement 

with the CRJs, and it was published in 

the Federal Register on October 1, 2008. 

73 FR 57033. Public comments were 

due on October 31, 2008. CTIA-The 

Wireless Association and the National 

Association of Broadcasters (‘‘CTIA/ 

NAB’’), non-participants to the rate 

setting proceeding, jointly filed the only 

comment on the agreement. They 

argued that adoption of the settlement 

was beyond the CRJs’ authority, 

contrary to law and bad policy. See 

Comments of CTIA-The Wireless 

Association and the National 

Association of Broadcasters (filed 

October 31, 2008). 

On October 2, 2008, the CRJs issued 

their Initial Determination of Rates and 

Terms subject to review by the 

participants and the filing of motions for 

a rehearing. See 17 U.S.C. 803(c)(1) and 

(2)(A) and (b). On October 17, 2008, 

RIAA filed a motion for rehearing to 

reconsider the timing of the late 

payment fee of 1.5% per month. After 

reviewing the motion, the CRJs denied 

the motion for rehearing, by Order dated 

November 12, 2008. On November 24, 

2008 the CRJs issued to the participants 

a copy of their Final Determination of 

Rates and Terms in the Matter of 

Mechanical and Digital Phonorecord 

Delivery Rate Determination Proceeding, 

Docket No. 2006–3 CRB DPRA (‘‘Final 

Determination’’), and transmitted a copy 

to the Register of Copyrights. See Final 

Determination of Rates and Terms in 

the Matter of Mechanical and Digital 

Phonorecord Delivery Rate 

Determination Proceeding, Docket No. 

2006–3 CRB DPRA (November 24, 2008). 

On January 8, 2009, the Register 

requested the participants’ views on 

potential legal errors contained in the 

CRJs’ final determination. In response, 

the Register received written views from 

RIAA, Copyright Owners, and DiMA on 

January 15, 2009. 

In accordance with the authority 

granted to the Register of Copyrights 

under 17 U.S.C. 802(f)(1)(D), the 

Register of Copyrights has reviewed the 

CRJs’ determination of rates and terms 

of royalty payments under section 115 

taking into account the views of the 

participants as reported in the CRJs’ 

final determination and in response to 

a request from the Register for written 

comments on specific issues. Request 

for Participants’ Views Regarding 

Possible Legal ErrorsCcontained in the 

Copyright Royalty Judges’ Final 

Determination (January 8, 2009). The 

Register concludes that certain 

resolutions of material questions of 

substantive law under title 17 which 

underlie or are contained in the final 

determination of the CRJs are in error. 

Review of Copyright Royalty Judges’ 

Determination 

1. Failure To Refer Novel Questions to 

the Register 

Under 17 U.S.C. 802(f)(1)(B), in any 

case in which a novel material question 

of substantive law concerning an 

interpretation of those provisions of title 

17 that are the subject of the proceeding 

is presented, the CRJs are required to 

request a written decision from the 

Register of Copyrights to resolve such a 

novel question. A ‘‘novel question of 

law’’ is a question of law that has not 

been determined in prior decisions, 

determinations, and rulings described in 

section 803(a) of the Copyright Act. See 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 4539 

17 U.S.C. 802(f)(1)(B)(ii). During the 

course of the proceeding, the CRJs 

referred two novel questions of 

substantive law to the Register, but they 

did not refer two additional novel 

material questions of substantive law 

concerning an interpretation of 

provisions of title 17. The CRJs’ failure 

to refer a novel material question of 

substantive law is itself an erroneous 

legal resolution of ‘‘a material question 

of substantive law under [title 17] that 

underlies or is contained in a final 

determination of the [CRJs].’’ Therefore 

any failure to refer a novel material 

question is subject to the Register’s 

review under section 802(f)(1)(D). 

One such novel question arose amidst 

DiMA’s motion for referral to the 

Register of what DiMA described as a 

novel question of substantive law as to 

whether ‘‘interactive streaming’’ 

constitutes a DPD under section 115. 

See Motion of [DiMA] Requesting 

Referral of a Novel Material Question of 

Substantive Law (filed January 7, 2008). 

After hearing the participants’ 

arguments on the motion, the CRJs 

denied DiMA’s motion, finding that the 

matter of what is ‘‘interactive 

streaming’’ presented a question of fact 

and not a question of law as required by 

section 802(f)(l)(B); a view shared by 

Copyright Owners. The CRJs accurately 

noted that the statute does not define or 

mention the term ‘‘interactive 

streaming’’ and that there is no 

agreement among the participants as to 

the precise meaning of the term. 

Additionally, the CRJs asserted that 

resolution of DiMA’s question would 

require a certain amount of inquiry into 

the factual circumstances, and the types 

of digital transmissions, that may or 

may not result in reproductions of 

musical works that are licensable under 

section 115. See Order Denying Motion 

of [DiMA], for a Referral of a Novel 

Material Question of Substantive Law, 

Docket No. 2006–3 CRB DPRA (February 

4, 2008). 

The Register notes that when the CRJs 

are confronted with novel material 

questions of law they are not restricted 

to considering the motions and 

formulations of questions as submitted 

by the participants. Rather, they are 

required to refer any novel questions (or 

issues) of law ‘‘concerning an 

interpretation of those provisions of 

[title 17] that are the subject of the 

proceeding.’’ 17 U.S.C. 802(f)(1)(B). 

While the issue of what is ‘‘interactive 

streaming’’ does appear to involve some 

degree of factual inquiry, it also raises 

at least one purely legal question that 

does not require resolution of specific 

factual disputes raised between the 

participants. For some time, the Office 

has recognized a general agreement 

among interested parties that streaming 

necessarily involves reproductions that 

are made on the receiving computer in 

order to better facilitate the actual 

performance of the work (often referred 

to as ‘‘buffer’’ copies). See Notice of 

Inquiry 66 FR 14099 (Mar. 9, 2001). The 

view that ‘‘interactive streaming’’ 

necessarily involves the making and 

delivery of buffer copies does not 

appear to be disputed among the 

participants to the proceeding. The 

purely legal question raised under such 

an undisputed understanding regarding 

‘‘interactive streaming’’ is ‘‘What 

constitutes a DPD?’’ This question 

clearly requires an interpretation of a 

provision of title 17. Specifically, it 

requires an interpretation of the 

definition of ‘‘digital phonorecord 

delivery’’ as found in section 115(d). 

Additionally, regardless of the factual 

issues surrounding DiMA’s original 

motion for referral, the Register observes 

that when the CRJs considered two 

novel questions concerning the scope of 

the section 115 license with regard to 

ringtones—a term also not defined or 

even mentioned in title 17—the 

participants submitted briefs that 

revealed significant factual 

disagreement as to whether certain 

ringtones constituted derivative works. 

In spite of this disagreement, the 

questions regarding ringtones were 

properly referred to the Register. 

Moreover, the Register was able to 

provide a responsive and instructive 

decision on the legal questions which 

acknowledged that factual distinctions 

would continue to dictate whether 

various ringtone activities fell within 

the scope of the section 115 license 

without needing to resolve any dispute 

over specific factual situations. See 

Memorandum Opinion on Material 

Questions of Law, Docket No. RF 2008– 

1 at 10 (August 8, 2008); see also, 73 FR 

48396 (Aug. 19, 2008). Finally, the 

Register notes that section 802(f)(1)(B) 

does not confine the concept of novel 

question of substantive law to those 

involving interpretation of terms 

defined or mentioned in title 17. 

Failure to refer the question of what 

constitutes a DPD to the Register has led 

to the adoption of a regulation that, on 

its face, overstates the scope of the 

section 115 license with respect to 

interactive streams. See 37 CFR 385.11 

(defining an interactive stream as an 

incidental DPD). As discussed in a 

subsequent portion of this review, the 

CRJs may exercise their continuing 

jurisdiction to redraft the regulation to 

clarify that an interactive stream that 

delivers a reproduction of a sound 

recording that qualifies as a DPD is, for 

purposes of the license, an incidental 

DPD. 

A second novel question was the 

subject of DiMA and RIAA’s requests for 

a clarification of the statute. DiMA and 

RIAA, using slightly different language, 

requested a determination as to the 

scope of the license with respect to 

copies made to facilitate the delivery of 

digital music. See DiMA PFF at ¶240 

(July 2, 2008); DiMA Second Amended 

Proposed Rates and Terms at 4 (July 2, 

2008); RIAA PFF at ¶1674–76, 1678–82 

(July 2, 2008); RIAA Second Amended 

Proposal at 6 (July 2, 2008). Citing to the 

Register’s August 19, 2008, 

Memorandum Opinion Responding to 

Material Questions of Law, the CRJs 

concluded that DiMA and RIAA’s 

requests would require interpretation of 

the scope, operation and/or obligations 

of the section 115 license, which is 

inconsistent with the CRJs’ authority. 

Final Determination at 71–72, citing to 

Memorandum Opinion on Material 

Questions of Law, Docket No. RF 2008– 

1 at 10 (Aug. 8, 2008); see also, 73 FR 

48396, 48399 (August 19, 2008). The 

CRJs are correct in this conclusion. 

Furthermore, the CRJs are correct that 

such questions of scope are inconsistent 

with their authority. In making these 

observations, the CRJs appear to 

recognize that the participants’ requests 

constituted a material question of 

substantive law. However, they do not 

appear to have recognized that the 

question was a novel one, and therefore 

required referral to the Register. Indeed, 

in the same Memorandum Opinion 

relied upon by the CRJs when they 

declined to interpret the scope of the 

license, the Register stated that ‘‘In 

instances where particular rates are 

being requested for the creation of 

particular types of DPDs and there is 

some question whether these DPDs fall 

within the scope of the license, those 

questions must be resolved in the 

proceeding. When such a question has 

not been determined before, it is a novel 

question of law which should be 

referred to the Register under section 

802(f)(1)(B).’’ 73 FR at 48399. 

Ultimately, the failure to refer this 

question is a harmless error because the 

Register has addressed the question and 

has determined, on an interim basis, 

that ‘‘server copies and intermediate 

reproductions may come within the 

scope of the license. The Register 

note[d] that a person seeking to operate 

under the section 115 license must still 

satisfy the threshold requirements of the 

license. But, having done so, that 

licensee’s coverage may extend to 

phonorecords other than those that are 

actually distributed provided that they 

4540 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 

2 ‘‘In cases where rates and terms have not, prior 

to the inception of an activity, been established for 

that particular activity under the relevant license, 

* * *’’ 17 U.S.C. 803(d)(2)(B). 

are made for the purpose of making and 

distributing a DPD.’’ Id. at 66180. 

Despite the fact that the failure to 

refer this question was ultimately 

harmless, had the CRJs referred the 

question, the participants and the CRJs 

could have adopted regulations that 

more clearly reflect the Register’s 

clarification of the legal issue. See 37 

CFR 201.18(a)(3); 201.19(a)(3); and 

255.4. (Noting that ‘‘a digital 

phonorecord delivery includes all 

phonorecords that are made for the 

purpose of making the digital 

phonorecord delivery.)’’. 

2. Erroneous Conclusion Regarding 

Authority Under Chapter and Section 

115. 

a. CRJs’ authority to review. 

Section 801(b)(7)(A) generally directs 

the CRJs to adopt as a basis for statutory 

terms and rates ‘‘an agreement 

concerning such matters reached among 

some or all of the participants in a 

proceeding at any time during the 

proceeding between participants.’’ In 

interpreting this provision, the CRJs 

concluded that ‘‘[o]nly if an objection is 

received by one or more of the parties 

are we given any discretion over the 

settlement, and then we are limited to 

rejecting it if we determine that the 

settlement ’does not provide a 

reasonable basis for setting statutory 

rates and terms.’’’ Final Determination 

at 18–20, citing section 801(b)(7)(A)(ii) 

(emphasis added). RIAA, DiMA, and the 

Copyright Owners support the CRJs’ 

interpretation of section 801(b)(7)(A). 

Views of RIAA at 6; Views of Copyright 

Owners at 9–10; and Views of DiMA at 

1 (January 15, 2009). This interpretation, 

however, is in error. 

While the provisions of section 

801(b)(7)(A) do limit the circumstances 

under which the CRJs are able to decline 

to adopt aspects of an agreement, it does 

not foreclose the CRJs from ascertaining 

whether specific provisions are contrary 

to law. The noted limitations only apply 

to the CRJs’ ability to adopt an 

agreement ‘‘as a basis for statutory rates 

and terms,’’ 17 U.S.C. 801(b)(7)(A), and, 

in doing so, they promote Congress’s 

policy to encourage parties to negotiate 

statutory rates and terms. See Views of 

RIAA at 6 and Views of Copyright 

Owners at 11–12 (January 15, 2009). 

The CRJs are not compelled to adopt 

a privately negotiated agreement to the 

extent it includes provisions that are 

inconsistent with the statutory license. 

Thus, while the CRJs are able to review 

the reasonableness of permissible terms 

and rates contained in an agreement 

only if a participant to the proceeding 

objects to the agreement, this provision 

does not preclude the CRJs from 

declining to adopt other portions of an 

agreement that would be contrary to the 

provisions of the applicable license(s) or 

otherwise contrary to statutory law. 

Furthermore, nothing in the statute 

limits the CRJs from considering 

comments filed by non-participants 

which argue that proposed provisions 

are contrary to statutory law. 

This conclusion is consistent with the 

CRJs’ decision that it had the authority 

to decline to adopt language in the 

participants’ agreement that stated that 

the rates in the agreement have no 

precedential effect and may not be 

introduced or relied upon in any 

governmental or judicial proceeding. 72 

FR 61586. Moreover, courts have 

consistently held that agencies cannot 

adopt regulations that are contrary to 

law. See, e.g., Vasquez-Lopez v. 

Ashcroft, 343 F.3d 961, 965 (9th Cir. 

2003) (‘‘The power of an administrative 

officer or board to administer a federal 

statute and to prescribe rules and 

regulations to that end is not the power 

to make law * * * but the power to 

adopt regulations to carry into effect the 

will of Congress as expressed by the 

statute. A regulation which does not do 

this, but operates to create a rule out of 

harmony with the statute, is a mere 

nullity.’’), cited in Joint Comment of 

CTIA–The Wireless Association and the 

National Association of Broadcasters at 

6, filed with Copyright Royalty Judges 

in response to their notice for comment 

on the participants agreement. 73 FR 

57033 (Oct. 1, 2008). 

Since the purpose of this proceeding 

is to establish rates and terms of 

payment for a statutory license, an 

agreement among the participants may 

only extend to establishing rates and 

terms which are permissible under the 

statute. Neither the participants nor the 

CRJs may add terms or conditions that 

alter or expand the statutory license. 

Hence, it was legal error for the CRJs to 

conclude that the restrictions on its 

authority to review the reasonableness 

of specific valid terms and rates also 

precluded its review of the legality of 

the provisions of the agreement as a 

threshold matter. 

b. Register’s authority to review. 

The CRJs’ erroneous conclusion that it 

had no authority to review broad 

aspects of the participants’ agreement 

led them to also conclude that the 

settlement does not represent a 

resolution by the CRJs and that therefore 

the Register’s review is not part of the 

procedure applicable to the relevant 

rates and terms established by the 

settlement provisions of section 

802(f)(1)(D). Final Determination at 19– 

20. The CRJs, however, have no 

authority to determine whether the 

Register, in her review of the CRJs’ final 

determination, has the authority to 

review for errors of law provisions in a 

settlement that is adopted by the CRJs. 

In reaching their conclusion, the CRJs 

argue that the provisions of the 

settlement do not constitute a finding of 

fact or resolution of law by the CRJs. 

However, as previously indicated, and 

despite their mistaken belief, the CRJs 

were not obligated to adopt any portion 

of an agreement that would be contrary 

to the provisions of the applicable 

license(s) or otherwise contrary to 

statutory law. By choosing to include 

provisions that they were able to reject, 

such provisions were freely adopted as 

resolutions by the CRJs. 

Furthermore, section 801(b)(7)(A) 

requires the CRJs to ‘‘adopt as a basis for 

statutory terms and rates or as a basis for 

the distribution of statutory royalty 

payments, an agreement concerning 

such matters reached among some or all 

of the participants in a proceeding,’’ 

(emphasis added). By ‘‘adopting’’ an 

agreement, the CRJs necessarily accept 

the terms of the agreement and 

‘‘resolve’’ any material question of 

substantive law that the adopted 

agreement purports to resolve. 

c. CRJs’ authority to determine rates 

for future activities. 

The CRJs indicate that in this 

proceeding they were unable to adopt 

rates for future activities without acting 

arbitrarily and capriciously. Final 

Determination at 60–62 (November 24, 

2008). The Register acknowledges that 

the CRJs decry the empty record in the 

instant case and finds no error in their 

decision not to set rates for future 

activities in this instance. However, to 

the extent the CRJs believe they lack the 

authority to set rates for future 

activities, the Register notes that the 

statute does not foreclose that 

possibility. Congress contemplated that 

the CRJs may set rates for particular 

activities, even prior to the inception of 

such activities.2 Additionally, the 

Register observes that the CRJs have 

broad discretion in making their 

determinations. See RIAA v. Copyright 

Royalty Tribunal, 662 F.2d 1, 8 (D.C. 

Cir. 1981) (stressing that ‘‘[t]he setting of 

the royalty rate is not a routine exercise 

in historical cost of service ratemaking 

for a public utility’’). Furthermore, the 

Register notes that Congress directed the 

CRJs to set royalty rates based upon 

broad policy objectives that require 

judgments of an inescapably uncertain 

and predictive character. See 17 U.S.C. 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 4541 

801(b)(1). For example, ‘‘some of the 

statutory factors require the [Judges] to 

estimate the effect of the royalty rate on 

the future of the music industry,’’ or to 

consider questions of ‘‘fairness.’’ RIAA, 

662 F.2d at 8. 

d. CRJs’ authority to limit scope of the 

license by not setting certain rates. 

The Register also observes that the 

consequence of the CRJs having set rates 

and terms for distinct categories of 

phonorecords, does not mean that the 

license is not available for additional 

activities under section 115. This 

observation is in contrast to the 

participants’ views expressed in the 

closing arguments of the proceeding 

indicating that rights for categories of 

phonorecords for which no rate is set 

may only be cleared through 

negotiation. See Closing Argument 

Transcripts 7/24/08 at 7843–7844; 7954; 

7975; and 7989. 

As the Register observed in her 

response to the CRJs’ referral of material 

questions of substantive law concerning 

the division of authority between the 

CRJs and the Register, ‘‘[t]he CRJs do not 

have the authority to issue rules setting 

forth the scope of activities covered by 

the license.’’ Final Order, Division of 

Authority Between the Copyright 

Royalty Judges and the Register of 

Copyrights under the Section 115 

Statutory License 73 FR 48399 (Aug. 19, 

2008). Section 115 provides a license for 

the making and distribution of 

phonorecords, including DPDs. It does 

not condition coverage on whether a 

rate for the making and distribution of 

the phonorecords has been set. 

Consequently, failure to set a rate for 

any particular category of phonorecords 

cannot diminish or otherwise affect the 

availability of the license. Rather, when 

categories of phonorecords created in 

the course of particular ongoing 

activities within the scope of the license 

are not assigned a rate, the result is that 

there is no obligation to pay royalties for 

those particular activities during the 

relevant time period. Therefore, 

contrary to the conclusion of RIAA, 

there is no ‘‘gap’’ in coverage for DPDs 

that do not qualify as permanent digital 

downloads, limited downloads or 

interactive streams. See Views of RIAA 

at 5 (January 15, 2009). However, future 

proceedings may retroactively apply 

rates to a particular activity under 

section 115 in cases where rates and 

terms have not, prior to the inception of 

that activity, been established for the 

particular activity. Such retroactive 

rates and terms shall then apply from 

the inception of the particular activity. 

See Infra section 3(b) regarding the final 

determination’s treatment of 

‘‘retroactive rates’’ under 17 U.S.C. 

803(d)(2)(B). 

3. Problematic provisions in the 

regulations promulgated in the final 

determination. 

In addressing the following regulatory 

provisions contained in the final 

determination, the Register 

acknowledges that both RIAA and 

Copyright Owners have argued that 

section 385.10 of the regulations 

satisfactorily addresses instances in 

which the rates and terms are, on their 

face, contrary to the statute. See Views 

of RIAA at 8 (January 15, 2009); Views 

of Copyright Owners at 15 (January 15, 

2009). While section 385.10 states that 

rates and terms shall be ‘‘in accordance 

with the provisions of 17 U.S.C. 115’’ 

and requires that a licensee shall 

‘‘comply with the requirements of that 

section,’’ such a provision is insufficient 

to address regulatory language that 

directly conflicts with the statute. The 

following regulations either conflict 

with statutory provisions in title 17 or 

could be read to alter or expand the 

statutory license. Prior determinations 

of the Librarian of Congress have 

considered and rejected similar terms 

that would have altered or expanded the 

statutory licenses as contrary to law. See 

Determination of Reasonable Rates and 

Terms for the Digital Performance of 

Sound Recordings, 63 FR 45269 (July 8, 

2002) (The Librarian concluded that 

neither the CARP nor the Librarian had 

the authority to adopt a regulation, 

whether as a condition of the license or 

not, that would foreclose a legal remedy 

for a breach of a legal obligation). 

Therefore, consistent with prior 

decisions specified in 803(a), and under 

the authority conferred by 802(f)(1)(D), 

the Register finds the following terms 

erroneous to the extent indicated herein. 

a. Interactive streams constitute 

DPDs. 

Section 385.11 of the regulations set 

forth in the final determination, which 

states that ‘‘[an] interactive stream is an 

incidental digital phonorecord delivery 

under 17 U.S.C. 115(c)(3)(C) and (D)’’ is 

erroneous. This articulation of what 

constitutes a DPD equates a means of 

transmission to the reproduction and 

delivery of a phonorecord. However, 

regulations cannot alter statutory terms 

of the section 115 license regarding 

what constitutes a DPD. 

The statutory criteria as to what 

constitutes a DPD are set forth in the 

notice announcing an Interim Rule in 

which the Office explains that a DPD 

requires a reproduction of a sound 

recording that must meet all three 

criteria specified in the statutory 

definition: (1) It must be delivered, (2) 

it must be a phonorecord, and (3) it 

must be specifically identifiable. 73 FR 

66173, 66176 (Nov. 7, 2008). Moreover, 

this Copyright Office rulemaking 

proceeding also addressed the question 

of interactive and non-interactive 

streams, noting that the determination 

of what constitutes a DPD is not dictated 

by the characterization of the 

transmission that delivers the 

phonorecord as interactive or noninteractive. Nevertheless, the Office did 

acknowledge that ‘‘it may be more 

common for interactive streams to result 

in DPDs and that it may be relatively 

uncommon for non-interactive streams 

to do so. However, if phonorecords are 

delivered by a transmission service, 

then under the last sentence of 115(d) it 

is irrelevant whether the transmission 

that created the phonorecords is 

interactive or non-interactive.’’ Id. at 

66180. In other words, a stream— 

whether interactive or non-interactive— 

may or may not result in a DPD 

depending on whether all the 

aforementioned criteria are met. A 

regulation that provides categorically 

that ‘‘[a]n interactive stream is an 

incidental digital phonorecord delivery 

under 17 U.S.C. 115 (c)(3)(C) and (D)’’, 

without regard to whether any of those 

required criteria have been met, 

articulates an erroneous conclusion of 

law. 

Hence, in light of the Office’s analysis 

accompanying its adoption of a more 

particularized definition of a DPD, the 

proposed regulation which states that 

all interactive streams, as defined by the 

agreement, are DPDs, is overbroad 

because it would include interactive 

streams that do not result in the delivery 

of a DPD. The Office recognizes, 

however, that the regulation may not 

have been intended to set a rate for 

interactive streams that do not result in 

the delivery of a phonorecord and that 

the problem may be the result of inartful 

drafting of the regulation rather than an 

erroneous conclusion over what 

constitutes a DPD, an observation 

confirmed by RIAA. Views of RIAA at 4 

(January 15, 2009). Nevertheless, 

because the regulatory text can easily be 

misinterpreted as stating that all 

interactive streams are incidental DPDs, 

and therefore subject to the license, the 

ambiguity in the regulatory text should 

be clarified. In either case, the problem 

is corrected by construing the regulation 

as referring only to those DPDs made 

and delivered during the course of an 

interactive stream. Under the CRJs’ 

continuing jurisdiction, the regulation 

may be redrafted to clarify that an 

interactive stream that delivers a 

reproduction of a sound recording that 

4542 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 

3The Register finds so support for Copyright 

Owners’ assertion that the previous rate for DPDs 

aplied only to permanent downloads. See Views of 

Copyright Owners at 17 (January 15, 2009). 

qualifies as a DPD is for purposes of the 

license, an incidental DPD. 

b. Limited retroactive effect of rates. 

Section 385.14(e) of the regulations 

set forth in the final determination 

provides, in pertinent part, that ‘‘in the 

case of licensed activity prior to the 

publication date, the promotional 

royalty rate shall apply to promotional 

interactive streams, and to limited 

downloads offered in the context of a 

free trial period for a digital music 

subscription service.’’ Such retroactive 

application of promotional royalty rates 

is erroneous to the extent that it is 

overbroad in reaching—and 

retroactively setting rates for— 

promotional activity where rates 

applicable to the activity were set for 

the previous rate period. Neither the 

CRJs nor the participants have the 

power to engage in retroactive rate 

setting other than that which is 

expressly authorized by the statute. As 

indicated in the Register’s August 19, 

2008 Memorandum Opinion responding 

to a material question of law, 

‘‘retroactive rulemaking is in most cases 

beyond the power of an agency’’ 

Memorandum Opinion on Material 

Questions of Law, Docket No. RF 2008– 

1 at 10 (August 8, 2008), Citing to 

Bowen v. Georgetown University 

Hospital, 488 U.S. 204 (1988). The 

Bowen court elaborated on retroactive 

rulemaking indicating that 

‘‘[r]etroactivity is not favored by the 

law’’ and that where rules may have 

retroactive effect, the ‘‘power is 

conveyed by Congress in express 

terms.’’ Bowen, 488 U.S. at 208 (1988). 

In the case of rates and terms set by 

the CRJs, title 17 establishes 

circumstances under which rates may 

be retroactively applied to activities 

under the section 115 license. Section 

803(d)(2)(B) states that ‘‘[i]n cases where 

rates and terms have not, prior to the 

inception of an activity, been 

established for that particular activity 

under the relevant license, such rates 

and terms shall be retroactive to the 

inception of activity under the relevant 

license covered by such rates and 

terms.’’ 

With respect to limited downloads, 

the previous rate-setting proceeding 

established royalty fees that clearly 

applied to limited downloads, whether 

such downloads were promotional or 

not. See 37 CFR 255.5 (1999) (setting 

rates for DPDs ‘‘except for digital 

phonorecord deliveries where the 

reproduction or distribution of a 

phonorecord is incidental to the 

transmission which constitutes the 

digital phonorecord delivery, as 

specified in 17 U.S.C. 115(c)(3)(c) and 

(D)’’). As the regulations adopted by the 

CRJs recite, ‘‘A limited download is a 

general digital phonorecord delivery 

under 17 U.S.C. 115(c)(3)(C) and (D)’’ 

Section 385.11 (definition of ‘‘Limited 

download,’’ para. 3). Thus limited 

downloads—whether or not for 

promotional purposes—that took place 

between the effective date of the rates 

established in 1999 and the effective 

date of the rates under review here are 

governed by the rates set in 1999.3 This 

error is corrected by clarifying that such 

promotional royalty rates do not apply 

retroactively to limited downloads 

offered in the context of a free trial 

period for a digital music subscription 

service. Under the CRJs’ continuing 

jurisdiction, the regulations may be 

redrafted to conform with this 

clarification. 

With respect to interactive streams, 

the regulations adopted by the CRJs 

characterize interactive streams as 

incidental DPDs (see section 385.11 

(definition of ‘‘Interactive stream’’)), and 

the Register accepts that 

characterization. The 1999 rate-setting 

proceeding did not set rates for 

incidental DPDs. Instead, the setting of 

rates for incidental DPDs was 

‘‘deferred’’ for consideration until the 

next adjustment proceeding. See 37 CFR 

255.6 (1999). The question thus arises 

whether, in light of the deferral of 

setting of rates for incidental DPDs, the 

retroactive application of the 

promotional royalty rate to promotional 

interactive streams would constitute a 

material error of law. The Register 

observes that both the meaning of the 

previous ‘‘deferral’’ of setting rates for 

incidental DPDs, (an activity whose 

inception appears to have occurred 

prior to the previous rate setting), as 

well as the statutory language, which 

was enacted after the previous 

proceeding, present complex issues 

which have not been fully briefed by the 

parties in any context. Section 

803(d)(2)(B) could be read to authorize 

the retroactive setting of rates for 

incidental DPDs when no such rates had 

been previously set, even in cases where 

the issue could and perhaps should 

have been addressed in the previous 

rate-setting proceeding. On the other 

hand, the Register questions whether 

permitting the retroactive setting of rates 

under such circumstances is wise or 

consistent with the intent of Congress 

when it enacted the Copyright Royalty 

and Distribution Reform Act of 2003 

(which among other things, amended 

Chapter 8 to include section 

803(d)(2)(B). See H.R. Rep. 108–408 

(2004), at 101 (remarks of co-sponsor 

and subcommittee ranking member Rep. 

Howard Berman: ‘‘The series of 

interrelated changes ensures that all 

rates and terms for statutory licenses 

will be set prospectively, not 

retroactively, and eliminate, therefore, 

the possibility that a time period 

covered by a statutory license will 

commence before the establishment of 

rates and terms.’’). However, given the 

lack of any evidence or in-depth 

argument on these questions and the 

compressed period of time allotted by 

section 802(f)(1)(D) for review by the 

Register of the CRJs’ determination, the 

Register declines to come to a 

conclusion regarding application of the 

promotional royalty rate to promotional 

interactive streams. 

c. Timing of payment. 

Section 385.15 of the regulations 

states that ‘‘[p]ayment for any 

accounting period for which payment 

otherwise would be due more than 180 

days after the publication date shall be 

due as otherwise provided under 17 

U.S.C. 115 and its implementing 

regulations. Payment for any prior 

accounting period shall be due 180 days 

after the publication date.’’ This 

provision erroneously alters the timing 

of payment already established in 

section 115. Specifically, section 

115(c)(5) states that ‘‘[r]oyalty payments 

shall be made on or before the twentieth 

day of each month and shall include all 

royalties for the month next preceding;’’ 

and it is this provision in the law that 

governs the payment schedule for use of 

the statutory license. While the Register 

understands the participants’ reasons 

for adopting a term that would delay the 

first payment under the new rate 

schedule, there is no precedent for this 

practice, contrary to the RIAA’s 

interpretation of a term adopted in a 

past rate setting proceeding. See Views 

of RIAA at 11 (January 15, 2009). 

Prior determinations of the Librarian 

of Congress have considered and 

rejected as contrary to law similar terms 

on the basis that such terms would have 

altered or nullified provisions in the 

statutory licenses. For example, in 1998, 

the Librarian, upon the recommendation 

of the Register, rejected a term of 

payment which would have altered a 

payment schedule already established 

by law and delayed the first payment for 

six months. Determination of 

Reasonable Rates and Terms for the 

Digital Performance of Sound 

Recordings, 63 FR at 25410, citing 

section 114(f)(5)(B). In that proceeding, 

the relevant statutory provision required 

‘‘any royalty payments in arrears [to] be 

made on or before the twentieth day of 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 4543 

the month next succeeding the month in 

which the royalty fees are set.’’ Because 

the proposed term would not have 

required payment to be made in 

accordance with this provision, the 

Librarian rejected the term as contrary 

to law. Similarly, in a 2002 proceeding 

to set rates and terms for the digital 

performance of sound recordings and 

the making of ephemeral reproductions, 

the Librarian accepted the Register’s 

recommendation to adopt September 1, 

2002, as the effective date of the rates 

and terms for the statutory license rather 

than use the publication date of the 

Librarian’s order. The purpose in setting 

a later effective date was to delay the 

adoption of the new rates and terms for 

a period of time as a way to reduce the 

financial burden on licensees who had 

to pay royalties that had accrued since 

1998, and to ensure that the date that 

had been adopted for the first payment, 

October 20, 2002, complied with the 

statutory provision that required 

payments in arrears to be paid ‘‘on a 

date certain in the month following the 

month in which the rate is set.’’ 67 FR 

at 45271 (July 8, 2002). Had the rates 

and terms become effective on the 

publication date, this provision would 

have been contrary to law. 

Consequently, in both cases, the 

Register recommended that the 

Librarian adjust the effective date for the 

adopted rates and terms under his 

authority in 17 U.S.C. 802(g)(2002) to 

align the date for the first payment 

adopted through the rate setting 

proceeding with the date for making the 

first payment as specified in the 

statutory license. 

The CRJs have the same authority to 

determine the date the adopted rates 

and terms take effect. 17 U.S.C. 

803(d)(2)(B). This provision first 

establishes that ‘‘[i]n [other] cases where 

rates and terms do not expire on a 

specified date, successor rates and terms 

shall take effect on the first day of the 

second month that begins after the 

publication of the determination of the 

Copyright Royalty Judges in the Federal 

Register.’’ It then continues, ‘‘except as 

otherwise provided in this title, or by 

the Copyright Royalty Judges, or as 

agreed by the participants in the 

proceeding that would be bound by the 

rates and terms.’’ If the purpose of the 

regulation on timing of payments was to 

provide relief to licensees from an 

onerous first payment, altering the 

effective date of the license period 

would be one way to provide the 

licensees some relief in meeting its 

royalty obligation when payment 

becomes due. See, e.g., Determination of 

Reasonable Rates and Terms for the 

Digital Public Performance of Sound 

Recordings, 63 FR at 25412 (May 8, 

1998) (adjusting the effective date of the 

rate setting determination to provide 

licensees with time to adjust their 

business operations to meet obligation 

to make timely payment of arrears). The 

Register takes no position, however, on 

whether the effective date should be 

adjusted, noting that such a decision is 

within the discretion of the CRJs and the 

participants themselves. 

d. Statements of account. 

Section 385.14(a)(4) of the regulations 

set forth in the final determination, 

which provides, in pertinent part, that 

‘‘[f]or the avoidance of doubt, however, 

except as provided in paragraph (a) of 

this section, statements of account 

under 17 U.S.C. 115 need not reflect 

interactive streams or limited 

downloads subject to the promotional 

royalty rate’’ is erroneous. Regulations 

cannot alter statutory terms of the 

section 115 license regarding Statements 

of Account. Title 17 authorizes the 

Register to ‘‘prescribe regulations under 

which detailed cumulative annual 

statements of account, certified by a 

certified public accountant, shall be 

filed for every compulsory license under 

this section.’’ 17 U.S.C. 115(c)(5). The 

CRJs cannot alter requirements issued 

by the Register regarding statements of 

account. As indicated in the Register’s 

response to the CRJs’ referral of material 

questions of substantive law concerning 

the division of authority between the 

CRJs and the Register, ‘‘[a]uthority to 

issue regulations regarding these 

statements of account is the exclusive 

domain of the Register.’’ Final Order, 

Division of Authority Between the 

Copyright Royalty Judges and the 

Register of Copyrights under the Section 

115 Statutory License 73 FR 48398, 

(August 19, 2008). 

Additionally, section 115(c)(5) 

indicates that ‘‘[t]he regulations [of the 

Register] covering both the monthly and 

the annual statements of account shall 

prescribe the form, content, and manner 

of certification with respect to the 

number of records made and the 

number of records distributed.’’ 17 

U.S.C. 115(c)(5). There is no statutory 

authority for an exception to this 

requirement for certain types of 

‘‘phonorecords’’ or for the participants 

to alter this provision by agreement. As 

previously referenced, prior 

determinations of the Librarian of 

Congress have considered and rejected 

similar terms that altered or expanded 

the statutory licenses. See supra at 

section 3(c) citing 63 FR 25394, and 63 

FR at 45269. 

The problem is corrected by clarifying 

that licensees are required to operate 

within the Register’s Statements of 

Account and Notice of Intention to Use 

regulations, even if such regulations 

foreclose the application of certain 

provisions included in the CRJs’ final 

determination. Any agreement among a 

licensee and a copyright owner to adopt 

terms that alter the statutory conditions 

and terms necessarily means that the 

licensee is operating under a private 

license rather than the statutory license. 

Harry Fox Agency, Inc. v. Mills Music, 

Inc., 543 F. Supp. 844, 851–852 

(S.D.N.Y. 1982). Under the CRJs’ 

continuing jurisdiction, the regulations 

may be redrafted to clarify that licensees 

must comply with the Register’s 

regulations addressing Statements of 

Account. 

CRJs’ Continuing Jurisdiction 

The Register notes that the CRJs enjoy 

continuing jurisdiction to amend their 

final determination. Under section 

803(c)(4), ‘‘[t]he Copyright Royalty 

Judges may issue an amendment to a 

written determination to correct any 

technical or clerical errors in the 

determination or to modify the terms, 

but not the rates, of royalty payments in 

response to unforeseen circumstances 

that would frustrate the proper 

implementation of such determination. 

Such amendment shall be set forth in a 

written addendum to the determination 

that shall be distributed to the 

participants of the proceeding and shall 

be published in the Federal Register.’’ 

This authority may be exercised to 

codify the corrections identified and 

made herein by the Register through her 

authority under section 802(f)(1)(D). 

Conclusion 

Having reviewed the CRJs’ resolution 

for legal error, pursuant to the 

requirements established in section 

802(f)(1)(D), the Register issues this 

written decision correcting the above 

referenced legal errors not later than 60 

days after the date on which the final 

determination by the CRJs was issued. 

This decision shall be made part of the 

record of the proceeding (Docket No. 

2006–3 CRB DPRA), and the 

conclusions of substantive law 

involving and interpretation of title 17 

contained herein shall be binding as 

precedent upon the CRJs in subsequent 

proceedings. 

Dated: January 16, 2009. 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. E9–1444 Filed 1–23–09; 8:45 am] 

BILLING CODE 1410–30–P