9360 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices

and (4) the filing of written submissions

by parties to the investigation.

The Commission expects to reach a

determination in this proceeding

without conducting a public hearing or

delegating the proceeding to an

administrative law judge for a hearing

and a recommended determination.

All nonconfidential documents filed

in the investigation, listed in the

Commission Order issued along with

this notice, or filed in the modification

proceeding are or will be made available

for public inspection during official

business hours (8:45 a.m. to 5:15 p.m.)

in the Commission’s Office of the

Secretary, Dockets Branch, 500 E Street,

SW., Room 112, Washington, DC 20436,

telephone 202–205–1802.

In addition, the Commission Order

issued along with this notice,

Littelfuse’s written report, the

Commission investigative staff’s written

comments on that report, and all

nonconfidential documents filed in the

modification proceeding will be

available for inspection on the

Commission’s website. To access them

from the Home Page of the

Commission’s Internet server, click on

‘‘EDIS ON–LINE,’’ click on ‘‘337’’ under

‘‘Home,’’ click on ‘‘337 114 Violation

Miniature Plug-In Blade Fuses,’’ and

then click on the specific document to

be reviewed.

Written Comments. Interested persons

who are not parties to the investigation

may file written comments on (1) the

conditions of fact or law and the public

interest reasons set forth in the

Commission Order of January 30, 2001,

that prompted the Commission to

institute the proceeding, (2) the specific

modification that the Commission is

contemplating, and (3) any other issues

that will aid the Commission in

determining whether to modify the

trade dress/product configuration

provision of the exclusion order. Such

comments must be filed in accordance

with the Commission’s Rules of Practice

and Procedure, particularly the relevant

provisions of 19 CFR 201.6, 201.8

(except for the number of copies

prescribed by 201.8(d)), 201.14, 201.16,

and 210.4 through 210.7.

Issued: February 1, 2001.

By Order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 01–3195 Filed 2–6–01; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

Sunshine Act Meeting

AGENCY HOLDING THE MEETING: United

States International Trade Commission.

TIME AND DATE: February 12, 2001 at 2

p.m.

PLACE: Room 101, 500 E Street SW.,

Washington, DC 20436, Telephone:

(202) 205–2000.

STATUS: Open to the public.

MATTERS TO BE CONSIDERED:

1. Agenda for future meeting: none.

2. Minutes.

3. Ratification List.

4. Inv. Nos. 701–TA–413 and 731–

TA–913–918 (Preliminary) (Stainless

Steel Bar from France, Germany, Italy,

Korea, Taiwan, and the United

Kingdom)—briefing and vote. (The

Commission is currently scheduled to

transmit its determination to the

Secretary of Commerce on February 12,

2001; Commissioners’ opinions are

currently scheduled to be transmitted to

the Secretary of Commerce on February

20, 2001.)

5. Outstanding action jackets:

(1) Document No. EC–01–003:

Approval of final report in Inv. No. 332–

413 (The Economic Impact of U.S.

Sanctions with Respect to Cuba).

(2) Document No. ID–01–001:

Approval of study coverage, objectives,

methodology, travel requirements,

annotated outline, and revised staffing

plan and work schedule in Inv. No.

332–423 (The Effects of EU Policies on

the Competitive Position of the U.S. and

EU Horticultural Products Sector).

In accordance with Commission

policy, subject matter listed above, not

disposed of at the scheduled meeting,

may be carried over to the agenda of the

following meeting.

Issued: February 2, 2001.

By order of the Commission:

Donna R. Koehnke,

Secretary.

[FR Doc. 01–3331 Filed 2–5–01; 3:13 pm]

BILLING CODE 7020–02–U

INTERNATIONAL TRADE

COMMISSION

Sunshine Act Meeting

AGENCY HOLDING THE MEETING: United

States International Trade Commission.

TIME AND DATE: February 13, 2001 at 11

a.m.

PLACE: Room 101, 500 E Street SW.,

Washington, DC 20436 Telephone: (202)

205–2000.

STATUS: Open to the public.

MATTERS TO BE CONSIDERED:

1. Agenda for future meeting: none.

2. Minutes.

3. Ratification List.

4. Inv. Nos. 701–TA–355 and 731–

TA–659–660 (Review) (Grain-Oriented

Silicon Electrical Steel from Italy and

Japan)—briefing and vote. (The

Commission is currently scheduled to

transmit its determination and

Commissioners’ opinions to the

Secretary of Commerce on February 23,

2001.)

5. Outstanding action jackets:

(1) Document No. EC–01–003:

Approval of final report in Inv. No. 332–

413 (The Economic Impact of U.S.

Sanctions with Respect to Cuba).

(2) Document No. ID–01–001:

Approval of study coverage, objectives,

methodology, travel requirements,

annotated outline, and revised staffing

plan and work schedule in Inv. No.

332–423 (The Effects of EU Policies on

the Competitive Position of the U.S. and

EU Horticultural Products Sector).

In accordance with Commission

policy, subject matter listed above, not

disposed of at the scheduled meeting,

may be carried over to the agenda of the

following meeting.

Issued: February 2, 2001.

By order of the Commission:

Donna R. Koehnke,

Secretary.

[FR Doc. 01–3332 Filed 2–5–01; 3:13 pm]

BILLING CODE 7020–02–U

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 99–3 CARP DD 95–98]

Distribution of 1995, 1996, 1997, and

1998 Digital Audio Recording

Technology Royalties

AGENCY: Copyright Office, Library of

Congress.

ACTION: Distribution Order.

SUMMARY: The Librarian of Congress,

upon the recommendation of the

Register of Copyrights, is adopting the

determination of the Copyright

Arbitration Royality Panel (‘‘CARP’’)

and issuing an order announcing the

allocation of the royalty fees in the

1995, 1996, 1997, and 1998 Musical

Works Funds. These fees are paid to the

Copyright Office by importers and

manufacturers of Digital Audio

Recording Devices and Media (‘‘DART’’)

who distribute these products in the

United States.

EFFECTIVE DATE: The percentages

announced in this Order are effective as

of February 7, 2001.

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices 9361

ADDRESSES: The full text of the CARP’s

report to the Librarian of Congress is

available for inspection and copying

during normal business hours in the

Office of the General Counsel, James

Madison Memorial Building, Room LM–

403, First and Independence Avenue,

SE, Washington, DC, 20559–6000.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or

Tanya M. Sandros, Senior Attorney,

Copyright Arbitration Royalty Panel

(‘‘CARP’’), PO Box 70977, Southwest

Station, Washington, DC 20024.

Telephone: (202) 707–8380. Telefax:

(202) 252–3423.

SUPPLEMENTARY INFORMATION:

Background

The Audio Home Recording Act of

1992, Public Law No. 102–563, requires

manufacturers and importers of digital

audio recording devices and media

which are distributed in the United

States to pay royalty fees to the

Copyright Office. Upon receipt, the

Copyright Office deposits these fees

with the Treasury of the United States.

17 U.S.C. 1005.

Interested copyright parties must file

a claim to these fees each year during

January and February to establish their

entitlement to a portion of the funds.

How these funds are distributed to the

various interested copyright parties is

decided either by the parties or by Order

of the Librarian, following a distribution

proceeding conducted by a Copyright

Arbitration Royalty Panel (‘‘CARP’’). 17

U.S.C. 1007.

On May 4, 1999, the Copyright Office

requested comments from the interested

copyright parties as to the existence of

controversy concerning the distribution

of the DART royalty fees in the 1995,

1996, 1997 and 1998 Musical Works

Funds, and notices of intent to

participate in any proceeding to

determine the distribution of these

funds. In addition, the Office

announced that it was consolidating the

consideration of the distribution of the

1995–1998 Musical Works Funds into a

single proceeding in order to have

sufficient funds to cover the cost of an

arbitration proceeding. 64 FR 23875

(May 4, 1999).

Ten parties filed comments on the

existence of controversies and notices of

intent to participate in this proceeding:

Broadcast Music, Inc. (‘‘BMI’’); the

American Society of Composers,

Authors and Publishers (‘‘ASCAP’’);

SESAC, Inc. (‘‘SESAC’’); the Harry Fox

Agency (‘‘HFA’’); the Songwriters Guild

of America (‘‘SGA’’); and Copyright

Management, Inc. (‘‘CMI’’) (collectively,

the ‘‘Settling Parties’’); Carl

DeMonbrun/Polyphonic Music, Inc.

(‘‘DeMonbrun’’); James Cannings/Can

Can Music (‘‘Cannings’’); Alicia Carolyn

Evelyn (‘‘Evelyn’’); and Eugene

‘‘Lampchops’’ Curry/TaJai Music, Inc.

(‘‘Curry’’).

Prior to the commencement of the

proceeding, Cannings and DeMonbrun

notified the Office that they had settled

their claims with the Settling Parties

and that they were withdrawing from

the proceeding. See Notices of

Settlement and Withdrawals of Claims

in Docket No.99–3 DD 95–98 (dated

November 10, 1999). This settlement

resolved the remaining controversy over

the distribution of the 1996 Musical

Works Funds and left Evelyn’s claim to

a share of the royalty fees in the 1995,

1997 and 1998 Writer’s Subfunds and

Curry’s claim to a share of the royalty

fees in both the 1995 and 1997 Writer’s

and Publisher’s Subfunds to be

determined.

Each of the three participants filed his

or her direct case with the Office on

November 15, 1999, commencing the

45-day precontroversy discovery period.

In addition, the Settling Parties filed a

motion to dispense with formal hearings

and to conduct the proceeding on the

basis of written pleadings alone and a

motion for full distribution of those

funds not in controversy and a partial

distribution of all remaining DART

royalties.

The Copyright Office granted the

motion for a full distribution of those

royalty fees that were no longer in

controversy and granted in part the

request for a partial distribution of the

remaining funds. See Order in Docket

No. 99–3 CARP DD 95–98 (December

22, 1999). However, the Office did not

rule on the motion to dispense with

formal hearings, choosing instead to

designate the issue to the CARP. Id.

On April 10, 2000, the Copyright

Office announced the names of the three

arbitrators chosen for this proceeding

and the initiation of the 180-day

arbitration period in a Federal Register

notice. 65 FR 19025 (April 10, 2000).

Shortly thereafter, the Chairperson of

the panel resigned due to a perceived

conflict of interest. Consequently, the

Office suspended the 180-day period

from May 16, 2000, until June 16, 2000,

and a new chairperson was selected

during this period in accordance with

37 CFR 251.6(f).

The first meeting between the parties

and the arbitrators took place on June

19, 2000. The purpose of this initial

encounter was to set the schedule for

the proceeding and to resolve the two

remaining procedural issues: whether to

grant the Settling Parties’ motion to

suspend formal hearings and proceed on

the basis of the formal record only and

whether to allow the filing of a written

rebuttal case. The CARP heard oral

argument from the parties on these

issues that day; and based upon these

hearings, the Panel decided ‘‘to waive

the requirement of oral evidentiary

hearings, to proceed upon the written

record alone, and to permit the filing of

written rebuttal cases.’’ CARP Report,

¶ 24. See Order in Docket No. 99–3

CARP DD 95–98 (June 19, 2000). The

Panel delivered its final report to the

Copyright Office on November 9, 2000.

The Panel’s Report

Based upon the evidence offered in

the written record, the Panel determined

that the royalties in the 1995, 1997, and

1998 Musical Works Funds should be

distributed as follows:

To Mr. Curry: 0.001966% of both the

1995 Writers and Publishers Subfunds;

and 0.001027% of both the 1997 Writers

and Publishers Subfunds.

To Ms. Evelyn: 0.000614% of the

1995 Writers Subfund; 0.000130% of

the 1997 Writers Subfund and

0.000144% of the 1998 Writers

Subfund.

To the Settling Parties: 99.997420% of

the 1995 Writers Subfund and

99.998034% of the 1995 Publishers

Subfund; 99.998843% of the 1997

Writers Subfund and 99.998973% of the

1997 Publishers Subfund; and

99.999856% of the 1998 Writers

Subfund.

As in the prior proceeding to

determine the distribution of the 1992–

1994 Musical Works Funds, the CARP

adopted the Settling Parties’

methodology which gives Curry and

Evelyn a share of the royalty fees from

a particular subfund based upon the

percentage of their song titles sold

during the relevant time period. The

Settling Parties receive all remaining

royalty fees because they represent the

interests of the remaining copyright

owners entitled to receive a portion of

these funds.

Standard of Review

Section 802(f) of the Copyright Act

directs that the Librarian shall adopt the

report of the CARP ‘‘unless the Librarian

finds that the determination is arbitrary

or contrary to the applicable provisions

of this title.’’ The Librarian of Congress

has discussed his narrow scope of

review in great detail in prior decisions

and concluded that the use of the term

‘‘arbitrary’’ in this provision is no

different than the ‘‘arbitrary’’ standard

described in the Administrative

Procedures Act, 5 U.S.C. 706(2)(A). See

63 FR 49823 (September 18, 1998); 63

FR 25394 (May 8, 1998); 62 FR 55742

9362 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices

(October 28, 1997); 62 FR 6558

(February 12, 1997); 61 FR 55653

(October 28, 1996). Thus, the standard

of review adopted by the Librarian is

narrow and provides that the Librarian

will not reject the determination of a

CARP unless its decision falls outside

the ‘‘zone of reasonableness’’ that had

been used by the courts to review

decisions of the Copyright Royalty

Tribunal. See National Cable Television

Ass’n v. Copyright Royalty Tribunal, 724

F.2d 176, 182 (D.C. Cir. 1983).

Moreover, based on a determination by

the Register and the Librarian that the

Panel’s decision is neither arbitrary or

contrary to law, the Librarian will adopt

the CARP’s determination even if the

Register and the Librarian would have

reached conclusion different from the

conclusions reached by the CARP.

The U.S. Court of Appeals for the

District of Columbia has stated,

however, that the Librarian would act

arbitrarily if ‘‘without explanation or

adjustment, he adopted an award

proposed by the Panel that was not

supported by any evidence or that was

based on evidence which could not

reasonably be interpreted to support the

award.’’ See National Ass’n of

Broadcasters v. Librarian of Congress,

146 F.3d 907, 923 (D.C. Cir. 1998).

For this reason, the Panel must

provide a detailed rational analysis of

its decision, setting forth specific

findings of fact and conclusions of law.

See National Cable Television Ass’n v.

Copyright Royalty Tribunal, 689 F.2d

1077, 1091 (D.C. Cir. 1992), (requiring

Copyright Royalty Tribunal to weigh all

relevant considerations and set out its

conclusions in a form that permits the

court to determine whether it has

exercised its responsibilities lawfully).

It is then the task of the Register to

review the Panel’s report and make her

recommendation to the Librarian as to

whether it is arbitrary or contrary to the

provisions of the Copyright Act and, if

so, whether and in what manner, the

Librarian should substitute his own

determination.

Review of the CARP Report

a. Determination of the Panel

The Panel found that the Settling

Parties are entitled to 100% of the funds

in the 1995, 1996, 1997, and 1998

Musical Works Funds minus the

amount owed to Curry and Evelyn. The

methodology used to determine Curry’s

and Evelyn’s shares is identical to the

method used to determine the

distribution of the 1992, 1993, and 1994

Musical Works Funds in an earlier

proceeding. See 62 FR 6558 (February

12, 1997). It is a simple arithmetic

calculation which determines each

individual claimant’s share by

calculating the number of song titles

credited to the claimant and sold in year

X and dividing that figure by the total

number of song titles sold that year.

This computation represents the

claimant’s proportionate share of the

total royalties in year X.

The Panel adopted the Settling

Parties’ formula, in part, because Curry

and Evelyn, while objecting to the use

of this same formulation, failed to offer

any alternative systematic method or

formula for calculating each party’s

share of the royalties. CARP Report

¶¶ 38, 59. Instead, both Curry and

Evelyn suggested that each of them is

entitled to 1% of the royalty fees

collected for any year to which they

filed a claim. The Panel rejected this

proposal because it fails to explain why

two individual claimants are entitled to

1% of the annual funds when the total

claimant pool numbers in the

thousands. ‘‘If each of the thousands of

claimants represented in this

proceeding were to receive 1% of the

DART royalties available for

distribution, the total claimed would

quickly exceed 100%.’’ CARP Report

¶ 59.

Evelyn and Curry, however, do not

accept the Settling Parties’ contention

that they represent thousands of

claimants, arguing in their respective

filings that the organizations and

associations comprising the Settling

Parties cannot represent individual

claimants and act as their agent in these

proceedings. See Curry’s Direct Cast at

2; Evelyn’s Rebuttal Case at ¶¶ 1–9;

Evelyn Petition at 1–2.

The Panel considered these

allegations and found that the Settling

Parties are ‘‘interested copyright

parties,’’ pursuant to 17 U.S.C. 1001(7)

and may act as agents for their members.

CARP Report ¶ 74. The Panel noted that

an agency relationship is established for

the purpose of a DART proceeding

when an association or organizations

files a DART claim on behalf of its

members in accordance with § 259.2(c)

of the Copyright Office rules. This

provision requires an organization or

association, which acts as a common

agent on behalf of the members of its

organization, to obtain separate, specific

and written authorization from each of

its members or affiliates in order to file

a DART claim; and it further requires

that each claim list the name of each

individual songwriter and music

publisher on whose behalf the

organization is filing its claim. CARP

Report ¶ 75; see also, 37 CFR 259.2(c)

and 259.3(d). Based on these written

expressions of the agency relationship,

the CARP found that each of the Settling

Parties has the authority to act as an

agent for the members listed in the

claims.

The CARP then examined the record

evidence and the Settling parties’

formula for calculating Evelyn’s and

Curry’s share. First, it considered the

Settling Parties’ use of SoundScan data

to establish the universe of record sales

for each year, including testimony from

Michael Fine, co-founder and chief

executive of SoundScan. It weighted

Fine’s testimony, which identified

Sound Scan as a premier independent

online information system that tracks

music sales throughout the United

States, against challenges from Evelyn

and Curry, who argued that the

SoundScan data was incomplete

because it did not include record club,

computer and foreign sales figures.

CARP Report ¶¶ 32–33, 62. It found that

Evelyn and Curry were correct to

conclude that inclusion of such data

would indeed increase their total record

sales, but went on to note that it would

also increase the total record sales

figures for other claimants. It then

accepted the Settling Parties’ conclusion

that adding to the universe of sales

would in all likelihood decrease the

amount of Evelyn’s and Curry’s awards.

CARP Report ¶ 62. The Panel also

rejected Curry’s and Evelyn’s assertion

that the total record sales figures should

be adjusted to include foreign record

sales because it determined that such

sales are not compensable under the

Audio Home Recording Act. CARP

Report ¶ 62. Furthermore, and more

importantly, the CARP found that

neither Curry nor Evelyn offered an

alternative mechanism to use of the

SoundScan data for figuring out how

many records sales occurred. CARP

Report ¶¶ 50–53, 62, 68–69. Thus,

finding not other basis for determining

the universe of total record sales in the

written record, the Panel accepted the

testimony of Michael Fine and his

methodology for determining the total

number of record sales in any given

year. CARP Report ¶ 33.

Next, the Panel scrutinized the

evidence used to determine the number

of record sales of Curry’s and Evelyn’s

works. First, it found that Curry and

Evelyn had submitted no evidence into

the record of either record sales or

performances of their works. This meant

that the Settling Parties offered the only

evidence on the number of record sales

garnered by these claimants. CARP

Report ¶¶ 64–65, 70. To make this

determination, the Settling parties first

identified the names of the record titles

to which Curry and Evelyn have a claim

for purposes of this proceeding by

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices 9363

1This website provides public access to a

comprehensive database of information regarding

recording artists, albums, and songs.

reference to the list of titles identified

for each claimant in the prior DART

distribution proceeding, see Panel’s

Report in Docket No. 95–1 CARP DD

92–94 at ¶¶ 34, 35, the songs listed on

the DART claims, and by conducting a

search of the allmusic.com website.1

Next, the Settling Parties identified the

albums and singles which included

these works by searching these titles in

Phonolog, an industry standard

directory that lists all records, CDs,

cassettes, albums and singles issued in

the United States. CARP Report ¶¶ 38–

40. Once the titles were identified, it

was a simple matter to use the

SoundScan data to determine the

number of unit sales per work for each

year in controversy. CARP Report

¶¶ 44–47.

The CARP found that the evidence

introduced by the Settling Parties

identifying and quantifying the works of

Evelyn and Curry was the only credible

evidence in the record upon which to

make a determination. CARP Report

¶¶ 63–72. In fact, the Panel found that

the Settling Parties credited Evelyn and

Curry with more than their actual

percentage entitlement because no

adjustment was made to reflect the coauthorship or co-publication of certain

works. CARP Report ¶ 63. Thus, it

adopted the evidence and conclusions

offered by the Settling Parties and based

its determination of Evelyn’s and

Curry’s shares of the royalty fees on the

Settling Parties’ methodology. The

CARP did so with full knowledge that

the methodology had been used in the

previous DART distribution proceeding

and found to be ‘‘logical and consistent’’

by the Librarian of Congress and

reviewed with approval by the United

States Court of Appeals for the District

of Columbia. CARP Report ¶¶ 78–79.

b. Petitions To Modify or Set Aside the

Panel’s Determination

1. Evelyn’s Petition: Section 251.55(a)

of the rules provides that ‘‘[a]ny party to

the proceeding may file with the

Librarian of Congress a petition to

modify or set aside the determination of

a Copyright Arbitration Royalty Panel

within 14 days of the Librarian’s receipt

of the panel’s report of its

determination.’’ 37 CFR 251.55(a).

Replies to petitions to modify are due 14

days after the filing of the petitions. 37

CFR 251.55(b).

Section 251.55 of the rules assists the

Register of Copyrights in making her

recommendation to the Librarian, and

the Librarian in conducting his review

of the CARP’s decision by allowing the

parties to the proceeding to raise

specific objections to a CARP’s

determination. As required by section

802(f) of the copyright Act, if the

Librarian determines that the Panel in

this proceeding has acted arbitrarily or

contrary to the provisions of the

Copyright Act, he must ‘‘after full

examination of the record created in the

arbitration proceeding, issue an order

setting the * * * distribution of fees.’’

17 U.S.C. 802(f).

Evelyn, who appeared pro se in this

proceeding on behalf of herself, filed a

petition to modify. Her petition attacks

the Panel’s report on three basic points.

First, as a threshold issue, she claims

that the entities comprising the Settling

Parties, particularly the performing

rights organizations and Gospel Music

Coalition, have not properly filed claims

to the DART royalties on behalf of their

members. Evelyn Petition at 1–3.

Second, she argues that the Panel

disregarded statements and evidence

offered by herself and Curry which

contested and disproved the Settling

Parties’ findings of fact and conclusions

of law. Id. at 4–5, 8. And third, she lists

a number of perceived procedural

irregularities that she claims led to

disparate treatment of the individual

claimants: (1) Acceptance by the Office

of the Settling Parties’ direct case which

she asserts was not filed in accordance

with the governing regulations; (2)

return of her rebuttal case which was

submitted during the 45-day

precontroversy discovery period; and (3)

failure of the CARP to request additional

information from her to substantiate her

claim. Id. at 5–6, 8.

Curry, the other individual claimant

participating in this proceeding, did not

file a petition to modify.

2. Settling Parties’ Reply to Evelyn

Petition to Modify: Settling Parties

oppose the Evelyn petition on both

procedural and substantive grounds.

They contend that the petition is

substantively deficient because it does

not demonstrate in what way the CARP

report is either arbitrary or contrary to

law—the standard of review to be used

by the Librarian in his review of the

Panel’s report. See 17 U.S.C. 802(f). In

making this point, the Settling Parties

addresses each of the legal issues raised

by Evelyn.

The Settling Parties also argue that the

Librarian should reject Evelyn’s petition

because it fails to reference applicable

sections of her proposed findings of fact

and conclusions of law, as required

under § 251.55(a) of title 37 of the Code

of Federal Regulations. They argue that

failure to correctly reference her filings

shows an apparent willful disregard for

the requirements of the rule and

warrants dismissal of the Petition.

Settling Parties’ Reply at 11–12.

3. Sufficiency of Evelyn’s Petition:

Before the Register can address the

issues raised by Evelyn’s petition to

modify the determination of the Panel,

the Register must first address the

Settling Parties’ argument that the

petition warrants dismissal for failure to

comply with § 251.55(a) of the CARP

regulations. That section provides that

each petition must ‘‘state the reasons for

modification or reversal of the panel’s

determination, and shall include

applicable sections of the party’s

proposed findings of fact and

conclusions of law.’’ 37 CFR 251.55(a).

The purpose of this requirement is to

enable the Register and the Librarian to

locate those portions of the testimony

and filings that support a party’s

petition. Absent a showing of bad faith,

the remedy for failure to comply with

the regulation is an order from the

Register, directing the offending party to

amend his or her petition and include

the proper citations to the relevant

sections of the party’s proposed findings

of fact and conclusions of law. See 62

FR 6560 (February 12, 1997).

The Settling Parties point out that

Evelyn had encountered the rule in the

previous proceeding to determine the

distribution of the 1992–1994 DART

royalty fees and argue that her

‘‘apparent willful disregard for the

requirements imposed by Rule 251.55

warrants dismissal of the Petition.’’

Settling Parties’ Reply at 12.

While it is clear that Evelyn does not

provide all relevant references to her

proposed findings of fact and

conclusions of law, she did make a good

faith effort to comply with the

regulation and supplied citations to the

Settling Parties’ Direct Case, the CARP

Report and her own proposed findings

of fact and conclusions of law. See e.g.,

Evelyn Petition at pp. 2, 5, 7. Moreover,

the Library will accept a less than

perfectly executed petition without

amendment where the record is small,

and it is reasonably easy to locate the

cited information in the record. See 62

FR 6561 (February 12, 1997). Thus,

Evelyn’s petition has received full

consideration.

c. The Register’s Review and

Recommendation

The statutory criteria to be considered

when deciding how to distribute the

DART royalties are set forth in section

1006(c)(2) of the Copyright Act, title 17

of the United States Code. It states that

a CARP may only consider ‘‘the extent

to which, during the relevant period

* * * each musical work was

9364 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices

2Evelyn claims that an increase in the number of

songs for which she is making a claim constitutes

changed circumstances and should alter the

outcome of the CARP’s decision. Evelyn Petition at

8. However, there is no evidence in the record

documenting sales of these works during the

relevant period. CARP Report ¶69.

3Meanwhile, the Settling Parties had filed its

direct case with the Copyright Office on November

15, 1999, in accordance with the Office’s

scheduling order.

distributed in the form of digital

musical recordings * * * or

disseminated to the public in

transmissions.’’ In the first proceeding

to determine the distribution of DART

royalties, the Panel found, and the

Library agreed, that the statute does not

require the application of both criteria

when evidence as to only one of the

criteria has been presented by the

parties to the proceeding. 62 FR 6561

(February 12, 1997). This determination

established a precedent for the

presentation of and reliance on sales

data alone for the purpose of

determining each claimant’s share of the

royalty fees.

Evelyn argues in her petition to

modify that the first proceeding did not

establish a binding precedent for all

future distribution proceedings, but fails

to offer an alternative approach or

explain why the Panel should deviate

from the methodology used in the first

proceeding when the record evidence

parallels the prior record in its

approach. Every Petition at 7. Her

assertion about the precedential effect of

the first proceeding is not correct.

Section 802(c) requires the Panel to ‘‘act

on the basis of a fully documented

written record, prior decisions of the

Copyright Royalty Tribunal, prior

copyright arbitration Panel

determinations, and rulings by the

Librarian of Congress under section

801(c).’’

Had Evelyn offered evidence of public

performances or evidence for

ascertaining the scope of record sales in

a different manner, the CARP could

have adopted a different methodology

for making the determinations.

However, an assertion that she is

entitled to 1% of the royalty fees in the

funds to which she filed a claim is not

evidence. See Proposed Distribution

Order, Evelyn Proposed Findings of Fact

and Conclusions of Law. It is merely a

statement of opinion.

Evelyn party has an opportunity to

present evidence to the Panel when it

files the direct case. The written direct

case is the very foundation of a party’s

case and as such must include

testimony and exhibits which, when

taken together, support and prove a

party’s claim. See Order in Docket No.

95–1 CARP DD 92–94 (dated May 9,

1996). In Evelyn’s case, she supplied

only a list of her works. See Evelyn

Direct Case, exhibit 1a–1d; CARP Report

¶69. Evidently, she had thought the

CARP would request additional

information and evidence from her at a

later date. Evelyn Petition at 8; Settling

Parties’ Reply at 8. While a CARP

member may, in accordance with the

regulations, request additional

information from a party, he or she does

so at his or her own discretion. See 37

CFR 251.46(d). It is not the function of

the Panel to search for new evidence

that favors a party’s case. This is and

remains each party’s prime

responsibility throughout the

proceeding.

In the current proceeding, the

arbitrators chose not to request any

additional information, evidently

finding the evidence in the record

sufficient upon which to make an

informed decision. Because the Settling

Parties offered the same type of

evidence as that adopted in the prior

DART distribution proceeding and

neither Evelyn or Curry made a showing

of changed circumstances or presented

material evidence 2 that would justify a

rejection of the Settling Parties’

evidence, the Panel’s decision to follow

the precedent is neither arbitrary nor

contrary to law.

Evelyn also asserts, as a threshold

matter, that the performing rights

organizations had no authority to file a

claim on behalf of their members. The

Panel discussed this issue fully in its

report and found that each of the

organizations and associations that

comprise the Settling Parties meet the

definition of ‘‘interested copyright

party’’ and are entitled to file a claim on

behalf of its members and represents

their interests in a CARP proceeding.

See, supra, discussion in Determination

of the Panel. This reasoning fully

complies with the Copyright Act, and

therefore, the participation of the

members of the Settling Parties,

including the performing rights

organizations, is not arbitrary.

Evelyn also asserts that Gospel Music

Coalition (‘‘GMC’’) failed to file a claim

and therefore, cannot be represented by

the Settling Parties. This assertion is

clearly erroneous. A review of the

Copyright Office records shows that

GMC filed claims to the 1995, 1996,

1997 and 1998 Musical Works Funds

and did so in both subfunds. See, claim

no. 7, 1995 Publishers Subfund and

claim no. 8, 1995 Writers Subfund;

claim no. 9, 1996 Publishers Subfund

and claim no. 7, 1996 Writers Subfund;

claim no. 8, 1997 Publishers Subfund

and claim no. 9, 1997 Writers Subfund;

claim no. 8, 1998 Publishers Subfund

and claim no. 8, 1998 Writers Subfund.

Based upon the proper filing of these

claims, GMC was then free to negotiate

a settlement agreement with the other

parties who filed a claim to the same

funds. 17 U.S.C. 1007(a)(2). This it did.

On July 2, 1999, the Copyright Office

received official notification that Gospel

Music Coalition had reached an

agreement to settle its claims to the

1995, 1996, 1997, and 1998 Musical

Works Funds with respect to the Writers

and Publishers Subfunds. See,

Comments on the existence of

controversies and notice of intent to

participate of Broadcast Music, Inc., the

American Society of Composers,

Authors & Publishers, SESAC, Inc., The

Harry Fox Agency, Inc., The

Songwriters Guild of America and

Copyright Management, Inc. as Settling

Parties, Docket No. 99–3 CARP DD 95–

98, at 3. Consequently, Evelyn’s

suggestion that GMC improperly

reached an agreement with the Settling

Parties is incorrect.

Another point Evelyn makes in her

petition is that she received disparate

treatment in this proceeding because of

procedural irregularities. First, she

argues that the Settling parties failed to

submit their direct case in accordance

with the CARP regulations. Section

251.45(b)(1)(i) of the rules requires that

‘‘each party to the proceeding must

effect actual delivery of a complete copy

of its written direct case on each of the

other parties to the proceeding no later

than the first day of the 45-day period.’’

In this proceeding, parties were directed

to deliver copies of their direct cases to

all parties on November 15, 1999.

Evelyn, however, received her copy of

the Settling Parties’ direct case by

special messenger at 3:30 a.m. on

November 16, 1999, along with three

additional motions.3 Evelyn Petition at

5.

The Panel’s response to this issue was

incorrect as a matter of law. It stated

that the CARP rules do not require that

each party receive pleadings

simultaneously, citing § 251.44(f). See

CARP Report ¶ 19 n.5. The Panel failed

to recognize that § 251.45(b) of the

CARP rules governs the filing of a direct

case and specifically requires filing of

direct cases to all parties on the same

day. This misinterpretation, however,

does not require that the Librarian set

aside the entire decision or strike the

Settling Parties’ case because Evelyn

never requested relief from the

Copyright Office. Had Evelyn wished to

contest the filing of the Settling Parties’

direct case, she had only to file a motion

with the Office seeking dismissal of the

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Notices 9365

Settling Parties’ case or requesting an

adjustment to the discovery schedule to

make up for the lost time. She chose not

to file such a motion, however, because

she believed that ‘‘the Copyright Office

would (not) strike the case of the

Settling Parties and leave only the two

individual claimants in the case.’’

Evelyn’s Proposed Findings of Fact and

Conclusions of Law at 3. Consequently,

the Office had no reason to address the

issue because Evelyn did not request

any relief from the Office at the

appropriate time. Furthermore, her

continued involvement in the

proceeding supports the Panel’s

conclusion that she did not suffer any

undue harm because of the delay in the

delivery of the direct case.

Another procedural irregularity raised

by Evelyn concerns the return of her

rebuttal case. She filed it with the

Copyright Office on November 24,1999,

during the 45-day precontroversy

discovery period. By Order, dated

November 24, 1999, the Office rejected

the pleading except for a single sentence

which addressed a motion for a partial

distribution then under consideration.

The Order stated that ‘‘[n]o provision is

made in the rules or the Library’s

scheduling order for the filing of

rebuttal cases at this stage of the

proceeding. Rebuttal cases, if required at

all, are filed with the CARP after

consideration of the written direct

cases.’’ Evelyn refiled her rebuttal case

on July 28, 2000, and it was considered

by the CARP at that time. Consequently,

Evelyn suffered no prejudice from the

Office’s decision to strike her rebuttal

case when it was first filed prematurely.

Evelyn makes one additional

procedural challenge in her petition.

She contends that the Settling parties

did not provide sworn testimony to

establish a universe of sales. Evelyn

Petition at 8. Specifically, she objects to

the inclusion of Michael Fine’s prior

testimony from the 1992–1994 DART

distribution proceedings on the

SoundScan data. This testimony

established the basis for determining

total record sales and record sales for

Curry and Evelyn. CARP Report ¶ 32.

She states that there were problems with

his testimony in the 1992–1994 DART

distribution proceedings but does not

discuss what these problems were or

why they have a bearing on the current

proceeding. In any event, no problem

was identified in the last proceeding

concerning this testimony; thus, under

the CARP rules, the Settling Parties

were free to designate a portion of past

records to be included in their direct

case. 37 CFR 251.43. Had the Panel not

allowed the incorporation of Fine’s past

testimony, it would have acted contrary

to the law, unless it had reason to strike

the testimony for good cause shown.

Evelyn’s final challenge focuses on

the Settling Parties’ methodology. She,

like Curry before her in the 1992–1994

DART distribution proceeding, objects

to the use of a methodology that only

requires a showing of the number of

record sales for the individual

claimants. She contends that no claim

can be termed a ‘‘de minimus claim’’

until it is measured against the

entitlement of others. Evelyn Petition at

3. In response, the Panel noted that the

courts have repudiated as wasteful a

requirement that all claimants in a given

distribution proceeding prove their

entitlement through the presentation of

detailed data for every individual work.

CARP Report ¶ 76. In National

Association of Broadcaster v. Copyright

Royalty Tribunal, 772 F.2d 922, 939

(D.C. Cir. 1985), the case cited by the

Panel in its report, the court wisely

noted that to do otherwise would

effectively eliminate the likelihood of

settlements because a single claimant—

no matter how modest that claimant’s

likely share under even the most

sanguine review—could choose not to

settle with the other claimants and

require a full hearing on all claims, even

those not in controversy.

For all the reasons set forth in the

prior discussion, the Register concludes

that the Panel did not act arbitrarily or

contrary to the provisions of the

Copyright Act in determining the value

of Curry’s and Evelyn’s DART claims

and recommends that the Librarian

adopt without amendment the Panel’s

Report and recommendation for the

allocation of the 1995, 1997 and 1998

Musical Works Funds.

Order of the Librarian of Congress

Having duly considered the

recommendation of the Register of

Copyrights regarding the report of the

Copyright Arbitration Royalty panel

concerning the distribution of the 1995,

1997 and 1998 Musical Works Funds,

the Librarian of Congress fully endorses

and adopts her recommendation to

accept the Panel’s decision. For the

reasons stated in the Register’s

recommendation, the Librarian is

exercising his authority under 17 U.S.C.

802(f) and is issuing an order

announcing the allocation of the royalty

fees in the 1995, 1997 and 1998 Musical

Works Funds.

Wherefore, it is ordered that the

royalty fees in the 1995, 1997 and 1998

Musical Works Funds shall be

distributed according to the following

percentages:

1995

Writers (%) Publishers

(%)

Curry ............. 0.001966 0.001966

Evelyn ........... 0.000614 N/A

Settling parties ............. 99.997420 99.998034

Total ....... 100.00 100.00

1997

Writers (%) Publishers

(%)

Curry ............. 0.001027 0.001027

Evelyn ........... 0.000130 N/A

Settling parties ............. 99.998843 99.998973

Total ....... 100.00 100.00

1998

Writers (%) Publishers

(%)

Curry ............. N/A N/A

Evelyn ........... 0.000144 N/A

Settling parties ............. 99.999856 100.00

Total ....... 100.00 100.00

As provided in 17 U.S.C. 802(g), the

period for appealing this Order to the

United States Court of Appeals for the

District of Columbia is thirty (30) days

from the effective date of this Order.

Dated: January 30, 2001.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 01–3142 Filed 2–6–01; 8:45 am]

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