mission services under voluntary li-
cense agreements described in sub-
paragraph (A) that were entered into 
under 
competitive 
market 
cir-
cumstances. In any proceeding under 
this subsection, the burden of proof 
shall be on the copyright owners of 
sound recordings to establish that the 
fees and terms that they seek satisfy 
the requirements of this subsection, 
and do not exceed the fees to which 
most copyright owners and users 
would agree under competitive market 
circumstances.’’; 
(iii) by redesignating subparagraph 
(C) as subparagraph (E); 
(iv) by inserting after subparagraph 
(B) the following: 
‘‘(C)(i) In construing the objectives set 
forth in section 801(b)(1), the Copyright Roy-
alty Judges shall take into consideration— 
‘‘(I) the public’s interest in both the 
creation of new sound recordings of musi-
cal works and in fostering online and other 
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(b) 
EPHEMERAL
RECORDING
STATUTORY
LI-
CENSE.—Section 112(e)(1) of title 17, United States 
Code, is amended— 
(1) in the matter preceding subparagraph (A)— 
(A) by striking ‘‘or under a statutory li-
cense in accordance with section 114(f)’’; and 
(B) by striking ‘‘if the following conditions 
are satisfied:’’ and inserting ‘‘if—’’; 
(2) in subparagraph (A)— 
(A) by striking ‘‘The’’ and inserting ‘‘the’’; 
and 
(B) by striking the period at the end and 
inserting ‘‘, except as may be incidental to the 
operation of the transmission technology used 
by the transmitting organization;’’; 
(3) in subparagraph (B)— 
(A) by striking ‘‘The’’ and inserting ‘‘the’’; 
(B) by striking ‘‘a statutory license in ac-
cordance with section 114(f) or’’; and 
(C) by striking the period at the end and 
inserting ‘‘, or for purposes of archival preser-
vation or security; and’’; 
(4) by striking subparagraph (C); 
(5) by redesignating subparagraph (D) as sub-
paragraph (C); and 
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specific 
sound 
recordings 
or 
phonorecords 
embodying 
such 
sound recordings to be trans-
mitted at particular times, except 
that this clause does not dis-
qualify a transmitting entity that 
publishes in writing— 
‘‘(AA) such a program 
schedule 
that 
identifies 
sound recordings, phonorec-
ords or artists that will be 
featured within a period of 
time greater than 3 hours or 
within an unspecified future 
time period; or 
‘‘(BB) an advance pro-
gram schedule that is a 
schedule of classical music 
programming to be per-
formed as part of a retrans-
mission 
or 
simultaneous 
transmission of a broadcast 
transmission, which may in-
clude 
programming 
sub-
stituted 
for 
programming 
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contained in the broadcast 
transmission with respect to 
which the transmitting enti-
ty lacks the requisite li-
censes or clearances to make 
the transmission in the me-
dium, or for advertisements 
contained in the broadcast 
transmission;’’; 
(3) in clause (iii)— 
(A) in subclause (II), by adding ‘‘or’’ at 
the end; and 
(B) beginning in subclause (III), by strik-
ing ‘‘or’’ and all that follows through ‘‘require-
ment;’’; 
(4) in clause (vii)— 
(A) by striking ‘‘and the transmitting enti-
ty’’ through ‘‘of the copyright owner,’’; and 
(B) by striking ‘‘of a broadcast trans-
mission’’ and all that follows and inserting ‘‘or 
simultaneous transmission of a broadcast trans-
mission, which may include programming sub-
stituted for programming contained in the 
broadcast transmission with respect to which 
the transmitting entity lacks the requisite li-
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