Copyright Royalty and Distribution Reform Act of 2004
PL 108-419 (H.R.1417), enacted 11/30/2004

118 STAT. 2341
PUBLIC LAW 108–419—NOV. 30, 2004
Public Law 108–419
108th Congress
An Act
To amend title 17, United States Code, to replace copyright arbitration royalty
panels with Copyright Royalty Judges, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Copyright Royalty and Distribu-
tion Reform Act of 2004’’.
SEC. 2. REFERENCE.
Except as otherwise expressly provided, whenever in this Act
an amendment or repeal is expressed in terms of an amendment
to, or repeal of, a section or other provision, the reference shall
be considered to be made to a section or other provision of title
17, United States Code.
SEC. 3. COPYRIGHT ROYALTY JUDGE AND STAFF.
(a) IN GENERAL.—Chapter 8 is amended to read as follows:
‘‘CHAPTER 8—PROCEEDINGS BY COPYRIGHT ROYALTY
JUDGES
‘‘Sec.
‘‘801. Copyright Royalty Judges; appointment and functions.
‘‘802. Copyright Royalty Judgeships; staff.
‘‘803. Proceedings of Copyright Royalty Judges.
‘‘804. Institution of proceedings.
‘‘805. General rule for voluntarily negotiated agreements.
‘‘§ 801. Copyright Royalty Judges; appointment and functions
‘‘(a) APPOINTMENT.—The Librarian of Congress shall appoint
3 full-time Copyright Royalty Judges, and shall appoint 1 of the
3 as the Chief Copyright Royalty Judge. The Librarian shall make
appointments to such positions after consultation with the Register
of Copyrights.
‘‘(b) FUNCTIONS.—Subject to the provisions of this chapter, the
functions of the Copyright Royalty Judges shall be as follows:
‘‘(1) To make determinations and adjustments of reasonable
terms and rates of royalty payments as provided in sections
112(e), 114, 115, 116, 118, 119 and 1004. The rates applicable
under sections 114(f)(1)(B), 115, and 116 shall be calculated
to achieve the following objectives:
‘‘(A) To maximize the availability of creative works
to the public.
17 USC 101 note.
Copyright
Royalty and
Distribution
Reform Act of
2004.
Nov. 30, 2004
[H.R. 1417]
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118 STAT. 2342
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(B) To afford the copyright owner a fair return for
his or her creative work and the copyright user a fair
income under existing economic conditions.
‘‘(C) To reflect the relative roles of the copyright owner
and the copyright user in the product made available to
the public with respect to relative creative contribution,
technological contribution, capital investment, cost, risk,
and contribution to the opening of new markets for creative
expression and media for their communication.
‘‘(D) To minimize any disruptive impact on the struc-
ture of the industries involved and on generally prevailing
industry practices.
‘‘(2) To make determinations concerning the adjustment
of the copyright royalty rates under section 111 solely in accord-
ance with the following provisions:
‘‘(A) The rates established by section 111(d)(1)(B) may
be adjusted to reflect—
‘‘(i) national monetary inflation or deflation; or
‘‘(ii) changes in the average rates charged cable
subscribers for the basic service of providing secondary
transmissions to maintain the real constant dollar level
of the royalty fee per subscriber which existed as of
the date of October 19, 1976,
except that—
‘‘(I) if the average rates charged cable system sub-
scribers for the basic service of providing secondary
transmissions are changed so that the average rates
exceed national monetary inflation, no change in the
rates established by section 111(d)(1)(B) shall be per-
mitted; and
‘‘(II) no increase in the royalty fee shall be per-
mitted based on any reduction in the average number
of distant signal equivalents per subscriber.
The Copyright Royalty Judges may consider all factors
relating to the maintenance of such level of payments,
including, as an extenuating factor, whether the industry
has been restrained by subscriber rate regulating authori-
ties from increasing the rates for the basic service of pro-
viding secondary transmissions.
‘‘(B) In the event that the rules and regulations of
the Federal Communications Commission are amended at
any time after April 15, 1976, to permit the carriage by
cable systems of additional television broadcast signals
beyond the local service area of the primary transmitters
of such signals, the royalty rates established by section
111(d)(1)(B) may be adjusted to ensure that the rates for
the additional distant signal equivalents resulting from
such carriage are reasonable in the light of the changes
effected by the amendment to such rules and regulations.
In determining the reasonableness of rates proposed fol-
lowing an amendment of Federal Communications Commis-
sion rules and regulations, the Copyright Royalty Judges
shall consider, among other factors, the economic impact
on copyright owners and users; except that no adjustment
in royalty rates shall be made under this subparagraph
with respect to any distant signal equivalent or fraction
thereof represented by—
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118 STAT. 2343
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(i) carriage of any signal permitted under the
rules and regulations of the Federal Communications
Commission in effect on April 15, 1976, or the carriage
of a signal of the same type (that is, independent,
network, or noncommercial educational) substituted for
such permitted signal; or
‘‘(ii) a television broadcast signal first carried after
April 15, 1976, pursuant to an individual waiver of
the rules and regulations of the Federal Communica-
tions Commission, as such rules and regulations were
in effect on April 15, 1976.
‘‘(C) In the event of any change in the rules and regula-
tions of the Federal Communications Commission with
respect to syndicated and sports program exclusivity after
April 15, 1976, the rates established by section 111(d)(1)(B)
may be adjusted to assure that such rates are reasonable
in light of the changes to such rules and regulations, but
any such adjustment shall apply only to the affected tele-
vision broadcast signals carried on those systems affected
by the change.
‘‘(D) The gross receipts limitations established by sec-
tion 111(d)(1) (C) and (D) shall be adjusted to reflect
national monetary inflation or deflation or changes in the
average rates charged cable system subscribers for the
basic service of providing secondary transmissions to main-
tain the real constant dollar value of the exemption pro-
vided by such section, and the royalty rate specified therein
shall not be subject to adjustment.
‘‘(3)(A) To authorize the distribution, under sections 111,
119, and 1007, of those royalty fees collected under sections
111, 119, and 1005, as the case may be, to the extent that
the Copyright Royalty Judges have found that the distribution
of such fees is not subject to controversy.
‘‘(B) In cases where the Copyright Royalty Judges deter-
mine that controversy exists, the Copyright Royalty Judges
shall determine the distribution of such fees, including partial
distributions, in accordance with section 111, 119, or 1007,
as the case may be.
‘‘(C) The Copyright Royalty Judges may make a partial
distribution of such fees during the pendency of the proceeding
under subparagraph (B) if all participants under section
803(b)(2) in the proceeding that are entitled to receive those
fees that are to be partially distributed—
‘‘(i) agree to such partial distribution;
‘‘(ii) sign an agreement obligating them to return any
excess amounts to the extent necessary to comply with
the final determination on the distribution of the fees made
under subparagraph (B);
‘‘(iii) file the agreement with the Copyright Royalty
Judges; and
‘‘(iv) agree that such funds are available for distribu-
tion.
‘‘(D) The Copyright Royalty Judges and any other officer
or employee acting in good faith in distributing funds under
subparagraph (C) shall not be held liable for the payment
of any excess fees under subparagraph (C). The Copyright
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118 STAT. 2344
PUBLIC LAW 108–419—NOV. 30, 2004
Royalty Judges shall, at the time the final determination is
made, calculate any such excess amounts.
‘‘(4) To accept or reject royalty claims filed under sections
111, 119, and 1007, on the basis of timeliness or the failure
to establish the basis for a claim.
‘‘(5) To accept or reject rate adjustment petitions as pro-
vided in section 804 and petitions to participate as provided
in section 803(b) (1) and (2).
‘‘(6) To determine the status of a digital audio recording
device or a digital audio interface device under sections 1002
and 1003, as provided in section 1010.
‘‘(7)(A) 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 at any time during
the proceeding, except that—
‘‘(i) the Copyright Royalty Judges shall provide to those
that would be bound by the terms, rates, or other deter-
mination set by any agreement in a proceeding to deter-
mine royalty rates an opportunity to comment on the agree-
ment and shall provide to participants in the proceeding
under section 803(b)(2) that would be bound by the terms,
rates, or other determination set by the agreement an
opportunity to comment on the agreement and object to
its adoption as a basis for statutory terms and rates; and
‘‘(ii) the Copyright Royalty Judges may decline to adopt
the agreement as a basis for statutory terms and rates
for participants that are not parties to the agreement,
if any participant described in clause (i) objects to the
agreement and the Copyright Royalty Judges conclude,
based on the record before them if one exists, that the
agreement does not provide a reasonable basis for setting
statutory terms or rates.
‘‘(B) License agreements voluntarily negotiated pursuant
to section 112(e)(5), 114(f)(3), 115(c)(3)(E)(i), 116(c), or 118(b)(2)
that do not result in statutory terms and rates shall not be
subject to clauses (i) and (ii) of subparagraph (A).
‘‘(C) Interested parties may negotiate and agree to, and
the Copyright Royalty Judges may adopt, an agreement that
specifies as terms notice and recordkeeping requirements that
apply in lieu of those that would otherwise apply under regula-
tions.
‘‘(8) To perform other duties, as assigned by the Register
of Copyrights within the Library of Congress, except as provided
in section 802(g), at times when Copyright Royalty Judges
are not engaged in performing the other duties set forth in
this section.
‘‘(c) RULINGS.—The Copyright Royalty Judges may make any
necessary procedural or evidentiary rulings in any proceeding under
this chapter and may, before commencing a proceeding under this
chapter, make any such rulings that would apply to the proceedings
conducted by the Copyright Royalty Judges.
‘‘(d) ADMINISTRATIVE SUPPORT.—The Librarian of Congress
shall provide the Copyright Royalty Judges with the necessary
administrative services related to proceedings under this chapter.
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118 STAT. 2345
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(e) LOCATION IN LIBRARY OF CONGRESS.—The offices of the
Copyright Royalty Judges and staff shall be in the Library of
Congress.
‘‘§ 802. Copyright Royalty Judgeships; staff
‘‘(a) QUALIFICATIONS OF COPYRIGHT ROYALTY JUDGES.—
‘‘(1) IN GENERAL.—Each Copyright Royalty Judge shall be
an attorney who has at least 7 years of legal experience. The
Chief Copyright Royalty Judge shall have at least 5 years
of experience in adjudications, arbitrations, or court trials. Of
the other 2 Copyright Royalty Judges, 1 shall have significant
knowledge of copyright law, and the other shall have significant
knowledge of economics. An individual may serve as a Copy-
right Royalty Judge only if the individual is free of any financial
conflict of interest under subsection (h).
‘‘(2) DEFINITION.—In this subsection, the term ‘adjudication’
has the meaning given that term in section 551 of title 5,
but does not include mediation.
‘‘(b) STAFF.—The Chief Copyright Royalty Judge shall hire 3
full-time staff members to assist the Copyright Royalty Judges
in performing their functions.
‘‘(c) TERMS.—The individual first appointed as the Chief Copy-
right Royalty Judge shall be appointed to a term of 6 years, and
of the remaining individuals first appointed as Copyright Royalty
Judges, 1 shall be appointed to a term of 4 years, and the other
shall be appointed to a term of 2 years. Thereafter, the terms
of succeeding Copyright Royalty Judges shall each be 6 years.
An individual serving as a Copyright Royalty Judge may be re-
appointed to subsequent terms. The term of a Copyright Royalty
Judge shall begin when the term of the predecessor of that Copy-
right Royalty Judge ends. When the term of office of a Copyright
Royalty Judge ends, the individual serving that term may continue
to serve until a successor is selected.
‘‘(d) VACANCIES OR INCAPACITY.—
‘‘(1) VACANCIES.—If a vacancy should occur in the position
of Copyright Royalty Judge, the Librarian of Congress shall
act expeditiously to fill the vacancy, and may appoint an interim
Copyright Royalty Judge to serve until another Copyright Roy-
alty Judge is appointed under this section. An individual
appointed to fill the vacancy occurring before the expiration
of the term for which the predecessor of that individual was
appointed shall be appointed for the remainder of that term.
‘‘(2) INCAPACITY.—In the case in which a Copyright Royalty
Judge is temporarily unable to perform his or her duties, the
Librarian of Congress may appoint an interim Copyright Roy-
alty Judge to perform such duties during the period of such
incapacity.
‘‘(e) COMPENSATION.—
‘‘(1) JUDGES.—The Chief Copyright Royalty Judge shall
receive compensation at the rate of basic pay payable for level
AL–1 for administrative law judges pursuant to section 5372(b)
of title 5, and each of the other two Copyright Royalty Judges
shall receive compensation at the rate of basic pay payable
for level AL–2 for administrative law judges pursuant to such
section. The compensation of the Copyright Royalty Judges
shall not be subject to any regulations adopted by the Office
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118 STAT. 2346
PUBLIC LAW 108–419—NOV. 30, 2004
of Personnel Management pursuant to its authority under sec-
tion 5376(b)(1) of title 5.
‘‘(2) STAFF
MEMBERS.—Of the staff members appointed
under subsection (b)—
‘‘(A) the rate of pay of 1 staff member shall be not
more than the basic rate of pay payable for level 10 of
GS–15 of the General Schedule;
‘‘(B) the rate of pay of 1 staff member shall be not
less than the basic rate of pay payable for GS–13 of the
General Schedule and not more than the basic rate of
pay payable for level 10 of GS–14 of such Schedule; and
‘‘(C) the rate of pay for the third staff member shall
be not less than the basic rate of pay payable for GS–
8 of the General Schedule and not more than the basic
rate of pay payable for level 10 of GS–11 of such Schedule.
‘‘(3) LOCALITY
PAY.—All rates of pay referred to under
this subsection shall include locality pay.
‘‘(f) INDEPENDENCE OF COPYRIGHT ROYALTY JUDGE.—
‘‘(1) IN MAKING DETERMINATIONS.—
‘‘(A) IN
GENERAL.—(i) Subject to clause (ii) of this
subparagraph and subparagraph (B), the Copyright Royalty
Judges shall have full independence in making determina-
tions concerning adjustments and determinations of copy-
right royalty rates and terms, the distribution of copyright
royalties, the acceptance or rejection of royalty claims, rate
adjustment petitions, and petitions to participate, and in
issuing other rulings under this title, except that the Copy-
right Royalty Judges may consult with the Register of
Copyrights on any matter other than a question of fact.
‘‘(ii) A Copyright Royalty Judge or Judges, or, by
motion to the Copyright Royalty Judge or Judges, any
participant in a proceeding may request an interpretation
by the Register of Copyrights concerning any material ques-
tion of substantive law (not including questions of proce-
dure before the Copyright Royalty Judges, the ultimate
adjustments and determinations of copyright royalty rates
and terms, the ultimate distribution of copyright royalties,
or the acceptance or rejection of royalty claims, rate adjust-
ment petitions, or petitions to participate) concerning an
interpretation or construction of those provisions of this
title that are the subject of the proceeding. Any such
request for a written interpretation by the Register of
Copyrights shall be on the record. Reasonable provision
shall be made for comment by the participants in the
proceeding on the material question of substantive law
in such a way as to minimize duplication and delay. Except
as provided in subparagraph (B), the Register of Copyrights
shall deliver to the Copyright Royalty Judges a response
within 14 days after the Register of Copyrigts receives
all of the briefs or comments of the participants. Such
decision shall be in writing and shall be included by the
Copyright Royalty Judges in the record that accompanies
their final determination. If such a decision is timely deliv-
ered to the Copyright Royalty Judges, the Copyright Roy-
alty Judges shall apply the legal interpretation embodied
in the response of the Register of Copyrights in resolving
material questions of substantive law.
Records.
Deadline.
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118 STAT. 2347
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(B) NOVEL QUESTIONS.—(i) In any case in which a
novel material question of substantive law concerning an
interpretation of those provisions of this title that are the
subject of the proceeding is presented, the Copyright Roy-
alty Judges shall request a decision of the Register of
Copyrights, in writing, to resolve such novel question.
Reasonable provision shall be made for comment on such
request by the participants in the proceeding, in such a
way as to minimize duplication and delay. The Register
of Copyrights shall transmit his or her decision to the
Copyright Royalty Judges within 30 days after the Register
of Copyrights receives all of the briefs or comments of
the participants. Such decision shall be in writing and
included by the Copyright Royalty Judges in the record
that accompanies their final determination. If such a deci-
sion is timely delivered to the Copyright Royalty Judges,
the Copyright Royalty Judges shall apply the legal deter-
minations embodied in the decision of the Register of Copy-
rights in resolving material questions of substantive law.
‘‘(ii) In clause (i), 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).
‘‘(C) CONSULTATION.—Notwithstanding the provisions
of subparagraph (A), the Copyright Royalty Judges shall
consult with the Register of Copyrights with respect to
any determination or ruling that would require that any
act be performed by the Copyright Office, and any such
determination or ruling shall not be binding upon the Reg-
ister of Copyrights.
‘‘(D) REVIEW OF LEGAL CONCLUSIONS BY THE REGISTER
OF COPYRIGHTS.—The Register of Copyrights may review
for legal error the resolution by the Copyright Royalty
Judges of a material question of substantive law under
this title that underlies or is contained in a final determina-
tion of the Copyright Royalty Judges. If the Register of
Copyrights concludes, after taking into consideration the
views of the participants in the proceeding, that any resolu-
tion reached by the Copyright Royalty Judges was in mate-
rial error, the Register of Copyrights shall issue a written
decision correcting such legal error, which shall be made
part of the record of the proceeding. The Register of Copy-
rights shall issue such written decision not later than 60
days after the date on which the final determination by
the Copyright Royalty Judges is issued. Additionally, the
Register of Copyrights shall cause to be published in the
Federal Register such written decision, together with a
specific identification of the legal conclusion of the Copy-
right Royalty Judges that is determined to be erroneous.
As to conclusions of substantive law involving an
interpretation of the statutory provisions of this title, the
decision of the Register of Copyrights shall be binding
as precedent upon the Copyright Royalty Judges in subse-
quent proceedings under this chapter. When a decision
has been rendered pursuant to this subparagraph, the Reg-
ister of Copyrights may, on the basis of and in accordance
with such decision, intervene as of right in any appeal
of a final determination of the Copyright Royalty Judges
Federal Register,
publication.
Deadline.
Records.
Records.
Deadline.
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118 STAT. 2348
PUBLIC LAW 108–419—NOV. 30, 2004
pursuant to section 803(d) in the United States Court of
Appeals for the District of Columbia Circuit. If, prior to
intervening in such an appeal, the Register of Copyrights
gives notification to, and undertakes to consult with the
Attorney General with respect to such intervention, and
the Attorney General fails, within a reasonable period after
receiving such notification, to intervene in such appeal,
the Register of Copyrights may intervene in such appeal
in his or her own name by any attorney designated by
the Register of Copyrights for such purpose. Intervention
by the Register of Copyrights in his or her own name
shall not preclude the Attorney General from intervening
on behalf of the United States in such an appeal as may
be otherwise provided or required by law.
‘‘(E) EFFECT ON JUDICIAL REVIEW.—Nothing in this sec-
tion shall be interpreted to alter the standard applied
by a court in reviewing legal determinations involving an
interpretation or construction of the provisions of this title
or to affect the extent to which any construction or
interpretation of the provisions of this title shall be
accorded deference by a reviewing court.
‘‘(2) PERFORMANCE APPRAISALS.—
‘‘(A) IN GENERAL.—Notwithstanding any other provi-
sion of law or any regulation of the Library of Congress,
and subject to subparagraph (B), the Copyright Royalty
Judges shall not receive performance appraisals.
‘‘(B) RELATING
TO
SANCTION
OR
REMOVAL.—To the
extent that the Librarian of Congress adopts regulations
under subsection (h) relating to the sanction or removal
of a Copyright Royalty Judge and such regulations require
documentation to establish the cause of such sanction or
removal, the Copyright Royalty Judge may receive an
appraisal related specifically to the cause of the sanction
or removal.
‘‘(g) INCONSISTENT DUTIES BARRED.—No Copyright Royalty
Judge may undertake duties that conflict with his or her duties
and responsibilities as a Copyright Royalty Judge.
‘‘(h) STANDARDS OF CONDUCT.—The Librarian of Congress shall
adopt regulations regarding the standards of conduct, including
financial conflict of interest and restrictions against ex parte
communications, which shall govern the Copyright Royalty Judges
and the proceedings under this chapter.
‘‘(i) REMOVAL OR SANCTION.—The Librarian of Congress may
sanction or remove a Copyright Royalty Judge for violation of
the standards of conduct adopted under subsection (h), misconduct,
neglect of duty, or any disqualifying physical or mental disability.
Any such sanction or removal may be made only after notice and
opportunity for a hearing, but the Librarian of Congress may sus-
pend the Copyright Royalty Judge during the pendency of such
hearing. The Librarian shall appoint an interim Copyright Royalty
Judge during the period of any such suspension.
‘‘§ 803. Proceedings of Copyright Royalty Judges
‘‘(a) PROCEEDINGS.—
‘‘(1) IN GENERAL.—The Copyright Royalty Judges shall act
in accordance with regulations issued by the Copyright Royalty
Judges and the Librarian of Congress, and on the basis of
Regulations.
Records.
Notice.
Regulations.
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118 STAT. 2349
PUBLIC LAW 108–419—NOV. 30, 2004
a written record, prior determinations and interpretations of
the Copyright Royalty Tribunal, Librarian of Congress, the
Register of Copyrights, and the Copyright Royalty Judges (to
the extent those determinations are not inconsistent with a
decision of the Register of Copyrights that was timely delivered
to the Copyright Royalty Judges pursuant to section 802(f)(1)
(A) or (B), or with a decision of the Register of Copyrights
pursuant to section 802(f)(1)(D)), under this chapter, and
decisions of the court of appeals under this chapter before,
on, or after the effective date of the Copyright Royalty and
Distribution Reform Act of 2004.
‘‘(2) JUDGES
ACTING
AS
PANEL
AND
INDIVIDUALLY.—The
Copyright Royalty Judges shall preside over hearings in pro-
ceedings under this chapter en banc. The Chief Copyright Roy-
alty Judge may designate a Copyright Royalty Judge to preside
individually over such collateral and administrative pro-
ceedings, and over such proceedings under paragraphs (1)
through (5) of subsection (b), as the Chief Judge considers
appropriate.
‘‘(3) DETERMINATIONS.—Final determinations of the Copy-
right Royalty Judges in proceedings under this chapter shall
be made by majority vote. A Copyright Royalty Judge dissenting
from the majority on any determination under this chapter
may issue his or her dissenting opinion, which shall be included
with the determination.
‘‘(b) PROCEDURES.—
‘‘(1) INITIATION.—
‘‘(A) CALL
FOR
PETITIONS
TO
PARTICIPATE.—(i) The
Copyright Royalty Judges shall cause to be published in
the Federal Register notice of commencement of pro-
ceedings under this chapter, calling for the filing of peti-
tions to participate in a proceeding under this chapter
for the purpose of making the relevant determination under
section 111, 112, 114, 115, 116, 118, 119, 1004, or 1007,
as the case may be—
‘‘(I) promptly upon a determination made under
section 804(a);
‘‘(II) by no later than January 5 of a year specified
in paragraph (2) of section 804(b) for the commence-
ment of proceedings;
‘‘(III) by no later than January 5 of a year specified
in subparagraph (A) or (B) of paragraph (3) of section
804(b) for the commencement of proceedings, or as
otherwise provided in subparagraph (A) or (C) of such
paragraph for the commencement of proceedings;
‘‘(IV) as provided under section 804(b)(8); or
‘‘(V) by no later than January 5 of a year specified
in any other provision of section 804(b) for the filing
of petitions for the commencement of proceedings, if
a petition has not been filed by that date.
‘‘(ii) Petitions to participate shall be filed by no later
than 30 days after publication of notice of commencement
of a proceeding under clause (i), except that the Copyright
Royalty Judges may, for substantial good cause shown
and if there is no prejudice to the participants that have
already filed petitions, accept late petitions to participate
at any time up to the date that is 90 days before the
Federal Register,
publication.
Notices.
Deadlines.
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118 STAT. 2350
PUBLIC LAW 108–419—NOV. 30, 2004
date on which participants in the proceeding are to file
their written direct statements. Notwithstanding the pre-
ceding sentence, petitioners whose petitions are filed more
than 30 days after publication of notice of commencement
of a proceeding are not eligible to object to a settlement
reached during the voluntary negotiation period under
paragraph (3), and any objection filed by such a petitioner
shall not be taken into account by the Copyright Royalty
Judges.
‘‘(B) PETITIONS
TO
PARTICIPATE.—Each petition to
participate in a proceeding shall describe the petitioner’s
interest in the subject matter of the proceeding. Parties
with similar interests may file a single petition to partici-
pate.
‘‘(2) PARTICIPATION IN GENERAL.—Subject to paragraph (4),
a person may participate in a proceeding under this chapter,
including through the submission of briefs or other information,
only if—
‘‘(A) that person has filed a petition to participate
in accordance with paragraph (1) (either individually or
as a group under paragraph (1)(B)), together with a filing
fee of $150;
‘‘(B) the Copyright Royalty Judges have not determined
that the petition to participate is facially invalid; and
‘‘(C) the Copyright Royalty Judges have not deter-
mined, sua sponte or on the motion of another participant
in the proceeding, that the person lacks a significant
interest in the proceeding.
‘‘(3) VOLUNTARY NEGOTIATION PERIOD.—
‘‘(A) IN GENERAL.—Promptly after the date for filing
of petitions to participate in a proceeding, the Copyright
Royalty Judges shall make available to all participants
in the proceeding a list of such participants and shall
initiate a voluntary negotiation period among the partici-
pants.
‘‘(B) LENGTH OF PROCEEDINGS.—The voluntary negotia-
tion period initiated under subparagraph (A) shall be 3
months.
‘‘(C) DETERMINATION OF SUBSEQUENT PROCEEDINGS.—
At the close of the voluntary negotiation proceedings, the
Copyright Royalty Judges shall, if further proceedings
under this chapter are necessary, determine whether and
to what extent paragraphs (4) and (5) will apply to the
parties.
‘‘(4) SMALL
CLAIMS
PROCEDURE
IN
DISTRIBUTION
PRO-
CEEDINGS.—
‘‘(A) IN
GENERAL.—If, in a proceeding under this
chapter to determine the distribution of royalties, the con-
tested amount of a claim is $10,000 or less, the Copyright
Royalty Judges shall decide the controversy on the basis
of the filing of the written direct statement by the partici-
pant, the response by any opposing participant, and 1
additional response by each such party. The participant
asserting the claim shall not be required to pay the filing
fee under paragraph (2).
‘‘(B) BAD FAITH INFLATION OF CLAIM.—If the Copyright
Royalty Judges determine that a participant asserts in
Records.
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118 STAT. 2351
PUBLIC LAW 108–419—NOV. 30, 2004
bad faith an amount in controversy in excess of $10,000
for the purpose of avoiding a determination under the
procedure set forth in subparagraph (A), the Copyright
Royalty Judges shall impose a fine on that participant
in an amount not to exceed the difference between the
actual amount distributed and the amount asserted by
the participant.
‘‘(5) PAPER PROCEEDINGS.—The Copyright Royalty Judges
in proceedings under this chapter may decide, sua sponte or
upon motion of a participant, to determine issues on the basis
of the filing of the written direct statement by the participant,
the response by any opposing participant, and one additional
response by each such participant. Prior to making such deci-
sion to proceed on such a paper record only, the Copyright
Royalty Judges shall offer to all parties to the proceeding
the opportunity to comment on the decision. The procedure
under this paragraph—
‘‘(A) shall be applied in cases in which there is no
genuine issue of material fact, there is no need for evi-
dentiary hearings, and all participants in the proceeding
agree in writing to the procedure; and
‘‘(B) may be applied under such other circumstances
as the Copyright Royalty Judges consider appropriate.
‘‘(6) REGULATIONS.—
‘‘(A) IN GENERAL.—The Copyright Royalty Judges may
issue regulations to carry out their functions under this
title. All regulations issued by the Copyright Royalty
Judges are subject to the approval of the Librarian of
Congress. Not later than 120 days after Copyright Royalty
Judges or interim Copyright Royalty Judges, as the case
may be, are first appointed after the enactment of the
Copyright Royalty and Distribution Reform Act of 2004,
such judges shall issue regulations to govern proceedings
under this chapter.
‘‘(B) INTERIM
REGULATIONS.—Until regulations are
adopted under subparagraph (A), the Copyright Royalty
Judges shall apply the regulations in effect under this
chapter on the day before the effective date of the Copyright
Royalty and Distribution Reform Act of 2004, to the extent
such regulations are not inconsistent with this chapter,
except that functions carried out under such regulations
by the Librarian of Congress, the Register of Copyrights,
or copyright arbitration royalty panels that, as of such
date of enactment, are to be carried out by the Copyright
Royalty Judges under this chapter, shall be carried out
by the Copyright Royalty Judges under such regulations.
‘‘(C) 
REQUIREMENTS.—Regulations 
issued 
under
subparagraph (A) shall include the following:
‘‘(i) The written direct statements of all partici-
pants in a proceeding under paragraph (2) shall be
filed by a date specified by the Copyright Royalty
Judges, which may be not earlier than 4 months, and
not later than 5 months, after the end of the voluntary
negotiation period under paragraph (3). Notwith-
standing the preceding sentence, the Copyright Royalty
Judges may allow a participant in a proceeding to
file an amended written direct statement based on
Deadlines.
Records.
Applicability.
Deadline.
Applicability.
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118 STAT. 2352
PUBLIC LAW 108–419—NOV. 30, 2004
new information received during the discovery process,
within 15 days after the end of the discovery period
specified in clause (iii).
‘‘(ii)(I) Following the submission to the Copyright
Royalty Judges of written direct statements by the
participants in a proceeding under paragraph (2), the
judges shall meet with the participants for the purpose
of setting a schedule for conducting and completing
discovery. Such schedule shall be determined by the
Copyright Royalty Judges.
‘‘(II) In this chapter, the term ‘written direct state-
ments’ means witness statements, testimony, and
exhibits to be presented in the proceedings, and such
other information that is necessary to establish terms
and rates, or the distribution of royalty payments,
as the case may be, as set forth in regulations issued
by the Copyright Royalty Judges.
‘‘(iii) Hearsay may be admitted in proceedings
under this chapter to the extent deemed appropriate
by the Copyright Royalty Judges.
‘‘(iv) Discovery in such proceedings shall be per-
mitted for a period of 60 days, except for discovery
ordered by the Copyright Royalty Judges in connection
with the resolution of motions, orders, and disputes
pending at the end of such period.
‘‘(v) Any participant under paragraph (2) in a pro-
ceeding under this chapter to determine royalty rates
may request of an opposing participant nonprivileged
documents directly related to the written direct state-
ment or written rebuttal statement of that participant.
Any objection to such a request shall be resolved by
a motion or request to compel production made to
the Copyright Royalty Judges in accordance with regu-
lations adopted by the Copyright Royalty Judges. Each
motion or request to compel discovery shall be deter-
mined by the Copyright Royalty Judges, or by a Copy-
right Royalty Judge when permitted under subsection
(a)(2). Upon such motion, the Copyright Royalty Judges
may order discovery pursuant to regulations estab-
lished under this paragraph.
‘‘(vi)(I) Any participant under paragraph (2) in a
proceeding under this chapter to determine royalty
rates may, by means of written motion or on the record,
request of an opposing participant or witness other
relevant information and materials if, absent the dis-
covery sought, the Copyright Royalty Judges’ resolution
of the proceeding would be substantially impaired. In
determining whether discovery will be granted under
this clause, the Copyright Royalty Judges may
consider—
‘‘(aa) whether the burden or expense of pro-
ducing the requested information or materials out-
weighs the likely benefit, taking into account the
needs and resources of the participants, the impor-
tance of the issues at stake, and the probative
value of the requested information or materials
in resolving such issues;
Deadline.
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118 STAT. 2353
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(bb) whether the requested information or
materials would be unreasonably cumulative or
duplicative, or are obtainable from another source
that is more convenient, less burdensome, or less
expensive; and
‘‘(cc) whether the participant seeking discovery
has had ample opportunity by discovery in the
proceeding or by other means to obtain the
information sought.
‘‘(II) This clause shall not apply to any proceeding
scheduled to commence after December 31, 2010.
‘‘(vii) In a proceeding under this chapter to deter-
mine royalty rates, the participants entitled to receive
royalties shall collectively be permitted to take no more
than 10 depositions and secure responses to no more
than 25 interrogatories, and the participants obligated
to pay royalties shall collectively be permitted to take
no more than 10 depositions and secure responses to
no more than 25 interrogatories. The Copyright Royalty
Judges shall resolve any disputes among similarly
aligned participants to allocate the number of deposi-
tions or interrogatories permitted under this clause.
‘‘(viii) The rules and practices in effect on the
day before the effective date of the Copyright Royalty
and Distribution Reform Act of 2004, relating to dis-
covery in proceedings under this chapter to determine
the distribution of royalty fees, shall continue to apply
to such proceedings on and after such effective date.
‘‘(ix) In proceedings to determine royalty rates,
the Copyright Royalty Judges may issue a subpoena
commanding a participant or witness to appear and
give testimony, or to produce and permit inspection
of documents or tangible things, if the Copyright Roy-
alty Judges’ resolution of the proceeding would be
substantially impaired by the absence of such testi-
mony or production of documents or tangible things.
Such subpoena shall specify with reasonable particu-
larity the materials to be produced or the scope and
nature of the required testimony. Nothing in this
clause shall preclude the Copyright Royalty Judges
from requesting the production by a nonparticipant
of information or materials relevant to the resolution
by the Copyright Royalty Judges of a material issue
of fact.
‘‘(x) The Copyright Royalty Judges shall order a
settlement conference among the participants in the
proceeding to facilitate the presentation of offers of
settlement among the participants. The settlement con-
ference shall be held during a 21-day period following
the end of the discovery period and shall take place
outside the presence of the Copyright Royalty Judges.
‘‘(xi) No evidence, including exhibits, may be sub-
mitted in the written direct statement or written
rebuttal statement of a participant without a spon-
soring witness, except where the Copyright Royalty
Judges have taken official notice, or in the case of
Applicability.
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118 STAT. 2354
PUBLIC LAW 108–419—NOV. 30, 2004
incorporation by reference of past records, or for good
cause shown.
‘‘(c) DETERMINATION OF COPYRIGHT ROYALTY JUDGES.—
‘‘(1) TIMING.—The Copyright Royalty Judges shall issue
their determination in a proceeding not later than 11 months
after the conclusion of the 21-day settlement conference period
under subsection (b)(6)(C)(x), but, in the case of a proceeding
to determine successors to rates or terms that expire on a
specified date, in no event later than 15 days before the expira-
tion of the then current statutory rates and terms.
‘‘(2) REHEARINGS.—
‘‘(A) IN GENERAL.—The Copyright Royalty Judges may,
in exceptional cases, upon motion of a participant in a
proceeding under subsection (b)(2), order a rehearing, after
the determination in the proceeding is issued under para-
graph (1), on such matters as the Copyright Royalty Judges
determine to be appropriate.
‘‘(B) TIMING FOR FILING MOTION.—Any motion for a
rehearing under subparagraph (A) may only be filed within
15 days after the date on which the Copyright Royalty
Judges deliver to the participants in the proceeding their
initial determination concerning rates and terms.
‘‘(C) 
PARTICIPATION
BY
OPPOSING
PARTY
NOT
REQUIRED.—In any case in which a rehearing is ordered,
any opposing party shall not be required to participate
in the rehearing, except that nonparticipation may give
rise to the limitations with respect to judicial review pro-
vided for in subsection (d)(1).
‘‘(D) NO NEGATIVE INFERENCE.—No negative inference
shall be drawn from lack of participation in a rehearing.
‘‘(E) CONTINUITY OF RATES AND TERMS.—(i) If the deci-
sion of the Copyright Royalty Judges on any motion for
a rehearing is not rendered before the expiration of the
statutory rates and terms that were previously in effect,
in the case of a proceeding to determine successors to
rates and terms that expire on a specified date, then—
‘‘(I) the initial determination of the Copyright Roy-
alty Judges that is the subject of the rehearing motion
shall be effective as of the day following the date
on which the rates and terms that were previously
in effect expire; and
‘‘(II) in the case of a proceeding under section
114(f)(1)(C) or 114(f)(2)(C), royalty rates and terms
shall, for purposes of section 114(f)(4)(B), be deemed
to have been set at those rates and terms contained
in the initial determination of the Copyright Royalty
Judges that is the subject of the rehearing motion,
as of the date of that determination.
‘‘(ii) The pendency of a motion for a rehearing under
this paragraph shall not relieve persons obligated to make
royalty payments who would be affected by the determina-
tion on that motion from providing the statements of
account and any reports of use, to the extent required,
and paying the royalties required under the relevant deter-
mination or regulations.
‘‘(iii) Notwithstanding clause (ii), whenever royalties
described in clause (ii) are paid to a person other than
Deadlines.
Effective date.
Deadline.
Deadlines.
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118 STAT. 2355
PUBLIC LAW 108–419—NOV. 30, 2004
the Copyright Office, the entity designated by the Copyright
Royalty Judges to which such royalties are paid by the
copyright user (and any successor thereto) shall, within
60 days after the motion for rehearing is resolved or, if
the motion is granted, within 60 days after the rehearing
is concluded, return any excess amounts previously paid
to the extent necessary to comply with the final determina-
tion of royalty rates by the Copyright Royalty Judges.
Any underpayment of royalties resulting from a rehearing
shall be paid within the same period.
‘‘(3) CONTENTS OF DETERMINATION.—A determination of the
Copyright Royalty Judges shall be supported by the written
record and shall set forth the findings of fact relied on by
the Copyright Royalty Judges. Among other terms adopted
in a determination, the Copyright Royalty Judges may specify
notice and recordkeeping requirements of users of the copy-
rights at issue that apply in lieu of those that would otherwise
apply under regulations.
‘‘(4) CONTINUING
JURISDICTION.—The Copyright Royalty
Judges may, with the approval of the Register of Copyrights,
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.
‘‘(5) PROTECTIVE
ORDER.—The Copyright Royalty Judges
may issue such orders as may be appropriate to protect con-
fidential information, including orders excluding confidential
information from the record of the determination that is pub-
lished or made available to the public, except that any terms
or rates of royalty payments or distributions may not be
excluded.
‘‘(6) PUBLICATION OF DETERMINATION.—By no later than
the end of the 60-day period provided in section 802(f)(1)(D),
the Librarian of Congress shall cause the determination, and
any corrections thereto, to be published in the Federal Register.
The Librarian of Congress shall also publicize the determina-
tion and corrections in such other manner as the Librarian
considers appropriate, including, but not limited to, publication
on the Internet. The Librarian of Congress shall also make
the determination, corrections, and the accompanying record
available for public inspection and copying.
‘‘(7) LATE PAYMENT.—A determination of Copyright Royalty
Judges may include terms with respect to late payment, but
in no way shall such terms prevent the copyright holder from
asserting other rights or remedies provided under this title.
‘‘(d) JUDICIAL REVIEW.—
‘‘(1) APPEAL.—Any determination of the Copyright Royalty
Judges under subsection (c) may, within 30 days after the
publication of the determination in the Federal Register, be
appealed, to the United States Court of Appeals for the District
of Columbia Circuit, by any aggrieved participant in the pro-
ceeding under subsection (b)(2) who fully participated in the
proceeding and who would be bound by the determination.
Deadlines.
Records.
Deadline.
Federal Register,
publication.
Federal Register,
publication.
Records.
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118 STAT. 2356
PUBLIC LAW 108–419—NOV. 30, 2004
Any participant that did not participate in a rehearing may
not raise any issue that was the subject of that rehearing
at any stage of judicial review of the hearing determination.
If no appeal is brought within that 30-day period, the deter-
mination of the Copyright Royalty Judges shall be final, and
the royalty fee or determination with respect to the distribution
of fees, as the case may be, shall take effect as set forth
in paragraph (2).
‘‘(2) EFFECT OF RATES.—
‘‘(A) EXPIRATION ON SPECIFIED DATE.—When this title
provides that the royalty rates and terms that were pre-
viously in effect are to expire on a specified date, any
adjustment or determination by the Copyright Royalty
Judges of successor rates and terms for an ensuing statu-
tory license period shall be effective as of the day following
the date of expiration of the rates and terms that were
previously in effect, even if the determination of the Copy-
right Royalty Judges is rendered on a later date. A licensee
shall be obligated to continue making payments under
the rates and terms previously in effect until such time
as rates and terms for the successor period are established.
Whenever royalties pursuant to this section are paid to
a person other than the Copyright Office, the entity des-
ignated by the Copyright Royalty Judges to which such
royalties are paid by the copyright user (and any successor
thereto) shall, within 60 days after the final determination
of the Copyright Royalty Judges establishing rates and
terms for a successor period or the exhaustion of all re-
hearings or appeals of such determination, if any, return
any excess amounts previously paid to the extent necessary
to comply with the final determination of royalty rates.
Any underpayment of royalties by a copyright user shall
be paid to the entity designated by the Copyright Royalty
Judges within the same period.
‘‘(B) OTHER CASES.—In cases where rates and terms
have not, prior to the inception of an activity, been estab-
lished 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. In 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 determina-
tion of the Copyright Royalty Judges in the Federal Reg-
ister, except as otherwise provided in this title, or by the
Copyright Royalty Judges, or as agreed by the participants
in a proceeding that would be bound by the rates and
terms. Except as otherwise provided in this title, the rates
and terms, to the extent applicable, shall remain in effect
until such successor rates and terms become effective.
‘‘(C) OBLIGATION TO MAKE PAYMENTS.—
‘‘(i) The pendency of an appeal under this sub-
section shall not relieve persons obligated to make
royalty payments under section 111, 112, 114, 115,
116, 118, 119, or 1003, who would be affected by the
determination on appeal, from—
Deadline.
Effective dates.
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118 STAT. 2357
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(I) providing the statements of account and
any report of use; and
‘‘(II) paying the royalties required under the
relevant determination or regulations.
‘‘(ii) Notwithstanding clause (i), whenever royalties
described in clause (i) are paid to a person other than
the Copyright Office, the entity designated by the Copyright
Royalty Judges to which such royalties are paid by the
copyright user (and any successor thereto) shall, within
60 days after the final resolution of the appeal, return
any excess amounts previously paid (and interest thereon,
if ordered pursuant to paragraph (3)) to the extent nec-
essary to comply with the final determination of royalty
rates on appeal. Any underpayment of royalties resulting
from an appeal (and interest thereon, if ordered pursuant
to paragraph (3)) shall be paid within the same period.
‘‘(3) JURISDICTION
OF
COURT.—If the court, pursuant to
section 706 of title 5, modifies or vacates a determination
of the Copyright Royalty Judges, the court may enter its own
determination with respect to the amount or distribution of
royalty fees and costs, and order the repayment of any excess
fees, the payment of any underpaid fees, and the payment
of interest pertaining respectively thereto, in accordance with
its final judgment. The court may also vacate the determination
of the Copyright Royalty Judges and remand the case to the
Copyright Royalty Judges for further proceedings in accordance
with subsection (a).
‘‘(e) ADMINISTRATIVE MATTERS.—
‘‘(1) DEDUCTION OF COSTS OF LIBRARY OF CONGRESS AND
COPYRIGHT OFFICE FROM FILING FEES.—
‘‘(A) DEDUCTION FROM FILING FEES.—The Librarian of
Congress may, to the extent not otherwise provided under
this title, deduct from the filing fees collected under sub-
section (b) for a particular proceeding under this chapter
the reasonable costs incurred by the Librarian of Congress,
the Copyright Office, and the Copyright Royalty Judges
in conducting that proceeding, other than the salaries of
the Copyright Royalty Judges and the 3 staff members
appointed under section 802(b).
‘‘(B) AUTHORIZATION
OF
APPROPRIATIONS.—There are
authorized to be appropriated such sums as may be nec-
essary to pay the costs incurred under this chapter not
covered by the filing fees collected under subsection (b).
All funds made available pursuant to this subparagraph
shall remain available until expended.
‘‘(2) POSITIONS REQUIRED FOR ADMINISTRATION OF COMPUL-
SORY LICENSING.—Section 307 of the Legislative Branch Appro-
priations Act, 1994, shall not apply to employee positions in
the Library of Congress that are required to be filled in order
to carry out section 111, 112, 114, 115, 116, 118, or 119 or
chapter 10.
‘‘§ 804. Institution of proceedings
‘‘(a) FILING OF PETITION.—With respect to proceedings referred
to in paragraphs (1) and (2) of section 801(b) concerning the deter-
mination or adjustment of royalty rates as provided in sections
111, 112, 114, 115, 116, 118, 119, and 1004, during the calendar
Notices.
Federal Register,
publication.
Deadline.
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118 STAT. 2358
PUBLIC LAW 108–419—NOV. 30, 2004
years specified in the schedule set forth in subsection (b), any
owner or user of a copyrighted work whose royalty rates are speci-
fied by this title, or are established under this chapter before
or after the enactment of the Copyright Royalty and Distribution
Reform Act of 2004, may file a petition with the Copyright Royalty
Judges declaring that the petitioner requests a determination or
adjustment of the rate. The Copyright Royalty Judges shall make
a determination as to whether the petitioner has such a significant
interest in the royalty rate in which a determination or adjustment
is requested. If the Copyright Royalty Judges determine that the
petitioner has such a significant interest, the Copyright Royalty
Judges shall cause notice of this determination, with the reasons
for such determination, to be published in the Federal Register,
together with the notice of commencement of proceedings under
this chapter. With respect to proceedings under paragraph (1) of
section 801(b) concerning the determination or adjustment of royalty
rates as provided in sections 112 and 114, during the calendar
years specified in the schedule set forth in subsection (b), the
Copyright Royalty Judges shall cause notice of commencement of
proceedings under this chapter to be published in the Federal
Register as provided in section 803(b)(1)(A).
‘‘(b) TIMING OF PROCEEDINGS.—
‘‘(1) SECTION 111 PROCEEDINGS.—(A) A petition described
in subsection (a) to initiate proceedings under section 801(b)(2)
concerning the adjustment of royalty rates under section 111
to which subparagraph (A) or (D) of section 801(b)(2) applies
may be filed during the year 2005 and in each subsequent
fifth calendar year.
‘‘(B) In order to initiate proceedings under section 801(b)(2)
concerning the adjustment of royalty rates under section 111
to which subparagraph (B) or (C) of section 801(b)(2) applies,
within 12 months after an event described in either of those
subsections, any owner or user of a copyrighted work whose
royalty rates are specified by section 111, or by a rate estab-
lished under this chapter before or after the enactment of
the Copyright Royalty and Distribution Reform Act of 2004,
may file a petition with the Copyright Royalty Judges declaring
that the petitioner requests an adjustment of the rate. The
Copyright Royalty Judges shall then proceed as set forth in
subsection (a) of this section. Any change in royalty rates
made under this chapter pursuant to this subparagraph may
be reconsidered in the year 2005, and each fifth calendar year
thereafter, in accordance with the provisions in section 801(b)(3)
(B) or (C), as the case may be. A petition for adjustment
of rates established by section 111(d)(1)(B) as a result of a
change is the rules and regulations of the Federal Communica-
tions Commission shall set forth the change on which the
petition is based.
‘‘(C) Any adjustment of royalty rates under section 111
shall take effect as of the first accounting period commencing
after the publication of the determination of the Copyright
Royalty Judges in the Federal Register, or on such other date
as is specified in that determination.
‘‘(2) CERTAIN
SECTION
112
PROCEEDINGS.—Proceedings
under this chapter shall be commenced in the year 2007 to
determine reasonable terms and rates of royalty payments for
the activities described in section 112(e)(1) relating to the
Effective date.
Effective date.
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118 STAT. 2359
PUBLIC LAW 108–419—NOV. 30, 2004
limitation 
on 
exclusive 
rights 
specified 
by 
section
114(d)(1)(C)(iv), to become effective on January 1, 2009. Such
proceedings shall be repeated in each subsequent fifth calendar
year.
‘‘(3) SECTION 114 AND CORRESPONDING 112 PROCEEDINGS.—
‘‘(A) FOR ELIGIBLE NONSUBSCRIPTION SERVICES AND NEW
SUBSCRIPTION SERVICES.—Proceedings under this chapter
shall be commenced as soon as practicable after the effec-
tive date of the Copyright Royalty and Distribution Reform
Act of 2004 to determine reasonable terms and rates of
royalty payments under sections 114 and 112 for the activi-
ties of eligible nonsubscription transmission services and
new subscription services, to be effective for the period
beginning on January 1, 2006, and ending on December
31, 2010. Such proceedings shall next be commenced in
January 2009 to determine reasonable terms and rates
of royalty payments, to become effective on January 1,
2011. Thereafter, such proceedings shall be repeated in
each subsequent fifth calendar year.
‘‘(B) FOR
PREEXISTING
SUBSCRIPTION
AND
SATELLITE
DIGITAL
AUDIO
RADIO
SERVICES.—Proceedings under this
chapter shall be commenced in January 2006 to determine
reasonable terms and rates of royalty payments under sec-
tions 114 and 112 for the activities of preexisting subscrip-
tion services, to be effective during the period beginning
on January 1, 2008, and ending on December 31, 2012,
and preexisting satellite digital audio radio services, to
be effective during the period beginning on January 1,
2007, and ending on December 31, 2012. Such proceedings
shall next be commenced in 2011 to determine reasonable
terms and rates of royalty payments, to become effective
on January 1, 2013. Thereafter, such proceedings shall
be repeated in each subsequent fifth calendar year.
‘‘(C)(i) Notwithstanding any other provision of this
chapter, this subparagraph shall govern proceedings com-
menced pursuant to section 114(f)(1)(C) and 114(f)(2)(C)
concerning new types of services.
‘‘(ii) Not later than 30 days after a petition to determine
rates and terms for a new type of service that is filed
by any copyright owner of sound recordings, or such new
type of service, indicating that such new type of service
is or is about to become operational, the Copyright Royalty
Judges shall issue a notice for a proceeding to determine
rates and terms for such service.
‘‘(iii) The proceeding shall follow the schedule set forth
in such subsections (b), (c), and (d) of section 803, except
that—
‘‘(I) the determination shall be issued by not later
than 24 months after the publication of the notice
under clause (ii); and
‘‘(II) the decision shall take effect as provided in
subsections (c)(2) and (d)(2) of section 803 and section
114(f)(4)(B)(ii) and (C).
‘‘(iv) The rates and terms shall remain in effect for
the period set forth in section 114(f)(1)(C) or 114(f)(2)(C),
as the case may be.
Effective date.
Deadline.
Deadline.
Notice.
Effective dates.
Termination
dates.
Effective dates.
Termination
date.
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‘‘(4) SECTION
115
PROCEEDINGS.—A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the adjustment or determination of royalty rates
as provided in section 115 may be filed in the year 2006
and in each subsequent fifth calendar year, or at such other
times as the parties have agreed under section 115(c)(3) (B)
and (C).
‘‘(5) SECTION 116 PROCEEDINGS.—(A) A petition described
in subsection (a) to initiate proceedings under section 801(b)
concerning the determination of royalty rates and terms as
provided in section 116 may be filed at any time within 1
year after negotiated licenses authorized by section 116 are
terminated or expire and are not replaced by subsequent agree-
ments.
‘‘(B) If a negotiated license authorized by section 116 is
terminated or expires and is not replaced by another such
license agreement which provides permission to use a quantity
of musical works not substantially smaller than the quantity
of such works performed on coin-operated phonorecord players
during the 1-year period ending March 1, 1989, the Copyright
Royalty Judges shall, upon petition filed under paragraph (1)
within 1 year after such termination or expiration, commence
a proceeding to promptly establish an interim royalty rate
or rates for the public performance by means of a coin-operated
phonorecord player of nondramatic musical works embodied
in phonorecords which had been subject to the terminated
or expired negotiated license agreement. Such rate or rates
shall be the same as the last such rate or rates and shall
remain in force until the conclusion of proceedings by the
Copyright Royalty Judges, in accordance with section 803, to
adjust the royalty rates applicable to such works, or until
superseded by a new negotiated license agreement, as provided
in section 116(b).
‘‘(6) SECTION
118
PROCEEDINGS.—A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates
of royalty payments as provided in section 118 may be filed
in the year 2006 and in each subsequent fifth calendar year.
‘‘(7) SECTION 1004 PROCEEDINGS.—A petition described in
subsection (a) to initiate proceedings under section 801(b)(1)
concerning the adjustment of reasonable royalty rates under
section 1004 may be filed as provided in section 1004(a)(3).
‘‘(8) PROCEEDINGS CONCERNING DISTRIBUTION OF ROYALTY
FEES.—With respect to proceedings under section 801(b)(3) con-
cerning the distribution of royalty fees in certain circumstances
under section 111, 119, or 1007, the Copyright Royalty Judges
shall, upon a determination that a controversy exists concerning
such distribution, cause to be published in the Federal Register
notice of commencement of proceedings under this chapter.
‘‘§ 805. General rule for voluntarily negotiated agreements
‘‘Any rates or terms under this title that—
‘‘(1) are agreed to by participants to a proceeding under
section 803(b)(3),
‘‘(2) are adopted by the Copyright Royalty Judges as part
of a determination under this chapter, and
Federal Register,
publication.
Notice.
Deadline.
Deadline.
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PUBLIC LAW 108–419—NOV. 30, 2004
‘‘(3) are in effect for a period shorter than would otherwise
apply under a determination pursuant to this chapter,
shall remain in effect for such period of time as would otherwise
apply under such determination, except that the Copyright Royalty
Judges shall adjust the rates pursuant to the voluntary negotiations
to reflect national monetary inflation during the additional period
the rates remain in effect.’’.
(b) CONFORMING AMENDMENT.—The table of chapters for title
17, United States Code, is amended by striking the item relating
to chapter 8 and inserting the following:
‘‘8. Proceedings by Copyright Royalty Judges ............................................
801’’.
SEC. 4. DEFINITION.
Section 101 is amended by inserting after the definition of
‘‘copies’’ the following:
‘‘A ‘Copyright Royalty Judge’ is a Copyright Royalty Judge
appointed under section 802 of this title, and includes any
individual serving as an interim Copyright Royalty Judge under
such section.’’.
SEC. 5. TECHNICAL AMENDMENTS.
(a) CABLE RATES.—Section 111(d) is amended—
(1) in paragraph (2), in the second sentence, by striking
‘‘a copyright arbitration royalty panel’’ and inserting ‘‘the Copy-
right Royalty Judges.’’; and
(2) in paragraph (4)—
(A) in subparagraph (A), by striking ‘‘Librarian of Con-
gress’’ each place it appears and inserting ‘‘Copyright Roy-
alty Judges’’;
(B) in subparagraph (B)—
(i) in the first sentence, by striking ‘‘Librarian
of Congress shall, upon the recommendation of the
Register of Copyrights,’’ and inserting ‘‘Copyright Roy-
alty Judges shall’’;
(ii) in the second sentence, by striking ‘‘Librarian
determines’’ and inserting ‘‘Copyright Royalty Judges
determine’’; and
(iii) in the third sentence—
(I) by striking ‘‘Librarian’’ each place it
appears and inserting ‘‘Copyright Royalty Judges’’;
and
(II) by striking ‘‘convene a copyright arbitra-
tion royalty panel’’ and inserting ‘‘conduct a pro-
ceeding’’; and
(C) in subparagraph (C), by striking ‘‘Librarian of Con-
gress’’ and inserting ‘‘Copyright Royalty Judges’’.
(b) EPHEMERAL RECORDINGS.—Section 112(e) is amended—
(1) in paragraph (3)—
(A) by amending the first sentence to read as follows:
‘‘Proceedings under chapter 8 shall determine reasonable
rates and terms of royalty payments for the activities speci-
fied by paragraph (1) during the 5-year period beginning
on January 1 of the second year following the year in
which the proceedings are to be commenced, or such other
period as the parties may agree.’’;
(B) in the third sentence, by striking ‘‘Librarian of
Congress’’ and inserting ‘‘Copyright Royalty Judges’’; and
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118 STAT. 2362
PUBLIC LAW 108–419—NOV. 30, 2004
(C) in the fourth sentence, by striking ‘‘negotiation’’;
(2) in paragraph (4)—
(A) by amending the first sentence to read as follows:
‘‘The schedule of reasonable rates and terms determined
by the Copyright Royalty Judges shall, subject to paragraph
(5), be binding on all copyright owners of sound recordings
and transmitting organizations entitled to a statutory
license under this subsection during the 5-year period speci-
fied in paragraph (3), or such other period as the parties
may agree.’’;
(B) by striking ‘‘copyright arbitration royalty panel’’
each subsequent place it appears and inserting ‘‘Copyright
Royalty Judges’’;
(C) in the fourth sentence, by striking ‘‘its decision’’
and inserting ‘‘their decision’’;
(D) in the fifth sentence, by striking ‘‘negotiated as
provided’’ and inserting ‘‘described’’; and
(E) in the last sentence, by striking ‘‘Librarian of Con-
gress’’ and inserting ‘‘Copyright Royalty Judges’’;
(3) in paragraph (5), by striking ‘‘determination by a copy-
right arbitration royalty panel or decision by the Librarian
of Congress’’ and inserting ‘‘decision by the Librarian of Con-
gress or determination by the Copyright Royalty Judges’’;
(4) by striking paragraph (6) and redesignating paragraphs
(7), (8), and (9), as paragraphs (6), (7), and (8), respectively;
and
(5) in paragraph (6)(A), as so redesignated, by striking
‘‘Librarian of Congress’’ and inserting ‘‘Copyright Royalty
Judges’’.
(c) SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.—Sec-
tion 114(f) is amended—
(1) in paragraph (1)—
(A) in subparagraph (A)—
(i) by amending the first sentence to read as fol-
lows: ‘‘Proceedings under chapter 8 shall determine
reasonable rates and terms of royalty payments for
subscription transmissions by preexisting subscription
services and transmissions by preexisting satellite dig-
ital audio radio services specified by subsection (d)(2)
during the 5-year period beginning on January 1 of
the second year following the year in which the pro-
ceedings are to be commenced, except where a different
transitional period is provided under section 6(b)(3)
of the Copyright Royalty and Distribution Reform Act
of 2004 or such other period.’’;
(ii) in the third sentence, by striking ‘‘Librarian
of Congress’’ and inserting ‘‘Copyright Royalty Judges’’;
and
(iii) in the fourth sentence, by striking ‘‘negotia-
tion’’;
(B) in subparagraph (B)—
(i) by amending the first sentence to read as fol-
lows: ‘‘The schedule of reasonable rates and terms
determined by the Copyright Royalty Judges shall,
subject to paragraph (3), be binding on all copyright
owners of sound recordings and entities performing
sound recordings affected by this paragraph during
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118 STAT. 2363
PUBLIC LAW 108–419—NOV. 30, 2004
the 5-year period specified in subparagraph (A), a
transitional period provided under section 6(b)(3) of
the Copyright Royalty and Distribution Reform Act
of 2004, or such other period as the parties may agree.’’;
(ii) in the second sentence, by striking ‘‘copyright
arbitration royalty panel’’ and inserting ‘‘Copyright
Royalty Judges’’; and
(iii) in the second sentence, by striking ‘‘negotiated
as provided’’ and inserting ‘‘described’’; and
(C) by amending subparagraph (C) to read as follows:
‘‘(C) The procedures under subparagraphs (A) and (B) also
shall be initiated pursuant to a petition filed by any copyright
owners of sound recordings, any preexisting subscription serv-
ices, or any preexisting satellite digital audio radio services
indicating that a new type of subscription digital audio trans-
mission service on which sound recordings are performed is
or is about to become operational, for the purpose of deter-
mining reasonable terms and rates of royalty payments with
respect to such new type of transmission service for the period
beginning with the inception of such new type of service and
ending on the date on which the royalty rates and terms for
subscription digital audio transmission services most recently
determined under subparagraph (A) or (B) and chapter 8 expire,
or such other period as the parties may agree.’’;
(2) in paragraph (2)—
(A) in subparagraph (A)—
(i) by amending the first paragraph to read as
follows: ‘‘Proceedings under chapter 8 shall determine
reasonable rates and terms of royalty payments for
subscription transmissions by eligible nonsubscription
transmission services and transmissions by new
subscription services specified by subsection (d)(2)
during the 5-year period beginning on January 1 of
the second year following the year in which the pro-
ceedings are to be commenced, except where a different
transitional period is provided under section 6(b)(3)
of the Copyright Royalty and Distribution Reform Act
of 2004, or such other period as the parties may agree.’’;
(ii) in the third sentence, by striking ‘‘Librarian
of Congress’’ and inserting ‘‘Copyright Royalty Judges’’;
and
(iii) in the fourth sentence, by striking ‘‘negotia-
tion’’;
(B) in subparagraph (B)—
(i) by amending the first sentence to read as fol-
lows: ‘‘The schedule of reasonable rates and terms
determined by the Copyright Royalty Judges shall,
subject to paragraph (3), be binding on all copyright
owners of sound recordings and entities performing
sound recordings affected by this paragraph during
the 5-year period specified in subparagraph (A), a
transitional period provided under section 6(b)(3) of
the Copyright Royalty and Distribution Act of 2004,
or such other period as the parties may agree.’’;
(ii) by striking ‘‘copyright arbitration royalty panel’’
each subsequent place it appears and inserting ‘‘Copy-
right Royalty Judges’’; and
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118 STAT. 2364
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(iii) in the last sentence by striking ‘‘negotiated
as provided’’ and inserting ‘‘described in’’; and
(C) by amending subparagraph (C) to read as follows:
‘‘(C) The procedures under subparagraphs (A) and (B) shall
also be initiated pursuant to a petition filed by any copyright
owners of sound recordings or any eligible nonsubscription
service or new subscription service indicating that a new type
of eligible nonsubscription service or new subscription service
on which sound recordings are performed is or is about to
become operational, for the purpose of determining reasonable
terms and rates of royalty payments with respect to such new
type of service for the period beginning with the inception
of such new type of service and ending on the date on which
the royalty rates and terms for preexisting subscription digital
audio transmission services or preexisting satellite digital radio
audio services, as the case may be, most recently determined
under subparagraph (A) or (B) and chapter 8 expire, or such
other period as the parties may agree.’’;
(3) in paragraph (3), by striking ‘‘determination by a copy-
right arbitration royalty panel or decision by the Librarian
of Congress’’ and inserting ‘‘decision by the Librarian of Con-
gress or determination by the Copyright Royalty Judges’’; and
(4) in paragraph (4)—
(A) by striking ‘‘Librarian of Congress’’ each place it
appears and inserting ‘‘Copyright Royalty Judges’’; and
(B) by adding after the first sentence of subparagraph
(A) the following: ‘‘The notice and recordkeeping rules in
effect on the day before the effective date of the Copyright
Royalty and Distribution Reform Act of 2004 shall remain
in effect unless and until new regulations are promulgated
by the Copyright Royalty Judges. If new regulations are
promulgated under this subparagraph, the Copyright Roy-
alty Judges shall take into account the substance and
effect of the rules in effect on the day before the effective
date of the Copyright Royalty and Distribution Reform
Act of 2004 and shall, to the extent practicable, avoid
significant disruption of the functions of any designated
agent authorized to collect and distribute royalty fees.’’.
(d) PHONORECORDS OF NONDRAMATIC MUSICAL WORKS.—Section
115(c)(3) is amended—
(1) in subparagraph (A)(ii), by striking ‘‘(F)’’ and inserting
‘‘(E)’’;
(2) in subparagraph (B)—
(A) by striking ‘‘under this paragraph’’ and inserting
‘‘under this section’’;
(B) by inserting ‘‘on a nonexclusive basis’’ after
‘‘common agents’’; and
(C) by striking ‘‘subparagraphs (C) through (F)’’ and
inserting ‘‘this subparagraph and subparagraphs (C)
through (E)’’; and
(3) in subparagraph (C)—
(A) by amending the first sentence to read as follows:
‘‘Proceedings under chapter 8 shall determine reasonable
rates and terms of royalty payments for the activities speci-
fied by this section during the period beginning with the
effective date of such rates and terms, but not earlier
than January 1 of the second year following the year in
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which the petition requesting the proceeding is filed, and
ending on the effective date of successor rates and terms,
or such other period as the parties may agree.’’;
(B) in the third sentence, by striking ‘‘Librarian of
Congress’’ and inserting ‘‘Copyright Royalty Judges’’; and
(C) in the fourth sentence, by striking ‘‘negotiation’’;
(4) in subparagraph (D)—
(A) by amending the first sentence to read as follows:
‘‘The schedule of reasonable rates and terms determined
by the Copyright Royalty Judges shall, subject to subpara-
graph (E), be binding on all copyright owners of nondra-
matic musical works and persons entitled to obtain a
compulsory license under subsection (a)(1) during the
period specified in subparagraph (C), such other period
as may be determined pursuant to subparagraphs (B) and
(C), or such other period as the parties may agree.’’;
(B) in the third sentence, by striking ‘‘copyright arbitra-
tion royalty panel’’ and inserting ‘‘Copyright Royalty
Judges’’;
(C) in the third sentence, by striking ‘‘negotiated as
provided in subparagraphs (B) and (C)’’ and inserting
‘‘described’’; and
(D) in the last sentence, by striking ‘‘Librarian of Con-
gress’’ and inserting ‘‘Copyright Royalty Judges’’.
(5) in subparagraph (E)—
(A) in clause (i)—
(i) in the first sentence, by striking ‘‘Librarian
of Congress’’ and inserting ‘‘Librarian of Congress and
Copyright Royalty Judges’’; and
(ii) in the second sentence, by striking ‘‘(C), (D)
or (F) shall be given effect’’ and inserting ‘‘(C) or (D)
shall be given effect as to digital phonorecord deliv-
eries’’; and
(B) in clause (ii)(I), by striking ‘‘(C), (D) or (F)’’ each
place it appears and inserting ‘‘(C) or (D)’’; and
(6) by striking subparagraph (F) and redesignating sub-
paragraphs (G) through (L) as subparagraphs (F) through (K),
respectively.
(e) COIN-OPERATED PHONORECORD PLAYERS.—Section 116 is
amended—
(1) in subsection (b), by amending paragraph (2) to read
as follows:
‘‘(2) CHAPTER 8 PROCEEDING.—Parties not subject to such
a negotiation may have the terms and rates and the division
of fees described in paragraph (1) determined in a proceeding
in accordance with the provisions of chapter 8.’’; and
(2) in subsection (c)—
(A) in the subsection heading, by striking ‘‘COPYRIGHT
ARBITRATION
ROYALTY
PANEL
DETERMINATIONS’’ 
and
inserting 
‘‘DETERMINATIONS
BY
COPYRIGHT
ROYALTY
JUDGES’’; and
(B) by striking ‘‘a copyright arbitration royalty panel’’
and inserting ‘‘the Copyright Royalty Judges’’.
(f) USE OF CERTAIN WORKS IN CONNECTION WITH NONCOMMER-
CIAL BROADCASTING.—Section 118 is amended—
(1) in subsection (b)—
(A) in paragraph (1)—
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118 STAT. 2366
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(i) in the first sentence, by striking ‘‘Librarian
of Congress’’ and inserting ‘‘Copyright Royalty Judges’’;
and
(ii) by striking the second and third sentences;
(B) in paragraph (2), by striking ‘‘Librarian of Con-
gress:’’ and all that follows through the end of the sentence
and inserting ‘‘Librarian of Congress or the Copyright Roy-
alty Judges, if copies of such agreements are filed with
the Copyright Royalty Judges within 30 days of execution
in accordance with regulations that the Copyright Royalty
Judges shall issue.’’; and
(C) in paragraph (3)—
(i) in the second sentence—
(I) by striking ‘‘copyright arbitration royalty
panel’’ and inserting ‘‘Copyright Royalty Judges’’;
and
(II) by striking ‘‘paragraph (2).’’ and inserting
‘‘paragraph (2) or (3).’’;
(ii) in the last sentence, by striking ‘‘‘Librarian
of Congress’’ and inserting ‘‘Copyright Royalty Judges’’;
and
(iii) by striking ‘‘(3) In’’ and all that follows through
the end of the first sentence and inserting the fol-
lowing:
‘‘(3) Voluntary negotiation proceedings initiated pursuant
to a petition filed under section 804(a) for the purpose of deter-
mining a schedule of terms and rates of royalty payments
by public broadcasting entities to copyright owners in works
specified by this subsection and the proportionate division of
fees paid among various copyright owners shall cover the 5-
year period beginning on January 1 of the second year following
the year in which the petition is filed. The parties to each
negotiation proceeding shall bear their own costs.
‘‘(4) In the absence of license agreements negotiated under
paragraph (2) or (3), the Copyright Royalty Judges shall, pursu-
ant to chapter 8, conduct a proceeding to determine and publish
in the Federal Register a schedule of rates and terms which,
subject to paragraph (2), shall be binding on all owners of
copyright in works specified by this subsection and public broad-
casting entities, regardless of whether such copyright owners
have submitted proposals to the Copyright Royalty Judges.’’;
(2) by striking subsection (c) and redesignating subsections
(d) through (g) as subsections (c) through (f), respectively;
(3) in subsection (c), as so redesignated, in the matter
preceding paragraph (1)—
(A) by striking ‘‘(b)(2)’’ and inserting ‘‘(b)(2) or (3)’’;
(B) by striking ‘‘(b)(3)’’ and inserting ‘‘(b)(4)’’; and
(C) by striking ‘‘a copyright arbitration royalty panel
under subsection (b)(3)’’ and inserting ‘‘the Copyright Roy-
alty Judges under subsection (b)(3), to the extent that
they were accepted by the Librarian of Congress’’;
(4) in subsection (d), as so redesignated—
(A) by striking ‘‘in the Copyright Office’’ and inserting
‘‘with the Copyright Royalty Judges’’; and
(B) by striking ‘‘Register of Copyrights shall prescribe’’
and inserting ‘‘Copyright Royalty Judges shall prescribe
as provided in section 803(b)(6)’’; and
Federal Register,
publication.
Deadline.
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PUBLIC LAW 108–419—NOV. 30, 2004
(5) in subsection (f), as so redesignated, by striking ‘‘(d)’’
and inserting ‘‘(c)’’.
(g) SECONDARY TRANSMISSIONS BY SATELLITE CARRIERS.—Sec-
tion 119(b) is amended—
(1) in paragraph (3), by striking ‘‘Librarian of Congress’’
and inserting ‘‘Copyright Royalty Judges’’; and
(2) in paragraph (4)—
(A) in subparagraph (A), by striking ‘‘Librarian of Con-
gress’’ each place it appears and inserting ‘‘Copyright Roy-
alty Judges’’; and
(B) by amending subparagraphs (B) and (C) to read
as follows:
‘‘(B) DETERMINATION
OF
CONTROVERSY; 
DISTRIBU-
TIONS.—After the first day of August of each year, the
Copyright Royalty Judges shall determine whether there
exists a controversy concerning the distribution of royalty
fees. If the Copyright Royalty Judges determine that no
such controversy exists, the Librarian of Congress shall,
after deducting reasonable administrative costs under this
paragraph, distribute such fees to the copyright owners
entitled to receive them, or to their designated agents.
If the Copyright Royalty Judges find the existence of a
controversy, the Copyright Royalty Judges shall, pursuant
to chapter 8 of this title, conduct a proceeding to determine
the distribution of royalty fees.
‘‘(C) WITHHOLDING OF FEES DURING CONTROVERSY.—
During the pendency of any proceeding under this sub-
section, the Copyright Royalty Judges shall withhold from
distribution an amount sufficient to satisfy all claims with
respect to which a controversy exists, but shall have the
discretion to proceed to distribute any amounts that are
not in controversy.’’.
(h) RATEMAKING FOR SATELLITE CARRIERS.—Section 119(c) of
title 17, United States Code, is amended—
(1) in paragraph (2)—
(A) in subparagraph (B), by striking ‘‘Librarian of Con-
gress’’ and inserting ‘‘Copyright Royalty Judges’’; and
(B) in subparagraph (C), by striking ‘‘Register of Copy-
rights shall prescribe’’ and inserting ‘‘Copyright Royalty
Judges shall prescribe as provided in section 803(b)(6);
and
(2) in paragraph (3)—
(A) in subparagraph (A)—
(i) by striking ‘‘arbitration proceedings’’ and
inserting ‘‘proceedings’’; and
(ii) by striking ‘‘arbitration proceeding’’ and
inserting ‘‘proceedings’’;
(B) in subparagraph (B)—
(i) by striking ‘‘copyright arbitration royalty panel
appointed under chapter 8’’ and inserting ‘‘Copyright
Royalty Judges’’; and
(ii) by striking ‘‘panel shall base its decision’’ and
inserting ‘‘Copyright Royalty Judges shall base their
determination’’; and
(C) in subparagraph (C)—
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118 STAT. 2368
PUBLIC LAW 108–419—NOV. 30, 2004
(i) in the heading, by striking ‘‘DECISION
OF
ARBITRATION
PANEL
OR
ORDER
OF
LIBRARIAN’’ and
inserting ‘‘DETERMINATION UNDER CHAPTER 8’’; and
(ii) by striking clauses (i) and (ii) and inserting
the following:
‘‘(i) is made by the Copyright Royalty Judges
pursuant to this paragraph and becomes final, or
‘‘(ii) is made by the court on appeal under section
803(d)(3),’’.
(i) DIGITAL AUDIO RECORDING DEVICES.—
(1) ROYALTY PAYMENTS.—Section 1004(a)(3) is amended by
striking ‘‘Librarian of Congress’’ each place it appears and
inserting ‘‘Copyright Royalty Judges’’.
(2) ENTITLEMENT TO ROYALTY PAYMENTS.—Section 1006(c)
is amended by striking ‘‘Librarian of Congress shall convene
a copyright arbitration royalty panel which’’ and inserting
‘‘Copyright Royalty Judges’’.
(3) PROCEDURES FOR DISTRIBUTING ROYALTY PAYMENTS.—
Section 1007 is amended—
(A) in subsection (a), by amending paragraph (1) to
read as follows:
‘‘(1) FILING OF CLAIMS.—During the first 2 months of each
calendar year, every interested copyright party seeking to
receive royalty payments to which such party is entitled under
section 1006 shall file with the Copyright Royalty Judges a
claim for payments collected during the preceding year in such
form and manner as the Copyright Royalty Judges shall pre-
scribe by regulation.’’; and
(B) by amending subsections (b) and (c) to read as
follows:
‘‘(b) DISTRIBUTION OF PAYMENTS IN THE ABSENCE OF A DIS-
PUTE.—After the period established for the filing of claims under
subsection (a), in each year, the Copyright Royalty Judges shall
determine whether there exists a controversy concerning the dis-
tribution of royalty payments under section 1006(c). If the Copyright
Royalty Judges determine that no such controversy exists, the
Librarian of Congress shall, within 30 days after such determina-
tion, authorize the distribution of the royalty payments as set
forth in the agreements regarding the distribution of royalty pay-
ments entered into pursuant to subsection (a). The Librarian of
Congress shall, before such royalty payments are distributed, deduct
the reasonable administrative costs incurred by the Librarian under
this section.
‘‘(c) RESOLUTION OF DISPUTES.—If the Copyright Royalty Judges
find the existence of a controversy, the Copyright Royalty Judges
shall, pursuant to chapter 8 of this title, conduct a proceeding
to determine the distribution of royalty payments. During the pend-
ency of such a proceeding, the Copyright Royalty Judges shall
withhold from distribution an amount sufficient to satisfy all claims
with respect to which a controversy exists, but shall, to the extent
feasible, authorize the distribution of any amounts that are not
in controversy. The Librarian of Congress shall, before such royalty
payments are distributed, deduct the reasonable administrative
costs incurred by the Librarian under this section.’’.
(4) DETERMINATION
OF
CERTAIN
DISPUTES.—(A) Section
1010 is amended to read as follows:
Deadline.
Regulations.
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118 STAT. 2369
PUBLIC LAW 108–419—NOV. 30, 2004
‘‘§ 1010. Determination of certain disputes
‘‘(a) SCOPE OF DETERMINATION.—Before the date of first dis-
tribution in the United States of a digital audio recording device
or a digital audio interface device, any party manufacturing,
importing, or distributing such device, and any interested copyright
party may mutually agree to petition the Copyright Royalty Judges
to determine whether such device is subject to section 1002, or
the basis on which royalty payments for such device are to be
made under section 1003.
‘‘(b) INITIATION OF PROCEEDINGS.—The parties under subsection
(a) shall file the petition with the Copyright Royalty Judges
requesting the commencement of a proceeding. Within 2 weeks
after receiving such a petition, the Chief Copyright Royalty Judge
shall cause notice to be published in the Federal Register of the
initiation of the proceeding.
‘‘(c) STAY OF JUDICIAL PROCEEDINGS.—Any civil action brought
under section 1009 against a party to a proceeding under this
section shall, on application of one of the parties to the proceeding,
be stayed until completion of the proceeding.
‘‘(d) PROCEEDING.—The Copyright Royalty Judges shall conduct
a proceeding with respect to the matter concerned, in accordance
with such procedures as the Copyright Royalty Judges may adopt.
The Copyright Royalty Judges shall act on the basis of a fully
documented written record. Any party to the proceeding may submit
relevant information and proposals to the Copyright Royalty Judges.
The parties to the proceeding shall each bear their respective costs
of participation.
‘‘(e) JUDICIAL REVIEW.—Any determination of the Copyright
Royalty Judges under subsection (d) may be appealed, by a party
to the proceeding, in accordance with section 803(d) of this title.
The pendency of an appeal under this subsection shall not stay
the determination of the Copyright Royalty Judges. If the court
modifies the determination of the Copyright Royalty Judges, the
court shall have jurisdiction to enter its own decision in accordance
with its final judgment. The court may further vacate the deter-
mination of the Copyright Royalty Judges and remand the case
for proceedings as provided in this section.’’.
(B) The item relating to section 1010 in the table of sections
for chapter 10 is amended to read as follows:
‘‘1010. Determination of certain disputes.’’.
SEC. 6. EFFECTIVE DATE AND TRANSITION PROVISIONS.
(a) EFFECTIVE DATE.—This Act and the amendments made
by this Act shall take effect 6 months after the date of enactment
of this Act, except that the Librarian of Congress shall appoint
1 or more interim Copyright Royalty Judges under section 802(d)
of title 17, United States Code, as amended by this Act, within
90 days after such date of enactment to carry out the functions
of the Copyright Royalty Judges under title 17, United States
Code, to the extent that Copyright Royalty Judges provided for
in section 801(a) of title 17, United States Code, as amended by
this Act, have not been appointed before the end of that 90-day
period.
(b) TRANSITION PROVISIONS.—
(1) IN GENERAL.—Subject to paragraphs (2) and (3), the
amendments made by this Act shall not affect any proceedings
commenced, petitions filed, or voluntary agreements entered
17 USC 801 note.
Deadline.
Notice.
Federal Register,
publication.
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118 STAT. 2370
PUBLIC LAW 108–419—NOV. 30, 2004
into before the effective date provided in subsection (a) under
the provisions of title 17, United States Code, as amended
by this Act, and pending on such effective date. Such pro-
ceedings shall continue, determinations made in such pro-
ceedings, and appeals taken therefrom, as if this Act had not
been enacted, and shall continue in effect until modified under
title 17, United States Code, as amended by this Act. Such
petitions filed and voluntary agreements entered into shall
remain in effect as if this Act had not been enacted. For
purposes of this paragraph, the Librarian of Congress may
determine whether a proceeding has commenced. The Librarian
of Congress may terminate any proceeding commenced before
the date of enactment of this Act pursuant to chapter 8 of
title 17, United States Code, and any proceeding so terminated
shall become null and void. In such cases, the Copyright Royalty
Judges may initiate a new proceeding in accordance with regu-
lations adopted pursuant to section 803(b)(6) of title 17, United
States Code.
(2) 
CERTAIN
ROYALTY
RATE
PROCEEDINGS.—Notwith-
standing paragraph (1), the amendments made by this Act
shall not affect proceedings to determine royalty rates pursuant
to section 119(c) of title 17, United States Code, that are com-
menced before January 31, 2006.
(3) PENDING
PROCEEDINGS.—Notwithstanding paragraph
(1), any proceedings to establish or adjust rates and terms
for the statutory licenses under section 114(f)(2) or 112(e) of
title 17, United States Code, for a statutory period commencing
on or after January 1, 2005, shall be terminated upon the
date of enactment of this Act and shall be null and void.
The rates and terms in effect under section 114(f)(2) or 112(e)
of title 17, United States Code, on December 31, 2004, for
new subscription services, eligible nonsubscription services, and
services exempt under section 114(d)(1)(C)(iv) of such title,
and the rates and terms published in the Federal Register
under the authority of the Small Webcaster Settlement Act
of 2002 (17 U.S.C. 114 note; Public Law 107–321) (including
the amendments made by that Act) for the years 2003 through
2004, as well as any notice and recordkeeping provisions
adopted pursuant thereto, shall remain in effect until the later
of the first applicable effective date for successor terms and
rates specified in section 804(b) (2) or (3)(A) of title 17, United
States Code, or such later date as the parties may agree or
the Copyright Royalty Judges may establish. For the period
commencing January 1, 2005, an eligible small webcaster or
a noncommercial webcaster, as defined in the regulations pub-
lished by the Register of Copyrights pursuant to the Small
Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public
Law 107–321) (including the amendments made by that Act),
may elect to be subject to the rates and terms published in
those regulations by complying with the procedures governing
the election process set forth in those regulations not later
than the first date on which the webcaster would be obligated
to make a royalty payment for such period. Until successor
terms and rates have been established for the period com-
mencing January 1, 2006, licensees shall continue to make
royalty payments at the rates and on the terms previously
Termination
date.
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118 STAT. 2371
PUBLIC LAW 108–419—NOV. 30, 2004
LEGISLATIVE HISTORY—H.R. 1417:
HOUSE REPORTS: No. 108–408 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 150 (2004):
Mar. 3, considered and passed House.
Oct. 6, considered and passed Senate, amended.
Nov. 17, House concurred in Senate amendment.
in effect, subject to retroactive adjustment when successor rates
and terms for such services are established.
(4) INTERIM
PROCEEDINGS.—Notwithstanding subsection
(a), as soon as practicable after the date of enactment of this
Act, the Copyright Royalty Judges or interim Copyright Royalty
Judges shall publish the notice described in section 803(b)(1)(A)
of title 17, United States Code, as amended by this Act, to
initiate a proceeding to establish or adjust rates and terms
for the statutory licenses under section 114(f)(2) or 112(e) of
title 17, United States Code, for new subscription services and
eligible nonsubscription services for the period commencing
January 1, 2006. The Copyright Royalty Judges or Interim
Copyright Royalty Judges are authorized to cause that pro-
ceeding to take place as provided in subsection (b) of section
803 of that title within the time periods set forth in that
subsection. Notwithstanding section 803(c)(1) of that title, the
Copyright Royalty Judges shall not be required to issue their
determination in that proceeding before the expiration of the
statutory rates and terms in effect on December 31, 2004.
(c) EXISTING APPROPRIATIONS.—Any funds made available in
an appropriations Act to carry out chapter 8 of title 17, United
States Code, shall be available to the extent necessary to carry
out this section.
Approved November 30, 2004.
Publication.
Notice.
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