January 31, 2019 Program - 12:30 P.M

Home , Aloe Blacc discography, Autolux, Billy Howerdel

2018 Entertainment Law Year in Review

Presented By: ELIP Section

Thursday, January 31, 2019 Program - 12:30 p.m. - 1:30 p.m. Lawry’s Restaurant 1.0 CLE Hours

Provider #36 The Los Angeles County Bar Association is a State Bar of California approved MCLE provider. The Los Angles County Bar Association certifies that this activity has been approved for MCLE credit by the State Bar of California.

Music Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/

Home (index.html) / Music Modernization Act

Copyright Office Implementation and Outreach (/music-modernization /implementation.html) Changes in Law Regarding On October 11, 2018, the Orrin G. Hatch–Bob Goodlatte Music the Section 115 Mechanical License (/music- Modernization Act was signed into law. This bipartisan and unanimously modernization/115/) enacted legislation represents the realization of years of effort by a wide Changes in Law Regarding array of policymakers and stakeholders, as well as the U.S. Copyright Pre-1972 Sound Recordings (https://www.copyright.gov Office itself, to update the music licensing landscape to better facilitate legal /music-modernization licensing of music by digital services. The Copyright Office is heartened by /pre1972-soundrecordings /index.html) the passage of landmark legislation expected to benefit the many Amendments to the Copyright stakeholders across all aspects of the music marketplace, including Act as a result of the Orrin G. songwriters, publishers, artists, record labels, digital services, libraries, and Hatch–Bob Goodlatte Music Modernization Act the public at large. (https://www.copyright.gov /legislation /2018_mma_amendments.pdf) In advance of introducing this legislation, Congress held a series of FAQs Regarding the Orrin G. hearings on music issues, as part of its comprehensive review of the Hatch–Bob Goodlatte Music Modernization Act nation’s copyright laws. To assist and inform that effort, the Copyright Office (https://www.copyright.gov conducted a comprehensive study of the music licensing framework as well /music-modernization /faq.html) as the ever-evolving needs of those who create and invest in music in the Legislative History twenty-first century, which resulted in a report entitled “Copyright and the (/legislation/) Music Marketplace (/policy/musiclicensingstudy/copyright-and-the-music- marketplace.pdf).” This report followed the Copyright Office’s earlier policy report “Federal Copyright Protection for Pre-1972 Sound Recordings (/docs /sound/pre-72-report.pdf),” which examined the desirability of and means for bringing sound recordings fixed before February 15, 1972, under federal jurisdiction. Many of the suggestions offered in both of those reports will be Interim Rule Regarding Pre-1972 Sound Recordings realized in enactment of this legislation. (/rulemaking/pre1972- soundrecordings-schedules/)

The Orrin G. Hatch–Bob Goodlatte Music Modernization Act promises to Notice of Inquiry Regarding the Noncommercial Use serve as one of the most significant pieces of copyright legislation in Exception to Unauthorized decades. Uses of Pre-1972 Sound Recordings (/rulemaking /pre1972-soundrecordings- noncommercial/)

1 of 3 1/30/2019, 11:57 AM Music Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/

Notice of Inquiry Regarding the Designation of The Orrin G. Hatch–Bob Goodlatte Music Modernization Act addresses Mechanical Licensing Collective (/rulemaking/mma- Congress’s determination that copyright law has not kept pace with designations/) changing consumer preferences and technological developments in the music marketplace. The law is organized into three key titles: Title I—Music Licensing Modernization; Title II—Classics Protection and Access; and Title III – Allocation for Music Producers.

Title I—Music Licensing Modernization, among other things, modifies the existing section 115 “mechanical” license for reproduction and distribution of musical works in phonorecords (which was previously obtained by licensees on a per-work, song-by-song basis) to establish a new blanket license for digital music providers to engage in specific covered activities (namely, permanent downloads, limited downloads, and interactive streaming). Licensing of physical configurations (e.g., CDs, vinyl) will still operate on a per-work, individual song license, basis. Title I establishes a market-oriented “willing buyer, willing seller” rate standard that will apply to all licensees of musical works under the section 115 mechanical license. Pursuant to section 115(d)(3), as amended, the Register of Copyrights will designate an entity as the mechanical licensing collective to administer the blanket license and distribute collected royalties to songwriters and music publishers. The newly created mechanical licensing collective will be tasked with developing and maintaining a database of musical works and sound recordings, which will be publicly available and is expected to become the most comprehensive database in the music industry. There will be a transition period to move to the new blanket license, allowing digital music providers to limit copyright infringement liability so long as the provider engages in good-faith, commercially reasonable efforts to identify and locate musical work copyright owners. The legislation also modifies the process for selecting federal district court judges to adjudicate rate-setting disputes regarding performance rights organizations that are subject to consent decrees with the Department of Justice (i.e., ASCAP and BMI).

Title II—Classics Protection and Access, among other things, brings pre-1972 sound recordings partially into the federal copyright system by extending remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972. The federal remedies for unauthorized use of pre-1972 sound recordings shall be available for 95 years after first publication of the recording, ending on December 31 of that

2 of 3 1/30/2019, 11:57 AM Music Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/

year, subject to certain additional periods. These periods provide varying additional protection for pre-1972 sound recordings, based on when the sound recording was first published:

For recordings first published before 1923, the additional time period ends on December 31, 2021. For recordings first published between 1923-1946, the additional time period is 5 years after the general 95-year term. For recordings first published between 1947-1956, the additional time period is 15 years after the general 95-year term. For all remaining recordings first fixed prior to February 15, 1972, the additional transition period shall end on February 15, 2067.

This section applies a statutory licensing regime similar to that which applies to post-1972 sound recordings, e.g., the statutory licenses for noninteractive digital streaming services — such as internet radio, satellite radio, and cable TV music services. It also establishes a process for lawfully engaging in noncommercial uses of pre-1972 sound recordings that are not being commercially exploited. The legislation also applies certain existing title 17 limitations on exclusive rights and limitations on liability to uses of pre-1972 sound recordings, e.g., sections 107 (fair use), 108 (libraries and archives), 109 (first sale), 110 (certain public performances), 112(f) (certain ephemeral copies) and 512 (safe harbor provisions for online service providers).

Title III – Allocation for Music Producers, among other things, will allow music producers to receive compensation from royalties collected for uses of sound recordings under the section 114 statutory license by codifying a process wherein the collective designated to collect and distribute royalties (currently, Sound Exchange) will distribute royalty payments to a producer under a “letter of direction.”

3 of 3 1/30/2019, 11:57 AM Music Modernization: FAQ | U.S. Copyright Office https://www.copyright.gov/music-modernization/faq.html

Home () / Music Modernization (/music-modernization/) / Musical Works Modernization Act (changes to section 115)

Can I still file a NOI with the Copyright Office? The existing system for filing notices of intention to obtain a compulsory license for making and distributing phonorecords of nondramatic musical works (NOIs) with the Copyright Office on a song-by-song basis will remain place for non-digital uses (CDs, vinyl).

However, the Copyright Office will no longer accept NOIs to obtain a compulsory license for making a digital phonorecord delivery of a musical work, such as in the form of a permanent download, limited download, or interactive stream. Instead, after a transition period, during which the Register will issue relevant regulations and designate key entities to carry out administration of the license, the new license becomes available on a blanket basis (covering all musical works available for compulsory licensing). Digital phonorecord deliveries are obtained under the new blanket license by submitting a notice of license to the mechanical licensing collective (MLC).

In the interim before the blanket license is available from the MLC, the liability for digital music providers will be limited so long as they comply with certain requirements, including engaging in good-faith, commercially reasonab efforts to identify and locate each copyright owner of a musical work they use on their service. See the below FAQ on what happens during the transition period for more details.

Will the MMA change the statutory rates? The new legislation does not change the rates for the compulsory license under section 115. However, the legislation does establish a new rate setting standard to be applied by the Copyright Royalty Judges. The new market-based willing buyer / willing seller rate setting replaces the policy-oriented 801(b)(1) rate-setting standard. The Copyright Royalty Judges will apply the new standard to rate determination proceedings that commence on or after October 11, 2018

What happens during the transition period? Prior to the availability of a blanket license from the MLC, a digital music provider can enjoy a limitation of copyrigh infringement liability for use of a musical work for which the digital music provider was unable to identify or locate th musical work copyright owner, so long as the digital music provider engages in good-faith, commercially reasonabl efforts to identify and locate musical work copyright owners. The digital music provider must also be prepared to pa accrued royalties to the musical work copyright owner once they are located. As part of engaging in good-faith, commercially reasonable efforts to identify musical work copyright owners, the digital music provider is required to use one or more bulk electronic matching processes, and must continue using these processes on a monthly basis for so long as the musical work rights owner is unidentified. If the musical work copyright owner is identified or

1 of 4 1/30/2019, 12:00 PM Music Modernization: FAQ | U.S. Copyright Office https://www.copyright.gov/music-modernization/faq.html

located during this search process, then the digital music provider is required to report and pay that copyright owne any royalties owed. If the musical work copyright owner remains unidentified between the date of enactment and th date the blanket license is available, then the digital music provider is required to provide a cumulative usage repo and accrued royalties to the mechanical licensing collective.

What is the mechanical licensing collective? The MLC is a non-profit entity that will administer the blanket license. The MLC will receive notices and reports from digital music providers, collect and distribute royalties, and identify musical works and their owners for payment. Th MLC will establish and maintain a publicly accessible database containing information relating to musical works (an shares of such works) and, to the extent known, the identity and location of the copyright owners of such works an the sound recordings in which the musical works are embodied. In cases where the MLC is not able to match musical works to copyright owners, the MLC is authorized to distribute the unclaimed royalties to copyright owners identified in the MLC records, based on the relative market shares of such copyright owners as reflected in reports of usage provided by digital music providers for the periods in question. The Copyright Office will initiate a rulemaking to designate the entity that will serve as the MLC.

What is the digital licensee coordinator? The digital licensee coordinator (“DLC”) is a non-profit entity that will coordinate the activities of the licensees and designate a representative to serve as a non-voting member on the board of the MLC. The DLC will be authorized to participate in proceedings before the Copyright Royalty Judges’ proceedings to establish the administrative assessment paid for by digital music providers to operate the MLC. The Copyright Office will initiate a rulemaking designate the entity that will serve as the DLC.

Who pays for the operational costs of the MLC? The operational costs of the MLC will be paid for by digital music providers through voluntary contributions and an administrative assessment set by the Copyright Royalty Judges. The MLC and the DLC will be authorized to participate in proceedings before the Copyright Royalty Judges’ proceedings to establish the administrative assessment paid for by digital music providers to operate the MLC.

How will I claim my royalties from the MLC? Once established, the MLC will establish and administer a process by which copyright owners can claim ownership of musical works (and shares of such works). Once an owner of an unmatched work has been identified and located in accordance with the procedures established by the MLC, the musical works database and the other records of the MLC will be updated accordingly. The MLC will also establish a dispute resolution committee that implements policies and procedures to address and resolve disputes relating to ownership interests in licensed musical works.

The Copyright Office will update its website with more educational information on claiming works.

How does the MMA affect terrestrial broadcast radio? The MMA does not directly affect terrestrial broadcast radio. The existing section 114(i) provision that prohibits performing rights organization (PRO) rate courts from considering licensing fees paid for digital performances of

2 of 4 1/30/2019, 12:00 PM Music Modernization: FAQ | U.S. Copyright Office https://www.copyright.gov/music-modernization/faq.html

sound recordings in its rate setting proceedings for the public performance of musical works is partially repealed. However, this repeal does not apply to rate settings for terrestrial broadcast radio.

Title II of the MMA, the Classics Protection and Access Act, expressly preserves the current preemptive effect, or lack thereof, that title 17 may have regarding any cause of action arising from the nonsubscription broadcast transmission of sound recordings under the common law or statutes of any State for activities that do not qualify as covered activities under chapter 14.

How does the MMA affect performing rights organizations or the ASCAP and BMI consent decrees? The section 114(i) provision that prohibits PRO rate courts from considering licensing fees paid for digital performances of sound recordings in its ratesetting proceedings for the public performance of musical works is partially repealed. This repeal does not apply to radio broadcasters. Additionally, the legislation changes how judges in the Southern District of New York are assigned to the rate court proceedings set forth in the consent decrees for ASCAP and BMI, by assigning each new rate dispute on a rotating basis instead of all disputes being handled by the same judge.

What is the term of protection for pre-1972 sound recordings? The federal remedies for unauthorized use of pre-1972 sound recordings shall be available for 95 years after the year of first publication of the recording, subject to certain additional periods. These periods provide varying additional protection for pre-1972 sound recordings, based on when the sound recording was first published:

For recordings first published before 1923, the additional time period ends on December 31, 2021. For recordings first published between 1923-1946, the additional time period is 5 years after the general 95- year term. For recordings first published between 1947-1956, the additional time period is 15 years after the general 95- year term. For all remaining recordings first fixed prior to February 15, 1972, the additional transition period shall end on February 15, 2067.

Do I need to register pre-1972 sound recordings? No. There is no obligation to register. However, to be eligible to recover statutory damages and/or attorneys’ fees the new section 1401(e)(5) typically requires that rights owners file schedules listing their pre-1972 sound recordin with the Copyright Office (an interim rule (/rulemaking/pre1972-soundrecordings-schedules/) recently established the Office’s filing requirements). This requirement takes the place of a formal registration requirement that normall applies to claims involving statutory damages. Rights owners filing these schedules must include the name of the rights owner, title, and featured artist for each recording listed. The interim rule also establishes how individuals ma request timely notification of when rights owners file such schedules with the Office. Note that in cases where a transmitting entity has filed a valid and timely notice of contact information (/music-modernization/pre1972-

3 of 4 1/30/2019, 12:00 PM Music Modernization: FAQ | U.S. Copyright Office https://www.copyright.gov/music-modernization/faq.html

soundrecordings/contactinformation-instructions.html), a rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after sending the transmitting entity a notice stating that it is not legally authorized to us the pre-1972 sound recording, and identifying the pre-1972 sound recording in a schedule conforming to the requirements set forth in the interim rule (/rulemaking/pre1972-soundrecordings-schedules/).

What is the noncommercial use exception for pre-1972 sound recordings? The legislation establishes a process for lawfully engaging in noncommercial uses of pre-1972 sound recordings that are not being commercially exploited. To qualify for this exemption, a user must submit a notice of noncommercial use after conducting a good faith, reasonable search, and the rights owner of the sound recording must not object to the use with 90 days.

On October 16, 2018, the Copyright Office issued a notice of inquiry (/rulemaking/pre1972-soundrecordings- noncommercial/) seeking comments regarding specific steps that a user may take to demonstrate she has made a good faith, reasonable search. The Office also requested comments regarding the filing requirements for the user t submit a notice of non-commercial use, and for a rights owner to come forward and object to such use.

How long will it take for the Office to index the schedules of pre-1972 sound recordings submitted by right owners under the interim rule? The Copyright Office will index a schedule of pre-1972 sound recordings promptly following receipt of the schedule in proper form, and the prescribed fee.

What does the AMP Act mean for producers, mixers, or engineers? Title III of the MMA, the Allocation for Music Producers Act (“AMP Act”), will allow music producers, mixers, or engineers who were part of the creative process that made a sound recording but who were not by statute receivin royalties under section 114, to receive compensation from royalties collected for uses of sound recordings under th section 114 statutory license. It does this by codifying a process wherein the collective designated to collect and distribute royalties (currently, Sound Exchange) will distribute a portion of royalty payments directly to a producer, mixer, or engineer pursuant to a “letter of direction” from an authorized artists payee. The AMP Act also directs the collective (SoundExchange) to adopt a policy that, in the absence of a letter of direction, allows for statutory royalties for certain pre-1995 sound recordings to be paid to producers, mixers, or engineers from the featured artist’s share if certain requirements are satisfied, including that the artist payee is notified and does not object.

4 of 4 1/30/2019, 12:00 PM Music Licensing Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/115/

Home () / Music Modernization (/music-modernization/) / 115

FAQs Regarding the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (/music- Title I of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act modernization/faq.html) replaces the existing song-by-song compulsory licensing structure for making and distributing musical works with a blanket licensing system for digital music providers to make and distribute digital phonorecord deliveries (e.g., permanent downloads, limited downloads, or interactive streams).

The legislation establishes a “mechanical licensing collective” (“MLC”) to administer the blanket license, and a “digital licensee coordinator” (“DLC”) to coordinate the activities of the licensees and designate a representative to serve as a non-voting member on the board of the MLC. The MLC will receive notices and reports from digital music providers, collect and distribute royalties, and identify musical works and their owners for payment. The MLC will establish and maintain a publicly accessible database containing information relating to musical works (and shares of such works) and, to the extent known, the identity and location of the copyright owners of such works and the sound recordings in which the musical works are embodied. In cases where the MLC is not able to match musical works to copyright owners, the MLC is authorized to distribute the unclaimed royalties to copyright owners identified in the MLC records, based on the relative market shares of such copyright owners as reflected in reports of usage provided by digital music providers for the periods in question.

The operational costs of the MLC will be paid for by digital music providers through voluntary contributions and an administrative assessment set by the Copyright Royalty Judges. The MLC and the DLC will be authorized to participate in proceedings before the Copyright Royalty Judges to establish the administrative assessment.

The Copyright Office will initiate rulemakings to designate the entity that will

1 of 3 1/30/2019, 11:58 AM Music Licensing Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/115/

serve as the MLC and the entity that will serve as the DLC.

The existing system for filing notices of intention to obtain a compulsory license for making and distributing phonorecords of nondramatic musical works (NOIs) with the Copyright Office on a song-by-song basis will remain in place for non-digital uses (e.g., CDs, vinyl). However, the Office will no longer accept NOIs for making a digital phonorecord delivery of a musical work, such as in the form of a permanent download, limited download, or interactive stream. Instead, after a transition period, during which the Register will issue relevant regulations and designate key entities to carry out administration of the license, users will be able to obtain a blanket license (covering all musical works available for compulsory licensing) for digital phonorecord deliveries by submitting a notice of license to the MLC. While the Copyright Office will no longer accept NOIs for making a digital phonorecord delivery of musical works, licensees may still serve NOIs directly on copyright owners.

Prior to the license availability date (January 1, 2021), liability may be limited to royalties due under the compulsory license if the digital music provider complies with certain requirements, including engaging in good- faith, commercially reasonable efforts to identify and locate each copyright owner of a musical work they use on their service.

The new rate setting standard applied by the Copyright Royalty Judges will be a market-based willing buyer / willing seller standard, replacing the policy-oriented 801(b)(1) rate-setting standard.

The section 114(i) provision that prohibits PRO rate courts from considering licensing fees paid for digital performances of sound recordings in its ratesetting proceedings for the public performance of musical works is partially repealed. This repeal does not apply to radio broadcasters. Additionally the legislation changes how judges in the Southern District of New York are assigned to the rate court proceedings set forth in the

2 of 3 1/30/2019, 11:58 AM Music Licensing Modernization | U.S. Copyright Office https://www.copyright.gov/music-modernization/115/

consent decrees for ASCAP and BMI, by assigning each new rate dispute on a rotating basis instead of all disputes being handled by the same judge.

3 of 3 1/30/2019, 11:58 AM Designation of Mechanical Licensing Collective | U.S. Copyright Office https://www.copyright.gov/rulemaking/mma-designations/

Home (/) / Open Rulemakings (/rulemaking/) Notice of Inquiry

/ Designation of Mechanical Licensing Collective December 21, 2018 – Notice of Inquiry (https://www.govinfo.gov/content /pkg/FR-2018-12-21 /pdf/2018-27743.pdf)

Comment Submission (/rulemaking/mma-designations/comment-submission/)

Pursuant to the Musical Works Modernization Act, title I of the recently-enacted Orrin G. Hatch–Bob Goodlatte Music Modernization Act (MMA), the U.S. Copyright Office has issued a notice of inquiry seeking public comment regarding the designation of a mechanical licensing collective and a digital licensee coordinator to carry out key functions under the updated mechanical licensing process.

The Musical Works Modernization Act modified the existing section 115 “mechanical” license for reproduction and distribution of musical works in phonorecords (which was previously obtained by licensees on a per-work, song-by-song basis) to establish a new blanket license for digital music providers to engage in specific covered activities (namely, permanent downloads, limited downloads, and interactive streaming).

Pursuant to section 115(d)(3), as amended, the Register of Copyrights will designate an entity as the mechanical licensing collective (MLC) to administer the blanket license and distribute collected royalties to songwriters and music publishers. The newly created mechanical licensing collective will be tasked with developing and maintaining a database of musical works and sound recordings, which will be publicly available and is expected to become the most comprehensive database in the music industry.

The Register of Copyrights will designate an entity as the digital licensee coordinator (DLC), which will represent digital music

1 of 2 1/30/2019, 12:02 PM Designation of Mechanical Licensing Collective | U.S. Copyright Office https://www.copyright.gov/rulemaking/mma-designations/

services in the administration of the license and in the determination of the administrative assessment fee paid by digital music providers for the reasonable costs of establishing and operating the new MLC.

The Office solicits information to identify the appropriate entity to be designated as the MLC and DLC. The instructions on how to submit a comment are available HERE (/rulemaking/mma- designations/comment-submission/). Initial written comments in response to the notice of inquiry published on December 21, 2018 must be received no later than 11:59 p.m. eastern time on March 21, 2019. Written reply comments must be received no later than 11:59 p.m. eastern time on April 22, 2019.

2 of 2 1/30/2019, 12:02 PM Classics Protection and Access Act | U.S. Copyright Office https://www.copyright.gov/music-modernization/pre1972-soundrecording...

Home () / Music Modernization (/music-modernization/) / Classics Protection and Access Act

FAQs Regarding the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (/music- modernization/faq.html) The Classics Protection and Access Act, Title II of the Orrin G. Hatch–Bob Goodlatte Music Modernization Act, brings pre-1972 sound recordings partially into the federal copyright. The legislation created a new chapter 14 of the copyright law, title 17 United States Code, which, among other things, extends remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Recordings”) when the Interim Rule Regarding Pre-1972 Sound Recordings recordings are used without authorization. The new chapter includes (/rulemaking/pre1972- several limitations and exceptions to the eligibility for these remedies and soundrecordings-schedules/) related administrative procedures, which are addressed below. Notice of Inquiry Regarding the Noncommercial Use Exception to Unauthorized Uses of Pre-1972 Sound Recordings (/rulemaking /pre1972-soundrecordings- The federal remedies for unauthorized use of Pre-1972 Sound Recordings noncommercial/) shall be available for 95 years after the year of first publication of the recording, subject to certain additional periods. These periods provide varying additional protection for Pre-1972 Sound Recordings, based on when the sound recording was first published:

The legislation applies relevant existing Title 17 limitations on exclusive rights and limitations on liability to uses of Pre-1972 Sound Recordings, including sections 107 (fair use), 108 (libraries and archives), 109 (first

1 of 3 1/30/2019, 11:59 AM Classics Protection and Access Act | U.S. Copyright Office https://www.copyright.gov/music-modernization/pre1972-soundrecording...

sale), 110 (certain public performances), 112(f) (certain ephemeral copies) and 512 (safe harbor provisions for online service providers).

The new law also applies a statutory licensing regime similar to that which applies to post-1972 sound recordings, e.g., the statutory licenses for noninteractive digital streaming services, including Internet radio, satellite radio, and cable TV music services.

Rights owners may be eligible to recover statutory damages and/or attorneys’ fees for the unauthorized use of their Pre-1972 Sound Recordings if certain requirements are met. To be eligible for these remedies, rights owners must typically file schedules listing their Pre-1972 Sound Recordings (“Pre-1972 Schedules”) with the Office, which are then indexed into the Office’s public records. The filing requirement is designed to operate in place of a formal registration requirement that normally applies to claims involving statutory damages. The remedies are only available for unauthorized uses of a recording that have occurred more than 90 days after such a schedule has been indexed. For more information on filing schedules for Pre-1972 Sound Recordings see the Pre-1972 Schedules instruction page (/music-modernization/pre1972-soundrecordings /schedulefiling-instructions.html).

Note that in cases where a transmitting entity has filed a valid and timely notice of contact information (/music-modernization/pre1972- soundrecordings/contactinformation-instructions.html), a rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after sending the transmitting entity a notice stating that it is not legally authorized to use the Pre-1972 Sound Recording, and identifying the Pre-1972 Sound Recording in a schedule conforming to the requirements set forth in the interim rule (/rulemaking/pre1972-soundrecordings- schedules/).

The public may subscribe (https://updates.loc.gov/accounts/USLOC /subscriber/new?topic_id=USLOC_177) to the Copyright Office’s weekly email notification regarding Pre-1972 Schedules indexed into the public records of the Copyright Office.

2 of 3 1/30/2019, 11:59 AM Classics Protection and Access Act | U.S. Copyright Office https://www.copyright.gov/music-modernization/pre1972-soundrecording...

The Copyright Office maintains a database (/music-modernization/pre1972- soundrecordings/search-soundrecordings.html) of indexed Pre-1972 Schedules.

A recently issued interim rule (/rulemaking/pre1972-soundrecordings- schedules/) establishes the form, content, and procedures for the filing of contact information by any entity that, as of October 11, 2018, was performing a sound recording fixed before February 15, 1972, by means of a digital audio transmission. Contact information must be filed by April 9, 2019.

The Copyright Office maintains an online directory (/music-modernization /pre1972-soundrecordings/notices-contact-information.html) of notices of contact information filed with the Office.

The legislation also establishes a process for lawfully engaging in noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search, and the rights owner of the sound recording must not object to the use within 90 days.

The Copyright Office initiated a rulemaking (/rulemaking/pre1972- soundrecordings-noncommercial/) seeking comments regarding specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The Office also requested comments regarding the filing requirements for the user to submit a notice of non-commercial use, and for a rights owner to submit a notice objecting to such use.

3 of 3 1/30/2019, 11:59 AM Pre-1972 Sound Recordings Interim Rule | U.S. Copyright Office https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/

Home (/) / Open Rulemakings (/rulemaking/) Interim Rule

/ Interim Rule Regarding Pre-1972 Sound Recordings October 16, 2018 – Interim Rule (https://www.gpo.gov/fdsys/pkg/FR- 2018-10-16/pdf/2018-22518.pdf)

Public Comments Pursuant to the Classics Protection and Access Act, title II of the recently-enacted Orrin G. Hatch–Bob Goodlatte Music Related Information Modernization Act (“MMA”), the U.S. Copyright Office has issued an interim rule regarding the filing of schedules by rights owners listing their sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Recordings”), and the submission of contact information by entities publicly performing Pre-1972 Sound Recordings by means of digital audio transmission as of October 11, 2018 (“Notices of Contact Information”).

Under the interim rule, rights owners may file schedules listing their Pre-1972 Sound Recordings (“Pre-1972 Schedules”) with the Office using the Excel spreadsheet form (/music- modernization/pre1972-soundrecordings/pre1972-template.xlsx) provided on the Office’s website. This format is required so that the Office can timely ingest the Pre-1972 Schedules and index them into a searchable online database (/music-modernization /pre1972-soundrecordings/search-soundrecordings.html). For each sound recording, the Pre-1972 Schedule must include the rights owner’s name, the sound recording title, and the featured artist. Rights owners may also include additional optional information pursuant to the instructions on the form and the Office’s website (e.g., album title information).

The interim rule also specifies that persons may request timely notification of when Pre-1972 Schedules are indexed by subscribing to a weekly email notification service (https://updates.loc.gov/accounts/USLOC/subscriber /new?topic_id=USLOC_177), which will provide a link to the Office’s online database of indexed Pre-1972 Schedules. The Office’s searchable database defaults to listing the sound recordings with the most recent index dates first, so individuals

1 of 2 1/30/2019, 12:03 PM Pre-1972 Sound Recordings Interim Rule | U.S. Copyright Office https://www.copyright.gov/rulemaking/pre1972-soundrecordings-schedules/

should easily be able to identify recently indexed filings.

Finally, under the interim rule, a transmitting entity may file a Notice of Contact Information using pay.gov to complete the appropriate online form, located here (https://pay.gov/public /form/start/411910014), and pay the appropriate fee. The Office will post the Notice of Contact Information in a publicly available and searchable online directory (/music-modernization/pre1972- soundrecordings/notices-contact-information.html).

2 of 2 1/30/2019, 12:03 PM Pre-1972 Sound Recordings Noncommercial Use | U.S. Copyright Office https://www.copyright.gov/rulemaking/pre1972-soundrecordings-nonc...

Home (/) / Open Rulemakings (/rulemaking/) Notice of Inquiry

/ Pre-1972 Sound Recordings Noncommercial Use November 14, 2018 – Extension of Comment Period (https://www.federalregister.gov /documents/2018/11/15/2018-24848 /noncommercial-use-of-pre-1972-soundrecordings-that-are-not-being- commercially-exploited) Pursuant to the Classics Protection and Access Act, title II of the October 16, 2018 – Notice of Inquiry recently-enacted Orrin G. Hatch–Bob Goodlatte Music (https://www.gpo.gov/fdsys/pkg/FR- Modernization Act (“MMA”), the U.S. Copyright Office has issued 2018-10-16/pdf/2018-22516.pdf) a notice of inquiry seeking public comment regarding the noncommercial use exception to unauthorized uses of sound recordings fixed before February 15, 1972 (“Pre-1972 Sound Public Comments Recordings”). In connection with the establishment of federal remedies for unauthorized uses of sound recordings fixed before February 15, 1972, Congress established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search, and the rights owner of the sound recording must not object to the use within 90 days of the notice being indexed in the Copyright Office’s public records.

The Office solicited comments regarding specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The Office also solicited comments regarding the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use.

1 of 1 1/30/2019, 12:04 PM ÿÿ ÿ ! ÿ"#ÿ $ÿ% ÿ&ÿ'$()0$1))

234536ÿ895ÿ@5AB6Cÿ5DBEB3FGÿ6HAD6CCB53ÿID5PÿFÿ@5A4DBE9Q6Rÿ85DSÿRTDB3EÿQ96ÿQ6DPÿ5IÿQ96 @5A4DBE9Qÿ8BQ95TQÿQ96ÿ5836DUCÿA6DPBCCB53ÿB3IDB3E6CÿQ96ÿ@5A4DBE9QV

W3ÿQ96ÿAGFB3QBIIUCÿ@5A4DBE9QÿB3IDB3E6P63Qÿ@GFBPXÿQ96ÿAGFB3QBIIÿ9FCÿQ96ÿYTDR63ÿ5IÿAD5`B3EÿY4 FÿAD6A53R6DF3@6ÿ5IÿQ96ÿ6`BR63@6ÿQ9FQa

bV Q96ÿAGFB3QBIIÿBCÿQ96ÿ5836Dÿ5IÿFÿ`FGBRÿ@5A4DBE9QcÿF3R

dV Q96ÿR6I63RF3Qÿ@5AB6Rÿ5DBEB3FGÿ6HAD6CCB53ÿID5PÿQ96ÿ@5A4DBE9Q6Rÿ85DSV

eIÿ45TÿIB3RÿQ9FQÿQ96ÿAGFB3QBIIÿ9FCÿAD5`6RÿY5Q9ÿ5IÿQ96C6ÿ6G6P63QCXÿ45TDÿ`6DRB@QÿC95TGRÿY6ÿI5D Q96ÿAGFB3QBIIVÿÿeIXÿ53ÿQ96ÿ5Q96Dÿ9F3RXÿ45TÿIB3RÿQ9FQÿQ96ÿAGFB3QBIIÿ9FCÿIFBG6RÿQ5ÿAD5`6ÿ6BQ96Dÿ5IÿQ96C6 6G6P63QCXÿ45TDÿ`6DRB@QÿC95TGRÿY6ÿI5DÿQ96ÿR6I63RF3QVÿÿ

fgghip

q96ÿ6G6P63QCÿB3ÿQ9BCÿB3CQDT@QB53ÿFD6ÿ6HAGFB36RÿB3ÿe3CQDT@QB53CÿbrVsÿtu5A4DBE9Q e3IDB3E6P63QW836DC9BAÿ5IÿvFGBRÿu5A4DBE9Qw6IB3BQB53xXÿbrVbyÿtu5A4DBE9Q e3IDB3E6P63QWDBEB3FGBQ4xXÿF3RÿbrVbrÿtu5A4B3E2@@6CCÿF3RÿTYCQF3QBFGÿBPBGFDBQ4xVÿÿu5A4B3E F3RÿBPAD5A6DÿFAAD5ADBFQB53ÿFD6ÿBCCT6Cÿ5IÿIF@QÿI5DÿQ96ÿTD4Vÿÿÿ ÿÿÿÿÿdefX dbdÿgVhRÿyrrXÿyibjidÿtkQ9ÿuBDVÿdlllxV

q96ÿ6G6P63QCÿ5Iÿ@5A4DBE9QÿB3IDB3E6P63Qÿ@BQ6RÿB3ÿQ9BCÿB3CQDT@QB53ÿ86D6ÿCQFQ6RÿB3ÿme nodpefÿÿqpdÿ dfÿÿXÿykkÿrVVÿhylÿtbkkbxVÿÿÿsÿFQÿhsbÿttq5ÿ6CQFYGBC9 B3IDB3E6P63QXÿQ85ÿ6G6P63QCÿPTCQÿY6ÿAD5`63aÿtbxÿ5836DC9BAÿ5IÿFÿ`FGBRÿ@5A4DBE9QXÿF3Rÿtdxÿ@5A4B3E 5Iÿ@53CQBQT63Qÿ6G6P63QCÿ5IÿQ96ÿ85DSÿQ9FQÿFD6ÿ5DBEB3FGVuxcÿÿpdÿfÿveÿmdwsÿxfewyeÿzesÿ fefeÿspÿXÿrhhÿgVhRÿbd{bXÿbd{yÿtkQ9ÿuBDVÿdlbhxVÿÿq5ÿ6CQFYGBC9ÿQ96ÿR6I63RF3QUCÿGBFYBGBQ4 53ÿFÿRBD6@QÿB3IDB3E6P63QÿQ965D4XÿQ96ÿAGFB3QBIIÿPTCQÿC958ÿQ9FQÿQ96ÿR6I63RF3Qÿ8FCÿQ96ÿ@FTC6ÿ5IÿQ96 B3IDB3E6P63QVÿÿÿn|eÿ}~ÿfÿÿpfÿfVXÿiyrÿgVhRÿs{rXÿsssÿtkQ9ÿuBDVÿdlbrxÿtt896D6 BQÿBCÿ@G6FDÿQ9FQÿB3IDB3E6P63Qÿ9FCÿ5@@TDD6RXÿ@5TDQCÿPTCQÿR6Q6DPB36ÿ895ÿBCÿ@G5C6ÿ635TE9ÿQ5ÿQ96 B3IDB3EB3Eÿ6`63QÿQ5ÿY6ÿ@53CBR6D6RÿQ96ÿP5CQÿBPA5DQF3Qÿ@FTC6Uuÿt@BQFQB53ÿ5PBQQ6RxxVÿÿeIÿ@FTCFQB53ÿBC @53Q6CQ6RXÿBQÿPF4ÿY6ÿFAAD5ADBFQ6ÿQ5ÿP5RBI4ÿQ9BCÿB3CQDT@QB53ÿQ5ÿ6HAGB@BQG4ÿB3@GTR6ÿ@FTCFQB53ÿFCÿF3 6G6P63QV

t6ÿ9F`6ÿR6C@DBY6RÿQ96ÿB3RT@6P63QÿQ965D4ÿFCÿ9F`B3EÿI5TDÿ6G6P63QCaÿtbxÿQ96ÿRBCQDBYTQB53 5IÿFÿR6`B@6ÿ5DÿAD5RT@QXÿtdxÿF@QCÿ5IÿB3IDB3E6P63QXÿthxÿF3ÿ5Y6@Qÿ5IÿAD5P5QB3EÿBQCÿTC6ÿQ5ÿB3IDB3E6 @5A4DBE9QXÿF3Rÿtyxÿ@FTCFQB53VUuÿÿsVÿFQÿsrdVÿÿ

hil ÿÿ ÿ ÿÿ ÿ ÿ!ÿ ! ÿ" ÿÿ#! ÿ!# !ÿ$!ÿ" ÿ!ÿ ÿ %ÿ&ÿ&'#ÿ ÿ (ÿ!ÿ)0ÿ1232 2ÿ4ÿ)562ÿÿ89@AB 8CDÿEFGHIPÿQ@IDÿRDÿSDÿTU9GVÿWUUCGPÿQ@IDXÿ66Yÿ`2aÿ))bYXÿ))cadcbÿefÿ 2ÿg5)gh2ÿ

iÿpqHCrUsBÿRDÿtBCÿuBvvBwH@Xÿf5cÿ`2aÿ)))6ÿefÿ 2ÿg5)YhXÿ!ÿ!ÿ#'#ÿÿ!'' ÿ" $ÿ"ÿ!ÿ$!'ÿ$Xÿÿÿ ÿ ÿÿ'$ÿ'' "" '2ÿÿÿ ÿ!xÿiÿ ÿÿ #ÿ ÿ" $Xÿ!ÿ'!""ÿ$ ÿe)hÿ!ÿÿÿ!ÿ#!'ÿ ÿÿÿ yXÿ!ÿeghÿ!ÿÿ"!ÿÿ !ÿ"ÿÿ y%ÿ& 2 ÿÿpqHCrUsBXÿf5cÿ`2aÿ!ÿ))gcÿe!Xÿ!ÿ$! yXÿ! ( !yÿ$h2ÿÿÿÿ ÿ!xÿ ÿ"!ÿÿ ÿ& !ÿÿ! !ÿ!ÿÿ$xÿ%ÿ!ÿ'!"'ÿ! !2% pqHCrUsBXÿf5cÿ`2aÿ!ÿ))gcÿeÿ8B@VrBBGVBsÿRDÿHqBPÿQ@I2XÿYYaÿ`2aÿ))))Xÿ)))0ÿefÿ 2 g5)Yhh2

8BRHGBCÿ 9@Dÿ

aY) ÿÿ ÿ

!"ÿ$%&'&"()ÿ0$%1ÿ2(3ÿ&"4)567ÿ$%ÿ&"4$%8$%(97ÿ7)727"9@ÿ9(17"ÿA%$2ÿB8%&$%ÿ0$%1@CÿB0$%1@ A%$2ÿ9D7ÿ85E)&4ÿ6$2(&"CÿB0$%1@ÿ$0"76ÿE3ÿ$9D7%@Fÿ0&9Dÿ9D7ÿ$0"7%G@ÿ87%2&@@&$"CHÿÿID7ÿ$%&'&"() 8(%9B@Cÿ$Aÿ9D7ÿ8)(&"9&AAG@ÿ0$%1ÿB&@CÿB(%7Cÿ9D7ÿ8(%9B@Cÿ4%7(976Pÿ

QH &"6787"67"9)3ÿE3ÿ9D7ÿB0$%1G@Cÿ(59D$%Fÿ9D(9ÿ&@Fÿ9D7ÿ(59D$%ÿ6&6ÿ"$9ÿ4$83ÿ&9ÿA%$2 ("$9D7%ÿ0$%1Rÿ("6

SH E3ÿ5@7ÿ$Aÿ(9ÿ)7(@9ÿ@$27ÿ2&"&2()ÿ4%7(9&T&93H

BU"ÿ4$83%&'D9ÿ)(0Fÿ9D7ÿV$%&'&"()Wÿ8(%9ÿ$Aÿ(ÿ0$%1ÿ"776ÿ"$9ÿE7ÿ"70ÿ$%ÿ"$T7)HCÿÿ

XYY`ab

ID7ÿ97@9ÿ&"ÿ9D&@ÿ&"@9%549&$"ÿ0(@ÿ@79ÿA$%9Dÿ&"ÿcdefgheÿpqrfseghqfÿtuÿveewxddeyÿQQÿH6 Fÿ ÿ9Dÿ&%HÿQÿD$)6&"'ÿ9D(9ÿ@7)749&$"ÿ("6ÿ(%%("'727"9ÿ$AÿV'%7(97%ÿE7&"'G@W %7T7)(9&$"@ÿ0(@ÿ"$9ÿ@$ÿ274D("&4()ÿ(@ÿ9$ÿ)(41ÿ$%&'&"()&93Hÿÿxxÿeqÿpxhgÿrfyÿfuÿtuÿrde dxuÿxdtuÿequyÿfHFÿÿfHgHÿhFÿÿQQÿVi%&'&"()Fÿ(@ÿ9D7ÿ97%2ÿ&@ÿ5@76ÿ&"ÿ4$83%&'D9Fÿ27("@ $")3ÿ9D(9ÿ9D7ÿ0$%1ÿ0(@ÿ&"6787"67"9)3ÿ4%7(976ÿE3ÿ9D7ÿ(59D$%ÿ(@ÿ$88$@76ÿ9$ÿ4$8&76ÿA%$2ÿ$9D7% 0$%1@Fÿ("6ÿ9D(9ÿ&9ÿ8$@@7@@7@ÿ(9ÿ)7(@9ÿ@$27ÿ2&"&2()ÿ67'%77ÿ$Aÿ4%7(9&T&93HWHÿÿi%&'&"()&93ÿ&@ÿ$A97"ÿ( A(49ÿj57@9&$"ÿA$%ÿ9D7ÿk5%3HÿÿxxÿluÿeqegÿfsruÿtuÿmeqfÿvenoxyÿfHFÿSÿHS6ÿQhQFÿQhÿ9D &%HÿQSÿD$)6&"'ÿ9D(9ÿ0D79D7%ÿ8)(4727"9ÿ$Aÿ'7$279%&4ÿ@D(87@ÿ0(@ÿ$%&'&"()ÿ0(@ÿj57@9&$"ÿA$%ÿ k5%3RÿxxÿeqÿohdpqÿtuÿeedxqyÿrÿH6ÿ QFÿ Qÿ9Dÿ&%HÿShhÿD$)6&"'ÿ9D(9ÿ0D79D7%ÿ25@&4() 4$28$@&9&$"ÿ0(@ÿ$%&'&"()ÿ0(@ÿ9$ÿE7ÿ6797%2&"76ÿE3ÿ9%&7%ÿ$AÿA(49Hÿ

$%ÿ4$83%&'D9ÿ85%8$@7@Fÿ9D7ÿ%7j5&%76ÿ)7T7)ÿ$Aÿ4%7(9&T&93ÿ&@ÿV2&"&2()FWÿ("6ÿV@07(9ÿ$Aÿ9D7 E%$0Wÿ&"ÿ4%7(9&$"ÿ&@ÿV0D$))3ÿ&%%7)7T("9HWÿÿeslyÿfuÿtuÿteuxyÿQÿH6ÿQSrFÿQSrQÿ9Dÿ&%H QHÿÿID7ÿ4&%45&9ÿD(@ÿ%74$'"&v76ÿ$%&'&"()&93ÿ$%ÿ4%7(9&T&93ÿ&"ÿ(ÿT(%&793ÿ$Aÿ0$%1@Fÿ&"4)56&"'ÿ&"Pÿ( 8%&47ÿ)&@9ÿ9D(9ÿ%7A)74976ÿ@7)749&$"ÿ("6ÿ07&'D&"'ÿ$Aÿ8%&47ÿ6(97FÿxxÿhsHRÿ(ÿ25@&4()ÿ4$28$@&9&$"ÿ0&9D 9D7ÿ@(27ÿ8&94Dÿ("6ÿ@7j57"47ÿ(@ÿ("$9D7%ÿ0$%1FÿE59ÿ0&9Dÿ(ÿ"$"&67"9&4()ÿ2797%Fÿ9728$ÿ$%ÿ173Fÿxx ohdpqyÿrÿH6ÿ(9ÿ QRÿ("6ÿ(ÿ8&495%7FÿE(@76ÿ$"ÿ&9@ÿ@5Ek749Fÿ8$@95%7FÿE(41'%$5"6Fÿ)&'D9&"'Fÿ$%ÿ 87%@8749&T7FÿxxÿcfhgxsÿgegxÿtuÿwexhgqfFÿ ÿHS6ÿ FÿSÿ9Dÿ&%HÿQ Rÿxxÿeq xfgxxxgxdÿtuÿlhpxyÿfuFÿ ÿH6ÿQQQQFÿQQSQÿ9Dÿ&%HÿShQ ÿ"$9&"'ÿ9D(9ÿ8D$9$'%(8D7%G@ V@7)749&$"ÿ("6ÿ(%%("'727"9ÿ$AÿB4%7(9&T7Cÿ7)727"9@ÿ8%$65476ÿ("ÿ&2('7ÿ7"9&9)76ÿ9$ÿ9D7ÿE%$(67@9 8%$9749&$"ÿ(ÿ8D$9$'%(8Dÿ4("ÿ%747&T7WHÿÿ

yD7"ÿ(ÿ0$%1ÿ72E$6&7@ÿ$")3ÿ9D7ÿ2&"&252ÿ)7T7)ÿ$Aÿ4%7(9&T&93ÿ"747@@(%3ÿA$%ÿ4$83%&'D9Fÿ&9ÿ&@ @(&6ÿ9$ÿD(T7ÿV9D&"Wÿ4$83%&'D9ÿ8%$9749&$"Hÿÿxxyÿxuzuyÿegeteÿtuÿ{qodqFÿSÿH6ÿ hFÿ QhQSÿ9D &%HÿShhHÿÿ!ÿ9D&"ÿ4$83%&'D9ÿ0$5)6ÿ$")3ÿ8%$9749ÿ('(&"@9ÿVT&%95())3ÿ&67"9&4()ÿ4$83&"'HWÿÿsuRÿxx eqÿveggxyÿfuÿtuÿv|}ÿ~fgxgyÿfuFÿrQrÿH6ÿhFÿQÿ9Dÿ&%HÿShQhÿ"$9&"'ÿV9D&"Wÿ4$83%&'D9 8%$9749&$"ÿA$%ÿÿV78%7@@&$"ÿ$Aÿ("ÿ(99%(49&T7ÿ3$5"'FÿA72()7ÿA(@D&$"ÿ6$))ÿ0&9Dÿ7(''7%(976 8%$8$%9&$"@WRÿ}uuxÿeqxurgxdyÿfuÿtuÿvhdqqgÿeqduHFÿÿH6ÿQFÿQSÿ9Dÿ&%HÿQ D$)6&"'ÿ9D(9ÿV9D&"Wÿ4$83%&'D9ÿ&"ÿ'%(8D&4()ÿ5@7%ÿ&"97%A(47ÿ8%$974976ÿ('(&"@9ÿ$")3ÿVT&%95())3 &67"9&4()ÿ4$83&"'WH

ÿ ÿÿÿÿ !"ÿ#$%&ÿ'''(ÿ'')"0%!ÿ1 23ÿ456$ÿ)!'78ÿ239ÿ@523ÿ456AB52 C6DE5&9&ÿFÿ9G29H5E9ÿ&5HABHH5DÿDIÿPD65Q5FR52STÿ5ÿ239ÿAD29G2ÿDIÿFÿAFH9ÿ5EDRE5Qÿ239ÿFRR9Q9& ADCS65Q32ÿ5I65Q9U92ÿDIÿFÿUBH5AFRÿADUCDH525D$ÿÿVUDQÿD2396ÿ235QHÿ239ÿ@523ÿ456AB52 9GCRF59&WÿPXDÿC6DE9ÿYBRF`IBRÿFCC6DC65F25DaÿFÿ35Q396ÿH3D`5QÿDIÿHBbH2F25FRÿH5U5RF652Sÿ5H 99&9&$ÿÿX39ÿ`D6cHÿUBH2ÿH3F69ÿHBbH2F25FRÿH5U5RF65259HÿF&ÿ23DH9ÿH5U5RF65259HÿUBH2ÿ5EDRE9ÿCF62H DIÿ239ÿCRF525IIaHÿ`D6cÿ23F2ÿF69ÿD65Q5FRÿF&ÿ23969ID69ÿC6D29A29&ÿbSÿADCS65Q32$Tÿÿ ÿ !" #$%&ÿF2ÿ'')"ÿ1A525Qÿdefe ÿÿghÿip$ÿ77%ÿ#$%&ÿ''''ÿ'''qÿ1 23ÿ456$ÿ)!'788$

dfÿrsÿtuvw

% 7 ÿÿ ÿ ÿ ÿ !

"#$%&'(%)0#ÿ2345678ÿ@7A55ÿ76B6764@6ÿ8Aÿ8C6ÿD67834648ÿ34587E@83A4Fÿ6GHGFÿI4587E@83A4ÿPQGRS $%T%U$ÿ%VT%ÿ%VUÿWXT)#%)YYÿVT$ÿ%VUÿ`'&aU#ÿ0YÿW&0b)#cÿ%VT%ÿ%VUÿaUYU#aT#%ÿ(0W)Uaÿ0&)c)#TXÿUXUdU#%$ Y&0dÿ%VUÿWXT)#%)YYe$ÿ(0Wf&)cV%Uaÿg0&hiÿÿpVUÿWXT)#%)YYÿdTfÿ$V0gÿ%VUÿaUYU#aT#%ÿ(0W)UaÿY&0dÿ%VU g0&hÿ`fÿW&0b)#cÿÿ`fÿTÿW&UW0#aU&T#(Uÿ0Yÿ%VUÿUb)aU#(Uÿ%VT%ÿ%VUÿaUYU#aT#%ÿVTaÿT((U$$ÿ%0ÿ%VU WXT)#%)YYe$ÿ(0Wf&)cV%Uaÿg0&hÿT#aÿ%VT%ÿ%VU&UÿT&Uÿ$'`$%T#%)TXÿ$)d)XT&)%)U$ÿ`U%gUU#ÿ%VUÿaUYU#aT#%e$ g0&hÿT#aÿ0&)c)#TXÿUXUdU#%$ÿ0Yÿ%VUÿWXT)#%)YYe$ÿg0&hiÿÿ

qrrstu

vUcT&a)#cÿT((U$$wÿ$'`$%T#%)TXÿ$)d)XT&)%fwÿT#aÿ)#aUWU#aU#%ÿ(&UT%)0#wÿ566ÿx7y45HAFÿI4@GÿG y@ÿx7y453553A4ÿy785ÿ A7DGwÿÿiaÿwÿÿ%Vÿ)&iÿiÿÿ66ÿy5Aÿ"#$%&'(%)0#ÿid 0Wf&)cV%ÿ"#Y&)#cUdU#%ef&)c)#TX)%fwÿiÿ0Wf&)cV%ÿ"#Y&)#cUdU#%e0Wf)#ceg((U$$ hUY)#UawÿT#aÿiÿi'`$%T#%)TXÿi)d)XT&)%fejk%&)#$)(ÿpU$%lÿ"#%&)#$)(ÿpU$%iÿÿpVUÿg0&aÿm(0Wf)#cn )$ÿaU$(&)`Uaÿ`fÿ%VUÿo)#%Vÿ)&(')%ÿT$ÿm$V0&%VT#anÿY0&ÿ%VUÿbT&)0'$ÿT(%)b)%)U$ÿ%VT%ÿdTfÿ)#Y&)#cUÿT#fÿ0Y %VUÿ(0Wf&)cV%ÿ0g#U&e$ÿmUk(X'$)bUÿ&)cV%$wnÿgV)(VÿT&UÿaU$(&)`Uaÿ)#ÿÿpiiiiÿqÿiÿÿry4H6ÿrsG tE53@FÿI4@GÿGÿuGÿ Ay58ÿvAAs5FÿI4@Gwÿÿiwaÿdwÿdÿ%Vÿ)&iÿÿx'0%)#cÿGyGGFÿI4@GÿG yzsyzFÿI4@GFÿÿiaÿwÿÿ#iwÿ%Vÿ)&iÿi

EDD6648yÿI4587E@83A4

0&ÿc')aT#(Uÿ)#ÿd0a)Yf)#cÿ%VUÿ)#$%&'(%)0#ÿ$0ÿ%VT%ÿ%VUÿ{'&fÿdTfÿ(0#$)aU&ÿUb)aU#(Uÿ0YÿT m$%&)h)#cÿ$)d)XT&)%fnÿ`U%gUU#ÿg0&h$ÿ%0ÿ)#YU&ÿT((U$$wÿ566ÿxC766ÿ|Az5ÿtE53@ÿ A7DGÿGÿ|A8A4wÿ iwaÿdwÿdÿ%Vÿ)&iÿÿm2"S#ÿ%VUÿT`$U#(Uÿ0YÿT#fÿW&00Yÿ0YÿT((U$$wÿTÿ(0Wf&)cV%ÿWXT)#%)YYÿ(T# $%)XXÿdThUÿ0'%ÿTÿ(T$Uÿ0Yÿ)#Y&)#cUdU#%ÿ`fÿ$V0g)#cÿ%VT%ÿ%VUÿ$0#c$ÿgU&Uÿ}$%&)h)#cXfÿ$)d)XT&ienÿ()%)#c 38CÿGÿ~y@5A4wÿdÿiwaÿwwÿÿ%Vÿ)&iÿwÿT#aÿ|y867ÿGÿt FÿI4@Gwÿÿiaÿdw dwwÿddÿ#iÿ%Vÿ)&iÿi

"Yÿ%VUÿWXT)#%)YYÿ$V0g$ÿ%VT%ÿ%VUÿaUYU#aT#%ÿVTaÿT((U$$ÿ%0ÿ%VUÿWXT)#%)YYe$ÿg0&hÿT#aÿ%VT%ÿ%VU&Uÿ)$ Tÿ$'`$%T#%)TXÿ$)d)XT&)%fÿ`U%gUU#ÿ%VUÿ)#Y&)#cUaÿT#aÿ)#Y&)#c)#cÿg0&h$wÿTÿW&U$'dW%)0#ÿ0Yÿ(0Wf)#c T&)$U$ÿ$V)Y%)#cÿ%VUÿ`'&aU#ÿ%0ÿ%VUÿaUYU#aT#%ÿ%0ÿ&U`'%ÿ%VUÿW&U$'dW%)0#ÿ0&ÿ%0ÿ$V0gÿ%VT%ÿ%VUÿTXXUcUa )#Y&)#c)#cÿg0&hÿgT$ÿ)#aUWU#aU#%Xfÿ(&UT%UaiÿÿxC766ÿ|Az5ÿtE53@wÿÿiwaÿT%ÿdÿmfÿU$%T`X)$V)#c &UT$0#T`XUÿT((U$$ÿT#aÿ$'`$%T#%)TXÿ$)d)XT&)%fwÿTÿ(0Wf&)cV%ÿWXT)#%)YYÿ(&UT%U$ÿTÿW&U$'dW%)0#ÿ0Y (0Wf)#ciÿpVUÿ`'&aU#ÿ$V)Y%$ÿ%0ÿ%VUÿaUYU#aT#%ÿ%0ÿ&U`'%ÿ%VT%ÿW&U$'dW%)0#ÿ%V&0'cVÿW&00Yÿ0Y )#aUWU#aU#%ÿ(&UT%)0#inÿ()%)#cÿ7y4386ÿtE53@ÿ A7DGÿGÿ4386sÿ783585ÿ A7DGwÿwÿiaÿwÿ %Vÿ)&iÿlÿ566ÿy5Aÿ67 678ÿrA5648Cyÿ~667zÿ A7DGÿGÿyDy3y4wÿddÿiaÿwwÿdÿ%V )&iÿÿm"%ÿ)$ÿ%&'Uÿ%VT%ÿaUYU#aT#%$ÿVTaÿT((U$$ÿ%0ÿWXT)#%)YYe$ÿ2(0Wf&)cV%UaSÿW)#ÿT#aÿ%VT%ÿ%VU&Uÿ)$ T#ÿ0`b)0'$ÿ$)d)XT&)%fÿ`U%gUU#ÿWXT)#%)YYe$ÿW)#ÿT#aÿ%V0$Uÿ0YÿaUYU#aT#%$iÿpVU$Uÿ%g0ÿYT(%$ÿ(0#$%)%'%U $%&0#cÿ()&('d$%T#%)TXÿUb)aU#(Uÿ0Yÿ(0Wf)#ciÿ'%ÿ%VUfÿT&Uÿ#0%ÿ(0#(X'$)bUwÿT#aÿ%VU&UÿgT$ÿ$'`$%T#%)TX Ub)aU#(Uÿ%0ÿ$'WW0&%ÿ%VUÿ%&)TXÿ(0'&%e$ÿY)#a)#cÿ%VT%ÿaUYU#aT#%e$ÿW)#ÿgT$ÿ)#ÿYT(%ÿT#ÿ)#aUWU#aU#% (&UT%)0#inÿ()%T%)0#$ÿ0d)%%Uai

"#ÿ%VUÿo)#%Vÿ)&(')%wÿ%VUÿT((U$$ÿT#aÿ$'`$%T#%)TXÿ$)d)XT&)%fÿUXUdU#%$ÿ0Yÿ)#Y&)#cUdU#%ÿT&U m)#Uk%&)(T`XfÿX)#hUanÿ`fÿT#ÿ)#bU&$Uÿ&T%)0ÿ&'XUiÿÿ|64yzÿGÿy7467ÿ|7A5Gÿu488FÿI4@Gwÿÿiwaÿw

d ÿÿ ÿÿÿÿ !"ÿ# $%ÿ&'(ÿ )ÿ#ÿ)#ÿ#ÿ#00""ÿ$ÿ#ÿ0$12 3 4$5(ÿÿ1'# ))ÿ6#2ÿ"$4ÿ ) 36ÿ7#"ÿ$ÿ#ÿ'""ÿ3ÿ$)ÿ" 6 '# 2ÿ74ÿ 0$12 3ÿ4$5ÿ#ÿÿ#''3'2ÿ ) 3 3ÿ4$589ÿ@AAÿCD@EÿFGHAAÿIEP@ÿQR@STÿUEHVW(ÿ XYÿ#ÿ`aÿ"# 3ÿ#ÿ&'ÿb& "ÿ#ÿ'""ÿ"$4 3ÿ$)ÿ"&7"# #'ÿ" 6 '# 2ÿ )ÿÿ "ÿ# "$3ÿ"$4 3ÿ$)ÿ#00""8ÿ7&ÿ$ 3ÿ#ÿc4dÿ#!ÿ!ÿ'eÿ !"ÿeÿc#dÿ#ÿ4#5 "$4 3ÿ$)ÿ#00""ÿb& "ÿ#ÿ"$3ÿ"$4 3ÿ$)ÿ"&7"# #'ÿ" 6 '# 289ÿfgSH@hPÿiWÿUCHAP(ÿYp XYÿa`(ÿa``q`ÿÿ ÿ`ÿ$' 3ÿ#ÿ4ÿ 3ÿ3ÿ$)ÿ#00""ÿ "ÿ"$4(ÿ'$4 "##ÿ$)ÿ1$$)ÿ$)ÿ"&7"# #'ÿ" 6 '# 2ÿ "ÿb& ÿ#ÿ$ 3ÿ#ÿ "ÿ7&ÿ "ÿ0# ÿ72 1'# ))9ÿrSTAÿiWÿsEtÿIHECuWÿUEW(ÿYYÿXYÿp(ÿpaÿÿ ÿYÿ"# 3ÿ#ÿ& !"ÿ# $ÿ&'(8ÿ0$&ÿb& "ÿ'$4ÿ"##ÿ$)ÿ1$$)ÿ$)ÿ"&7"# #'ÿ" 6 '# 2ÿ4ÿÿ 3 3ÿ$)ÿ#00""ÿ "ÿ"$4ÿ#ÿ#ÿ1$6 ÿ)#0$8ÿ ÿ&" 3ÿ !"ÿ# $ÿ##'2" "ÿ "ÿ0$0"" $ $)ÿ#00""ÿ72ÿÿ)#ÿ$ÿÿ1'# ))%"ÿ0$12 3ÿ4$58ÿÿ

vÿfhSuwEHAÿiWÿxAuÿyAVVADS(ÿÿXYÿ(ÿYqYÿÿ ÿa(ÿÿ ÿ 0& 1$! ÿ#ÿ" !ÿ "0&"" $ÿ$)ÿÿ !"ÿ# $ÿ&'8ÿ ÿÿ0$ÿ$)ÿ#ÿ0#"ÿ !$'! 3ÿ #''3ÿ0$12 3ÿ ) 36ÿ$)ÿ#ÿ6&" 0#'ÿ0$61$" $

rAiS@AuÿCWÿ

`Y ÿÿ ÿ ÿ!!

"#$ÿ&'()ÿ01ÿ2)$ÿ34(567ÿ27ÿ87$)(49)207ÿ"@ABCDEÿGDHBBÿDCICDCAGCÿEHÿEPCÿQCDE@ACAEÿ@ABEDRGE@HA CSTSUÿVABEDRGE@HAÿWXSY`aÿ)b6ÿ&c'27)211ÿd4$)ÿ&(0e6ÿÿ3fÿ'ÿ&(6&0756('796ÿ01ÿ)b6ÿ6e256796ÿ)b')ÿ")b6 561675'7)`ÿ"gb06e6(ÿ9(6')65ÿ)b6ÿg0(hÿ0g765ÿ3fÿ)b6ÿ561675'7)`ÿb'5ÿ'996$$ÿ)0ÿ)b6ÿ&c'27)211i$ g0(hp`ÿÿq04ÿd'fÿ1275ÿ)b')ÿ)b6ÿ561675'7)ÿb'5ÿ'996$$ÿ)0ÿ)b6ÿ&c'27)211i$ÿg0(hÿ21ÿ")b6ÿ561675'7)` "gb06e6(ÿ9(6')65ÿ)b6ÿg0(hÿ0g765ÿ3fÿ)b6ÿ561675'7)`ÿb'5ÿ'ÿ(6'$07'3c6ÿ0&&0()472)fÿ)0ÿ"e26g` "(6'5`ÿ"b6'(`ÿ"90&f`ÿ)b6ÿ&c'27)211i$ÿg0(hÿ3610(6ÿ)b6ÿ561675'7)i$ÿg0(hÿg'$ÿ9(6')65p

rsstuv

w(001ÿ01ÿ'996$$ÿ(6x42(6$ÿy'7ÿ0&&0()472)fÿ)0ÿe26gÿ0(ÿ)0ÿ90&fÿ&c'27)211i$ÿg0(hpÿÿCCÿ@ÿ DEÿDHIIEÿCC@B@HAÿDHBSUÿVAGSÿSÿGHA BÿHDQpaÿÿp5ÿdaÿdÿef)bÿg2(pÿfddhiÿ BCCÿ BHÿjDEÿjEE GkBÿVAkUÿllÿSÿmjÿnAEoEÿVAGSaÿpÿpq5ÿqpaÿrqÿef)bÿg2(pÿssfh e(6x42(27tÿy'ÿ(6'$07'3c6ÿ&0$$232c2)faÿ70)ÿd6(6cfÿ'ÿ3'(6ÿ&0$$232c2)fhS

RQQCoCAE ÿVABEDRGE@HA

u6&67527tÿ07ÿ)b6ÿ6e256796ÿ')ÿ)(2'cÿ01ÿ)b6ÿ561675'7)i$ÿ'996$$ÿ)0ÿ)b6ÿ'cc6t65cfÿ271(27t65 g0(haÿ)b6ÿ904()ÿd'fÿ27$)(49)ÿ)b6ÿv4(fÿ'304)ÿ1'9)0($ÿ)b')ÿ$b0gÿ$49bÿ'996$$aÿ3fÿ'5527tÿ)b6ÿ10cc0g27t '1)6(ÿ)b6ÿc'$)ÿ&'('t('&bÿ01ÿ)b2$ÿ27$)(49)207w

#996$$ÿd'fÿ36ÿ$b0g7ÿ3fw

"p`"'ÿ9b'27ÿ01ÿ6e67)$ÿ907769)27tÿ)b6ÿ&c'27)211i$ÿg0(hÿ'75ÿ)b6ÿ561675'7)i$ÿ0&&0()472)f )0ÿ"e26g`ÿ"b6'(`ÿ"90&f`ÿ)b')ÿg0(hÿ"$49bÿ'$ÿ56'c27t$ÿ)b(04tbÿ'ÿ)b2(5ÿ&'()fÿe$49bÿ'$ÿ' &43c2$b6(ÿ0(ÿ(690(5ÿ90d&'7fhÿ)b')ÿb'5ÿ'996$$ÿ)0ÿ)b6ÿ&c'27)211i$ÿg0(hÿ'75ÿg2)b gb0dÿ30)bÿ)b6ÿ&c'27)211ÿ'75ÿ)b6ÿ561675'7)ÿg6(6ÿ56'c27t``ÿ"0(`

"p`")b6ÿ&c'27)211i$ÿg0(hÿ3627tÿg256cfÿ52$$6d27')65`ÿ"0(`

"qp`"'ÿ$2d2c'(2)fÿ36)g667ÿ)b6ÿ&c'27)211i$ÿg0(hÿ'75ÿ)b6ÿ561675'7)i$ÿg0(hÿ)b')ÿ2$ÿ$0 y$)(2h27tÿ)b')ÿ2)ÿ2$ÿb2tbcfÿc2h6cfÿ)b6ÿg0(h$ÿg6(6ÿ70)ÿ9(6')65ÿ2756&67567)ÿ01ÿ076 '70)b6(`p

x6t'(527tÿ)b6ÿ6e256796ÿ7696$$'(fÿ)0ÿ56d07$)(')6ÿ'996$$aÿBCCÿPDCCÿyHBÿRB@GÿHDQSÿS yHEHAaÿÿpq5ÿrddaÿrpzprÿef)bÿg2(pÿssshÿeb0c527tÿ)b')ÿ(6'$07'3c6ÿ0&&0()472)fÿ2$ÿd0(6ÿ)b'7ÿ' y3'(6ÿ&0$$232c2)faÿ$49bÿ'$ÿ076ÿ3'$65ÿ07ÿd6(6ÿ$&694c')207ÿ0(ÿ907v69)4(6iÿ(6'$07'3c6ÿ'996$$ÿ9'7ÿ36 $b0g7ÿ3fÿ'ÿ9b'27ÿ01ÿ6e67)$ÿ907769)27tÿ&c'27)211i$ÿg0(hÿ'75ÿ561675'7)i$ÿ'996$$ÿ0(ÿ3fÿ&c'27)211i$ g0(hÿ3627tÿg256cfÿ52$)(234)65iÿ01)67ÿg256$&(6'5ÿ52$$6d27')207ÿ'&&(0'9bÿ2$ÿ904&c65ÿg2)bÿ)b60(f 01ÿy$43907$9204$ÿ90&f27tÿe92)27tÿrÿ{2dd6(ÿ|ÿupÿ{2dd6(aÿ{8}}~xÿ{ÿgwqx8aÿÿqps"#` efffhhiÿjDEÿjEE GkBÿVAkUÿllaÿpÿpq5ÿ')ÿrqzrÿe127527tÿ70ÿ'996$$ÿ$b0g7ÿ4756(ÿ9b'27ÿ01 6e67)$ÿ0(ÿg256ÿ52$$6d27')207ÿ)b60(26$hiÿ o DÿVAEUÿVAGSÿSÿRBBÿyCDD@CÿÿHpaÿdÿp5ÿsf ef)bÿg2(pÿfphÿe127527tÿ'996$$ÿ$b0g7ÿ3fÿ56'c27t$ÿ36)g667ÿ&'()26$ÿ'75ÿ)b2(5ÿ&'()fÿ07ÿ9b'27ÿ01 6e67)$ÿ)b60(fÿ(6c')27tÿ)0ÿ$'d6ÿ$43v69)ÿd'))6(hpÿÿ b67ÿ)b6ÿ$43v69)ÿd'))6(ÿ01ÿ56'c27t$ÿ36)g667

rsr ÿ ÿÿ ÿÿ ÿÿ ÿÿ ÿ ÿÿÿ ÿ ÿÿ !!ÿ#$%&!ÿ'( )$01&ÿ234$5(ÿ64(ÿ787ÿ9ÿ@Aÿ8 ÿBCDÿB8BÿEFGÿFHÿ8ICIPÿE QÿR!0$STU&VÿWXX4YX(ÿ'(ÿR6W DB`ÿ9ÿ@AÿCab`ÿCaDDÿEFGÿFHÿCcBbPPÿ

dÿÿÿH ÿ e Qÿÿÿÿÿf QÿeHgÿ ÿÿ Aÿ ÿ ÿÿÿX!!ÿhi3!!ÿ24pXÿRqXUY(rÿ8C8ÿ9a ÿÿbBaÿEH Qÿÿ ÿ ÿ ÿÿÿÿQÿH ÿ ÿHHÿeÿAÿÿÿ Qe ÿÿ Qÿ Qÿÿf QHÿeHgPsÿX!!ÿ$&X4ÿt44VUXÿ'(ÿ643uUXiÿBa`ÿ9a ÿccCÿccDÿEcÿFÿ8IC`P Efvÿÿÿ ÿ ÿw ÿÿÿAe Hÿw ÿ ÿÿA ÿÿw ÿÿÿECPÿH Qÿÿ ÿÿw ÿH QÿÿH xÿÿ ÿÿ x ÿÿE8Pÿ QÿÿÿH xÿÿÿ ÿ Hÿ e gPÿE e P

bID ÿÿ ÿ ÿ ÿ ÿ

!""#$%

&'ÿ)01ÿ234)0ÿ536783)ÿ794@36A1Bÿ34ÿCDEFDGHIÿQRÿSTUHRÿCVEWXÿYDH`aÿbcdÿe`fBÿdghiÿpq)0ÿ536` igdhraÿ)01ÿ7986)ÿ1Ast9u'ÿvÿ)w9xsv6)ÿ)1')ÿ@96ÿB1)16A3434yÿw01)016ÿ941ÿw96ÿ3'ÿ'8')v4)3vttu '3A3tv6ÿ)9ÿv49)016

&ÿstv34)3@@ÿA8')ÿs69 1ÿ9)0ÿ'8')v4)3vtÿ'3A3tv63)uÿ84B16ÿ)01ÿ1)634'37ÿ)1')ÿv4B '8')v4)3vtÿ'3A3tv63)uÿ84B16ÿ)01ÿ34)634'37ÿ)1')`ÿÿ01ÿ1)634'37ÿ)1')ÿ3'ÿv4ÿ917)3 1 79Asv63'94ÿ9@ÿ's173@37ÿ1s61''3 1ÿ1t1A14)'`ÿÿ01ÿ34)634'37ÿ)1')ÿ3'ÿvÿ'817)3 1 79Asv63'94ÿ)0v)ÿ@978'1'ÿ94ÿw01)016ÿ)01ÿ96B34v6uaÿ61v'94vt1ÿv8B31471ÿw98tBÿ@34B )01ÿw96'ÿ'8')v4)3vttuÿ'3A3tv6ÿ34ÿ)01ÿ)9)vtÿ79471s)ÿv4Bÿ@11tÿ9@ÿ)01ÿw96'`

Y`ÿv)ÿdghxhhÿWUUÿTWFÿGTTGWÿQRÿUaÿbbÿe`fBÿddgaÿddhfÿpq)0ÿ536`ÿigdbrÿpvss69 34y 34')687)394'ÿv4Bÿ1stv3434yÿ)0v)ÿ1)634'37ÿ)1')ÿ618361'ÿv4vtu)37vtÿB3''17)394ÿ9@ÿvÿw96ÿv4Bÿ1s16) )1')3A94ur`ÿÿ01ÿ59AA3))11ÿÿ6179AA14B'ÿ)0v)ÿ)01ÿ7986)ÿv4Bÿ7984'1tÿ's173@37vttuÿ76v@) 34')687)394'ÿ94ÿ'8')v4)3vtÿ'3A3tv63)uÿv'1Bÿ94ÿ)01ÿsv6)378tv6ÿw96p'rÿv)ÿ3''81aÿ)01ÿ79su63y0)ÿ34 81')394aÿv4Bÿ)01ÿ1 3B1471ÿB1 1t9s1Bÿv)ÿ)63vt`ÿÿ01ÿ@9tt9w34yÿ7v'1'ÿAvuÿs69 3B1ÿy83Bv471ÿ34 @96A8tv)34yÿ'8')v4)3vtÿ'3A3tv63)uÿ34')687)394'ÿ34ÿ's173@37ÿ'817)ÿv61v'

d%#efegÿ!eÿhef"f%diÿj!eklmÿÿnopÿQRÿqGDoUGaÿqdqÿeìBÿdffaÿdfrÿpq)0ÿ536`ÿdqqgrÿnGÿs tVEÿuVFvvEÿwUTUQGWGFDÿxVFWRÿQRÿtHyFDTzWÿ{FV|RaÿhiÿeìBÿddraÿddhcÿpq)0ÿ536`ÿdqrrr p09tB34yÿ)0v)ÿ79AA1673vt'ÿ34@634y1Bÿ)1t1 3'394ÿs69B87)394ÿvsstu34yÿ's173@37ÿ763)163vÿ)9 v''1''A14)ÿ9@ÿ'8')v4)3vtÿ'3A3tv63)urÿWUUÿTWFÿtUEHTvÿQRÿ}FHoHFaÿiqcÿe`fBÿdghqaÿdgrfxrcÿpq)0 536`ÿiggirÿpvsstu34yÿnopÿ@v7)96'ÿvsst31Bÿ)9ÿ'76114stvuÿ@96ÿ)1t1 3'394ÿ'09wrÿxWGTTWÿQR tHyFDTzWÿ{FV|RaÿqirÿeìBÿccgaÿccixcfÿpq)0ÿ536`ÿdqqdrÿp49)34yÿ)0v)ÿnopÿ3'ÿ1st373)tuÿt3A3)1B )9ÿt3)16v6uÿw96'ÿv4BÿuVFvvEÿ)1')ÿ3'ÿ')3ttÿvsst37vt1ÿ)9ÿ9)016ÿ)0v4ÿB6vAv)37ÿ96ÿt3)16v6uÿw96'r`

~ldifÿ!"!ld%d!$lmÿÿnpGVWIÿQRÿ{VUaÿfrhÿe`fBÿbcdaÿbcbxcqÿpq)0ÿ536`ÿiggcrÿp49)34yÿ@v7)96' v4Bÿ794')3)814)ÿ1t1A14)'ÿvsst37vt1ÿ)9ÿv4vtu34yÿA8'37vtÿ79As9'3)394'aÿw03t1ÿ49)34yÿ)0v)ÿ234)0 536783)ÿ0v'ÿ41 16ÿv4498471Bÿvÿ843@96Aÿ'1)ÿ9@ÿ@v7)96'ÿ17v8'1ÿ1v70ÿvtt1yv)394ÿ9@ÿ34@634y1A14) w3ttÿ1ÿ84381rÿUpEFDÿQRÿyGFDaÿfbbÿe`fBÿddbqaÿddqhÿpq)0ÿ536`ÿiggfrÿp49)34yÿA8'37vt 1t1A14)'rÿwoVUUÿ}FWÿtWGHÿ{FV|RÿQRÿ}FTEFDaÿidiÿe`fBÿcrraÿcbxbhÿpq)0ÿ536`ÿigggrÿp3B14)3@u34y v61v'ÿ9@ÿ'3A3tv63)uÿ9@ÿA8'37vtÿw96'rÿGTTGWaÿbbÿe`fBÿv)ÿddhcÿp49)34yÿ)0v)ÿA8'37vt 79As9'3)394'ÿv61ÿ49)ÿ794@341Bÿ)9ÿvÿ4v669wÿ6v4y1ÿ9@ÿ1s61''394r`ÿÿ4ÿvBB3)394aÿ34ÿnIGFVUÿQR qUÿ U||UTGDaÿqgÿe`fBÿdddhaÿddixirÿpq)0ÿ536`ÿigdbraÿvÿ7v'1ÿ34 9t 34yÿ)01ÿvtt1y1Bÿ79su63y0) 34@634y1A14)ÿ9@ÿvÿA8'37vtÿ79As9'3)394aÿ)01ÿ234)0ÿ536783)ÿ@984Bÿ61 16'3t1ÿ16696ÿ34ÿ)01ÿB3')637) 7986)'ÿ@v3t861ÿ)9ÿ34')687)ÿ94ÿ'1t17)394ÿv4Bÿv66v4y1A14)ÿ34ÿ794'3B1634yÿ1)634'37ÿ'8')v4)3vt '3A3tv63)u`

!"~%#eÿe!ef"lÿf$ÿd"dfeÿ #i$!!d#lmÿÿC||TUÿ{F|EUVXÿYDHRÿQRÿtGHVFWFvEÿ{FV|Raÿf e`fBÿdcfaÿdccÿpq)0ÿ536`ÿdqqcrÿp34 9t 34yÿv8B39 3'8vtÿv4Bÿt3)16v6uÿ79As9414)ÿ9@ÿ79As8)16 s69y6vArÿ}VFpDÿ}ÿnFvEpVUÿQRÿnDEUHÿ{FV|Raÿqhgÿe`iBÿdchaÿdcrrÿpq)0ÿ536`ÿdqqir p79As8)16ÿs69y6vA'ÿv61ÿ'817)ÿ)9ÿvÿnopE|UÿDTEGHÿGWWUHEGFDÿFvÿQVGFWÿWEDV

cgh ÿ ÿ ÿ ÿ ÿ!"#$!%&'ÿ())ÿ12ÿ3456ÿ72ÿ82ÿ19@6ÿ72 ÿABCÿDC CEF ÿCGEÿHI#PÿQRÿGIAA&ÿHRS$TSRÿP$U$V#ÿ!#ÿ&'ÿWX9Y)X`Xÿ82ÿ7abÿcd2ÿe)f2 gX ÿAGCÿDC ÿhCh ÿhCIUiEÿHI#PÿQRÿGIAp&ÿHRS$TSRÿSR $ÿ& qrstruÿwtxsyÿ ttruÿwryxstruÿrÿrtsÿxtsÿÿc)9ÿ82ÿ)XXÿcX2 1a6ÿ72 ÿBEpÿDi ÿBCE ÿBCFUCIÿHCEGE&ÿHRS$TSRÿ$SRÿ ÿVT"&'ÿWd9ÿWb6ÿ72ÿ82 ÿ)XXÿ1aÿg26ÿ2d2 ÿFBCÿDi ÿGEpC ÿGEpBUppÿHI#PÿQRÿCEEB&ÿHRS$TSRÿVT" ÿ#TSRR$ÿR&'ÿeÿ82ÿW@ÿcX)f2ÿg2 ÿiiEÿDi ÿGGpE ÿGGppUpAÿHI#PÿQRÿCEEi&ÿHRS$TSR SR $ÿ ÿ#TSRR$ÿVRT&'ÿe)bgÿ82ÿcf ÿCIFÿDi ÿGEBIÿHI#PÿQRÿCEEC&ÿHRS$TSR VT"ÿ ÿ#TSRR$ÿR&'ÿcXÿ82ÿgXf ÿpBGÿDC ÿGCAI ÿGCIiÿHI#PÿQRÿGIAh& HRS$TSRÿ$STÿ ÿ$#R$ÿVR#&'ÿfgbfÿ82ÿ4bYX` ÿpiBÿDC ÿGihC ÿGihBUhpÿHI#PÿQR GIAF&ÿHRS$TSRÿRTÿVT"ÿ ÿ$SR& hisÿjuÿkjljstxÿrÿmtsjÿnropÿÿ252ÿdX@ÿ7fd26ÿ72ÿ82ÿ5X)b6ÿ7 BpBÿDi ÿAFG ÿAFAUhCÿHI#PÿQRÿCEGC&ÿHRS$TSRÿqT$TUV##UVR# ÿqrR&'ÿe)b6ÿ72ÿ82 es5ÿ1a6ÿ72 ÿBGBÿDi ÿIEF ÿIGiUGFÿHI#PÿQRÿCEGE&ÿHRS$TSRÿ#$"ÿ $TT&'ÿg)8)bXÿ82 e)fÿtd6ÿ72 ÿCIpÿDi ÿAGh ÿACBÿHI#PÿQRÿCEEC&ÿHRS$TSRÿu$!ÿ$qÿSRTÿ#&'ÿ4fÿv e)X9ÿwXggÿb8ÿdXf2 ÿhBCÿDC ÿ#ÿGGBFÿHV$SR Rÿ R#ÿ$RÿVVTR#R$ÿ$q VRqRÿR#Rÿ#$ÿVT#ÿ#R$ÿ$qÿ ÿPÿqR&'ÿd)bb) ÿICpÿDC ÿ#ÿFFCUFiÿH$#R wXggÿ##ÿVVTRrTÿ#$ÿ$#Pÿ#Pÿ #Rÿ$ÿTR#"ÿu$!'ÿRÿ##ÿ#$ÿÿRRTR#"ÿ$q xTT$uÿ!ÿ ÿ!ÿ ÿRÿ#TSRR$ÿ$RT& hitujÿiy pÿsÿÿeXÿ4)Xÿ82ÿWX`6ÿ72 ÿGhFÿDi ÿGGEp ÿGGGCÿHI#PÿQRÿGIIA& HVVT"Rÿ$ R"ÿ$rTÿV$ÿ# &'ÿÿ)bÿ252ÿdX@ÿ7fd26ÿ72 ÿBpBÿDi ÿ# AhCÿHRS$TSRÿqrRÿ R&'ÿzfÿgXbÿ72ÿ82ÿdf@ÿgXbÿ492 ÿAABÿDC ÿGGpi GGpBÿFÿHI#PÿQRÿGIAI&ÿHRS$TSRÿ$V#ÿ$q#u& ÿbfÿ8XXdb`ÿÿfXÿ`Xdf X`{fÿY9ÿdXgÿ|}6ÿ72ÿ82ÿs`b6ÿ7 ÿBhiÿDi ÿIpB ÿIpIÿHI#PÿQRÿCEGG&'ÿ())ÿ12ÿ3456 72 ÿABCÿDC ÿ#ÿCEIUGEÿH RRÿR# ÿ R&'ÿ5bÿ82ÿe2ÿ()ÿvÿg2 ÿAiGÿDC ÿAIA IECÿHI#PÿQRÿGIAp&ÿHRS$TSRÿVV#R$ÿ$qÿPRT &'ÿcX ÿpBGÿDC ÿ#ÿGCIiÿH RR $rTÿ ÿ$ÿ$SR$&

e8fÿz)2ÿ~}|

FEp (6 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 1 of 30

CA Nos. 16-56057 & 16-56287 DATE OF DECISION: SEPTEMBER 28, 2018 JUDGES PAEZ AND IKUTA AND DISTRICT JUDGE VITALIANO United States Court of Appeals for the Ninth Circuit ______

MIKE SKIDMORE, AS TRUSTEE FOR THE RANDY CRAIG WOLFE TRUST Plaintiff-Appellant-Appellee v. LED ZEPPELIN, ET AL., Defendants-Appellees AND WARNER/CHAPPELL MUSIC, INC., Defendant-Appellee-Appellant ______

Appeals from the United States District Court for the Central District of California Hon. R. Gary Klausner, District Judge Case No. 15-cv-03462-RGK (AGRx) ______BRIEF OF AMICI CURIAE 123 SONGWRITERS, COMPOSERS, MUSICIANS, AND PRODUCERS, ALONG WITH NSAI AND SONA, IN SUPPORT OF PETITION OF DEFEND- ANTS FOR PANEL REHEARING AND REHEARING EN BANC ______

Edwin F. McPherson Tracy B. Rane McPHERSON RANE LLP 1801 Century Park East, 24th Floor Los Angeles, California 90067-2326 (310) 553-8833 [email protected] [email protected] Attorneys for Amici Curiae (7 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 2 of 30

This Brief Is Filed On Behalf Of The Following Songwriters, Composers, Musicians, And Producers (Affiliations Are Listed For Identification Purposes Only):

Harvey Mason Jr. Billy Howerdel Savan Kotecha (A Perfect Circle, et Mike Shinoda al.) Charlie Midnight (Linkin Park) Eddie Money Jeff Trott Jason Mraz Curt Smith Carla Azar Bishop Briggs Roland Orzabal (Autolux) (Tears for Fears) Nashville Songwriters Greg Edwards Association James Iha (Autolux/Failure) International (NSAI) (Smashing Pumpkins) (Over 4,000 members) Kellii Scott Tim Alexander Ken Andrews Songwriters of North Les Claypool (Failure) America (SONA) (Primus) (Over 500 members) Brian McPherson Rob Halford Nancy Wilson (Judas Priest) Serban Ghenea (Heart) Rick Nowels Alex Ghenea Geoff Bywater Nile Rodgers Justin Raisen Sean Lennon Brian Welch DallasK Maynard James Keenan James Shaffer Danny Carey Jonathon Davis Siedah Garrett Justin Chancellor (Korn) (Tool, et al.) Bob Ezrin Brett Gurewitz Carina Round (Bad Religion) Claudia Brant Jeff Friedl Matt McJunkins Karen Fairchild Chris Briggs Mat Mitchell (Little Big Town) (Puscifer, et al.) Ross Golan

i (8 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 3 of 30

Matt Adell Spencer Bastien Richard James Burgess, PhD Cliff Calabro Jeff Fenster Dr. Owen J. Lee Ricardo Lemvo Aloe Blacc Johan Karlsson Greg Wells Marty James Rami Yahcoub Nicole Fox Michelle Lewis Michael Rosenblatt Nash Overstreet Max Martin Mike Simpson Mark Beaven Dina LaPolt (Dust Brothers)

Adam Anders Dallas Davidson Phil Greiss

Busbee Lindy Robbins Jintae Ko

John Woold Jonas Jeberg Toby Gad

Lulu Pantin Al Shuckburgh Al Jones

Michael Eames Darrell Brown Merck Mercuriadis

Erica Nuri Taylor Laurent Edwards Terius “The-Dream” Nash Shea Taylor DJ Frank E Anais Aida Kane Pam Sheyne Brett James Itaal Shur Kenny McPherson Bonnie McKee Josh Kear Andre Lindal Nick Gatfield Charles Biederman Matthew Puckett Jesse Kirshbaum John Ryan Jason Evigan Laurent Hubert Jesse Frasure Aton Ben-Horin Pete Giberga

ii (9 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 4 of 30

KoOol.kOjAk Tom Douglas Britt Burton

Megan Wood Alan Melina Kevin Randolph

T D Ruth Jamie Lynn Vessels Evan Kidd Bogart

Troy Verges Suzette Toledano Lucas Keller

Nicolle Galyon Stefan Skarbek Austin Bisnow

Maureen Baker Tomas Ericsson Billy Mann

Alan Okuye

iii (10 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 5 of 30

TABLE OF CONTENTS

PAGE

I. STATEMENT OF COMPLIANCE WITH RULE 29(a)(4)(E)...... 1

II. CONSENT OF THE PARTIES...... 1

III. INTEREST OF THE AMICI CURIAE...... 1

IV. INTRODUCTION...... 1

V. ARGUMENT...... 5

A. BY HOLDING THAT COMMONPLACE ELEMENTS IN SONGS ARE NOW PROTECTED BY COPYRIGHT, THE PANEL HAS CREATED SIGNIFICANT CONFUSION, AS WELL AS A SIGNIFICANT RISK OF STIFLING CREATIVITY AND CAUSING EXCESSIVE AND UNWARRANTED LITIGATION...... 5

1. A Selection And Arrangement Of Random Unprotected Elements Does Not Garner Copyright Protection Unless It Is Original, And Even Then Such Protection Will Be Thin, And Infringement Found Only When The Selection And Arrangement In Each Work Is Virtually Identical.. . . 5

2. The Panel Is Correct That The Instruction That “Common Musical Elements, Such as Descending Chromatic Scales, Arpeggios or Short Sequences of Three Notes Are Not Protected by Copyright” Is Literally Correct – And There Should Not Be A Reversal For Giving It...... 9

B. THE PANEL’S MANDATE THAT THE JURY HEAR THE SOUND RECORDING OF A SONG WRITTEN PRIOR TO FEBRUARY 15, 1972 WHILE ASSESSING THE CREDIBILITY OF TESTIMONY CONCERNING ACCESS IS NOT ONLY ENTIRELY PREJUDICIAL; IT CANNOT REALISTICALLY

iv (11 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 6 of 30

BEAR ON CREDIBILITY...... 12

1. Allowing The Jury To Hear A Sound Recording Of A Pre-1972 Song For Any Purpose Would Be Extremely Prejudicial...... 12

2. Playing The Sound Recording To The Jury And The Jury’s Observation Of The Defendant Is Not Probative In Any Way Of Access Or The Defendant’s Credibility Concerning His Lack Of Access...... 15

C. IN CONTRAST TO CASES INVOLVING BOOKS AND FILMS, SUMMARY JUDGMENT IS ELUSIVE IN COPYRIGHT CASES THAT INVOLVE MUSIC...... 17

D. COPYRIGHT LAW SHOULD PROTECT ORIGINAL MUSIC, WITHOUT STIFLING CREATIVITY...... 19

VI. CONCLUSION...... 20

VII. CERTIFICATE OF COMPLIANCE...... 21

v (12 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 7 of 30

TABLE OF AUTHORITIES

CASES PAGE(S)

Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994)...... 8, 9

Darrell v. Joe Morris Music Co., 113 F.2d 80 (2nd Cir. 1940)...... 11

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)...... 6, 7, 8, 9, 10

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)...... 19

Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988)...... 11

Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002)...... 9

Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003)...... 8

Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003)...... 7, 9, 10

Skidmore v. Led Zeppelin, 2018 U.S. App. LEXIS 27680 (9th Cir. 2018)...... 10, 12, 13, 14

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)...... 19

vi (13 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 8 of 30

OTHER AUTHORITIES

M. Nimmer & D. Nimmer, 1 NIMMER ON COPYRIGHT, § 2.05[A] (2017)...... 13

M. Nimmer & D. Nimmer, 4 NIMMER ON COPYRIGHT, § 13.03[A][4] (2018).. . . . 8

R. Mendelsohn, Will the “Blurred Lines” Decision Stifle Creativity?, http://blogtrans.megatrax.com/will-the-blurred-lines-decision-stifle- creativity/...... 20

vii (14 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 9 of 30

I. STATEMENT OF COMPLIANCE WITH RULE 29(a)(4)(E)

Counsel for the parties did not author this brief. No party has contributed any money to fund the preparation or submission of this brief.

II. CONSENT OF THE PARTIES

Plaintiff Skidmore has refused to consent to the filing of this brief. Amici submit this brief in conjunction with a Motion for Leave.

III. INTEREST OF THE AMICI CURIAE

Amici represent songwriters, composers, musicians, and producers who create music in many different genres that is protected under U.S. copyright law.

That music entertains and enriches the lives of countless people, in the United

States and around the world. Amici will therefore undoubtedly be affected by, and consequently have a significant interest in, the outcome of this critically important case.

IV. INTRODUCTION

A case like this, particularly one that is brought almost 50 years after an alleged infringement, when it is inconceivable that anyone in the free world is not familiar with “Stairway to Heaven,” affect many, many more people than the

1 (15 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 10 of 30 parties in the case. In fact, the panel appears to have gone out of its way in its opinion to make policy decisions that have less to do with this case and much more to do with future cases. This is a decision that truly does impact (adversely) every songwriter and musician.

The panel has made three significant rulings concerning the propriety of certain jury instructions, and one ruling concerning the propriety of playing an otherwise irrelevant sound recording to the jury in order to assess credibility. If left to stand, these rulings will likely stifle the creativity of Amici and other present and future songwriters, and will adversely impact the entire music industry in general. Moreover, the rulings are certain to create a significant risk of future unwarranted and excessive copyright infringement claims.

First, the panel held that the district court erred by failing to instruct the jury that the selection and arrangement of unprotectable music elements is protectable.

Significantly, however, during the trial, no evidence was presented by Plaintiff or his expert that demonstrated that any “selection and arrangement” at issue in

Plaintiff’s work “Taurus” consisted of a single compilation of common musical elements that were arranged in an original way. Rather, the purported selection and arrangement that was presented was simply a combination of random, unprotected elements.

2 (16 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 11 of 30

By making this ruling, the panel has necessarily determined – or at least given credence to the argument – that the arrangement and selection that was presented by Skidmore rose to the level of an original work. By so ruling, the panel has drastically expanded the basis for finding copyright infringement in music cases. Indeed, the end result of this ruling is that trivial and commonplace similarities between two songs may be considered to constitute the basis for a finding of infringement.

Second, the panel has ruled that, because the jury was not instructed that a selection and arrangement could be protected, it was erroneous to instruct the jury that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes,” and “elements from the public domain” are not protected by copyright.

This ruling is in direct contravention to established copyright law, which provides that such elements, which are the basic building blocks of musical composition, are not protected. At the very minimum, these rulings are certain to cause substantial confusion among songwriters, who only have twelve notes with which to work in the first place; songwriters need at least some certainty as to what basic elements of music are free for all to use.

Third, the panel definitively held that, for music that was created prior to

February 15, 1972, it is only the deposit copy of the work, and not the sound

3 (17 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 12 of 30 recording, that constitutes the relevant work at issue in a copyright infringement case. The panel then completely eviscerated the import of its own holding by finding that the otherwise irrelevant sound recording should be played to the defendant, in front of the jury, for the purpose of evaluating the defendant’s credibility concerning his lack of access.

Of course, once a jury hears the sound recording for purposes of access, it will necessarily be unable to “unhear” and disregard the sound recording for purposes of determining substantial similarity. Such a ruling will cause substantial prejudice to every songwriter defendant who disputes access to a song that falls under the 1909 Act.

In addition to causing substantial prejudice, the underlying premise of this ruling is erroneous. Playing the sound recording to the defendant in the jury’s presence cannot possibly be probative to the issue of access. The access that is at issue in this case is not the access that the members of Led Zeppelin have to

“Taurus” now; it is their access to “Taurus” before they wrote “Stairway to

Heaven.” There is simply no relevance whatsoever to the reaction of the members of Led Zeppelin to hearing a sound recording of “Taurus” (perhaps for the thousandth time) in a courtroom in 2016 to whether or not they had “access” to the recording 46 years before when they wrote “Stairway to Heaven.”

4 (18 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 13 of 30

In sum, the panel’s decision extends copyright protection to public domain elements. Such an extension is certain to result in excessive and ultimately unwarranted copyright litigation in the music community. The decision will also substantially stifle creativity, and cause significant confusion among songwriters and future songwriters.

V. ARGUMENT

A. BY HOLDING THAT COMMONPLACE ELEMENTS IN

SONGS ARE NOW PROTECTED BY COPYRIGHT, THE

PANEL HAS CREATED SIGNIFICANT CONFUSION, AS

WELL AS A SIGNIFICANT RISK OF STIFLING

CREATIVITY AND CAUSING EXCESSIVE AND

UNWARRANTED LITIGATION.

1. A Selection And Arrangement Of Random Unprotected

Elements Does Not Garner Copyright Protection Unless It

Is Original, And Even Then Such Protection Will Be Thin,

And Infringement Will Be Found Only When The Selection

And Arrangement In Each Work Is Virtually Identical.

The panel ruled that it was reversible error for the district court not to provide the jury with an instruction stating that the selection and arrangement of

5 (19 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 14 of 30 unprotectable music elements is protectable. By making this ruling, the panel necessarily found – or at least gave credence to the argument – that the random, unprotected elements that appear in “Taurus” were sufficient to constitute a selection and arrangement that is protected by copyright.

It is hardly a novel concept that a selection and arrangement of otherwise unprotected elements that is original can be subject to copyright protection.1

However, there was no evidence presented at the Led Zeppelin trial that the otherwise unprotected elements that appeared in “Taurus” were presented in such an original pattern or compilation as to garner copyright protection.

Instead, the “evidence” of the purported “selection and arrangement” in

“Taurus” that also appeared in “Stairway To Heaven” merely consisted of random similarities of commonplace elements, such as the existence of a descending chromatic scale and two-pitch sequences in different melodies that were scattered throughout the beginning of the songs. After filtering out the generic elements or musical commonplaces identified in “Taurus” under the extrinsic test, what remains are two completely different songs.

1A “compilation,” defined in the Copyright Act, is deemed original, and hence protected by copyright, if the author has independently and with at least a minimal degree of creativity made choices as to “which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).

6 (20 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 15 of 30

More specifically, both songs start with chords that, according to both sides’ experts, are “commonplace.” In fact, both songs include an “arpeggio,” which means “breaking” chords so their constituent pitches are heard separately rather than simultaneously, which, again, both sides’ experts agree is “commonplace.”

Both experts also agree that these “broken” chords’ pitches are played in a different order in “Taurus” than in “Stairway to Heaven,” which makes the two songs’ melodies different. In fact, the two songs’ melodies’ lowest pitches are a descending chromatic scale, which is nothing more than the white and black keys of a piano, played in order, right to left.2 This is not original.

Even assuming that Skidmore had identified the existence of an original pattern of commonplace musical elements in “Taurus” that could be subject to copyright protection, because the work embodies (at best) the minimum of creativity necessary for any protection, the protection is “thin.” See Satava v.

Lowry, 323 F.3d 805, 810-12 (9th Cir.), cert. den., 540 U.S. 983 (2003).

Moreover, to prove infringement of a selection and arrangement, the copying has to be virtually identical. See id. (copyright only protects against

“virtually identical copying.”); see also, Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. at 349 (requiring the “same selection and arrangement” to demonstrate

2Skidmore’s musicologist admitted that: “certainly there are numerous songs that use chromatic scales, and that “songs commonly include a descending chromatic scale.

7 (21 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 16 of 30

infringement of a compilation); see also, M. Nimmer & D. Nimmer, 4 NIMMER ON

COPYRIGHT, § 13.03[A][4] (2018) (“More similarity is required when less protectable matter is at issue.”); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d

1435, 1439 (9th Cir. 1994) (holding that “the appropriate standard for illicit copying [of works comprised of only unprotectable or licensed elements] is virtual identity.”) Plaintiff made no showing of any identical copying of a pattern of music in this case.

By ruling that the jury should have been instructed that the selection and arrangement of the otherwise unprotectable music elements is protectable under these circumstances, the panel is necessarily adding copyright protection where none existed before, i.e, to the unprotected elements themselves (e.g., descending chromatic scale; commonplace eighth notes) that appear in “Taurus,” rather than to some original selection and arrangement of those elements.

This is contrary to established copyright law. See e.g., Feist, 499 U.S. at

342 (“A compilation is not copyrightable per se, but is copyrightable only if its facts have been ‘selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship’”); Rice v. Fox Broad.

Co., 330 F.3d 1170, 1179 (9th Cir. 2003) (rejecting selection and arrangement argument because works lacked the “same pattern of generic similarities”).

8 (22 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 17 of 30

As discussed in Satava v. Lowry, supra:

[I]t is not true that any combination of unprotectable elements automatically qualifies for copyright protection . . . [A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.

Id. at 811 (citing Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002); Apple

Computer, Inc., 35 F.3d at 1446; Feist, 499 U.S. at 358 (“[T]he principle focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.”).

2. The Panel Is Correct That The Instruction That “Common

Musical Elements, Such as Descending Chromatic Scales,

Arpeggios or Short Sequences of Three Notes Are Not

Protected by Copyright” Is Literally Correct – And There

Should Not Be A Reversal For Giving It.

The panel also erroneously held that it was prejudicial to include a jury instruction that stated that “common musical elements, such as descending chromatic scales, arpeggios or short sequences of three notes” are not protected by copyright. The panel’s rationale was that, when such an instruction is considered in the absence of a selection and arrangement instruction, it “could have led the

9 (23 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 18 of 30 jury to believe that even if a series of three notes or a descending chromatic scale were used in combination with the other elements in an original manner, it would not warrant copyright protection.” However, they were not so used in this case.

Similarly, the panel held that it was erroneous to instruct the jury that “any elements from prior works or the public domain are not considered original parts and not protectable by Copyright.” Although the panel acknowledged that this instruction was not “literally incorrect,3” the panel went on to state that: “it misleadingly suggests that public domain elements such as basic musical structures are not copyrightable even when they are arranged or modified in a creative way.” Skidmore v. Led Zeppelin, 2018 U.S. App. LEXIS 27680 at *29

(9th Cir. 2018).

Significantly, however, although facts and elements in the public domain, as well as commonplace elements, if arranged in an original manner, may qualify for

(thin) copyright protection, the component parts themselves do not become protected by copyright simply by virtue of their combination into a larger whole.

See Feist, 499 U.S. at 363. Indeed, by their very definition, elements that are in the “public domain,” and “scenes a faire,” are free for all to use. See, Satava v.

Lowry, supra. 323 F.3d at 812.

3If the instruction is not “literally incorrect,” it is difficult to understand how giving the instruction can constitute reversible error.

10 (24 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 19 of 30

At a minimum, the panel’s decision, if left unchanged, will cause substantial confusion. Any artist who reads the opinion may very well fear that the (very common) use of any “descending chromatic scales, arpeggios or short sequences of three notes,” or any elements in the “public domain,” could form the basis of an infringement action.

The end result of the panel’s rulings on these jury instructions, if left standing, is that full copyright protection will be afforded to musical works (unlike other works) in the Ninth Circuit (and no other circuit) based simply on the fact that the works contain the basic building blocks of musical composition, even when they are not arranged in any original way.

This is especially problematic, because in music, unlike film, books, etc., there is a “limited number of notes and chords available to composers” (Gaste v.

Kaiserman, 863 F.2d 1061, 1068 (2nd Cir. 1988)), and composers are therefore much more restricted in their options.4

4As Judge Learned Hand wrote: “It must be remembered that while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.” Darrell v. Joe Morris Music Co., 113 F.2d 80 (2nd Cir. 1940).

11 (25 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 20 of 30

B. THE PANEL’S MANDATE THAT THE JURY HEAR THE

SOUND RECORDING OF A SONG WRITTEN PRIOR TO

FEBRUARY 15, 1972 WHILE ASSESSING THE CREDIBILITY

OF TESTIMONY CONCERNING ACCESS IS NOT ONLY

ENTIRELY PREJUDICIAL; IT CANNOT REALISTICALLY

BEAR ON CREDIBILITY.

1. Allowing The Jury To Hear A Sound Recording Of A Pre-

1972 Song For Any Purpose Would Be Extremely

Prejudicial.

The district court in this case had to decide whether it was the deposit copy of “Taurus” (the sheet music deposited with the U.S. Copyright Office with the copyright registration) or the sound recording of “Taurus” that defined the scope of the copyright. The district court ruled decidedly in favor of using the deposit copy, and precluded Skidmore from playing the sound recording for the jury. This was the correct decision.

Because the copyright of “Taurus” was registered in 1967, the 1909

Copyright Act applied. Under the 1909 Act, a work could receive federal copyright protection either through registration and submission of a deposit copy, or through publication with the required notice of copyright.” Skidmore v. Led

12 (26 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 21 of 30

Zeppelin, 2018 U.S. App. LEXIS 27680 at *31. However, sound recordings did not receive federal copyright protection until 1972.

Distributing “phonorecords” did not constitute “publication” under the 1909

Act; therefore, musical compositions were only “published” if the sheet music was also published. Id. Additionally, the Copyright Office did not accept sound recordings as deposit copies under the 1909 Act. See id. (citing M. Nimmer and

Nevertheless, Skidmore argued in this case that, under the 1909 Act, the deposit copy is purely archival in nature, and his proof of copyright infringement should not be limited to the deposit copy. He also made three policy arguments, all of which were rebuffed by the district court and the panel, which held that

“under the 1909 Act, the deposit copy defines the scope of the copyright.” Id. at

*36.

It is therefore clear that, with respect to a copyright infringement claim for a song that is governed by the 1909 Copyright Act and written prior to February 15,

1972, the protectable copyright at issue is the deposit copy of the composition, and not the sound recording. As such – and the panel agrees – at trial, a jury should only be able to hear a rendition of the sheet music that was registered with the

13 (27 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 22 of 30 the song, for the purposes of determining substantial similarity (and therefore copyright infringement.

Ironically, however, after making it clear in this case that “Stairway to

Heaven” could only be compared to the deposit copy of “Taurus,” and not to the sound recording, the panel then completely emasculated its own ruling by holding that the district court abused its discretion by refusing to allow the jury to hear the sound recording in connection with assessing the defendant’s credibility in testifying about access.

More specifically, the panel held that the jury should have been present when the sound recording of “Taurus” was played for Jimmy Page. According to the panel, the jury should be allowed to observe Jimmy Page listening to the “Taurus” sound recording, which would have enabled them to “evaluate his demeanor while listening to the recordings, as well as when answering questions.” Skidmore, supra, at *40.

By holding that the sound recording can be played in front of the jury in order to assess credibility, the panel has improperly expanded the scope and breadth of the copyright at issue. In determining whether a defendant is liable for infringement, a jury is not going to be able to ignore or “unhear” the sound recording that it just heard for the purpose of assessing credibility, when it is deciding the issue of substantial similarity.

14 (28 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 23 of 30

There is no doubt that the jury will be consciously or subconsciously comparing the two sound recordings to determine substantial similarity, and the defendant will not be allowed to defend himself by presenting expert testimony about the lack of substantial similarity between the two sound recordings.

Accordingly, allowing a plaintiff to play the sound recording to the jury for the purposes of determining credibility on the issue of access is a complete windfall for the plaintiff, but is extremely prejudicial to defendants.

2. Playing The Sound Recording To The Jury And The Jury’s

Observation Of The Defendant Is Not Probative In Any

Way Of Access Or The Defendant’s Credibility Concerning

His Lack Of Access.

In addition to the prejudicial nature of the mandate to play the sound recording for the jury on the issue of access, there is no probative value whatsoever in such an exercise. “Taurus” was recorded and released in November of 1967. “Stairway to Heaven” was written in approximately November of 1970.

Because the members of Led Zeppelin denied having “access” to “Taurus” when they wrote “Stairway to Heaven,” access is definitely an issue in the case (to establish “copying”). However, the only “access” at issue in this case is whether the members of Led Zeppelin had access to “Taurus” between November of 1967,

15 (29 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 24 of 30 when it was released, and November of 1970, when they wrote “Stairway to

Heaven.”

Clearly, it is irrelevant whether or not Led Zeppelin had access to “Taurus” in the almost five decades after 1970, including at the time of trial. It is inconceivable that the defendants – even if they did not hear the sound recording for the prior four decades – did not listen to the recording during the litigation, and prior to the time of trial. In fact, at the very least, by the time of the trial, every defendant would have heard the sound recording multiple times while conducting discovery and preparing for trial.

Accordingly, the only thing that playing the sound recording to the defendant in front of the jury would demonstrate is how the defendant reacts to hearing a sound recording that he or she necessarily may have heard a thousand times prior to the trial. It certainly does not provide any evidence whatsoever that any such defendant heard the song at any time prior to the creation of the allegedly-infringing work, which is the only relevant time period for purposes of access in a copyright infringement case.

This mandate also will not have any realistic bearing on any of the defendants’ credibility regarding their testimony concerning lack of access.

Notwithstanding the district court’s observation that the defendants’ reactions to hearing “Taurus” were relevant, there truly is no relevance whatsoever to a

16 (30 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 25 of 30 defendant’s reaction to hearing a song for the thousandth time, 46 years after an allegedly-infringing song is written – and any minimal relevance would certainly be outweighed by the extreme prejudice to the defendants.

In light of the foregoing, if the panel’s decision stands, artists and songwriters who are sued for copyright infringement in cases that involve songs that were written prior to 1972 will be at an extreme disadvantage, and suffer severe prejudice, because the plaintiff will be able to play the otherwise unprotected sound recording to the jury under the guise of proving (somehow) that the defendant had access to the song when he or she wrote the allegedly-infringing song.

C. IN CONTRAST TO CASES INVOLVING BOOKS AND FILMS,

SUMMARY JUDGMENT IS ELUSIVE IN COPYRIGHT

CASES THAT INVOLVE MUSIC.

The defendants in this case filed a motion for summary judgment that was heard and denied by the district court in this case, as so many are in music cases in the Ninth Circuit. Because music composition is a unique language, it is much more difficult to separate the frivolous from the meritorious. This is because experts can create confusion by simply citing to the existence of unprotected

17 (31 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 26 of 30 elements, and then claim that the works are similar because they contain these elements.

In the world of film, television, and books, the language is easily understood. The courts can easily analyze the plot, mood, pace, characters and sequence of events that appear in such works and filter out all of the scènes à faire, such as a car chase in an action movie or a magician pulling a rabbit out of a hat.

In other words, with respect to films, television shows, and books, the Court can easily digest the expert opinions and weed out the protectable elements from the unprotectable elements, because the “language” spoken by the experts in such cases is one that the judge understands and can articulate freely.

In contrast, musicologists speak a language that is often foreign to judges

(and juries), and therefore confuse judges into denying summary judgment motions whenever two musicologists disagree. The unfortunate result is that summary judgment is very difficult to obtain in cases involving music, and a defendant is often forced to go to trial even when the works do not share any substantial similarities of protectable expression.

Under established copyright law, one has to identify and filter out public domain elements, and compare the protectable material that is left. However, the panel decision frustrates and conflicts with that law by mandating that a defendant cannot identify for the jury – and implicitly the disctrict court cannot exclude on a

18 (32 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 27 of 30 motion for summary judgment – the public domain elements such as the common use of notes of a musical scale. This is entirely unfair, not only to the members of

Led Zeppelin, but to all songwriters.

D. COPYRIGHT LAW SHOULD PROTECT ORIGINAL MUSIC,

WITHOUT STIFLING CREATIVITY.

To be clear, Amici are grateful for the laws that protect their own creations.

No conscientious songwriter wants to copy someone else’s music; nor do they want someone else to copy theirs. However the “ultimate aim” of the Copyright

Act is “to stimulate artistic creativity for the general public good.” Twentieth

Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975), and Amici applaud and appreciate that endeavor.

However, Amici also understand that, like the music that was created before them, their own music will serve as building blocks for future songwriters, who will create their own music. As discussed in Fogerty v. Fantasy, Inc., 510 U.S.

517, 527 (1994): “. . . copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”

Finally, as written by composer Ron Mendelsohn, owner of production music company Megatrax: “All musical works, indeed all creative works, are born

19 (33 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 28 of 30 from a spark of inspiration. It is essential for musicians and composers to be able to find this spark anywhere and everywhere without having to constantly look over their shoulders and worry about being sued. To extinguish this spark, to replace it with fear, is to stifle creativity and deprive society of the next generation of great artists and new music . . . .” http://blogtrans.me gatrax.com/will-the-blurred-lines- decision-stifle-creativity/.

VI. CONCLUSION

Based upon the foregoing, Amici respectfully request that this Court enter an Order granting the Petition of Defendants for Panel Rehearing and Rehearing

En Banc.

Dated: November 5, 2018 Edwin F. McPherson Tracy B. Rane McPHERSON RANE LLP

By: /s/ Edwin F. McPherson EDWIN F. McPHERSON Attorneys for Amici Curiae

20 (34 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 29 of 30

VII. CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation set forth in Fed. R. App.

P. 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains

4,197 words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using Word Perfect

14-point Times New Roman font.

Dated: November 5, 2018 Edwin F. McPherson Tracy B. Rane McPHERSON RANE LLP

By: /s/ Edwin F. McPherson EDWIN F. McPHERSON Attorneys for Amici Curiae

21 (35 of 35) Case: 16-56057, 11/05/2018, ID: 11072396, DktEntry: 75-2, Page 30 of 30

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court of the United States Court of Appeals for the Ninth Circuit, by using the appellate CM/ECF system on November 5, 2018.

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Dated: November 5, 2018 /s/ Edwin F. McPherson EDWIN F. McPHERSON