• Abstract and Figures
• Public Full-text

Electronically Filed Docket: 19-CRB-0005-WR (2021-2025) Public Version Filing Date: 07/31/2020 03:11:52 PM EDT Before the UNITED STATES COPYRIGHT ROYALTY JUDGES Washington, D.C. In the Matter of: Determination of Rates and Terms for Docket No. 19-CRB-0005- Digital Performance of Sound Recordings WR (2021-2025) and Making of Ephemeral Copies to Facilitate those Performances (Web V) SOUNDEXCHANGE’S UNOPPOSED MOTION TO SUBMIT THE CORRECTED WRITTEN REBUTTAL TESTIMONY OF CATHERINE TUCKER SoundExchange respectfully moves for leave to submit the Corrected Written Rebuttal Testimony of Catherine Tucker (the “Corrected Testimony”) for the purpose of correcting two missing redactions. The other participants in the proceeding have consented to the submission of the Corrected Testimony. The Corrected Testimony is appended to this motion as Exhibit A (clean version) and Exhibit B (redline showing changes). The corrections reflect two instances of the phrase “[ ]” that should have been redacted in Professor Tucker’s Written Rebuttal Testimony but were inadvertently left unredacted. The two missing redactions are identified below: “However, as discussed above in Section III.A.2, many of these users would become aware of Pandora’s loss of content from [ ] in reality, and would respond differently with this awareness.” Correct Testimony WRT ¶ 34. “Second, Pandora’s loss of access to [ ] catalog would likely make it harder for Pandora to retain customers.” Correct Testimony WRT ¶ 96. Public Version SoundExchange respectfully requests that the Judges exercise their discretion under 17 U.S.C. § 801(c) to accept the Corrected Testimony, and submits that such relief is legally and factually justified. See Docket No. 19-CRB-0005-WR (2021-2025) (Web V), Order Granting Sirius XM Radio Inc.’s and Pandora Media, LLC’s Unopposed Motion to Submit the Corrected Written Direct Testimonies of David Reiley and Carl Shapiro at 1 (Dec. 5, 2019) (finding “that good cause exists” to grant unopposed motion to correct testimony); Docket No. 14-CRB-0001-WR (2016-2020) (Web IV), Order Denying Licensee Services’ Motion to Strike SoundExchange’s “Corrected” Written Rebuttal Testimony of Daniel Rubinfeld and Section III.E of the Written Rebuttal Testimony of Daniel Rubinfeld, and Granting Other Relief (“Web IV Rubinfeld Order”) at 7 (Apr. 2, 2015) (“While acceptance after the due date of a correction to an otherwise timely filing would appear to fall squarely within the discretion afforded to the Judges under Section 801(c), the appropriate procedure for asking the Judges to exercise that discretion is to file a motion stating the relief requested and the legal and factual bases for the Judges to grant the relief.”). First, the other participants have consented to submission of the Corrected Testimony. Second, the correction introduces only redactions to the two phrases identified above to Professor Tucker’s testimony. Neither of the proposed corrections affects Dr. Tucker’s analysis or conclusions. Third, as the Judges have ruled in past proceedings, it is in their and the participants’ interest to have a full, correct, and complete record. The Judges have accepted corrected filings in this proceeding and past proceedings in furtherance of that interest. See, e.g., Web IV Rubinfeld Order at 9 (“Consistent with their prior rulings, the Judges are disinclined in this peculiar instance to allow their procedural rules to prevent them from obtaining a full evidentiary record. The Judges conclude that the interests of justice are served by examination of a more complete, informed expert 2 SoundExchange's Unopposed Motion to Submit the Corrected Written Rebuttal Testimony of Catherine Tucker Public Version record. [T]he Judges invoke section 801(c) of the Act, which provides them with discretion to ‘make any necessary procedural or evidentiary rulings in any proceeding under this chapter.’”). If the Judges accept the corrected testimony, SoundExchange requests that the Judges remove from eCRB the public version of Volume II of SoundExchange’s Written Rebuttal Statement (Docket No. 20257), filed January 14, 2020, which contains Prof. Tucker’s written rebuttal testimony. SoundExchange will then upload a new public version of Volume II containing Prof. Tucker’s Correct Written Rebuttal Testimony. CONCLUSION For the foregoing reasons, SoundExchange respectfully requests that the Judges grant its Unopposed Motion to Submit the Corrected Written Rebuttal Testimony of Catherine Tucker. Respectfully submitted, Dated: July 31, 2020 JENNER & BLOCK LLP By: /s/Previn Warren David A. Handzo (D.C. Bar No. 384023) [email protected] Previn Warren (D.C. Bar No. 1022447) [email protected] 1099 New York, Ave., NW, Suite 900 Washington, DC 20001 Tel.: 202-639-6000 Fax: 202-639-6066 Counsel for SoundExchange, Inc., American Federation of Musicians of the United States and Canada, Screen Actors Guild-American Federation of Television and Radio Artists, American Association of Independent Music, Sony Music Entertainment, UMG Recordings, Inc., Warner Music Group Corp., and Jagjaguwar Inc. 3 SoundExchange's Unopposed Motion to Submit the Corrected Written Rebuttal Testimony of Catherine Tucker Before the UNITED STATES COPYRIGHT ROYALTY JUDGES Washington, D.C. In the Matter of: Determination of Rates and Terms for Docket No. 19-CRB-0005- Digital Performance of Sound Recordings WR (2021-2025) and Making of Ephemeral Copies to Facilitate those Performances (Web V) DECLARATION OF CATHERINE TUCKER I, Catherine Tucker, declare under penalty of perjury that the statements contained in my Corrected Written Rebuttal Testimony in the above-captioned proceeding are true and correct to the best of my knowledge, information, and belief. Date: _07/20/2020___ _____ ______________________ Catherine Tucker Public Version EXHIBIT A Public Version Before the UNITED STATES COPYRIGHT ROYALTY JUDGES Washington, D.C. In re Determination of Rates and Terms for Docket No. 19-CRB-0005-WR Digital Performance of Sound Recordings (2021-2025) and Making of Ephemeral Copies to Facilitate those Performances (Web V) CORRECTED WRITTEN REBUTTAL TESTIMONY OF Catherine Tucker Sloan Distinguished Professor of Management Science MIT Sloan at the Massachusetts Institute of Technology July, 2020 Public Version TABLE OF CONTENTS I. Introduction and Assignment ...........................................................................................1 II. Summary of Conclusions ...................................................................................................2 III. Dr. Reiley’s Label Suppression Experiments Provide an Inaccurate Guide to the Effect of the Removal of a Label, Rendering Use of These Estimates by Professor Shapiro Flawed .................................................................................................4 A. A field experiment that does not inform subjects about the treatment is unrealistic and cannot measure the true effect of a treatment that would be known to users .........................................................................................................6 1. A field experiment needs to measure the “treatment” of interest .................6 2. In reality, the removal of [ ] catalog would be known by many Pandora users .....................................................9 3. Many of the users in the Label Suppression Experiments were unlikely to be aware of the removal of recordings from the suppressed record company .......................................................................15 4. Dr. Reiley’s statements about the merits of “blinded” experiments do not apply in this context .........................................................................21 B. The Label Suppression Experiments do not help us understand competitive effects .................................................................................................25 1. Field experiments cannot be used to measure competitive effects ............26 2. Streaming services are competitive because it is easy for users to switch .........................................................................................................26 3. Competitors could respond to a reduction in Pandora’s catalog................29 C. Notwithstanding that the Label Suppression Experiments did not measure the treatment of interest, the experiments as conducted do not provide precise estimates of the effect of 100 percent label suppression ...........................30 1. The Label Suppression Experiments were underpowered .........................30 2. The Label Suppression Experiments were deliberately limited in scope because the researchers anticipated that the consequences of a larger experiment could negatively affect Pandora’s business ................34 3. The Label Suppression Experiments struggled to attain precision on estimates because of the inclusion of many users who received little or no suppression treatment ...............................................................35 i Written Rebuttal Testimony of Catherine Tucker Public Version 4. Unlike other work by Dr. Reiley, Dr. Reiley’s analysis of the Label Suppression Experiments does not use data on the intensity of treatment ....................................................................................................40 D. The Label Suppression Experiments are not useful for estimating true long-run effects ......................................................................................................42 IV. Professor Shapiro Presents Insufficient

Load more

  217

Copy Link