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Insurance Corporation Improvement Act Dated at Washington, DC, on December 18, statutory deadlines set forth in the of 1991, 12 U.S.C. 1828(o), prescribes 2018. Music Modernization Act, no further standards for real estate lending to be By order of the Board of Directors. extensions of time will be granted in used by FDIC-supervised institutions in Federal Deposit Insurance Corporation. this rulemaking. adopting internal real estate lending Valerie Best, ADDRESSES: For reasons of government policies. For purposes of this subpart, Assistant Executive Secretary. efficiency, the Copyright Office is using the term ‘‘FDIC-supervised institution’’ [FR Doc. 2018–28084 Filed 2–4–19; 8:45 am] the regulations.gov system for the means any insured depository BILLING CODE 6714–01–P submission and posting of public institution for which the Federal comments in this proceeding. All Deposit Insurance Corporation is the comments are therefore to be submitted appropriate Federal banking agency LIBRARY OF CONGRESS electronically through regulations.gov. pursuant to section 3(q) of the Federal Specific instructions for submitting Deposit Insurance Act, 12 U.S.C. Copyright Office comments are available on the 1813(q). Copyright Office’s website at https:// ■ 3. Amend § 365.2 by revising 37 CFR Part 201 www.copyright.gov/rulemaking/ paragraphs (a), (b)(1)(iii), (2)(iii) and pre1972-soundrecordings- (iv), and (c) to read as follows: [Docket No. 2018–8] noncommercial/. If electronic submission of comments is not feasible Noncommercial Use of Pre-1972 Sound § 365.2 Real estate lending standards. due to lack of access to a computer and/ Recordings That Are Not Being (a) Each FDIC-supervised institution or the internet, please contact the Office Commercially Exploited shall adopt and maintain written using the contact information below for policies that establish appropriate limits AGENCY: U.S. Copyright Office, Library special instructions. and standards for extensions of credit of Congress. FOR FURTHER INFORMATION CONTACT: that are secured by liens on or interests ACTION: Notice of proposed rulemaking. Regan A. Smith, General Counsel and in real estate, or that are made for the Associate Register of Copyrights, by purpose of financing permanent SUMMARY: The U.S. Copyright Office email at [email protected] or Anna improvements to real estate. (‘‘Copyright Office’’ or ‘‘Office’’) is Chauvet, Assistant General Counsel, by (b)(1) * * * issuing a notice of proposed rulemaking email at [email protected]. Each can (iii) Be reviewed and approved by the regarding the Classics Protection and be contacted by telephone by calling FDIC-supervised institution’s board of Access Act, title II of the recently (202) 707–8350. directors at least annually. enacted Orrin G. Hatch-Bob Goodlatte SUPPLEMENTARY INFORMATION: Music Modernization Act. In connection (2) * * * I. Background (iii) Loan administration procedures with the establishment of federal for the FDIC-supervised institution’s remedies for unauthorized uses of On October 11, 2018, the president real estate portfolio; and sound recordings fixed before February signed into law the Orrin G. Hatch-Bob (iv) Documentation, approval, and 15, 1972 (‘‘Pre-1972 Sound Goodlatte Music Modernization Act, reporting requirements to monitor Recordings’’), Congress also established H.R. 1551 (‘‘MMA’’). Title II of the compliance with the FDIC-supervised an exception for certain noncommercial MMA, the Classics Protection and institution’s real estate lending policies. uses of Pre-1972 Sound Recordings that Access Act, created chapter 14 of the copyright law, title 17, United States (c) Each FDIC-supervised institution are not being commercially exploited. Code, which, among other things, must monitor conditions in the real To qualify for this exemption, a user extends remedies for copyright estate market in its lending area to must file a notice of noncommercial use infringement to owners of sound ensure that its real estate lending after conducting a good faith, reasonable recordings fixed before February 15, policies continue to be appropriate for search to determine whether the Pre- 1972 (‘‘Pre-1972 Sound Recordings’’). current market conditions. 1972 Sound Recording is being commercially exploited, and the rights Under the provision, rights owners may * * * * * owner of the sound recording must not be eligible to recover statutory damages and/or attorneys’ fees for the Subpart B—[Removed and Reserved] object to the use within 90 days. After soliciting public comments through a unauthorized use of their Pre-1972 ■ 4. Remove and reserve subpart B, notice of inquiry, the Office is proposing Sound Recordings if certain consisting of §§ 365.101, 365.102, regulations identifying the specific steps requirements are met. To be eligible for 365.103, 365.104, 365.105, and that a user should take to demonstrate these remedies, rights owners must appendix A to subpart B. she has made a good faith, reasonable typically file schedules listing their Pre- search. The proposed rule also details 1972 Sound Recordings (‘‘Pre-1972 PART 390—REGULATIONS the filing requirements for the user to Schedules’’) with the U.S. Copyright TRANSFERRED FROM THE OFFICE OF submit a notice of noncommercial use Office, which are indexed into the 1 THRIFT SUPERVISION and for a rights owner to submit a notice Office’s public records. The filing objecting to such use. requirement is ‘‘designed to operate in ■ 5. The authority citation for part 390 place of a formal registration DATES: continues to read as follows: Written comments must be requirement that normally applies to received no later than 11:59 p.m. Authority: 12 U.S.C. 1819. claims involving statutory damages.’’ 2 Eastern Time on March 7, 2019. Meeting The MMA also creates a new Subpart P—[Removed and Reserved] requests must be received no later than mechanism for members of the public to 11:59 p.m. Eastern Time on March 18, obtain authorization to make ■ 6. Remove and reserve Subpart P, 2019, and all meetings must take place noncommercial uses of Pre-1972 Sound consisting of §§ 390.260, 390.261, no later than Friday, March 22, 2019. 390.262, 390.263, 390.264, 390.265, The Office will not consider requests to 1 17 U.S.C. 1401(f)(5)(A)(i)(I)–(II). 390.266, 390.267, 390.268, 390.269, hold meetings after that date. So that the 2 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. 390.270, 390.271, 390.272. Copyright Office is able to meet the No. 115–339, at 18 (2018).

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Recordings that are not being satisfy this statutory requirement, but the exceptions for libraries and commercially exploited. Under section the user would need to independently archives.19 Section 1401(f) separately 1401, a person may file a notice with the demonstrate how she met the provides that ‘‘the limitations on the Copyright Office and propose a specific requirement if challenged.12 exclusive rights of a copyright owner noncommercial use after taking steps to The Office must also issue regulations described in section 107, 108, 109, 110, determine whether the recording is, at ‘‘establish[ing] the form, content, and and 112(f) shall apply to a claim under that time, being commercially exploited procedures’’ for users to file NNUs and [section 1401(a)] with respect to a sound by or under the authority of the rights rights owners to file Pre-1972 Opt-Out recording fixed before February 15, owner.3 Specifically, before determining Notices.13 1972,’’ as well as the section 512 that the recording is not being On October 16, 2018, the Office limitation on liability relating to commercially exploited, she must first issued a notice of inquiry (‘‘NOI’’) material online.20 Further, section undertake a ‘‘good faith, reasonable soliciting comments regarding the 1401(c) states that whether ‘‘a person search’’ of both the Pre-1972 Schedules specific steps a user should take to files notice of a noncommercial use of indexed by the Copyright Office and demonstrate she has made a good faith, a sound recording’’ or ‘‘a rights holder music services ‘‘offering a reasonable search.14 The Office also opts out of a noncommercial use of a comprehensive set of sound recordings solicited comments regarding the filing sound recording,’’ that ‘‘does not itself for sale or streaming.’’ 4 At that point, requirements for the user to submit an enlarge or diminish any limitation on she may file a notice identifying the Pre- NNU and for a rights owner to submit the exclusive rights of a copyright 1972 Sound Recording and nature of the a Pre-1972 Opt-Out Notice objecting to owner described in section 107, 108, intended noncommercial use with the such use.15 In response, the Office 109, 110, or 112(f) as applied to a claim Office (a ‘‘notice of noncommercial use’’ received ten initial comments and under [section 1401(a)].’’ 21 These other or ‘‘NNU’’).5 The Office will index this fifteen reply comments, which are exceptions and limitations are available notice into its public records.6 discussed further below.16 Having to users whether or not they claim the In response, the rights owner of the reviewed and carefully considered the exception for noncommercial use.22 Pre-1972 Sound Recording may file a comments, the Office now issues a Regarding fair use specifically, the notice with the Copyright Office ‘‘opting proposed rule and invites further public Office notes that although certain out’’ of (i.e., objecting to) the requested comment. noncommercial uses may constitute fair noncommercial use (‘‘Pre-1972 Opt-Out II. Proposed Rule use, not all may be fair; instead, courts Notice’’), and if the user nonetheless will balance the purpose and character engages in the noncommercial use, such This document (the ‘‘NPRM’’) of the use against the other fair use use may subject the user to liability proposes regulatory language regarding factors.23 under section 1401(a) if no other three specific areas: (i) The ‘‘specific, Similarly, multiple stakeholders limitation on liability applies.7 The reasonable steps that, if taken by a commented that the noncommercial use rights owner of the Pre-1972 Sound [noncommercial user of a Pre-1972 exception should not affect application Recording has 90 days from when the Sound Recording], are sufficient to of the section 108(h) exception available NNU is indexed into the Office’s public constitute a good faith, reasonable for libraries and archives performing a records to file a Pre-1972 Opt-Out search’’ to support a conclusion that a reasonable investigation regarding the Notice.8 If, however, the rights owner relevant Pre-1972 Sound Recording is availability of published works in the does not opt-out within 90 days, the not being commercially exploited; 17 (ii) last twenty years of their copyright user may engage in the noncommercial the form, content, and procedures for a term.24 These commenters rightly note use of the Pre-1972 Sound Recording user, having made such a search, to file without violating section 1401(a).9 an NNU; and (iii) the form, content, and 19 See ARSC Reply at 1 (addressing interplay Under the Classics Protection and procedures for a rights owner to file a between section 1401(c) and section 107); Music Access Act, the Copyright Office must Pre-1972 Opt-Out Notice.18 Library Association Initial at 1 (same); Electronic Frontier Foundation (‘‘EFF’’) Initial at 2 (same); issue regulations identifying the In proposing the following regulatory Future of Music Coalition (‘‘FMC’’) Reply at 2 ‘‘specific, reasonable steps that, if taken language, the Office also confirms, as (same); Library Copyright Alliance (‘‘LCA’’) Initial by a [noncommercial user of a Pre-1972 requested by multiple commenters, that at 1–2 (addressing interplay between section 1401 Sound Recording], are sufficient to the noncommercial use exception under and section 108). section 1401(c) is supplementary, and 20 17 U.S.C. 1401(f)(1)(A); (3). constitute a good faith, reasonable 21 does not negate other exceptions and Id. at 1401(c)(2)(C), (c)(5)(B). search’’ of the Office’s records and 22 See EFF Initial at 2 (‘‘The Copyright Office music services to support a conclusion limitations that may be available to a should emphasize . . . that fair use will apply (or that a relevant Pre-1972 Sound prospective user, including fair use and not) regardless of whether a potential user files a Recording is not being commercially notice of use, and regardless of whether a rightsholder opts out.’’). exploited.10 A user following the 12 Id. at 1401(c)(4)(A)–(B). 23 See Campbell v. Acuff-Rose Music, Inc., 510 ‘‘specific, reasonable steps’’ identified 13 Id. at 1401(c)(3)(B), (5)(A). 14 U.S. 569, 584–85 (1994) (noting ‘‘the commercial or by the Office will satisfy the statutory 83 FR 52176 (Oct. 16, 2018). nonprofit educational character of a work is ‘not 15 requirement of conducting a good faith Id. at 52176. conclusive’ ’’ to fair use (quoting Sony Corp. of Am. 16 The comments received in response to the NOI search, even if the sound recording is v. Universal City Studios, Inc., 464 U.S. 417, 448 are available online at https://www.regulations.gov/ (1984))); H.R. Rep. No. 94–1476, at 66 (1976) (same). later discovered to be commercially docketBrowser?rpp=25&so=DESC&sb= 24 See Copyright Alliance Initial at 2 n.3 (stating exploited.11 Other searches may also commentDueDate&po=0&dct=PS&D=COLC-2018- that ‘‘any conclusions made in determining what 0008. References to these comments are by party constitutes a ‘good faith, reasonable search’ for name (abbreviated where appropriate), followed by 3 17 U.S.C. 1401(c)(1)(A)–(B). commercial exploitation of a pre-72 sound either ‘‘Initial’’ or ‘‘Reply,’’ as appropriate. 4 Id. at 1401(c)(1)(A). recording [do] not have any bearing on the meaning 17 17 U.S.C. 1401(c)(3)(A). 5 Id. at 1401(c)(1)(B). or scope of the ‘reasonable investigation’ 18 The proposed rule also confirms that 37 CFR requirement within Section 108(h)’’); LCA Initial at 6 Id. at 1401(c)(1)(C). 201.4 does not govern the filing of NNUs and Pre- 1–2 (stating that section 1401 procedures should 7 Id. at 1401(c)(1). 1972 Opt-Out Notices. Similarly, the proposed rule not apply to libraries and archives employing 8 Id. at 1401(c)(1)(C). makes a technical edit to reflect that the filing of section 108(h)); American Association of 9 Id. at 1401(c)(1). notices of use of sound recordings under statutory Independent Music (‘‘A2IM’’) & Recording Industry 10 Id. at 1401(c)(3)(A). license (17 U.S.C. 112(e), 114) are not governed by Association of America, Inc. (‘‘RIAA’’) Reply at 9 11 Id. at 1401(c)(4)(B). 37 CFR 201.4. (‘‘[W]e agree with LCA that there is not an exact

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that sections 1401(c) and 108(h) contain search across categories rather than an perspective of rights owners’ interests. differing statutory criteria regarding the ‘‘open-ended’’ approach to better Although a range of stakeholders agreed type of search or investigation that must provide certainty to users.30 The in principle with this goal,33 views be made before making use of the proposed rule divides various types of differed as to how many steps should respective exceptions, and the present sources into different categories, and constitute a ‘‘good faith, reasonable rulemaking is focused on administering requires users to progressively search in search.’’ For example, Public the exception for Pre-1972 Sound each category (if and until a match is Knowledge suggested that users need Recordings under section 1401(c).25 found, with a match evidencing only search the Office’s database of Pre- Moreover, section 108(h) is not limited commercial exploitation of the Pre-1972 1972 Schedules and ‘‘no more than one to sound recordings (much less Pre-1972 Sound Recording).31 Categories to be to two’’ streaming services,34 while Sound Recordings); as discussed below, searched are listed in recommended A2IM and RIAA proposed nine the proposed regulations governing a search order, to reduce the likelihood of categories of steps to be searched.35 In ‘‘good faith, reasonable search’’ for duplicative searching.32 Because in synthesizing the public comments, the purposes of section 1401(c) specifically some cases, the type of recording (e.g., Copyright Office notes that the statute consider the various ways sound classical music, jazz, or ethnographic expressly contemplates searching on recordings are brought to market. sound recordings) may warrant multiple services, including those Finally, the Copyright Office keenly searching an additional resource or offering sound recordings ‘‘for sale’’ 36 appreciates that ‘‘some of the users more particularized search criteria, such in addition to streaming services, and a hoping to use [Pre-1972 Sound additional criteria are included on a congressional report characterizing the Recordings] may not have much tailored basis, as applicable to a search requirement as ‘‘robust.’’ 37 copyright law background.’’ 26 In particular genre. In proposing this rule, the Copyright connection with the Office’s overall In short, the rule proposes searching Office is also mindful of the individual public information and education the following: and smaller-group interests from both initiatives and the promulgation of a 1. The Copyright Office’s database of rights owner and licensee or other user final rule, the Office intends to prepare Pre-1972 Schedules; perspectives. The Office is concerned additional public resources regarding 2. One of the following major search that limiting sources to be searched to Pre-1972 Sound Recordings and the new engines: Google, Yahoo!, or Bing; only the most commercially popular noncommercial use exception, 3. One of the following major services might obscure perspectives of including potentially a public circular. streaming services: Amazon Music ‘‘smaller, less mainstream creators’’ and By the same token, the Office Unlimited, Apple Music, Spotify, or independent services who themselves appreciates A2IM and RIAA’s view that TIDAL; play a vital role in ensuring that a ‘‘the average person knows full well 4. The SoundExchange ISRC database; diverse array of cultural contributions how to construct an effective internet 5. Amazon.com, and, where the are created and made available to the search designed to uncover a very prospective user reasonably believes the public.38 As FMC notes, artists may specific item or information for which recording implicates a listed niche deliberately ‘‘target niche markets and they are looking,’’ and so while the genre, an additional listed retailer of collectors—sometimes with careful proposed rule does not presume an physical product; and remastering and extensive historical expertise in copyright, it does presume 6. In the case of ethnographic Pre- information,’’ or may opt not to make a functional search capability on the 1972 Sound Recordings of Alaska their entire catalog available on part of a human user.27 Native or American Indian tribes or mainstream streaming services.39 The communities, searching through proposed rule attempts to account for A. Good Faith, Reasonable Search contacting the relevant tribe, the diversity of practices and leave room The proposed rule identifies five steps association, and/or holding institution for these competing business models to (six in the case of Alaska Native and The NOI generated a wide range of innovate and flourish. But the proposed American Indian ethnographic sound helpful comments from a rich variety of recordings) that, if taken, will support a perspectives, and the proposed rule 33 See, e.g., Public Knowledge Initial at 2 (‘‘The conclusion that a relevant Pre-1972 represents a compromise amongst those goal is . . . to strike a practical balance between the views. While this NPRM will no doubt interests of rights owners and potential users.’’); Sound Recording is not being A2IM & RIAA Reply at 2 (‘‘[T]he Office has an commercially exploited.28 Consistent draw out additional thoughtful obligation to respect and preserve the careful with the statute’s directive to provide comments, the Office is optimistic that balance struck by Congress in enacting Section ‘‘specific’’ steps that are ‘‘sufficient, but this proposed rule strikes an appropriate 1401(c).’’). balance, achieving the goal of crafting a 34 Public Knowledge Initial at 5, App. not necessary’’ to demonstrate a Pre- 35 practical rule with steps that are A2IM & RIAA Initial at 4–6. 1972 Sound Recording is not being 36 17 U.S.C. 1401(c)(1)(A)(ii); see id. at commercialized, the rule adopts a reasonable to expect of an individual 1401(c)(3)(A) (directing the Register to issue ‘‘checklist’’ 29 approach for users to user, yet exhaustive enough to qualify regulations identifying ‘‘services offering a that user for a safe harbor as to the comprehensive set of sound recordings for sale or streaming’’ to be searched). match between the language in Sections 1401(c) search’s sufficiency from the 37 Report and Section-by-Section Analysis of H.R. and 108(h) regarding the nature of the search that 1551 by the Chairmen and Ranking Members of must be conducted before the relevant provision that each individual case will be different and will Senate and House Judiciary Committees, at 25 becomes applicable.’’). likely require additional steps’’). (2018), https://www.copyright.gov/legislation/mma_ 25 See, e.g., Copyright Alliance Initial at 3; LCA 30 EFF Reply at 3 (suggesting that an open-ended conference_report.pdf (‘‘Conf. Rep.’’). Initial at 2. rule ‘‘would give potential users no added certainty, 38 FMC Reply at 1–2; see also Copyright Alliance 26 FMC Reply at 6; see also AAU Initial at 1. making the safe harbor meaningless’’); see Initial at 1 (discussing relationship between 27 A2IM & RIAA Reply at 10; see also internet Wikimedia Foundation Reply at 2 (same). ‘‘existing general and niche markets’’); A2IM & Archive Initial at 1 (‘‘Human searchers should be 31 See A2IM &RIAA Initial at 4 (describing RIAA Reply at 9 (listing a variety of specialized able to search a couple of services quite category-based search structure). storefronts and discussing period or niche thoroughly.’’). 32 See id. at 4, 7 (proposing prioritized search recordings ‘‘not previously available through 28 17 U.S.C. 1401(c)(3)(A). from ‘‘broad’’ to ‘‘narrow’’ categories and comprehensive streaming services like Spotify and 29 Copyright Alliance Initial at 3 (suggesting the methodology that minimizes ‘‘duplicative Apple Music’’); IMSLP.ORG Reply at 2 (classical checklist ‘‘should represent the minimum searches’’); Public Knowledge Initial at 2 music storefront). requirements of a reasonable search and recognize (advocating avoidance of ‘‘duplicative’’ searching). 39 FMC Reply at 3.

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rule also takes into account smaller unavailable for many works where the while the Office hopes that the MMA’s users. It tries to prioritize services with rights owner is readily identifiable since noncommercial use provision may well intuitive search capabilities and those works are more likely to be prove to yield useful insights into the minimize resources where a commercially exploited,45 the statute broader orphan works debate, the subscription is required to access the does not require users to contact rights proposed rule is necessarily tailored to search function; further, the categories owners or determine that they cannot be the sui generis noncommercial use to be searched—with the potential located before relying on the section exception for Pre-1972 Sound exception of interactive streaming 1401(c) exception.46 Instead, the Recordings and was not crafted to services, which all commenters agree purpose of the good faith, reasonable specifically address that ongoing are statutorily required to be included in search is ‘‘to determine whether the debate.51 a search—are all available at no cost to sound recording is being commercially Finally, while the proposed rule is the user.40 As noted below, the Office exploited by or under the authority of intended to take into account the has declined to include various the rights owner.’’ 47 Although the current music marketplace, Congress suggestions that might be redundant or Conference Report states that the has provided regulatory flexibility so overly burdensome, and some criteria noncommercial use exception is that the Copyright Office may are included only as applicable to a ‘‘provided primarily to enable use of periodically update its list of specific particular genre of work. The proposed older recordings where it may not be steps to take into account changes in the rule also does not require ‘‘consultation clear to a user how to contact the rights music landscape, and the Office expects with an experienced music clearance owner to ask for permission,’’ 48 use of to exercise that authority as warranted professional,’’ although the Office does the word ‘‘primarily’’ indicates that by changes in the marketplace.52 not discourage such consultation, which Congress contemplated situations where may prove helpful to a user planning a the rights owner may be known to the i. Required Sources To Search wide-scale or complex use case.41 user, but the owner has ceased or 1. Searching the Copyright Office’s In proposing the following search otherwise refrained from commercially Database of Pre-1972 Schedules criteria, the Office agrees with various exploiting the sound recording. In any rights holders that the noncommercial event, comments suggest that a large First, section 1401(c) requires that for use exception is not intended to array of Pre-1972 Sound Recordings do a search to constitute a good faith, displace the important role of licensed not have an identifiable owner, in reasonable search, the search must transactions to facilitate the use of Pre- which cases a prospective user making include searching for the Pre-1972 1972 Sound Recordings.42 Indeed, a use of the section 1401(c) safe harbor Sound Recording in the Copyright main thrust of Title II is to ‘‘create Office’s database of Pre-1972 and filing an NNU can expect to benefit 53 royalties’’ for these works using the from this additional exception.49 Schedules. The Office has issued an same rates and distribution system Similarly, multiple commenters interim rule governing how rights already applicable for post-72 works, pointed out differences between section owners may file Pre-1972 Schedules and particularly by music services that 1401(c)’s requirement to identify how they are made publicly available 54 previously used pre-1972 works ‘‘while whether a work is being commercially through an online database. For each paying royalties for post-72 works.’’ 43 In exploited with prior proposals regarding sound recording, the Pre-1972 Schedule this rulemaking, Copyright Alliance has orphan works, including a 2008 bill requirement in the 2008 bill is too general, and that asked the Office to require a user to which provided a description of a having a ‘‘detailed list of steps required to satisfy directly notify a rights owner if that ‘‘qualifying search, in good faith, to the search requirement for services’’ would be more owner can be located.44 While the Office locate and identify the owner of the helpful). To the extent commenters suggested that agrees that, practically speaking, the infringed copyright’’ before making use the 2008 bill is helpful to highlight specific aspects 50 of a proposed search step, it is addressed further noncommercial use exception may be of an orphan work. For these reasons, below. 51 See Conf. Rep. at 15; S. Rep. No. 115–339, at 40 See Public Knowledge Initial at 6 (‘‘It would be 45 See, e.g., A2IM & RIAA Initial at 1–2; 18 (2018) (noting sui generis nature of exception). inappropriate for the Copyright Office to require SoundExchange Initial at 2; FMC Reply at 6 (‘‘We 52 See Conf. Rep. at 25 (noting search must be that a user search the catalog of a service where a largely agree with RIAA’s contextualization of based on ‘‘services available in the market at the subscription is required to access the search 1401(c), as not oriented to cases where the current time of the search’’); A2IM & RIAA Initial at 7. rights owner is known or ‘reasonably capable of function.’’). Public Knowledge would include 53 17 U.S.C. 1401(c)(1)(A)(i), (f)(5)(A). Public discovery.’ ’’); but see LCA Reply at 1. Amazon Music Unlimited and Apple Music as Knowledge asks the Office to ‘‘explore whether it 46 proposed services to search, which are not free, and 17 U.S.C. 1401(c)(1)(A); see also EFF Initial possesses the authority to institute a limited other services may require a paid subscription to Comments at 2. renewal requirement, under which entries in [Pre- enable more robust search features. See also A2IM 47 17 U.S.C. 1401(c)(1)(A). 1972 Schedules] would be subject to a periodic & RIAA Reply at 5 (‘‘[T]he cost of any necessary 48 Conf. Rep. at 25 (emphasis added). renewal in the same vein as DMCA agent subscriptions is not very high, especially when 49 Association for Recorded Sound Collections designations.’’ Public Knowledge Reply at 17; see considering the availability of free trials for (‘‘ARSC’’) Reply at 2 (citing data suggesting that 37 CFR 201.38(c)(4) (requiring DMCA agent premium services and free basic tiers for most rights owner is unidentifiable for 16% of pre-1965 designation to be updated every three years); see services.’’). recordings, and up to 26% for certain categories like also 17 U.S.C. 512(c)(2)(B) (requiring the Register to 41 A2IM & RIAA Initial at 9. 1920–1929 or popular and rock recordings); see also ‘‘maintain a current directory’’ of agents). Section 42 See, e.g., id. at 1–2 (suggesting that in many Public Knowledge Initial at 3 (‘‘The number of pre- 1401 does not explicitly reference the need for cases, voluntary licensing may prove more efficient 1972 sound recordings that are still being periodic renewal of Pre-1972 Schedules, although it within a short timeframe than this exception); commercially exploited are vastly outnumbered by does apply different terms of protection to Pre-1972 Copyright Alliance Initial at 2–3 (stating the those that have no commercial value or interest.’’). Sound Recordings depending upon their year of noncommercial uses exception ‘‘should not be used 50 See EFF Initial at 2; Public Knowledge Reply first publication. 17 U.S.C. 1401(a)(2). The Office to circumvent the normal licensing process or as a at 7; Shawn Bentley Orphan Works Act of 2008, S. does not propose such a requirement at this time substitute for requesting permission from rights 2913, 110th Cong. sec. 514(b)(1) (as passed by (and notes that substantive comments in its owners who can be contacted’’); SoundExchange Senate, Sept. 26, 2008); see also U.S. Copyright contemporaneous rulemaking regarding Pre-1972 Initial at 2. Office, Orphan Works and Mass Digitization (2015), Schedules did not raise this issue). The Office is 43 S. Rep. No. 115–339, at 17–18 (2018); see H.R. https://www.copyright.gov/orphan/reports/orphan- open, however, to exploring the need and Rep. No. 115–651, at 15 (2018); 17 U.S.C. 1401(b), works2015.pdf; A2IM & RIAA Initial at 10 (agreeing regulatory authority for such a renewal requirement (d) (addressing payment of royalties pursuant to the with categorical approach adopted in the 2008 bill, for Pre-1972 Schedules (or NNUs) at a later date, rates and terms adopted under sections 112(e) and but ‘‘find[ing] the steps outlined there to be too perhaps in connection with periodic review of the 114(f) or direct licensing). generic’’ for section 1401(c)); IMSLP.ORG Reply at search requirements promulgated under this rule. 44 Copyright Alliance Initial at 2–3, 5. 1 (maintaining that the ‘‘diligent effort’’ 54 83 FR 52150 (Oct. 16, 2018).

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must include the rights owner’s name, or Bing, to determine whether the sound these services in particular.64 In the sound recording title, and the recording is being commercially addition, these services currently offer featured artist, and rights owners may exploited.57 Users are widely some of the largest repertoires of tracks opt to include additional information, accustomed to conducting internet and ‘‘receive digital feeds from the such as album title.55 searches, and such searching is free and major labels, large indie labels and For this rulemaking, the proposed may render searching on a streaming significant distributors.’’ 65 The Office rule would require users to search for service or other service unnecessary. For invites public comment on whether the title and featured artist(s) of the Pre- example, a search on the phrase ‘‘rockin Google Play Music and/or Deezer 1972 Sound Recording. If the user around the christmas tree’’ using should be included in the list of knows any of the following attributes of Google—to locate the 1958 recording streaming services, as they also offer the Pre-1972 Sound Recording, the ‘‘Rockin’ Around the Christmas Tree’’ large repertoires of tracks but were not search must also include searching: featuring artist Brenda Lee—shows, identified as possible sources from as Alternate artist name(s), alternate among other things, that the sound many commenters. title(s), album title, and the recording is available for streaming on A spectrum of commenters suggested International Standard Recording Code Spotify, Google Play Music, Deezer, and that the rule should require a user to (‘‘ISRC’’). The user may also optionally Apple Music.58 Similarly, a search on search multiple, but not all, such search any other attributes known to the the combined phrases ‘‘rockin around streaming services.66 While it is clear user of the sound recording, such as the christmas tree’’ and ‘‘purchase’’ that these services’ repertoires are not label, version, or Universal Product using Google shows that the same sound identical—including because some Code (‘‘UPC’’). The following fields in recording is available for sale as an .mp3 rights owners may engage in exclusive the Office’s database of Pre-1972 file download and on a compact disc streaming arrangements 67—commenters Schedules will be searchable: Rights through Amazon.com. The proposed also noted that searching multiple owner, sound recording title (which rule, as well as the Office’s form or streaming services might be includes alternate titles), album, label, instructions, will make clear this search duplicative.68 For example, internet featured artist (which includes alternate is to determine whether the Pre-1972 Archive, citing its own efforts to artist name(s)), and ISRC. In response to Sound Recording is being commercially ‘‘automat[e] the process of searching for comments, the Office is pleased to exploited (i.e., by being offered for sale commercial availability at scale,’’ report that its database of Pre-1972 in download form or as a new (not suggests that a good faith, reasonable Schedules already allows for wildcard resale) physical product, or through a search ‘‘should entail performing a few searching by using an asterisk to fill in streaming service), and not simply high quality searches on a small number partial words.56 A user can export and whether the internet includes web pages of large services rather than performing download the search results based on discussing the recording, such as a low quality search across a large those fields into an Excel spreadsheet to musicological, historical, or other number of services.’’ 69 The Office view (and search) additional data, such commentary about the work. invites comment on whether users as version or UPC. 3. Searching on a Digital Streaming should be required to search a greater 2. Searching With a Major Search Service number of these services. Engine The Office agrees that requiring Third, the proposed rule asks the user repetitive searches of all these streaming Second, the proposed rule asks the to search at least one of the following services would likely be redundant. user to search for the Pre-1972 Sound streaming services, each of which offers Instead, as explained further below, 59 Recording using at least one major tens of millions of tracks: Amazon because Pre-1972 Sound Recordings can 60 61 search engine, namely: Google, Yahoo!, Music Unlimited, Apple Music, also be expected to be commercially 62 63 Spotify, or TIDAL. The Office exploited outside of these services, the 55 37 CFR 201.35(d). The Office expects to issue proposes these streaming services proposed rule would limit the number a final rule regarding the filing of Pre-1972 because, among the commenters who Schedules, which will ask rights owners to provide of streaming services to be searched, but the International Standard Recording Code (‘‘ISRC’’) proposed specific streaming services to add qualitatively different sources to (if known), and to optionally provide the version, search, there appears to be agreement on alternate artist name(s), and Universal Product Code 64 A2IM & RIAA Initial at 7 (identifying Amazon (‘‘UPC’’). This expansion of fields accommodates 57 See A2IM & RIAA Initial at 5; Copyright Music Unlimited, Apple Music, Spotify and TIDAL comments in that parallel proceeding, and should Alliance Initial at 4; FMC Reply at 6 (each as possible streaming services to search); EFF initial ease user concerns about disambiguating data. See suggesting that major search engines should be at 4 (identifying Amazon Music, Apple Music, A2IM, RIAA & SoundExchange Comments re Filing searched). Spotify, and TIDAL as possible streaming services of Schedules by Rights Owners and Contact 58 Google, https://www.google.com/search?client= to search); Public Knowledge Initial at 5, App. Information by Transmitting Entities Relating to firefox-b-1-ab&q=%E2%80%9Crockin+around+ (identifying Amazon Music Unlimited, Spotify, and Pre-1972 Sound Recordings at 7–8 (requesting thechristmastree%E2%80%9D (last visited Jan. 28, Apple Music as possible streaming services to addition of ISRC number, sound recording version, 2019). search). and alternate artist name fields); EFF Initial at 3 59 65 (discussing searches of the Office’s database of Pre- A2IM & RIAA Initial at 5. A2IM & RIAA Initial at 5. 1972 Schedules). 60 Amazon, Amazon Music: What is Amazon 66 Id. at 7 (proposing users search on two services 56 See, e.g., A2IM & RIAA Initial at 6; Copyright Music Unlimited?, https://www.amazon.com/gp/ including, among others, Amazon Music Unlimited, Alliance Initial at 4; EFF Initial at 3. For example, help/customer/display.html?nodeId=202059460 Apple Music, Spotify and TIDAL); EFF Initial at 4 a search for ‘‘light*’’ in the title field currently (last visited Jan. 28, 2019) (stating Amazon Music (contending that ‘‘[r]easonable to include some returns, among other titles, ‘‘(In The) Cold Light Of Unlimited offers 50+ million tracks). subset’’ of services including, among others, Day,’’ ‘‘Harbor Lights,’’ ‘‘White Lightnin’,’’ and 61 Apple, Apple Music, https://www.apple.com/ Amazon Music, Apple Music, Spotify, and TIDAL); ‘‘White Lightning.’’ See Schedules of Pre-1972 apple-music/ (last visited Jan. 28, 2019) (stating Public Knowledge Initial at 5, App. (proposing Sound Recordings, U.S. Copyright Office, https:// Apple Music offers 50+ million tracks). search of ‘‘no more than one to two’’ of the copyright.gov/music-modernization/pre1972- 62 Spotify, Spotify Investors, https:// following services: Amazon Music Unlimited, soundrecordings/search-soundrecordings.html (last investors.spotify.com/home/default.aspx (last Spotify, or Apple Music). visited Jan. 28, 2019). The Office has updated the visited Jan. 28, 2019) (stating Spotify offers 40+ 67 Recording Academy Reply at 4 (suggesting the search instructions on its database web page so million tracks). rule should require searching of more than two users are aware of this search capability. While the 63 TIDAL, What is TIDAL, https:// services). current technology does not permit ‘‘fuzzy’’ support.tidal.com/hc/en-us/articles/202992312- 68 A2IM & RIAA Initial at 7; Public Knowledge searching, that limitation is also noted on the web About-TIDAL (last visited Jan. 28, 2019) (stating Initial at 2. page to guide user expectations. TIDAL offers 57+ million tracks). 69 Internet Archive Initial at 1.

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search, such as major search engines, database as ‘‘quite possibly the most unlike other parts of the copyright law, the SoundExchange ISRC lookup tool, authoritative and comprehensive the reference to ‘‘services’’ in section and, for certain niche genres, other database of sound recordings that have 1401(c) does not distinguish between specific resources. By requiring searches otherwise been commercially non-interactive and ‘‘interactive on only one of these comprehensive exploited.’’ 74 On the other hand, Public services.’’ 79 Given the acknowledged streaming services, the proposed rule Knowledge objects to including this commercial exploitation on non- also minimizes the potential financial lookup tool because it is not itself a interactive services, it seems reasonable burden on prospective users. To be sure, ‘‘service[ ] offering a comprehensive set for a good faith search to cover this A2IM and RIAA note that the cost of of sound recordings for sale or broader array of services. Second, this these subscription services are ‘‘not very streaming.’’ 75 database appears to offer user friendly high,’’ suggesting that it is not Because the ISRC lookup tool allows and granular results available for these unreasonable to ask users ‘‘to take on a users to freely and easily search a deep recordings. Using the lookup tool is free, handful of short-term subscription trove of sound recording information without requiring the user to establish payments in order to gain a royalty-free that rights owners themselves have an account, take a subscription, or license to valuable sound recordings.’’ 70 submitted in connection with convey any personal information.80 It IMSLP.ORG contends that users commercializing those recordings, also apparently receives high marks conducting a good faith, reasonable including on multiple streaming regarding search confidence and ease, search under section 1401(c) should be services, the proposed rule tentatively employing fuzzy matching and wildcard able to search streaming services using concludes it is desirable and searching that a broad spectrum of ‘‘Application Programming Interfaces appropriate to include this tool as a step commenters concur is helpful in (APIs) officially supported by the in a sufficient good faith, reasonable gauging the accuracy of results.81 Third, relevant service,’’ as APIs ‘‘considerably search. A few considerations buttress the information in the ISRC database is decrease the cost of performing such this conclusion. First, rights owners populated and verified by rights owners searches with no loss of accuracy.’’ 71 register and provide these data themselves, allaying concerns that The Office invites public comment on regarding their sound recordings so they inaccurate information may lead whether the proposed rule should can be paid for their use under the prospective users astray.82 The uneven address whether users should be able to statutory and direct licenses quality of publicly accessible music use officially-supported APIs to search administered by SoundExchange, repertoire data is well-documented and and locate a Pre-1972 Sound Recording including the compulsory licenses indeed, an animating issue that the on a streaming service. applicable for internet radio, satellite Music Modernization Act seeks to radio, cable TV music services, 4. Searching With the SoundExchange address in the context of the section 115 streaming into business establishments, 83 ISRC Lookup Tool license. As SoundExchange attests, and other services.76 As a result, the ‘‘even when SoundExchange learns Fourth, the proposed rule asks the database provides indicia of user to search for the Pre-1972 Sound exploitation on a wide expanse of music is being commercially exploited both unreasonable Recording using the free online services that the Office does not and in bad faith.’’). SoundExchange ISRC lookup tool otherwise propose searching before a 79 Compare 17 U.S.C. 1401(c)(1), (3) with 17 (located at https:// U.S.C. 114(d)(2)–(3), (e)(2) (j)(6)–(7) (various user may qualify for the safe harbor provisions distinguishing between interactive and isrc.soundexchange.com/#!/search) to under section 1401(c) (e.g., Pandora, non-interactive services). search SoundExchange’s database, Sirius XM, iHeartRadio, MusicChoice, 80 See Public Knowledge Initial at 6 (advocating which contains information for more and over 3,100 other non-interactive ‘‘free-to-search’’); EFF Initial at 4 (sources should be than 27 million sound recordings, digital streaming services).77 While not ‘‘searchable without a paid subscription, and 72 without requiring users to disclose personal including Pre-1972 Sound Recordings. disputing that these types of non- information’’); Wikimedia Foundation at 5 (same). An overwhelming number of interactive services are exploiting Pre- 81 See, e.g., Wikimedia Foundation at 5 stakeholders representing rights owners 1972 Sound Recordings, Public (discussing potential ‘‘deficiencies in the recommended inclusion of the searchability of the specified databases,’’ such as Knowledge and others propose errors or ‘‘the presence of absence of ‘the’ in names SoundExchange ISRC lookup tool as an excluding non-interactive services or titles’’); EFF Initial at 3 (search results are limited important category of search.73 For its ‘‘because they are not usefully by characteristics of the software as well as search part, SoundExchange characterizes its searchable for specific tracks.’’ 78 But terms used); Internet Archive Initial (stressing importance of ‘‘high quality’’ searches); A2IM &

70 RIAA at 2 (importance of fuzzy matching and A2IM & RIAA Reply at 5–6 (noting similar 74 SoundExchange Initial at 2. wildcard searching); Copyright Alliance Initial at 4 requirement in 2008 Shawn Bentley Orphan Works 75 Public Knowledge Reply at 10 (citing 17 U.S.C. (same regarding Office’s database). Bill). 1401(c)(1)(A)(ii)). 82 See, e.g., Internet Archive Initial at 2 71 IMSLP.ORG Reply 2. 76 SoundExchange Initial at 2–3 (‘‘[R]ights owners (expressing concern that Spotify database includes 72 SoundExchange Initial at 2–3. and their representatives made a conscious choice ‘‘unlicensed’’ recordings); Public Knowledge Reply 73 See A2IM & RIAA Initial at 5 (rights owners to register with SoundExchange and submit their at 11 (objecting to YouTube being included in provide metadata to SoundExchange ‘‘for royalty repertoire metadata to allow them to be paid for search steps as unlicensed content is not ‘‘by or collection, which is a form of commercial uses of their works under the statutory licenses and under the authority of the rights holder’’; expressing exploitation’’); Copyright Alliance Initial at 5 direct licenses administered by SoundExchange.’’). concerns about resale or imported physical media). (‘‘SoundExchange’s ISRC search tool should be 77 See SoundExchange, Who Pays 83 See U.S. Copyright Office, Copyright and the searched, as it provides a vast library of information SoundExchange: Q3 2018, https:// Music Marketplace 184 (2015), https:// concerning sound recordings that are submitted by www.soundexchange.com/wp-content/uploads/ www.copyright.gov/policy/musiclicensingstudy/ rights owners and their authorized representatives 2016/09/2018-Jan-Sept-Licensee-List.pdf. copyright-and-the-music-marketplace.pdf; H.R. to SoundExchange for the purpose of collecting 78 Public Knowledge Initial at 6; see also EFF Rep. No. 115–651 at 8 (‘‘Music metadata has more royalties, which is a form of commercial Initial at 4 (proposing to exclude ‘‘services like often been seen as a competitive advantage for the exploitation’’); SoundExchange Initial at 2–14; FMC Pandora and Sirius XM’’ because they ‘‘do not offer party that controls the database, rather than as a Reply at 6 (stating that the SoundExchange ISRC granular searches for particular recordings’’ but resource for building an industry on’’; noting that lookup tool is ‘‘eminently useful’’ and that supporting a potential search requirement of music the database required by the legislation will include inclusion of a sound recording in this database ‘‘is distribution services that supply works to such a variety of sound recording information); see also an unambiguous indicator that a recording is being services); cf. Recording Academy Reply at 3 SoundExchange Initial at 43 (‘‘Many digital music commercially exploited’’); Recording Academy (‘‘Excluding entirely non-interactive services that services operating under the statutory licenses have Reply at 3 (‘‘SoundExchange’s ISRC Search tool is utilize the Section 114 statutory license would (or at least report to SoundExchange) very low indispensable to a good faith, reasonable search.’’). immediately render a search to determine if a track quality data identifying the recordings they use.’’).

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from a service of a putative recording to search Acoustic Sounds or 6. Searches for Ethnographic Pre-1972 not represented in its repertoire Smithsonian Folkways Recordings (e.g., Sound Recordings database, SoundExchange will not international or ‘‘world’’ music, zydeco, reflect the recording in its repertoire folk, spoken word).88 The Office invites At the reply comment stage, concerns database unless identifying information public comment on whether, in addition regarding the noncommercial use of for the recording is provided by the to classical music and jazz, there are ethnographic Pre-1972 Sound rights owner or authorized specific niche genres of Pre-1972 Sound Recordings were raised by the National representative of the rights owner.’’ 84 Recordings that similarly should require Congress of American Indians (‘‘NCAI’’), The Office does not read section the user to search another online music the oldest and largest national 1401(c) so narrowly as to preclude service offering a comprehensive set of organization made up of Alaska Native searching resources—such as the recordings in that niche—and if so, to and American Indian tribal government, SoundExchange ISRC lookup tool or identify the specific sources to be and Professors Trevor Reed, Jane major search engines—that are used ‘‘to searched. Anderson, and Robin Gray, who have determine whether’’ a Pre-1972 Sound The Office agrees that it is appropriate worked on legal and cultural issues Recording is being commercially to limit safe harbor requirements to surrounding pre-1972 ethnographic exploited on services offering a search for physical products to internet sound recordings. NCAI asserts that comprehensive set of sound recordings searches,89 but finds it important that a ‘‘[t]he lack of complete and accurate for sale or streaming.85 Such cross- good faith, reasonable search be information typically available on platform tools can quickly reveal calculated to include ‘‘services offering copyright interests in ethnographic information relevant to whether a a comprehensive set of sound sound recordings, and the cultural recording is being used on a variety of recordings for sale,’’ 90 as some works sensitivity of the contents of many services that are unequivocally involved may be less available on streaming ethnographic sound recording in commercially exploiting the sound services, but are nonetheless being collections, merits consideration of recordings, but of which the Office does commercialized in physical formats, special opt-out rules carefully tailored not propose searching for purposes of including reissues.91 Although Public to the specific needs of Native American 95 this safe harbor, as noted further below. Knowledge and IMSLP.ORG express communities.’’ As NCAI explains To exclude reliance upon these sources concern that sales of physical copies further: would hamper the Office’s ability to include second-hand sales, as opposed Often such recordings are the result of craft a smaller list of ‘‘specific, to commercial exploitation by the anthropological or ethnographical gatherings reasonable steps’’ that a user may take copyright owner,92 physical retailers of sound recordings, frequently capturing before filing a NNU.86 Requiring a typically indicate whether the products ceremonial or otherwise culturally significant prospective user to search the ISRC are new or used, and others note the songs. Further, due to the circumstances of how these recordings were conducted—often lookup tool is thus expected to serve as robust market for newly reissued albums.93 For example, a search for without any documentation of the free and a reasonable proxy for searches on a prior informed consent of the tribal wide array of services that offer a ‘‘Faith and Grace’’ by The Staple Singers practitioners/performers—tribes today are comprehensive set of sound recordings on Amazon.com allows users to unaware of much of the content that they for sale or streaming, and specifically, to purchase both new and used compact potentially hold valid copyright claims address stakeholder concerns (from both discs with that sound recording.94 over.96 the prospective user and rights owner 88 Similarly, Professors Reed, Anderson, perspectives) that it is otherwise The proposed rule thus collapses steps 8 and 9 as proposed by A2IM & RIAA, that is, searches and Gray explain that ‘‘scholars have difficult to determine exploitation by of retailers of physical product and niche services. extensively documented the inequalities non-interactive services that offer Compare A2IM & RIAA Initial at 6. The record and and ethical dilemmas surrounding early limited user search capability.87 the Office’s observations suggest that the universe of niche digital-only sites is small, focused on ethnographic field recording,’’ claiming 5. Searching Sellers of Physical Product classical music, and likely to overlap with searches that ‘‘ownership interests in pre-1972 of retailers of physical product. Fifth, the proposed rule asks the user ethnographic sound recordings are 89 EFF Initial at 4 (‘‘The Office should not require presumed to have vested in and to search for the Pre-1972 Sound that potential users search for commercialization of Recording on at least one major seller of physical copies of recordings unless records of such remained with the performers who physical product, namely Amazon.com, commercialization are searchable on the internet or recorded them under the common-law and if the user reasonably believes that in the Office’s pre-1972 schedules.’’). rule,’’ but that unrelated holding 90 17 U.S.C. 1401(c)(1)(ii) (emphasis added). institutions (e.g., libraries, archives, the sound recording is of a niche genre 91 See, e.g., FMC Reply at 3 (providing example such as classical music (including museums, and universities) typically of recordings by The Staple Singers which are 97 opera) or jazz, one smaller online music readily available as a box set via Amazon.com or possess the master recordings. Those store offering recordings in that niche Discogs.com, and easily located by a simple search professors suggest that regulations whose repertoires are searchable online, engine search, but which are unavailable on Spotify governing the noncommercial use or Apple Music). exception under section 1401(c) ‘‘must namely: ArkivJazz, ArkivMusic 92 Public Knowledge Initial at 7; Public (classical), Classical Archives, or Presto Knowledge Reply at 11; IMSLP.ORG Reply at 1. be carefully tailored to the informational (classical). Users of works in other 93 See FMC Reply at 6. FMC contends that Public disadvantages Native American tribes genres are encouraged but not required Knowledge ‘‘overstates the difficulty of discerning and tribal members face as they attempt whether physical media is made available by to locate and protect their rights to authorization of the rightsholder—the risk of a false 84 SoundExchange Initial at 4. positive is small when every physical retailer _ 85 17 U.S.C. 1401(c)(1)(A) (emphasis added). classifies its products as new or used.’’ Id. at 4. www.amazon.com/gp/product/B015FWTAOO?pf _ _ 86 Cf. Public Knowledge Initial at 2, 6 (suggesting Indeed, although Public Knowledge raises the issue rd p=c2945051-950f-485c-b4df-15aac5223b10&pf _ search requirements should be ‘‘proportional’’). of items being offered for resale ‘‘new’’ a/k/a in rd r=QFZRHA19C97VBPY81EGB; FMC Reply at 3 87 See 17 U.S.C. 1401(c)(1)(A); (3). Compare original shrink wrap packaging, its own example (noting availability of ‘‘Faith and Grace’’ on a Copyright Alliance Reply at 2–3; FMC Reply at 4; suggests that ‘‘further inspection’’ can typically compact disc set, but not on Spotify or Apple and Recording Academy Reply at 3 (expressing clarify whether an item is being offered for first Music). concerns related to rights owner interests) with EFF sale, or resale. Public Knowledge Reply at 12. 95 NCAI Reply at 1. Initial at 4 and Public Knowledge Initial at 2 94 Faith and Grace: A Family Journey 1953–1976, 96 Id. (expressing concerns related to user perspectives). Amazon (last visited Jan. 28, 2019), https:// 97 Reed, Anderson & Gray Reply at 2.

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ethnographic sound recordings.’’ 98 proposes that the user make contact by • Dogstar Radio, which offers Specifically, they maintain that for pre- using contact information known to the searchable playlists from Sirius XM 1972 Native American ethnographic user if applicable, and also by using the • Online databases of U.S. performing recordings, ‘‘a user should not qualify contact information provided in NCAI’s rights organizations for the [section 1401(c)] safe harbor tribal directory.104 If no information is • Other comprehensive databases unless the relevant Native American listed or the tribe is unknown to the offered by private actors (e.g., tribe or tribes has certified the identity user, the user should contact NCAI Songfile, Rumblefish, Songdex, of the sound recording, its owner(s), and itself. The Office believes that this Cuetrak, Crunch Digital) its current commercial uses.’’ 99 search step is a reasonable burden to ask • IMDB.com The Copyright Office is sensitive to prospective users of such expressions of • Video streaming services • the need to ensure that regulations cultural heritage in light of the The SXWorks NOI Tools • governing the noncommercial use of complicated history of some of these Music distribution services (e.g., Pre-1972 Sound Recordings do not CDBaby, Tunecore) sound recordings. The Office also • adversely impact Alaska Native and expects that the notification Predominantly foreign music American Indian tribes or communities. services 109 requirement will prove useful to rights • The Office has previously noted that SoundCloud or Bandcamp owners who wish to exercise discretion • ethnographic field recordings ‘‘are an to opt out of the noncommercial use by Niche streaming services (e.g., Idagio, enormous source of cultural and filing notice in the Copyright Office.105 Primephonic) historical information, and come with The Copyright Office appreciates that Notably, the proposed rule does not their own unique copyright issues,’’ 100 these issues are nuanced and is ask the user to search services based on and that ‘‘librarians and archivists who committed to addressing them in a the commercial exploitation of user- deal with ethnographic materials must sensitive and thoughtful manner. The generated content, such as YouTube. abide by the cultural and religious Office acknowledges that these Commenters IMSLP.ORG and Public norms of those whose voices and stories comments were received in the reply Knowledge maintain that a search are on the recordings.’’ 101 The Office comment stage, without opportunity for should not include services permitting appreciates that the public ownership further comment. Because the Office user-uploaded content because such record for these recordings may be less must timely promulgate a rule for the services include unauthorized uses of developed and/or indexed into major safe harbor to be available to Pre-1972 Sound Recordings, which do search engines, and that as a result, prospective users of all types of Pre- not constitute commercial exploitation searches that are otherwise reasonable 1972 Sound Recordings,106 interested ‘‘by or under the authority of the rights for a prospective user may fail to parties are encouraged to submit written owner’’ as required by section identify that a specific ethnographic comments or contact the Office for a 1401(c)(1)(A).110 By contrast, Recording recording is being commercially meeting to discuss this provisional Academy contends that Congress exploited by the rights owner. But the aspect of the proposed rule. contemplated searching on services Office must also be careful not to exceed with user-uploaded streaming its regulatory authority, by, for example, ii. Sources Not Required To Be Searched platforms.111 The Office agrees that a imposing a requirement that the user The proposed rule is intended to be good faith, reasonable search should be obtain certification of the identity of the accurate and comprehensive, while targeted at locating authorized instances sound recording and its owner before minimizing redundancy. In proposing a of commercial exploitation, and the making use of the safe harbor.102 list of ‘‘specific, reasonable’’ steps, the Accordingly, for ethnographic Pre- Office declines to add some additional provide ‘‘the hashes, with APIs, of all pre-72 sound 1972 Sound Recordings of Alaska search steps or services proposed by recordings indexed’’ into the database. Music Library Association Initial at 1; see also A2IM & Native or American Indian tribes or some commenters. Among suggestions RIAA Initial at 5 (suggesting database should be communities, if the user does not locate received, the rule does not propose to searched sans hashes). Other commenters have the relevant sound recording in the include: explained in more detail the difficulty with this Copyright Office’s database of Pre-1972 • request, and overall the Office agrees that the Music Additional comprehensive streaming Library Association’s proposal is opaque and Schedules or other search categories, the services beyond the one the user beyond the scope of this rulemaking. See A2IM & proposed rule asks the user to contact elects to search from the proposed RIAA Reply at 4; Copyright Alliance Reply at 2; the Alaska Native or Native American rule’s list of services FMC Reply at 2. tribe and, if known to the user, the • Terrestrial or internet radio services, 109 See Find Music Services, Pro Music, https:// pro-music.org/legal-music-services.php (last visited relevant holding institution to aid in including non-interactive services Jan. 28, 2019); see also A2IM & RIAA Initial at 6; determining whether the sound subject to the section 114 license 107 IFPI Initial at 1–2; Public Knowledge Reply at 2 (all recording is being commercially • The to-be-created Mechanical discussing same). exploited.103 Specifically, the rule Licensing Collective database 108 110 IMSLP.ORG Reply at 2 (‘‘services permitting user-uploaded content without any mandatory service-side verification of copyright ownership’’ 98 Id. at 3. consultation). For example, the professors’ such as YouTube ‘‘should be categorically 99 comment suggests that making contact may be Id. at 4. excluded’’ from noncommercial use searches under 100 valuable to provide title, artist, or other information U.S. Copyright Office, Federal Copyright section 1401(c)); Public Knowledge Reply at 11 relevant to a particular recording. Protection For Pre-1972 Sound Recordings 52 (maintaining that because websites like YouTube 104 (2011), https://www.copyright.gov/docs/sound/pre- See Tribal Directory, Nat’l Cong. of Am. display a combination of licensed and unlicensed 72-report.pdf (‘‘Pre-1972 Sound Recordings Indians (last visited Jan. 28, 2019), http:// media, a sound recording’s ‘‘availability on that Report’’). www.ncai.org/tribal-directory (providing searchable platform may not be reliable evidence of the 101 Id. at 61 (citing Rob Bamberger and Sam directory by tribe name, area, and keyword). recording being commercially exploited ‘by or Brylawski, Nat’l Recording Preservation Board of 105 See 17 U.S.C. 1401(c)(1)(C). under the authority of the rights owner’ as required the Library of Congress, The State of Recorded 106 Id. at 1401(c)(3). by § 1401(c)(1)(A)’’). Sound Preservation in the United States: A National 107 As noted above, this conclusion is based, in 111 Recording Academy Reply at 4 & n.5 (citing Legacy at Risk in the Digital Age 19 (2010)). part, on the proposal to include the SoundExchange Conf. Rep. at 25) (‘‘it is important that a user 102 Compare Reed, Anderson & Gray Reply at 4. ISRC lookup tool in the proposed rule. seeking to rely on subsection (c) make a robust 103 See id. at 2 (suggesting that the marketplace 108 Although the Office is open to revisiting the search, including user-generated services and other lacks ‘‘inaccurate and unreliable information about relevance of the MLC database once it is up and services available in the market at the time of the these sound recordings,’’ necessitating tribal running, it is disinclined to ask rights owners to search’’).

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presumptive difficulty for online service given Pre-1972 Sound Recording, or in upon the work.118 Accordingly, the providers to predetermine whether locating the rights owner to negotiate a proposed rule requires the user to content is authorized by a rights owner permissive use, including by searching search on these additional attributes is inherent to the section 512 safe these additional sources identified by when trying to determine whether a Pre- harbor, which limits liability for such commenters. 1972 Sound Recording of classical services displaying user-uploaded music is being commercially exploited. iii. Search Terms and Strategy infringing content.112 Because a user The Office invites public comment on conducting a section 1401(c) search on 1. General Rule whether other, specific genres of sound a service permitting user-uploaded recordings (e.g., jazz) similarly can be In general, the proposed rule asks a content may have no way of knowing if reasonably expected to require user to search on the title and featured the use of a Pre-1972 Sound Recording searching additional terms to identify artist(s) of the Pre-1972 Sound is ‘‘by or under the authority of the the sound recording sufficiently—and if Recording in the various search rights owner,’’ 113 the proposed rule so, what those additional attributes categories. If the user knows any of the does not require the user to search on should be. following attributes of the Pre-1972 a service permitting user-uploaded Sound Recording, and the source has 3. Remastered Pre-1972 Sound content. As discussed above, the proposed rule the capability for the user to search any Recordings aims to strike a balance between the of the following attributes, the user must As noted below, prospective users reasonableness and comprehensivity of also search: Alternate artist name(s), must certify that they have conducted a the search for this particular subset of alternate title(s), album title, and the good faith, reasonable search when works, and can be updated as market International Standard Recording Code filing NNUs. While the Office will not conditions warrant. The Office believes (‘‘ISRC’’). The user may also optionally examine for a NNU’s legal validity, it that the proposed steps, including the search any other attributes known to the suggests that should the user find a requirement to search major search user of the sound recording, such as ‘‘remastered’’ version of a Pre-1972 engines, which may index some of the label, version, or Universal Product Sound Recording through searching in information contained in the above Code (‘‘UPC’’). Narrowing a search by any of the categories listed in the services, will result in identifying a vast these attributes may inform a user’s proposed rule, such a finding likely amount of the Pre-1972 Sound good faith, reasonable determination evidences commercial exploitation of Recordings being commercially whether or not a Pre-1972 Sound the Pre-1972 Sound Recording. The Recording is being commercially exploited at the time searches are 116 Office has previously noted that conducted. If a rights owner is exploited. Because ‘‘year’’ may refer ‘‘remastering’’ a sound recording may concerned about recordings being to year of a record’s release or re-release, consist of mechanical contributions or overlooked, the Office encourages the rather than year of recording, the contributions that are too minimal to be filing of a Pre-1972 Schedule and/or proposed rule does not require copyrightable.119 For example, it would monitoring the filing of NNUs for the searching this attribute. be prudent for a user to consider a 1948 opportunity to opt out of a particular 2. Classical Music Sound Recordings track that was remastered and reissued requested noncommercial use. in 2015 to qualify as a Pre-1972 Sound Likewise, in commenting on the Because classical music sound Recording. proposed rule, it would be helpful for recordings require more information to user-oriented groups to acknowledge sufficiently identify the sound iv. Other Considerations that a list of specific steps should be recording, the proposed rule requires 1. Searches for Foreign Pre-1972 Sound reasonably calculated to identify the user to search on additional Recordings attributes for those types of sound recordings being commercially Stakeholders question whether the exploited, even where this entails added recordings. For example, the same conductor could have conducted section 1401(c) exception applies to searching steps of the prospective foreign Pre-1972 Sound Recordings (i.e., user.114 The Office does not believe the Beethoven’s Symphony No. 9 on multiple occasions, with the same or Pre-1972 Sound Recordings originating proposed rule to be unwieldly from the outside the United States). EFF user perspective. Moreover, while the different orchestras. Even to the trained 117 contends that the section 1401(c) statute is very clear that following this ear (or database), distinguishing between sound recordings of those exception does apply, ‘‘as nothing in the closed-list of steps is sufficient to extensive and detailed language of the 115 various performances may well be qualify for the safe harbor, the 120 impossible without knowing the MMA authorizes such a carve-out.’’ proposed rule does not intend to A2IM and RIAA appear to agree, discourage users from taking additional musical work’s composer and opus, the conductor, the performers (e.g., contending that a search under section steps that they believe may be fruitful in 1401(c) should include ‘‘leading digital identifying commercial exploitation of a orchestra), and year of performance. Indeed, as with Beethoven’s Symphony 118 See, e.g., Anastasia Tsioulcas, Why Can’t 112 See 17 U.S.C. 512. To pick but one example, No. 9, the composer and opus Streaming Services Get Classical Music Right?, NPR a YouTube search of ragtime and early jazz pianist effectively function as the work’s title; The Record (June 4, 2015, 10:50 a.m.), https:// ‘‘Jelly Roll Morton’’ yielded a long scroll of hits the closest simile to a ‘‘featured artist’’ www.npr.org/sections/therecord/2015/06/04/ featuring his sound recordings, and spot checks did may be the conductor, featured 411963624/why-cant-streaming-services-get- not indicate whether any were authorized, without classical-music-right (describing the metadata further refining the search criteria to incorporate performers, or ensemble, depending conundrum in classical music and difficulty record labels or album titles readily identifiable searching streaming services); ArkivMusic, http:// from searching the SoundExchange ISRC lookup 116 See EFF Initial at 3. www.arkivmusic.com/classical/main.jsp (last tool or Amazon.com. YouTube, https:// 117 visited Jan. 28, 2019) (listing search categories of _ See, e.g., What Type of Music Can Shazam www.youtube.com/results?search Identify, Shazam, https://support.shazam.com/hc/ composers, conductors, performers, ensembles, query=%E2%80%9CJelly+Roll+Morton en-us/articles/204462958-What-type-of-music-can- labels, operas, and medium of physical product). %E2%80%9D+ (last visited Jan. 29, 2019). Shazam-identify- (last visited Jan. 28, 2019) 119 U.S. Copyright Office, Compendium of U.S. 113 Id. at 1401(c)(1)(A). (‘‘Classical tracks can be recorded many times over Copyright Office Practices sec. 803.9(F)(3) (3d ed. 114 See id. at 1401(c)(1), (3). by various artists, so it can sometimes be tricky for 2017) (‘‘Compendium (Third)’’). 115 Id. at 1401(c)(4)(B). Shazam to tell the different versions apart.’’). 120 EFF Reply at 5.

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services in relevant foreign countries section 104A.128 While section 1401(c) another user desires to use the same including the country of origin or operates as a limitation on the sound recording for a noncommercial countries where the work is most protection available under that new use under section 1401(c).132 As noted popular, to the extent those services are chapter, it does not explicitly limit title below, a user will be required to certify accessible from the U.S.’’ 121 By 17 copyright protection for certain that she conducted a good faith, contrast, IFPI maintains that the Office foreign restored works (i.e., copyright reasonable search when submitting an should clarify that the section 1401(c) protection under section 104A). NNU, and a user cannot certify the exception applies only to foreign sound Whether the noncommercial use actions of an unrelated third party. recordings that have ‘‘previously been exception under section 1401(c) can Accordingly, the proposed rule does not exploited commercially in the US, immunize content actionable under title permit a user to rely on a search thereby establishing a nexus between 17 for restored works that are foreign conducted by a third party, unless the the US and the rightholder(s) in Pre-1972 Sound Recordings may third party conducted the search as the question.’’ 122 ultimately be a matter for the courts to user’s agent. resolve. Because protection and 3. Timing of Completing a Search Before Prior to the enactment of the MMA, enforcement for foreign restored rights Filing an NNU certain foreign Pre-1972 Sound is fact-intensive—implicating the Recordings were already granted specific source country, date and To ensure that search results are not copyright protection in the United location of publication, duration of term stale, the proposed rule states that the States.123 In 1994, the Uruguay Round in both the United States and the source user (or the user’s agent) must conduct Agreements Act (‘‘URAA’’) amended country, and compliance with a search under section 1401(c) within 90 section 104A to automatically restore formalities—prospective users of foreign days before submitting an NNU with the U.S. copyright protection to certain Pre-1972 Sound Recordings should Office.133 The Music Library foreign works that had been in the proceed cautiously before relying on the Association asserts that if a search has public domain in the United States due section 1401(c) exception. been conducted within a certain to lack of copyright protection for Pre- timeframe, the search should not have 2. Reliance on Third-Party Searches 1972 Sound Recordings more to be repeated.134 The Office agrees, and generally.124 While copyright is restored Stakeholders disagree as to whether a believes that 90 days is a reasonable automatically in eligible works, the user may rely on searches conducted by timeframe for a search to remain owner of a restored work must notify third parties to meet the good faith, fresh.135 Accordingly, a user may rely reliance parties if they plan to enforce reasonable search requirement under on a search for a Pre-1972 Sound those rights, including constructively by section 1401(c). ARSC and EFF contend Recording that she (or her agent) has filing a notice of intent to enforce with that users should be able to rely on conducted for 90 days before submitting the Copyright Office.125 previous searches conducted for a Pre- an NNU proposing a noncommercial use 1972 Sound Recording when filing an of the same sound recording. The MMA revised section 301(c), NNU to avoid ‘‘duplicated effort’’ 129 which now states that and ‘‘nothing but make-work.’’ 130 By B. Notices of Noncommercial Use ‘‘[n]otwithstanding the provisions of contrast, Copyright Alliance, A2IM, (NNUs) section 303, and in accordance with RIAA, and FMC maintain that users i. Form and Content of NNUs [section 1401], no sound recording fixed relying on searches of other users could 1. Overview of Proposed Rule before February 15, 1972, shall be create blanket exceptions of subject to copyright under [title 17].’’ 126 noncommercial use.131 Commenters offer various proposals But section 1401 and the legislative The Office agrees that reliance on a on information to be required in NNUs, history do not reference foreign third-party search, unless the third party particularly regarding the level of detail recordings specifically, or refer to or conducted the search as the user’s agent, required to describe the good faith, revise section 104A, and there is no is not reasonable. The third party may reasonable search and the proposed evidence of congressional intent to have conducted an inadequate search noncommercial use. Regarding the extinguish copyright protection granted and incorrectly concluded that a Pre- search, Copyright Alliance, A2IM, and to foreign Pre-1972 Sound Recordings 1972 Sound Recording is not being RIAA maintain that the user should be under section 104A.127 commercially exploited. Or, as noted by required to describe and certify the A2IM and RIAA, a Pre-1972 Sound steps taken for a search of the Pre-1972 Section 1401 provides sui generis 136 protection running parallel to any Recording may become subject to Sound Recording in the NNU, copyright protection afforded to foreign commercial exploitation after a third whereas the Music Library Association Pre-1972 Sound Recordings under party has conducted a search, but before contends that a user should just have to

128 See Conf. Rep. at 15 (discussing sui generis of 132 A2IM & RIAA Reply at 9. 121 A2IM & RIAA Initial at 6. chapter 14); see also IFPI Initial at 1–2 (discussing 133 See A2IM & RIAA Initial at 21 (contending 122 IFIP Initial at 2. foreign Pre-1972 Sound Recordings). search must be conducted within 90 days of filing 123 17 U.S.C. 104A(a), (h)(6)(C). 129 ARSC Reply at 4. an NNU to be reasonable); Copyright Alliance 124 Id. at 104A(a), (h)(6)(C)(ii) (referencing ‘‘sound 130 EFF Reply at 4. Initial at 6 (same). Public Knowledge suggests that recordings fixed before February 15, 1972’’). 131 Copyright Alliance Initial at 3 (‘‘[A] notice of an even earlier period of 30 days would be 125 See U.S. Copyright Office, Circular 38B: noncommercial use for a particular pre-72 sound reasonable. Public Knowledge Initial at App. Copyright Restoration Under the URAA, https:// recording should not create a blanket exception for 134 Music Library Association Initial at 2. www.copyright.gov/circs/circ38b.pdf. all future noncommercial uses of that sound 135 Ninety days is also the timeframe that a rights 126 17 U.S.C. 301(c). recording.’’); A2IM & RIAA Reply at 9 (‘‘Congress owner filing a Pre-1972 Schedule must wait before 127 In comparison, to minimize concerns never envisioned that the index of NNUs would bringing an action for statutory damages or regarding any ‘‘takings’’ of property under the Fifth operate as a de facto database of recordings attorneys’ fees, 17 U.S.C. 1401(f)(5)(A)(i)(II), and the Amendment under section 104A, Congress available for noncommercial uses pursuant to the timeframe a rights owner has to object to a proposed included provisions to protect the interests of new safe harbor.’’); FMC Reply at 2 (‘‘[W]e see no noncommercial use, id. at 1401(c)(1)(C). parties who had relied on the loss of copyright justification for the suggestion that ‘if a search has 136 A2IM & RIAA Initial at 21 (contending that protection for such works before enactment of the been done within a certain time frame, it does not user should provide ‘‘a certified step-by-step URAA (i.e., ‘‘reliance parties’’). See id. at have to be repeated’ . . . ’’ (quoting Music Library account of all sources searched and the precise 104A(d)(2), (h)(4). Association Initial at 2)). search terms used’’); Copyright Alliance Initial at 6.

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state that she conducted a good faith include a mix of required and optional provide cues for users to provide search and found no commercial information to establish a baseline of additional optional information that is exploitation.137 In addition, information that will be deemed commonly helpful in licensing stakeholders disagree on whether the sufficient for purposes of meeting the transactions, such as spaces for title of user should be required to document regulatory filing requirements, while the project, the playing time of the Pre- her search, such as by submitting screen encouraging users to provide additional 1972 Sound Recording to be used as shots from searched websites.138 descriptive material that may aid in the well as total playing time, description of Copyright Alliance, A2IM, and RIAA ensuing determination whether a Pre- corresponding visuals in the case of also suggest that users should be 1972 Opt-Out Notice is filed. audiovisual uses, and whether and how required to certify their filings under Specifically, the proposed rule requires the user will credit the sound recording penalty of perjury.139 the user to provide: title, featured artist, and/or rights owner Regarding the proposed use of a Pre- 1. The user’s full legal name, and in connection with the project.147 The 1972 Sound Recording, Copyright whether the user is an individual person user may also opt to include additional Alliance, A2IM, and RIAA state that the or corporate entity, including whether information about the Pre-1972 Sound user must sufficiently identify the Pre- the entity is a tax-exempt organization Recording as permitted by the Office’s 1972 Sound Recording she wishes to as defined under the Internal Revenue form or instructions, such as the year of use and the nature of the proposed Code; release and version. Similarly, to use.140 A2IM and RIAA note that 2. The title and featured artist(s) of the increase the likelihood of a user without this information, ‘‘it is Pre-1972 Sound Recording desiring to receiving timely notification of a rights impossible for rights owners to exercise be used; 144 owner’s decision to opt out of a their opt-out right in any meaningful 3. If known, the alternate artist proposed noncommercial use, the way.’’ 141 By contrast, EFF and Public name(s), alternate title(s), album title, proposed rule allows a user to include Knowledge assert that the user should and ISRC; and an email address to which a rights not have to provide a detailed 4. A description of the proposed owner may contact the user to obtain description of the proposed use.142 EFF noncommercial use, including a more information, or to send a copy of and Public Knowledge also suggest that summary of the project and its purpose, the Pre-1972 Opt-Out Notice in addition the Office should allow users to how the Pre-1972 Sound Recording will to filing a Pre-1972 Opt-Out Notice with combine multiple notices of be used in the project, and when and the Copyright Office. noncommercial use into a single filing, where the proposed use will occur (i.e., In addition, the proposed rule states as well as opt-out notices directed to the the term and U.S.-based territory of the that an NNU may not include a same potential user.143 use). proposed use for more than one Pre- After duly considering all of the The prospective user should describe 1972 Sound Recording unless all of the public comments, the rule proposes to the proposed use clearly and accurately, sound recordings include the same with enough detail to provide the rights featured artist and were released on the 137 Music Library Association Initial at 1. owner with enough information to same pre-1972 album or unit of 138 Compare Copyright Alliance Initial at 6 (user meaningfully evaluate the use.145 The publication.148 The Office recognizes should be required to document the search); IMSLP.ORG Reply at 1 (same); A2IM & RIAA Initial proposed categories comprise that, for efficiency, users desiring to at 21 (same); with Public Knowledge Reply at 14 commonsense information, and the make noncommercial use of multiple (section 1401(c) does not require documentation of prospective user has flexibility in the Pre-1972 Sound Recordings from the the search for the safe harbor to apply); EFF Reply description of the proposed use.146 To same album would prefer to file a single at 4 (same); Wikimedia Foundation Reply at 3 (any 149 documentation only becomes relevant if the aid filers, the Office’s form or NNU in all cases. The Office also adequacy of the search comes into dispute); see also instructions may include exemplar recognizes, however, that multiple FMC Reply at 5 (requiring a user to upload descriptions of the proposed use. As rights owners may own the various Pre- screenshots is an ‘‘inelegant solution’’). 1972 Sound Recordings in the NNU— 139 A2IM & RIAA Initial at 21; Copyright Alliance discussed further below, while the Initial at 6. proposed rule does not define and that consequently, multiple rights 140 A2IM & RIAA Initial at 17–19; Copyright ‘‘noncommercial’’ for purposes of this owners may desire to file Pre-1972 Opt- Alliance Initial at 6. Copyright Alliance, A2IM, and filing, the Office’s form, instructions, Out Notices in response to the same RIAA also suggest that the user should identify and other material will be intended to NNU. In such circumstances, it may be whether there is another work embodied within the difficult for rights owners as well as Pre-1972 Sound Recording, and if so, whether the aid individuals in determining how a user has a license to use that work. See A2IM & desired use is likely to relate to the prospective users to evaluate opt-outs to RIAA Initial at 20 & n.26; Copyright Alliance Initial exception for noncommercial uses. proposed noncommercial uses. at 6 & n.8. Because the noncommercial use Further recognizing that some NNUs Finally, the proposed rule also exception does not extend to the underlying requires the individual submitting the musical, literary, or dramatic work, which may are likely to be filed by individuals or require separate clearance, users are of course not smaller noncommercial entities with NNU to certify that she has appropriate required to identify underlying works embodied limited expertise with copyright within the Pre-1972 Sound Recording, but may licensing, the Office’s form will also 147 See A2IM & RIAA Initial at 19 (proposing include such information, including whether they these fields, but on a required basis). have secured permission to use such works, to aid 148 A ‘‘unit of publication’’ exists where multiple the rights owner in considering how to respond to 144 As noted above, classical music metadata works are physically bundled or packaged together a NNU. See A2IM & RIAA Initial at 20 & n.26. raises unique issues. For such proposed uses, the and first published as an integrated unit. U.S. 141 Id. at 17. prospective user should include information that is Copyright Office, Circular 34: Multiple Works, 142 EFF Initial at 5–6 (‘‘[R]equiring detailed similar to the attributes the user is asked to search https://www.copyright.gov/circs/. descriptions of a use would invite future legal upon for title and featured artist(s) before claiming 149 Indeed, the Office permits applicants to disputes over whether a use has exceeded the the statutory safe harbor. register a claim to copyright for sound recordings language of its description.’’); Public Knowledge 145 See, e.g., A2IM & RIAA Initial at 18–19; EFF on the same album in certain circumstances. See, Reply at 15 (user should be required to provide only Initial at 5 (both in general accord). e.g., 37 CFR 202.3(b)(4)(i)(A) (allowing applicants to the ‘‘basic facts which a non-sophisticated user can 146 For example, a user may describe an register multiple sound recordings as well as reasonably be expected to have on hand’’; ‘‘unlimited’’ term of use, throughout the United accompanying text and artwork as a ‘‘unit of rightsholders may ask for clarification of proposed States, or a more limited use, such as a particular publication,’’ if they are owned by the same uses where descriptions are vague or otherwise high school’s spring dance recital. A user may also claimant, were physically packaged or bundled insufficient). specify whether a webinar will be live-streamed together, and if all of the recordings were first 143 EFF Reply at 4; Public Knowledge Reply at 16. over the internet and/or archived. published together as that integrated unit).

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authority to submit the NNU, that the The NOI questioned whether the dialogues to further productive user desiring to make noncommercial Office should adopt guidelines for filers developments in this area. use of the Pre-1972 Sound Recording (or ‘‘as to what constitutes a But in examining the relevant the user’s agent) conducted a good faith, ‘noncommercial’ use, and if so, statutory and case law, as well as the reasonable search within the last 90 what?’’ 156 FMC strongly urged the comments, it is apparent that there are days without finding commercial Office to provide such guidance to some touchstones in evaluating whether exploitation of the sound recording, and ‘‘prevent situations where less a use is noncommercial that may be that all information submitted to the sophisticated users misunderstand the helpful to flag for filers and other Office in the NNU is true, accurate, and statute.’’ 157 Similarly, A2IM and RIAA interested parties. While individual complete to the best of the individual’s suggest ‘‘it is vitally important for both determinations may be fact-specific, knowledge, information, and belief, and users and rights owners that the Office inclusion of this new exception suggests is made in good faith. Such issue guidelines to help users recognize a congressional intent to provide a new requirements mimic certification appropriate uses of section 1401(c) and avenue to facilitate certain requirements in a wide variety of other help rights owners assess the NNUs that noncommercial uses.164 Moreover, filings administered by the Copyright get filed,’’ particularly for users less many comments pointed out that Office.150 The proposed rule does not experienced with copyright.158 Citing an individuals and smaller nonprofit require users to submit documentation array of case law and endorsing a public entities may benefit from additional of their searches, but the Office survey on this topic from Creative explanation regarding the content and encourages users to keep records of their Commons, they propose specific text for filing of NNUs.165 The Office plans to searches in case they come into dispute. the Office’s consideration.159 include information directed at helping 2. Determining Whether a Use Is On the other hand, Wikimedia users determine whether and how to file Noncommercial Foundation cautioned the Office to a NNU, including considerations that may affect their own determination that The section 1401(c) exception applies avoid creating ‘‘complex presumptions’’ for specific anticipated fact patterns, a use is noncommercial. Such material only to noncommercial uses of Pre-1972 may be included on the Office’s Sound Recordings.151 Although section suggesting that terms like ‘‘noncommercial’’ are defined in fact- instructions, forms, or other public 1401(c) does not define resources, which will also make clear ‘‘noncommercial,’’ it does state that specific contexts that are still being explored by courts.160 The Kernochan that the Office does not provide legal ‘‘merely recovering costs of production advice regarding specific uses. Because and distribution of a sound recording Center provided a run-down of key this information is directly tailored to resulting from a use otherwise permitted court opinions with ‘‘differing the Office’s promulgation of regulations under [section 1401(c)] does not itself conclusions as to what constitutes establishing the content for the filing of necessarily constitute a commercial commercial versus noncommercial 161 NNUs, and is aimed at aiding use,’’ 152 and ‘‘the fact that a person use.’’ It suggested that the A2IM and prospective filers—both users and rights engaging in the use of a sound recording RIAA proposal was insufficiently owners—in evaluating whether a use also engages in commercial activities clarifying, while also acknowledging may fall under this noncommercial use does not itself necessarily render the use that failure to interpret the term might exemption, the Office agrees that this commercial.’’ 153 The Conference Report perpetuate conflicting interpretations by 162 guidance should not necessarily be further states that ‘‘the concept of courts and advocacy groups. noncommercial use should be presumed to directly bear upon The Office agrees with the Kernochan questions related to other parts of the understood in the same way as under Center that defining noncommercial in 166 other provisions of title 17, such as statute. relation to section 1401 is ‘‘a complex While this notice is not including section 107, and includes uses such as proposition.’’ 163 In a sense, section teaching, scholarship and research.’’ 154 specific language, the Office 1401(c) requires the Office to mediate a provisionally anticipates calling Although other parts of title 17 refer to channel for users and rights owners to ‘‘commercial’’ or ‘‘non-commercial’’ attention to the following types of engage with each other regarding considerations. uses, nowhere in the statute are they potentially noncommercial uses through defined.155 1. Use v. User. The evaluation should competing filings, and it is not the consider the type of use of the Office’s intention to constrain resolution copyrighted material and not simply the 150 See id. at § 201.4(c)(4) (recorded documents of gray areas or edge cases through generally), § 201.10(f)(1)(i) (notices of termination of nature of the user.167 While a filer will transfer and licenses), § 201.11(e)(9)(iii)(E) (satellite private negotiation or, if necessary, the be asked to disclose whether the user is and cable statements of account), § 201.35(d)(2) courts. If anything, the Office hopes this a tax-exempt organization or other (submission of Pre-1972 Schedules), § 201.36(d)(4) new mechanism may engender (submission of notices of contact information for corporate entity, this information is transmitting entities publicly performing Pre-1972 helpful but not dispositive, as some uses Sound Recordings); see also 18 U.S.C. 1001 (false 156 NOI at 52178. 157 statements generally). FMC Reply at 6 (noting prevalence of incorrect 164 See also 17 U.S.C. 1401(c)(6)(A) (prescribing 151 17 U.S.C. 1401(c)(1); Conf. Rep. at 25 understanding of copyright published by users in penalties for filing an NNU while ‘‘knowing that the (‘‘Subsection (c) applies only to noncommercial connection with user-uploaded content on use proposed is not permitted’’) (emphasis added). YouTube). uses.’’). 165 See, e.g., EFF Initial at 1; AAU Initial at 1; 158 152 17 U.S.C. 1401(c)(2)(A). A2IM & RIAA Reply at 6. FMC Reply at 6; Public Knowledge Reply at 9; 153 Id. at 1401(c)(2)(B). 159 A2IM & RIAA Initial at 10–15 (citing Creative A2IM & RIAA Reply at 6. 154 Conf. Rep. at 25. Commons, Defining ‘‘Noncommercial’’: A Study of 166 See SoundExchange Initial at 15–16 (re How the Online Population Understands 155 See, e.g., 17 U.S.C. 107; 108(a)(1), (c), specialized licenses for noncommercial users under ‘‘Noncommercial Use’’ 18 (Sept. 2009), https:// (h)(2)(A); 109(a), (b)(1)(A); 110(4), (8); 506(a); see sections 112 or 114); Kernochan Center Reply at 5. mirrors.creativecommons.org/defining- also Kernochan Center Reply at 2–3 (discussing 167 See, e.g., Cambridge Univ. Press v. Patton, 769 noncommercial/Defining_Noncommercial_ various statutory provisions); 37 CFR F.3d 1232, 1264 (11th Cir. 2014) (‘‘[W]e must fullreport.pdf). 201.40(b)(1)(i)(B) (2018) (regulatory exception for consider not only the nature of the user, but the use 160 certain uses of motion pictures in noncommercial Wikimedia Foundation Reply at 3. itself.’’); Am. Geophysical Union v. Texaco Inc., 60 videos); compare 17 U.S.C. 901(a)(5) (defining 161 Kernochan Center Reply at 3–4. F.3d 913, 921–22 (2d Cir.1994) (‘‘[A] court’s focus ‘‘commercially exploit’’ with respect to mask 162 Id. at 4. should be on the use of the copyrighted material works). 163 Id. and not simply on the user . . . ’’).

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by nonprofit organizations may 4. Financial gain or other profit. Finally, the Copyright Office also constitute ‘‘commercial’’ use.168 Beyond covering the costs of production addresses a question raised regarding Similarly, some uses by for-profit and distribution, if the user otherwise the scope of its regulatory authority. entities may constitute ‘‘stands to profit from exploitation of the EFF and Public Knowledge contend the ‘‘noncommercial’’ use 169 and ‘‘the fact copyrighted material without paying the Office lacks authority to issue guidance that a person engaging in the use of a customary price,’’ it is more likely to be regarding the meaning of sound recording also engages in considered a commercial use.175 For ‘‘noncommercial use’’ as part of this commercial activities does not itself example, some courts have stated that if rulemaking.180 Perhaps more broadly, necessarily render the use the use can be expected to bring the user EFF suggests that the Copyright Office commercial.’’ 170 ‘‘conspicuous financial rewards,’’ it is requires ‘‘a statutory grant’’ ‘‘to give 2. Educational uses. Educational uses more likely to be commercial.176 Some opinions’’ regarding copyright issues or ‘‘such as teaching, scholarship and examples may include uses of a the meaning of specific terms in the research’’ are often noncommercial uses copyrighted work in an advertisement, copyright law.181 In point of fact here, that provide a public benefit.171 But through the sale of a newspaper or three relevant statutory charges reside at some educational uses may be magazine (even by a non-profit 17 U.S.C. 701(b), 702, and 1401(c)(3).182 considered commercial, for example, organization), or other uses that directly It is well-established, permissible, and when fees are charged or copies sold, or earn users money.177 often necessary for the Office to when the user gains another kind of 5. Private personal uses. If the use is construe or otherwise interpret the measurable benefit (such as valuable a private home use for an individual’s meaning of statutory terms as part of authorship credit through plagiarism of personal enjoyment, it will generally be dutifully exercising its regulatory 178 the work), and so the educational nature considered noncommercial. Posting functions.183 Indeed, this is a basic of the use should be viewed as one on the open, accessible internet is not a precept of administrative law.184 As important part of the overall evaluation private use, even if the user does not whether the use is noncommercial.172 encourage others to access the Pre-1972 239 F.3d 1004, 1015 (9th Cir. 2001); see also FMC Reply at 6 (expressing ‘‘acute concern’’ about 3. Covering the costs of production Sound Recording. 6. Other individual uses. Putting a uploads to ‘‘YouTube or similar commercial and distribution of the sound recording. services’’). Pre-1972 Sound Recording on YouTube ‘‘Merely recovering costs of production 180 Public Knowledge Initial at 8 (suggesting or another platform that allows users to and distribution of a sound recording statute provides ‘‘no role’’ for the Office); EFF upload content may or may not be Initial at 5; see also Wikimedia Foundation Reply resulting from a use’’ that would commercial; again, the user must at 3. otherwise be considered noncommercial 181 consider the purpose of the use, EFF Initial at 5 (citation omitted). ‘‘does not itself necessarily constitute a 182 including whether the user is 17 U.S.C. 701(b) (outlining additional 173 functions and duties), 702 (Copyright Office commercial use.’’ Similarly, the fact monetizing that use for profit.179 that the user may save money on a regulations), and 1401(c)(3) (directing promulgation of noncommercial use rulemaking). See also S. Rep. licensing fee does not automatically 175 Harper & Row Publishers, Inc. v. Nation No. 115–339 at 15 (discussing Copyright Office 174 make the use commercial. Enters., 471 U.S. 539, 562 (1985); see also Wall Data knowledge and expertise regarding music copyright Inc. v. Los Angeles Cty. Sheriff’s Dep’t, 447 F.3d regulations, educational activities, and reports with respect to title I of the MMA); Conf. Rep. at 12 168 See, e.g., Greenberg v. Nat’l Geographic Soc’y, 769, 779 (9th Cir. 2006) (police department copying (same). The Office also provides authoritative 244 F.3d 1267, 1275 (11th Cir. 2001), rev’d on other software to avoid buying additional licenses was a commercial use). information about the copyright law and public grounds on reh’g en banc, 533 F.3d 1244 (11th Cir. 176 education regarding copyright and the 2008). (‘‘[W]hile the [CD–ROM library] is a product Cambridge Univ. Press, 769 F.3d at 1266; see administration of its functions and duties under that may serve educational purposes, it is marketed Am. Geophysical Union, 60 F.3d at 922. 177 title 17. See 17 U.S.C. 701(b); 37 CFR 203.3(f); id. to the public at book stores, specialty stores, and See, e.g., Davis v. The Gap, Inc., 246 F.3d 152, at § 201.2(b)(7). over the internet. [Defendant] is a non-profit 175 (2d Cir. 2001) (‘‘Here the work, being an 183 organization, but its subsidiary National Geographic advertisement, is at the outer limit of See, e.g., 37 CFR 201.4(c)(2) (defining a Enterprises, which markets and distributes the commercialism.’’) (citing Campbell, 510 U.S. at document ‘‘pertaining to a copyright’’), [product], is not; the sale of the [product] is clearly 585); Hustler Magazine, Inc. v. Moral Majority, Inc., § 201.10(d)(2) (identifying actions that will meet for profit.’’). 796 F.2d 1148, 1152 (9th Cir. 1986) (use in statutory service requirements), § 201.10(f)(1)(ii)(C) (treating date of creation of a ‘‘gap work’’ as date 169 See, e.g., Am. Geophysical Union, 60 F.3d at fundraisers for religious organization is commercial); Sony Comput. Entm’t Am., Inc. v. of execution of a grant), § 201.11 (including interest 921–22; Byrne v. British Broad. Corp., 132 F. Supp. Bleem, LLC, 214 F.3d 1022, 1027 (9th Cir. 2000) in Section 119 royalty fee payments), § 201.13(a)(2) 2d 229, 234 (S.D.N.Y. 2001). (finding use of screen shots of plaintiff’s video (defining ‘‘copyright owner’’ for purposes of Section 170 17 U.S.C. 1401(c)(2)(B). games in comparative advertising was commercial); 110(4)), § 201.17(b) (defining ‘‘gross receipts’’ and 171 Conf. Rep. at 25. Consumers Union of U.S., Inc. v. Gen. Signal Corp., ‘‘cable system’’ for purposes of Section 111), 172 See, e.g., Peter Letterese & Assocs. v. World 724 F.2d 1044, 1049 (2d Cir. 1983) (‘‘Almost all § 201.18(a)(5) (defining ‘‘copyright owner’’ for Inst. of Scientology Enters. Int’l, 533 F.3d 1287, newspapers, books and magazines are published by purposes of Section 115 notices of intention), 1309–12 (11th Cir. 2008) (finding use of commercial enterprises that seek a profit.’’); see also § 201.22(a)(2) (defining ‘‘copyright owner’’ for copyrighted material in an instructional Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 846 purposes of Section 411(c)), 201.26(b) (defining coursepack, where defendants charged a fee, was (C.D. Cal. 2006), aff’d in part, rev’d in part sub nom terms relating to shareware for purpose of Section ‘‘commercial’’); Princeton Univ. Press v. Mich. on other grounds, 508 F.3d 1146 (9th Cir. 2006). 805 of Public Law 101–650), § 202.1 (providing Document Servs., 99 F.3d 1381, 1385–86 (6th Cir. 178 See Sony Corp. of Am. v. Universal City examples of works not subject to copyright), 1996) (finding reproduction of academic works was Studios, Inc., 464 U.S. 417, 448–49 (1984) (‘‘time- § 202.10 (requirements for protection of pictorial, ‘‘commercial’’ use because copies were sold in shifting for private home use must be characterized graphic, and sculptural works), § 201.11(b)(2) coursepacks); Weissman v. Freeman, 868 F.2d 1313, as a noncommercial, nonprofit activity’’); Recording (defining ‘‘building’’ for purposes of architectural 1324 (2d Cir. 1989) (academic researcher’s Indus. Ass’n of Am. v. Diamond Multimedia Sys., works protection); see also Mazer v. Stein, 347 U.S. plagiarism was commercial because ‘‘what is Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) (addressing 201, 211–13 (1954) (relying on Copyright Office valuable is recognition because it so often transfer of legitimately-acquired MP3 files from regulations ‘‘interpreting’’ the 1909 Act with respect influences professional advancement’’); see also user’s hard drive to portable media player); see also to copyrightable subject matter). Cambridge Univ. Press, 769 F.3d at 1263–66. A2IM & RIAA Initial at 13 (acknowledging that ‘‘use 184 See, e.g., Chevron U.S.A., Inc. v. Natural 173 17 U.S.C. 1401(c)(2)(A). of lawfully-acquired works for an individual’s Resources Defense Council, Inc., 467 U.S. 837 174 See, e.g., Cambridge Univ. Press, 769 F.3d at personal enjoyment clearly seems to be (1984); Skidmore v. Swift & Co., 323 U.S. 134 1265–66 (‘‘Of course, any unlicensed use of noncommercial’’). (1944). Relatedly, EFF’s citation of Capitol Records, copyrighted material profits the user in the sense 179 For example, making copies to help people LLC v. Vimeo, LLC seems misplaced in comments that the user does not pay a potential licensing fee, ‘‘get for free something they would ordinarily have responsive to a statutorily-required rulemaking allowing the user to keep his or her money. If this to buy,’’ such as file sharing to anonymous regarding a new federal exception to the ability of analysis were persuasive, no use could qualify as requesters over the internet, has been found to be rights owners to control uses of Pre-1972 Sound ‘nonprofit’ . . . .’’). commercial. A&M Records. Inc. v. Napster, Inc., Continued

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Congress has so directed, the Office will 1401(c) ‘‘contemplates no such role for online database of NNUs. Similar to the continue to interpret statutory terms as the Office’’ to reject notices on Office’s database of indexed Pre-1972 necessary to administer a wide variety substantive grounds.189 Schedules, the Office intends to provide of filings mandated under title 17, As with similar types of filings made an online and searchable database of including NNUs, and also through with the Office, the proposed rule states indexed NNUs. Rights owners can documents such as circulars, its that the Office does not review NNUs search on the prospective user’s name, Compendium of U.S. Copyright Office for legal sufficiency.190 Rather, the the title of the sound recording, the Practices, or other public aids.185 While Office’s review is limited to whether the featured artist(s), and the ISRC provided it is true that courts afford varying levels formal and legal procedural in NNUs.194 In addition, each NNU will of deference to these differing types of requirements established under the rule be assigned a unique identifier by the documents (as with any agency), that (including completing the required Copyright Office, which will also be fact does not bear upon the Office’s information and payment of the proper searchable. As noted below, rights authority to issue these documents in filing fee) have been met. The Office’s owners will be required to include the fulfillment of its statutory functions and indexing of an NNU thus does not mean unique identifier assigned to an NNU if duties. the proposed use in the NNU is, in fact, the rights owner desires to file a Pre- noncommercial. Users are therefore 1972 Opt-Out Notice in response. ii. Filing of NNUs, Including Copyright cautioned to review and scrutinize Office Review Although indexed NNUs will be NNUs to assure their legal sufficiency publicly available, the proposed rule Stakeholders disagree on the Office’s before submitting them to the Office. states that users cannot rely on NNUs level of review of NNUs. Copyright Section 1401(c)(6)(A) contemplates filed by third parties (other than the Alliance, A2IM, and RIAA contend that civil penalties for the filing of user’s agent). Similarly, a user cannot the Office should reject NNUs that do fraudulent NNUs (e.g., fraudulently rely on her own NNU once the proposed not provide sufficient information or are describing the use proposed).191 In 186 term of use ends (i.e., she must conduct ‘‘patently deficient.’’ In addition, connection with the Office’s exercise of a new good faith, reasonable search for Copyright Alliance and FMC ask for the regulatory authority directed under the Pre-1972 Sound Recording and file guidance on how the Office plans to the MMA and its general authority and a new NNU). police bad faith or deficient notices.187 responsibility to administer title 17,192 By contrast, EFF maintains that the the proposed rule states that if the The proposed rule also confirms that Office cannot reject facially complete Register becomes aware of abuse or persons may request timely notification notices of use or opt-out notices,188 and fraudulent NNUs from a certain filer, of when NNUs are indexed into the Public Knowledge contends that section she shall have the discretion to reject all Office’s public records by following the instructions provided by the Copyright submissions from that filer under 195 Recordings. See EFF Initial at 5 (citing 826 F.3d 78, section 1401(c) for up to one year. Office on its website. Individuals 93 (2d Cir. 2016)). First, as the sentence that EFF requesting such notification can partially quotes indicates, Vimeo actually suggests iii. Indexing NNUs Into the Copyright subscribe to a weekly email through a that Chevron deference is appropriate with respect Office’s Online Database service similar to the Office’s NewsNet to a Copyright Office rulemaking (such as this one). Vimeo, 826 F.3d at 93 (distinguishing level of Section 1401(c) requires NNUs to be service, which will provide a link to the deference in that case from ‘‘Chevron deference of ‘‘indexed into the public records of the Office’s online database of indexed the sort accorded to rulemaking by authorized 193 NNUs. The Office’s searchable database agencies’’). Indeed, the Second Circuit has Copyright Office.’’ Under the ‘‘appl[ied] Chevron’’ in adopting the Office’s proposed rule, an NNU will be will default to listing the NNUs with the interpretation of section 111 as reasoned through considered ‘‘indexed’’ once it is made most recent index dates first, so similar rulemaking documents concerning publicly available through the Office’s individuals should easily be able to requirements for filing statements of account with identify recently indexed filings.196 respect to the cable license, when determining 189 whether internet retransmission services may Public Knowledge Reply at 7. The Copyright C. Opt-Out Notices qualify for this license. WPIX, Inc. v. ivi, Inc., 691 Alliance maintains that the ‘‘Copyright Office does F.3d 275, 284 (2d Cir. 2012). Second, far from clearly have authority to deny facially invalid As noted above, the rights owner of a discounting the Office’s guidance in this area, notices,’’ and the discretion to reject notices which Congress subsequently ratified the approach on their face are not sufficient to identify the sound Pre-1972 Sound Recording may file a recommended in the policy report discussed in recording—thus not providing notice to the owner Pre-1972 Opt-Out Notice with the Vimeo of expressly amending title 17 to apply the of the sound recording—and nature of the use or do Copyright Office ‘‘opting out’’ of (i.e., section 512 safe harbor as well as other federal not adhere to the form, content, and procedures objecting to) the proposed use in an exceptions and limitations to Pre-1972 Sound established by the Register through regulations.’’ Recordings. See 17 U.S.C. 1401(f)(3); (1)(B)(3); Pre- Copyright Alliance Reply at 2. NNU within 90 days of the NNU being 1972 Sound Recordings Report at 128–29, 130–32; 190 For example, the Office accepts statements of indexed into the Office’s public see also Mitch Stoltz, The New Music account under the section 111 cable license after a records.197 The proposed rule states that Modernization Act Has a Major Fix: Older review for ‘‘obvious errors or omissions appearing Recordings Will Belong to the Public, Orphan on the face of the documents’’ (see 37 CFR where a Pre-1972 Sound Recording has Recordings Will Be Heard Again, EFF (Sept. 19, 201.17(c)(2)), notices of intention under the section multiple rights owners, only one rights 2018), https://www.eff.org/deeplinks/2018/09/new- 115 compulsory license without review for ‘‘legal owner needs to file Pre-1972 Opt-Out music-modernization-act-has-major-fix-older- sufficiency’’ or ‘‘errors or discrepancies’’ (see id. at Notice for purposes of section recordings-will-belong-public (noting it is § 201.18(g)), and agent designations made pursuant ‘‘important’’ that under title II, ‘‘the full set of to section 512(c)(2) without any examination. public rights and protections’’ ‘‘will apply 191 17 U.S.C. 1401(c)(6)(A) (‘‘Any person who 194 Similar to the database of Pre-1972 Schedules explicitly,’’ in contrast to state laws). willfully engages in a pattern or practice of filing discussed above, the Office’s database of NNUs will 185 See, e.g., Compendium (Third) Introduction 2 a [NNU] . . . fraudulently describing the use allow for wildcard searching by using an asterisk (collecting cases relying on Compendium); ABS proposed, or knowing that the use proposed is not to fill in partial words. Entm’t, Inc. v. CBS Corp., 908 F.3d 405, 417 n.5 (9th permitted under [section 1401(c)], shall be assessed 195 See A2IM & RIAA Initial at 22 (requesting Cir. 2018) (‘‘Circulars provide Copyright Office a civil penalty in an amount that is not less than same). guidance on various issues. We may rely on them $250, and not more than $1000, for each such 196 The Office believes having an online, as persuasive but not binding authority.’’). notice, in addition to any other remedies that may searchable database of indexed NNUs and a 186 A2IM & RIAA Initial at 19; Copyright Alliance be available under this title based on the actual use periodic email notification option addresses Author Initial at 3. made.’’). Services’ concern about how rights owners of Pre- 187 Copyright Alliance Initial at 3; FMC Reply at 192 See id. at 1401(c)(3), (5)(A); id. at 701(a). 1972 Sound Recordings will receive notice of 5. 193 Id. at 1401(c)(1)(C); see internet Archive Initial indexed NNUs. Author Services Reply #1 at 1–2. 188 EFF Reply at 3. at 2 (advocating same). 197 17 U.S.C. 1401(c)(1)(C).

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1401(c)(5).198 In addition, the proposed submissions from that filer for up to one may be supplemented by information on rule requires the Pre-1972 Opt-Out year. the Copyright Office’s website at https:// Notice to include the rights owner’s www.copyright.gov/rulemaking/ D. Filing Fees name and the unique identifier assigned pre1972-soundrecordings- to the NNU by the Copyright Office. The The Copyright Act grants the Office noncommercial/: submitter of the Pre-1972 Opt-Out authority to establish, adjust, and 1. Any interested participant seeking Notice may opt in her discretion to recover fees for services provided to the an ex parte in-person or telephone 200 comment on whether the proposed use public. The rule proposes fees to file meeting with the Office in this constitutes noncommercial use. In an NNU or an Opt-Out Notice that are proceeding should submit a written keeping with filings of similar type, the the same as the current fee to record a request to the persons identified in the Pre-1972 Opt-Out Notice must also notice of intention to make and contact information section of this include a certification that the distribute phonorecords under section NPRM. The request should identify the 201 individual submitting the notice has 115 (‘‘NOI’’). The Office anticipates names of all proposed attendees, and appropriate authority to do so and that that the processing of these documents the party or parties on whose behalf all information submitted to the Office will be analogous to that of processing each attendee is appearing. is true, accurate, and complete to the electronic NOIs, and has based the 2. Ex parte meetings with the Office best of the individual’s knowledge, proposed fee accordingly.202 Similar to are intended to provide an opportunity information, and belief, and is made in the Office’s free NewsNet service, there for participants to clarify evidence and/ good faith. The Office intends to make will be no fee for individuals to request or arguments made in prior written Pre-1972 Opt-Out Notices publicly and receive timely notifications of when submissions, and to respond to available through the Office’s online NNUs are indexed into the Office’s questions from the Office on those searchable database of NNUs. public records. If a rights owner files a timely Pre- matters. The Office will generally not III. Ex Parte Communications 1972 Opt-Out Notice, the proposed rule consider or accept new documentary states that the user specified in the NNU In the past, the Office’s materials outside the rulemaking record. use must wait one year before filing communications with rulemaking 3. Within two business days after the another NNU for the same or similar use participants have not generally included meeting, the attendees must email the of the Pre-1972 Sound Recording. discussions about the substance of the Office (using the above email addresses) As with NNUs and similar types of proceeding apart from the noticed a letter detailing the information filings made with the Office, the phases of written comments. The Office identified in paragraph 1 and proposed rule states that the Office does has determined that further informal summarizing the discussion at the not review Pre-1972 Opt-Out Notices for communications with participants meeting. The letter must summarize the legal sufficiency, interpret their content, might be beneficial in limited substance of the views expressed and or screen them for errors or circumstances where the Office seeks arguments made in such a way that a discrepancies. Rather, the Office’s specific information or follow-up non-participating party will understand review is limited to whether the regarding the public record, such as to the scope of issues discussed; merely procedural requirements established by discuss nuances of proposed regulatory listing the subjects discussed or the Office (including payment of the language. The primary means to providing a 1–2 sentence description proper filing fee) have been met. Rights communicate views in the course of the will not be sufficient. These letters will owners are therefore cautioned to rulemaking will continue to be through be made publicly available on the review and scrutinize Pre-1972 Opt-Out the submission of written comments. In Copyright Office’s website. Notices to assure their legal sufficiency other words, this communication will 4. To ensure compliance with the before submitting them to the Office. As supplement, not substitute for, the statutory deadline, all ex parte meetings with the Office’s handling of fraudulent preexisting record. in this proceeding must take place no NNUs, because section 1401(c)(6)(B)(ii) To ensure that such communications later than Friday, March 22, 2019. The contemplates civil penalties for a are governed by transparent and Office will not consider requests to hold pattern of filing of fraudulent Pre-1972 consistent procedures, the Office is meetings after that date. Opt-Out Notices,199 the proposed rule issuing the following guidelines, which states that if the Register becomes aware List of Subjects in 37 CFR Part 201 of abuse or fraudulent Pre-1972 Opt-Out 200 See id. at 708. Because they do not involve Copyright, General provisions. Notices from a certain filer, she shall services specified in section 708(a), the fees proposed in this NPRM are not subject to the Proposed Regulations have the discretion to reject all adjustment of fees provision in section 708(b). 201 37 CFR 201.3(e)(1) (stating cost to record In consideration of the foregoing, the 198 Similarly, where a musical work has multiple section 115 NOI for one title is $75). The Office U.S. Copyright Office proposes copyright owners, the Office does not require each notes that the proposed fee is lower than to record copyright owner to record a Declaration of a document for a single title. See id. at § 201.3(c)(17) amending 37 CFR part 201 as follows: Ownership in Musical Works to become eligible for (stating cost to record document for single title is royalties under the 17 U.S.C. 115 compulsory $105). PART 201—GENERAL PROVISIONS license. U.S. Copyright Office, Document 202 Basing the cost of a service on the cost for a Recordation: Completing and Submitting similar service is appropriate. See Copyright Office ■ 1. The authority citation for part 201 Declarations of Ownership in Musical Works (last Fees, 83 FR 24054, 24059 (May 24, 2018) (proposing visited Jan. 28, 2019), https://www.copyright.gov/ setting new fees at the same level for ‘‘analogous’’ continues to read as follows: recordation/domw/#requirements. services). In 2017, Booz Allen Hamilton conducted Authority: 17 U.S.C. 702. 199 17 U.S.C. 1401(c)(6)(B)(ii) (‘‘Any person who a study of the Office’s most recent fee structure. engages in a pattern or practice of [filing a Pre-1972 When asked whether existing rates could be ■ 2. Amend § 201.3 as follows: Opt-Out Notice, knowing that the person is not the leveraged for new group registration options, it ■ rights owner or authorized to act on behalf of the concluded it was appropriate if the work required a. Redesignate paragraphs (c)(21) and rights owner of the sound recording to which the was of a similar grade and compensation level. (c)(22) as paragraphs (c)(23) and (c)(24), NNU pertains,] shall be assessed a civil penalty in Booz Allen Hamilton, U.S. Copyright Office, Fee respectively. an amount not less than $10,000 for each such Study: Question and Answers 6 (Dec. 2017), https:// ■ filing.’’); see also 17 U.S.C. 1401(c)(5)(A); id. at www.copyright.gov/rulemaking/feestudy2018/fee_ b. Add paragraphs (c)(21) and (c)(22) 701(a). study_q&a.pdf. to read as follows:

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§ 201.3 Fees for registration, recordation, (c) * * * and related services, special services, and services performed by the Licensing Division. * * * * *

Fees Registration, recordation and related services ($)

******* (21) Notice of noncommercial use of pre-1972 sound recording ...... 75 (22) Opt-out notice of noncommercial use of pre-1972 sound recording ...... 75

*******

* * * * * sound recording, pursuant to 17 U.S.C. or Bing, to determine whether the pre- ■ 3. Amend § 201.4 as follows: 1401(c)(1)(C). 1972 sound recording is being offered ■ a. Revise paragraph (b)(3). (b) Definitions. For purposes of this for sale in download form or as a new ■ b. Revise paragraph (b)(10) by section: (not resale) physical product, or is removing ‘‘; and’’ and replacing with (1) Unless otherwise specified, the available through a streaming service; ‘‘;’’. terms used have the meanings set forth (iii) Searching at least one of the ■ c. Revise paragraphs (b)(11), (b)(12), in 17 U.S.C. 1401. following streaming services: Amazon and (b)(13) by removing the period at (2) A pre-1972 sound recording is a Music Unlimited, Apple Music, Spotify, the end of each paragraph and replacing sound recording fixed before February or TIDAL; with a semicolon. 15, 1972. (iv) Searching SoundExchange’s ■ d. Add paragraphs (b)(14) and (b)(15). (3) For pre-1972 sound recordings of repertoire database through the The additions and revisions read as classical music, including opera: SoundExchange ISRC lookup tool follows: (i) The title of the pre-1972 sound (https://isrc.soundexchange.com/#!/ recording means, to the extent search); § 201.4 Recordation of transfers and other applicable and known by the user, any (v) Searching at least one major seller documents pertaining to copyright. and all title(s) of the sound recording of physical product, namely * * * * * and underlying musical composition Amazon.com, and if the pre-1972 sound (b) * * * known to the user, and the composer recording is of classical music or jazz, (3) Notices of use of sound recordings and opus or catalogue number(s) of the searching a smaller online music store under statutory license and notices of underlying musical composition; and that specializes in product relative to intention to obtain a compulsory license (ii) the featured artist(s) of the pre- that niche genre, namely: ArkivJazz, to make and distribute phonorecords of 1972 sound recording means, to the ArkivMusic, Classical Archives, or nondramatic musical works (17 U.S.C. extent applicable and known by the Presto; in either case, to determine 112(e), 114, and 115(b); see §§ 201.18, user, the featured soloist(s); featured whether the pre-1972 sound recording is 370.2 of this chapter); ensemble(s); featured conductor; and being offered for sale in download form * * * * * any other featured performer(s). or as a new (not resale) physical (14) Notices of noncommercial use of (c) Conducting a good faith, product; and pre-1972 sound recordings (17 U.S.C. reasonable search. (vi) For pre-1972 ethnographic sound 1401(c)(1)(B); see § 201.37); and (1) Pursuant to 17 U.S.C. recordings of Alaska Native or American (15) Opt-out notices of 1401(c)(3)(A), a user desiring to make Indian tribes or communities, searching, noncommercial use of pre-1972 sound noncommercial use of a pre-1972 sound if such contact information is known to recordings (17 U.S.C. 1401(c)(1)(C); see recording should search for the sound the user, by contacting the relevant § 201.37). recording in each of the categories Alaska Native or American Indian tribe * * * * * below until the user finds the sound and the holding institution of the sound ■ 4. Add § 201.37 to read as follows: recording. If the user does not find the recording (such as a library or archive) pre-1972 sound recording after to gather information to determine § 201.37 Noncommercial use of pre-1972 searching the categories below, her whether the sound recording is being sound recordings search is sufficient for purposes of the commercially exploited. If this contact (a) General. This section prescribes safe harbor in 17 U.S.C. 1401(c)(4), information is not previously known to the rules under which a user, desiring establishing that she made a good faith, the prospective user, the user should to make noncommercial use of a pre- reasonable search without finding use the information provided by the 1972 sound recording pursuant to 17 commercial exploitation of the sound National Congress of American Indians U.S.C. 1401(c), conducts a good faith, recording by or under the authority of (NCAI) tribal directory to contact the reasonable search to determine whether the rights owner. The categories are: relevant tribe or NCAI itself (http:// the sound recording is being (i) Searching the Copyright Office’s www.ncai.org/tribal-directory). commercially exploited, and if not, files database of indexed schedules listing (2) A search under paragraph (c)(1) of a notice of noncommercial use with the right owners’ pre-1972 sound recordings this section must include searching the Copyright Office. This section also (https://www.copyright.gov/music- title of the pre-1972 sound recording prescribes the rules under which a modernization/pre1972- and its featured artist(s). If the user rights owner of a pre-1972 sound soundrecordings/search- knows any of the following attributes of recording identified in a notice of soundrecordings.html); the sound recording, and the source noncommercial use may file an opt-out (ii) Searching at least one major being searched has the capability for the notice opposing a proposed use of the search engine, namely Google, Yahoo!, user to search any of the following

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attributes, the search must also include how the pre-1972 sound recording will competent jurisdiction. Users are searching: Alternate artist name(s), be used in the project, and when and therefore cautioned to review and alternate title(s), album title, and the where the proposed use will occur (i.e., scrutinize notices of noncommercial use International Standard Recording Code the term and U.S.-based territory of the to assure their legal sufficiency before (‘‘ISRC’’). A user is encouraged, but not use). The user may include additional submitting them to the Office. required, to search additional known optional information detailing the (ii) If a rights owner does not file an attributes, such as the label, version, or proposed use, such as the tentative title opt-out notice under paragraph (e) of Universal Product Code (‘‘UPC’’). of the project, the playing time of the this section, when the term of use (3) A search under paragraph (c)(1) of pre-1972 sound recording to be used as specified in the notice of this section must be conducted within well as total playing time, description of noncommercial use ends, the user must 90 days of the user (or her agent) filing corresponding visuals in the case of cease noncommercial use of the pre- a notice of noncommercial use under audiovisual uses, and whether and how 1972 sound recording for purposes of paragraph (d)(1) of this section to be the user will credit the sound recording remaining in the safe harbor in 17 sufficient for purposes of the safe harbor title, featured artist, and/or rights owner U.S.C. 1401(c)(4). Should the user desire in 17 U.S.C. 1401(c)(4). in connection with the project. to requalify for the safe harbor with (4) For purposes of the safe harbor in (vi) A certification that the user respect to that same pre-1972 sound 17 U.S.C. 1401(c)(4)(A), a user cannot searched but did not find the pre-1972 recording, the user must conduct a new rely on: sound recording in a search conducted search and file a new notice of (i) A search conducted under under paragraph (c) of this section. noncommercial use under paragraphs paragraph (c)(1) of this section by a (vii) A certification that the individual (c) and (d) of this section, respectively. third party who is not the user’s agent; submitting the notice of noncommercial (7) Filing date. The date of filing of a or use has appropriate authority to submit notice of noncommercial use is the date (ii) A notice of noncommercial use the notice, that the user desiring to when a proper submission, including filed under paragraph (d)(1) of this make noncommercial use of the pre- the prescribed fee, is received in the section by a third party (who is not the 1972 sound recording (or the user’s Copyright Office. The filing date may user’s agent) to which the rights owner agent) conducted a search under not necessarily be the same date that the does not file an opt-out notice. paragraph (c) within the last 90 days notice, for purposes of 17 U.S.C. (d) Notices of noncommercial use. without finding commercial 1401(c)(1)(C), is indexed into the (1) Form and submission. A user exploitation of the sound recording, and Office’s public records. seeking to comply with 17 U.S.C. that all information submitted to the (8) Fees. The filing fee to submit a 1401(c)(1) must submit a notice of Office is true, accurate, and complete to notice of noncommercial use pursuant noncommercial use identifying the pre- the best of the individual’s knowledge, to this section is prescribed in 1972 sound recording that the user information, and belief, and is made in § 201.3(c). intends to use and the nature of such good faith. (9) Third-party notification. A person use using an appropriate form provided (3) U.S.-based territory. may request timely notification of by the Copyright Office on its website Noncommercial use of a pre-1972 filings made under paragraph (d)(1) of and following the instructions provided recording under this section is limited this section by following the on the Office’s website or the form itself. to use within the United States. instructions provided by the Copyright The Office may reject any submission (4) Number of sound recordings. A Office on its website. that fails to comply with the notice of noncommercial use may not (e) Opt-out notices. requirements of this section, or any include proposed use for more than one (1) Form and submission. A rights relevant instructions or guidance pre-1972 sound recording unless all of owner seeking to comply with 17 U.S.C. provided by the Office. the sound recordings include the same 1401(c)(1)(C) must file a notice opting (2) Content. A notice of featured artist(s) and were released on out of a proposed noncommercial use of noncommercial use shall contain the the same pre-1972 album or unit of a pre-1972 sound recording filed under following: publication. paragraph (d)(1) of this section using an (i) The user’s full legal name, and (5) Unique identifier. The Copyright appropriate form provided by the whether the user is an individual person Office will assign each indexed notice of Copyright Office on its website and or corporate entity, including whether noncommercial use a unique identifier following the instructions for the entity is a tax-exempt organization to identify the notice in the Office’s completion and submission provided on as defined under the Internal Revenue public records. the Office’s website or the form itself. Code. Additional contact information, (6) Legal sufficiency. The Office may reject any submission including an email address, may be (i) The Copyright Office does not that fails to comply with the optionally provided. review notices of noncommercial use requirements of this section, or any (ii) The title and featured artist(s) of submitted under paragraph (d)(1) of this relevant instructions or guidance the pre-1972 sound recording desiring section for legal sufficiency. The provided by the Office. to be used. Office’s review is limited to whether the (2) Content. An opt-out notice use (iii) If any are known to the user, the procedural requirements established by shall contain the following: alternate artist name(s), alternate title(s), the Office (including payment of the (i) The rights owner’s name and the album title, and International Standard proper filing fee) have been met. The unique identifier assigned to the notice Recording Code (ISRC). fact that the Office has indexed a notice of noncommercial use by the Copyright (iv) The user may include additional is not a determination by the Office of Office. Additional contact information, optional information about the pre-1972 the notice’s validity or legal effect. including an email address, may be sound recording as permitted by the Indexing by the Copyright Office is optionally provided. Office’s form or instructions, such as the without prejudice to any party claiming (ii) A certification that the individual year of release. that the legal or formal requirements for submitting the opt-out notice has (v) A description of the proposed making a noncommercial use of a pre- appropriate authority to submit the noncommercial use, including a 1972 sound recording have not been notice and that all information summary of the project and its purpose, met, including before a court of submitted to the Office is true, accurate,

VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\05FEP1.SGM 05FEP1 1678 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules

and complete to the best of the DEPARTMENT OF VETERANS which pertains to chronic fatigue individual’s knowledge, information, AFFAIRS syndrome (CFS), and 38 CFR 4.88b, and belief, and is made in good faith. which pertains to the schedule of 38 CFR Part 4 (iii) Submission of an opt-out notice ratings for infectious diseases and immune disorders (we note that the does not constitute agreement by the RIN 2900–AQ43 proposed changes for § 4.88b exclude rights owner or the individual the schedule of ratings for nutritional submitting the opt-out notice that the Schedule for Rating Disabilities: Infectious Diseases, Immune deficiencies—diagnostic codes (DC) proposed use is in fact noncommercial. Disorders, and Nutritional Deficiencies 6313, 6314, and 6315). VA last updated The submitter may choose to comment the schedule of ratings in § 4.88b on July upon whether the rights owner agrees AGENCY: Department of Veterans Affairs. 31, 1996 (see 61 FR 39875) and updated that the proposed use is noncommercial ACTION: Proposed rule. § 4.88a on July 19, 1995 (see 60 FR use, but failure to do so does not 37012). constitute agreement that the proposed SUMMARY: The Department of Veterans VA proposes to: (1) Update the use is in fact noncommercial. Affairs (VA) proposes to amend the medical terminology and definition of section of the VA Schedule for Rating (3) Multiple rights owners. Where a certain infectious diseases and immune Disabilities (VASRD or Rating Schedule) disorders; (2) add medical conditions pre-1972 sound recording has multiple that addresses infectious diseases and rights owners, only one rights owner not currently in the Rating Schedule; (3) immune disorders. The purpose of these refine evaluation criteria based on needs to file an opt-out notice for changes is to incorporate medical medical advances that have occurred purposes of 17 U.S.C. 1401(c)(5). advances since the last revision, update since the last revision; and (4) (4) Effect of opting out. If a rights medical terminology, and clarify incorporate current understanding of owner files a timely opt-out notice evaluation criteria. The proposed rule functional changes associated with or under paragraph (e)(1) of this section, considers comments from experts and resulting from disease the user must wait one year before filing the public during a forum held from (pathophysiology). another notice of noncommercial use January 31 to February 1, 2011, on A panel of independent experts proposing the same or similar use of the revising this section of the VASRD. convened by the Institute of Medicine same pre-1972 sound recording(s). DATES: Comments must be received by (IOM) in February 2015 proposed an VA on or before April 8, 2019. updated set of diagnostic criteria for (5) Legal sufficiency. The Copyright ADDRESSES: Written comments may be infectious disease and immune Office does not review opt-out notices submitted through www.regulations.gov; disorders. This updated revision also submitted under paragraph (e)(1) of this by mail or hand-delivery to Director, included changing the name of CFS to section for legal sufficiency. The Regulation Policy and Management ‘‘Systemic Exertion Intolerance Disease Office’s review is limited to whether the (00REG), Department of Veterans (SEID)/Chronic fatigue Syndrome procedural requirements established by Affairs, 810 Vermont Ave. NW, Room (CFS).’’ the Office (including payment of the 1063B, Washington, DC 20420; or by fax VA has clear authority to make this proper filing fee) have been met. Rights to (202) 273–9026. (This is not a toll free regulatory change because of its broad owners are therefore cautioned to number.) Comments should indicate authority to ‘‘prescribe all rules and review and scrutinize opt-out notices to that they are submitted in response to regulations which are necessary or assure their legal sufficiency before ‘‘RIN 2900–AQ43—Schedule for Rating appropriate to carry out the laws submitting them to the Office. Disabilities: Infectious Diseases, administered by [VA] and are consistent with those laws.’’ 38 U.S.C. 501(a); see (6) Filing date. The date of filing of an Immune Disorders, and Nutritional also 38 U.S.C. 1155 (VA’s authority to opt-out notice is the date when a proper Deficiencies.’’ Copies of comments received will be available for public adopt and apply schedule for rating submission, including the prescribed disabilities). fee, is received in the Copyright Office. inspection in the Office of Regulation Policy and Management, Room 1063B, § 4.88a Chronic Fatigue Syndrome (7) Fee. The filing fee to submit an between the hours of 8 a.m. and 4:30 Currently, § 4.88a specifies older opt-out notice pursuant to this section is p.m., Monday through Friday (except diagnostic criteria for the diagnosis of prescribed in § 201.3(c). holidays). Please call (202) 461–4902 for CFS and uses outdated terminology to an appointment. (This is not a toll free (f) Fraudulent filings. If the Register refer to this complex disease. VA number.) In addition, during the becomes aware of abuse or fraudulent proposes to update the nomenclature for comment period, comments may be filings under this section by or from a this disease, which is also known as viewed online through the Federal certain filer or user, she shall have the systemic exertion intolerance disease Docket Management System (FDMS) at discretion to reject all submissions from (SEID) or myalgic encephalomyelitis www.Regulations.gov. that filer or user under this section for (ME), by changing the diagnostic code up to one year. FOR FURTHER INFORMATION CONTACT: name to ‘‘Systemic Exertion Intolerance Ioulia Vvedenskaya, M.D., M.B.A., Dated: January 30, 2019. Disease (SEID)/Chronic Fatigue Medical Officer, Part 4 VASRD Regan A. Smith, Syndrome (CFS).’’ This new name Regulations Staff (211C), Compensation captures a central characteristic of the General Counsel and Associate Register of Service, Veterans Benefits disease that reflects negative effects of Copyrights. Administration, Department of Veterans any exertion (physical, cognitive, or [FR Doc. 2019–00873 Filed 2–4–19; 8:45 am] Affairs, 810 Vermont Avenue NW, emotional) on patients’ many organ BILLING CODE 1410–30–P Washington, DC 20420, (202) 461–9700. systems. IOM (Institute of Medicine), (This is not a toll-free telephone Beyond Myalgic Encephalomyelitis/ number.) Chronic Fatigue Syndrome: Redefining SUPPLEMENTARY INFORMATION: As part of an Illness (2015), http://www.national its ongoing revision of the VASRD, VA academies.org/hmd/∼/media/Files/ proposes changes to 38 CFR 4.88a, Report%20Files/2015/

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