Motion for Stay Pending Appeal General Counsfj

Before the UNITED STATES COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, DC DRlr.lNAl

In the Matter of

Determination of Reasonable Rates Docket No. 2000-9 CARP and Terms For the Digital Performance DTRA 18:2 Of Sound Recordings and Creation of Ephemeral Phonorecords IMCEIJUvZDo

SP so Ãm MOTION FOR STAY PENDING APPEAL GENERAL COUNSFJ. OF COPYRIGHT

Live365.com, Inc.

John O. Jeffrey Executive Vice President Corp. Strategy and General Counsel

Elizabeth H. Rader Stanford Law School Center for Internet 8 Society 559 Nathan Abbott Way Stanford, CA 94305-8610 (650) 724-0517

September 27, 2002 TABLE OF CONTENTS

I. Introduction.

11. The Librarian Can And Should Grant A Stay For All Parties Bound By The Determination. To Preserve The Status Quo Pending Appeal. III. The Webcasters Will Prevail On The Merits Of Its D.C. Circuit Appeal ... A. The Rates in the Librarian's Final Rule Place Webcasting Out ofReach of All But Profitable, Commercial Entities and Therefore. Violates The First Amendment. B. Live365 Will Prevail On Appeal Because The Rates Chosen Frustrate The Statutory Purpose ofEliminating Transaction Costs To Facilitate and Encourage Webcasting of Copyrighted Works. C. Live365 Will Prevail Because The Librarian Acted In An Arbitrary Manner By Setting Rates Using The RIAA/Yahoo! Agreement As A Benchmark 13 D. Live365 Will Prevail On Appeal Because The Librarian Acted Arbitrarily By Accepting A Recommendation That Condoned The Panel's Ignoring The National Public Radio License...... 18 E. Live365 Will Prevail On Appeal Because The Librarian Acted Arbitrarily By Accepting A Recommendation That Condoned The Panel's Rejection of the Musical Works Benchmark.. 20 F. Live365 Will Prevail On Appeal Because The Librarian Acted Arbitrarily By Setting A Minimum Fee That Punishes Small Webcasters..... 21 IV. The Moving Party Will Be Irreparably Harmed Absent A Stay. 23 V. Many Other Entities Will Be Irreparably Harmed Absent A Stay. 25 A. College Webcasters Will Be Severely, Irreparably Harmed Absent a Stay...... 25 B. Recording Artists Whose Work Is Played On Internet Radio Will Be Severely, Irreparably Harmed Absent A Stay. .31 C. Companies That Benefit From Internet Radio Wil] Be Harmed Absent A Stay ...... 34 VI. Copyright Owners Will Not Be Harmed By A Stay And Most Will Benefit From The Survival Of Internet Radio.. .36 VII. The Public Interest Favors Granting A Stay .37 VIII. Conclusion 40 Before the UNITED STATES COPYRIGHT OFFICE LIBRARY OF CONGRESS Washington, DC

) In the Matter of ) Determination ofReasonable Rates ) Docket No. 2000-9 CARP DTRA and Terms For the Digital Performance ) DTRA 18;2 Of Sound Recordings and ) Creation ofEphemeral Phonorecords ) )

MOTION FOR STAY PENDING APPEAL

I. INTRODUCTION

Live365.corn, Inc. ("Live365"), seeks a stay of the Librarian's Final Rule and

Order ("Final Rule"), 67 Fed. Reg. 45240 (July 8, 2002), requiring statutory licensees to

make royalty payments, based on stated rates and minimum fees, on October 20, 2002

and monthly thereafter.

Live365 requests this stay for very simple reasons. One. without a stay, there will

be no webcasting "industry"—only a few companies that are able to finance the royalties

set by the Final Order through revenue generated by corporate activities other than

webcasting. The irreparable harm that will result without this stay is not speculative but

is already evidenced in the marketplace. Since the Final Rule was announced on July 8,

2002, scores ofInternet radio stations have fallen silent already. More fall silent every day.'bsent a stay pending appeal. on October 20. 2002. those left in the market will pay substantial sums to SoundExchange, that will put the smallest out ofbusiness and will threaten the viability ofthe most successful.

Two. Live365 is likely to succeed in its appeal filed with the D.C. Circuit. The rates set in the Final Order are arbitrary and capricious in light of the record, clearly frustrate the Congressional intent in establishing a compulsory license for sound recording performance royalties, and eliminate a new, but powerful, engine of fR:e expression for all but the wealthiest. thereby burdening the First Amendment's right of free speech.

Three, both the Copyright Office and Congress recognize that the current system for determining sound recording royalties is broken and intend to overhaul the system in the near future. As the Register of Copyrights stated in recent Congressional hearings.

"the CARP system is far from perfect.'ubstantive hearings have been held in both the

House and Senate." the Copyright Office has solicited suggestions fiom and held a meeting with legal practitioners in this field to obtain input for CARP reform and

i See httn::www.kurthanson.corn

SoundExchange is one of the agents charged with collecting webcasting royalties and distributing them to the copyright owners.

3 Statement of Marybeth Peters. Register of Copyrights. Before The Subcommittee on Courts, The internet and Intellectual Property ofthe House Committee on the Judiciary. 107'" Congress. June 13. 2002 (describing problems with CARP system and advocating significant reform measures). See also Statement ofCongressman Rick Boucher ("The CARP process is badly broken." "We must avoid a repeat of rulings like the most recent one. through which a one-size fits all approach was adopted. and small webcasters that measure annual revenues in the tens of thousands of dollars were saddled with royalty fees in the hundreds ofthousands.') 4 Copyright Royalties: Where is the Right Spot on the Dial for Webcasting. Before the Senate Committee on the Judiciary. 107' Congress. May 15. 2002: The Copyright Arbitration Royalty Panel Structure and Process. Before the House Subcommittee on Courts. the Internet and Intellectual Property. June ] 3. 2002. corrective legislation has been introduced.- It is clear that reform ofthis rate setting process is imminent and the Librarian should not extinpush an entire industry shortly before that reform takes place.

II. THE LIBRARIAN CAN AND SHOULD GRANT A STAY FOR ALL PARTIES BOUND BY THE DETERMINATION, TO PRESERVE THE STATUS QUO PENDING APPEAL.

Four factors bear on v hether the Librarian should grant a stay of the Order pending appeal: they are 1) the likelihood that the party seeking the stay v ill prevail on the merits ofthe appeal: 2) the likelihood that the moving party will be irreparably harmed absent a stay; 3) the prospect that others will be harmed if the court wants the stay; and 4) the public interest in granting the stay. While the Webcasters have a high probability ofprevailing on the pending appeal. for the reasons discussed below, it need only show that it has more than a mere possibility of success on the merits. Cuomo v.

U.S. Nuclear Reg. Comm 'n., 772 F.2d 972, 974 (D.C. Cir. 1985). A moving party need not show that it has a high probability of success, if the showing on other factors is strong. The overwhelming evidence that third parties and the public will suffer irreparable harm absent a stay also favors granting a stay. Copyright owners wiII suffer

See internet Radio Fairness Act. H.R. 5287 introduced by Congressmen Inslee. Boucher and Nethercutt on July 26. 2002.

See Order, Adjustment of Rates for the Satellite Carrier Compulsory License. Docket No. 96-3 CARP SRA, (November 14. 1997): Order Docket No. 2000-9 CARP DTRA 1 k2 (August 8. 2002). at 2. (Denying Motion of intercollegiate Broadcasting System inc. and Harvard Radio Broadcasting Company. inc.)

'ive365 was one party to the webcasting CARP proceeding. 67 Fed. Reg. At 45241 (Ju)y 8. 2002). On August 7. 2002. a group ofwebcasters including Live365 ("The IOMedia Group" ) filed a Notice of Appeal in the U.S. Court of Appeals for the D.C. Circuit. pursuant to 17 U.S.C. q~ 802(g)(2002). On September 9. 2002. the Librarian moved to dismiss the appeals of all the webcasters in the )OMedia Group except for Live365.corn. The Librarian's briefnotes that it does not seek dismissal of Live365's appeal, recognizing that Live365. as a CARP participant. has the right to seek review of the Final Order. Movant contends that the other parties to the IOMedia Group appeal also have standing to appeal the Final Order pursuant to 17 U.S.C. (l 802(g) because they are aggrieved parties who v ould be bound by the determination. Nothing in this Motion should be construed to concede that any other webcaster appel) ant lacks standing to appeal the Final Order. little, if any. harm from the stay and. indeed. have also appealed the Librarian's Final

Rule.

The purpose of a stay pending appeal is to preserve the status quo pending a final

determination ofthe merits of the appeal. I 'ashington Metro .Crea Transit Comm 'n. i.

Holiday Tours, Inc. 559 F.2d 841 (D.C. Cir. 1977). The Librarian's Final Rule sets rates

for a compulsory license that already has been exercised by thousands of webcasters since as early as 1998. As sho~n below, among the factors strongly favoring a stay are irreparable harm to webcasters that were unable to participate in the CARP, and irreparable harm to other third parties. such as recording artists. that directly benefit from webcasting. and indeed harm to the public. if a stay is not granted. Accordingly. a stay„ to preserve the status quo and avoid these harms, must apply to all entities subject to the

Librarian's Final Rule,

III. THE WESCASTERS WILL PREVAIL ON THE MERITS OF THEIR D.C. CIRCUIT APPEAL

A. The Rates in the Librarian's Final Rule Place Webcasting Out of Reach of All But Profitable, Commercial Entities and Therefore, Violates The First Amendment.

Webcasters are engaged in expressive activity protected by the First Amendment.

The Supreme Court has held that "[ejntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee." Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981). This is because "[wjhat is one man's amusement teaches another's doctrine." 8'inters i'. Nev )'orI.. 333 U.S. 507,

510 (1948). "[Tjhe right ofthe public to receive suitable access to social. political. esthetic, moral and other ideas and experiences..." is one of the purposes served by the First Amendment. Red Lion Broad. Co. i. FCC. 395 U.S. 367. at 390 (1969). The

Supreme Court has held that broadcasters are engaged in expressive activity protected by the First Amendment when they choose which works to broadcast. Turner Broad. S& s.

Inc. i. FCC. 512 U.S. 622. 636 ("[B]y exercising editorial discretion over vvhich stations or programs to include in its repertoire,'able programmers and operators 'seek to communicate messages on a vAde variety oftopics and in a wide variety of formats"')

(quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494 (1986)).

Webcasters exercise considerable editorial discretion over which works to include in their webcasts. For instance. Live365 webcasts the individual prop@ms of thousands of individual radio station creators. Declaration of John Jeffrey ("Jeffrey Decl.") at ~3.

Thousands of individuals have each individually spent many hours selecting music, creating and uploading sound files, arranging playtists and promoting their individual stations. Creating an internet radio station is, at its core, an act of pure self-expression, and one that can reach a worldwide audience. Our individual radio station creators use their own collections of music recordings, and often purchase new music, to create their stations. Most also write descriptions of their stations for a "station page" and write about themselves and how and why they chose specific music, on their personal

"broadcaster page." Many of the stations found on Live365 are as unique as the fingerprints of the people creating them and are each a unique expression of creativity via the selection and arrangement of the musical works and other audio content that they present. Id. at fl4. Some stations use Live365's live broadcast feature to provide live, on- site news reports. Through Live365, anyone can be a roving reporter, providing news coverage of events that are not covered by the professional media. Jd. at $5. Similarly. student disc jockeys get involved in college radio in order to express themselves by sharing music they love with listeners. Declaration ofWilliam C.

Robedee ("Robedee Decl.") at li8. Webcasters providing commentary on the songs being played as well as information and opinions. are engaging in speech at the core of the First

Amendment. These speakers illustrate and prove Justice Stevens'bservation that. using the Internet, "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages...the same individual can become a pamphleteer." Aeno v. A CLU, 521 U.S. 844. 870 (1997).

Webcasters are also serving the First Amendment putpose of giving the public access to a rich marketplace of musical "ideas and experiences." Internet radio stations play music that cannot be found anywhere else. Declaration ofJanis lan ("lan Decl.") at

)$9 and 15. See also Robedee Decl. at fl8; Declaration of Joel R. Wilier ("Wilier Decl,") at fI10, Jeffrey Decl. at fj3. Therefore, webcasters have a First Amendment interest in continuing to be able to engage in webcasting of sound recordings.

The royalties provided for in the Digital Millennium Copyright Act ("DMCA") for the compulsory license for webcasting sound recordings are a regulation affecting the people's access to webcasting. The specific royalty rates set out in the Librarian's Order therefore burden webcasters'nd would-be webcasters'peech, in order to further a government interest: prbviding compensation for copyright owners of sound recordings for the use oftheir copyrighted works and for the possibility that they will lose sales of

CDs and other media containing their copyrighted works.

The Librarian's Final Rule setting these compulsory royalty rates is subject to heightened First Amendment scrutiny. Those bound by the Librarian's Final Rule. both terrestrial broadcasters engaged in webcasting and web-only stations. are broadcasting

via the Internet. The Supreme Court has long made clear because "broadcasters are

engaged in a vital and independent form of communicative activit." the First

Amendment must be considered when Congress [exercises its] regulatory power over

them. F.C.C. i. League of 8'omen Voters, 468 U.S. 364. 377-78 (1984). When

regulations oftenestrial broadcasting have been held to survive First Amendment

scrutiny, it has been because "the thrust ofthese regulations has been to secure the

public's first amendment interest in receiving a balanced presentation ofviews on diverse

matters ofpublic concern." Id. at 380. The special factors recognized in some ofthe

Supreme Court's cases as justifying regulation of some broadcast media. such as

terrestrial radio and television, are not present in cyberspace and do not bear on the level

of First Amendment scrutiny that should be applied to the Internet. Reno, 521 U.S. at

868-870 (applying strict scrutiny to provisions ofthe Communications Decency Act and

striking them as unconstitutionally overbroad). "PV]hen Congress purports to abridge

the freedom of a new medium, we must be particularly attentive to its distinct attributes,

for 'differences in the characteristics ofnew media justify differences in the First

Amendment standards applied to them."'shcrof1. i. ACLU, 122 S. Ct. 1700, 1718

(2002) (concurring opinion ofJustice Kennedy). To survive First Amendment and Fifth

Amendment challenges in the D.C. Circuit, even broadcasting regulations that appear to

be content neutral, but have the effect of limiting lawful speech of a well-defined class of

broadcasters must satisfy "more than minimal scrutiny." P/ebs America Publ'g v. FCC,

844 F.2d 800, 812-13 (1988) (invalidating statute precluding certain waivers of cross ownership ofnewspaper/broadcast cross ownership as underinclusive). Here„ the DMCA and the Librarian's Final Rule appear to be content-neutral, but have the effect of

burdening. and in many cases silencing. stations that play independent and lesser-known

artists, local musicians. the cultural music of ethnic groups. and other narrow genres that

are not mainstream. The DMCA. as implemented by the Librarian's Final Rule. has the

effect of making the compulsory license only available to stations that play Top-40 and

other highly profitable. but narrow, formats.

Applying this "more than miininal" level ofFirst Amendment scrutiny. the

royalty rates in the Librarian's order burden speech much more than is necessary to achieve Congress's objective of fairly compensating copyright owners for the public's use of their works and risk of lost sales. Congress was concerned that even if digital copies were not perfect in 1998, webcasters might someday be able to stream perfect copies that would displace sales of licensed recordings. See S. Rep. No. 105-190„at 8.

This interest might be substantial in future CARPs, but it is insubstantial in this CARP proceeding. First, it is undisputed that webcasters today are not transmitting perfect copies but compressed, inferior reproductions that are no substitute for the perfect copies available on CDs. All streaming formats use "perceptual based coding" to compress digital files for streaming. This means that even at very hi+~ bit rates, the reproduced audio is never CD quality. Robedee Decl. at %12; Wilier Decl. at '~::12. The sound quality of the streams from Internet radio stations is lower than the sound quality of FM radio.

Jeffrey Decl. at $~8; Wilier Decl. at fi12. Second, it is at least difficult and in most cases impossible for the listener to "capture" the streamed data in order to store a poor copy of the recording played. Jeffrey Decl. at $8; Wilier Decl. at ]j8. Third, as discussed infra at

31-33, there is substantial evidence that webcasting results in increased, not decreased sales of CDs. Thus. rates that only the wealthiest webcasters can afford lack even a

rational relationship to the government interest of compensating copyright ov,vers.

Even if compensating owners for hypothetical lost record sales were a legitimate

or even substantial government interest. the rate adopted by the Librarian burdens far

more speech than is necessary to advance the government's interests. The rates chosen

will not only fail to promote the interest of compensating the owners at all but will

actually harm copyright owners ifthey foreclose the webcasting industry's ability to

generate any revenue stream at all. Today. webcasters pay a substantial amount in

royalties for the copyrighted compositions, just as terrestrial broadcasters do. Robedee

Decl. at gjl S„Wilier Decl. at Pj16. Lower royalty rates for streaming sound recordings would stiH produce an income stream sufficient to accomplish Congress's goal of

compensating copyright owners for the public's use of their copyrighted work. Indeed, a

lower rate would serve this goal better than would applying the Librarian's rates to webcasts by a decimated number of surviving Internet stations. Accordingly, the

Webcasters are likely to prevail on appeal and this factor weighs in favor of staying the

Order.

B. Live365 Will Prevail On Appeal Because The Rates Chosen Frustrate The Statutory Purpose of Eliminating Transaction Costs To Facilitate and Encourage Webcasting of Copyrighted Works.

The Court ofAppeals is authorized to modify or vacate the Librarian's decision if it finds, on the basis ofthe record before the Librarian, that the Librarian acted in an arbitrary manner. 17 U.S.C. g 802(g'). Live365 is likely to prevail on appeal because the

Librarian acted in an arbitrary manner in setting royalty rates that will curtail webcasting and the public's access to copyrighted works. The Librarian accepted the Panel's and

Register's interpretation and implementation of the phrase "rates and terms that would have been negotiated in the marketplace between a willing buyer and willing seller" failing to consider an important aspect ofthe problem it was solving. namely that an important purpose for the compulsory royalty was to enable and encourage webcasting.

An agency's interpretation of statutory language should be rejected if it frustrates

Congress's purpose. See, e.g., Motor l'ehicles Mfrs. Ass'n. of L.S. v. Rucl.elsltaus, 719

F.2d 1159, 1165 (D.C. Cir. 1983); Envtl. Def. Fund, Inc. t. EPA. 82 F.3d 451, 469 (D.C.

Cir. 1996) ("Because [a] literal reading ofthe statute would actually frustrate the congressional intent supporting it, we look to the [agency] for an interpretation of the statute more true to the Congress's purpose."). Compulsory licenses are designed to facilitate, not inhibit, the use of copyrighted works by eliminating prohibitive transaction costs that exist when the pool of rights is large. Compulsory copyright licenses protect the careful balance between what is set aside for the copyright owner and what is left in the public domain. They purposely diminish an intellectual property owner's rights by letting the public use something created by someone else. 8'hite v. Samsung Elecs.

America, Inc., 989 F.2d 1512, 1516 (9th Cir. 1993) (Kozinski. J. dissenting from order rejecting the suggestion for rehearing en banc of decision expanding celebrities'ight of publicity). This balance is "necessary to maintain a fice environment in which creative genius can flourish." Id. While compulsory licenses should be interpreted narrowly. they

Hat 'i Ass 'n. ofBroadcaster. v. Librarian, 146 F3d 907, 911 (DC. Cir. 1998) (Congress believed it would be impractical and burdensome to require every cable system to negotiate with every copyright owner whose work was transmitted); iVBC v. Copyright Royal(t Tribunal. 1848 F.2d 1289. 1291 (D.C. Cir. 1988) ("The purpose ofthis regulatory structure is to facilitate the exploitation of copyrighted materials by removing the prohibitive transaction costs that would attend direct negotiations between cable operators and copyright owners while at the same time assuring copyright owners compensation.") See also Heilman v. Bell. 583 F.2d 373. 376 (7'" Cir. 1978) (dual purposes of compulsorv license for recording conversations are to encourage creativity by ensuring benefits to composers and to avoid a monopoly whereby copyright owners could exclusively and indefinitely control who would record their copyrighted compositions); Copvright Law Revision. House Report No. 83. Committee on the 3udiciary. 90'" Cong.. 1" Session. 1967. at 66 (record companies argued that compulsory license for producing records must be retained because "performers need unhampered access to musical material on nondiscriminatory tertns" and the compulsory license was adopted in 1909 "as an deliberate antimonopoly condition on the grant of recording rights').

10 should not be applied in a way that frustrates Congress's purpose in creating the compulsorv license. CBS, inc. i. Printetinte "4 Joint l'enture. 245 F.3d 1217. 1220-1230

(11'" Cir. 2001) (compulsorv copyright license for retransmitting network television over cable intended to insure rural residents access to network prolpamoning).

Here. Congress enacted a compulsory license scheme rather than requiring webcasters to obtain voluntary licenses. See H.R. Rep. No-105-796 at 79 (1988). because "they wanted to create an efficient system that would allow a webcaster to obtain a single license covering public performance rights for all sound recordings." Joshua P.

Binder, Current Developments ofPublic Performance Rights for Sound Reco& dines

Transmitted Online: You Push Pla& . But 8%o Gets Paid?, 22 Loy. L.A. Ent. L. Rev. 1 at

19. Without compulsory licenses, most webcasting services could not exist, because

"webcasters would spend months and perhaps yeats negotiating content licenses with record labels and music publishers. The administration and transaction costs alone would absorb much of [theirj creative energy, and the delay and uncertainty ofwhether the licenses would be renewed would inhibit our ability to succeed at all." The Use of

1ntellectual Prop. Of the House Comm. On the Judiciary. 106'" Cong. (2000) (testimony of Charles P. Moore) available at http://www.house.gov/judiciary/moor0615.htm

Compulsory licenses assure any competitor the right to enter the webcasting field, which in turn helps consumers by giving them access to music genres that are not available on broadcast radio.

Webcasters need unhampered access, on nondiscriminatory terms, to sound recordings to stream. The last thing that Congress intended was for the compulsory

11 license fees and terms to make it impossible for webcasters to survive. The DPRA was

enacted to provide copyright owners with certain rights "without hampering the arrival of

new technologies." H.R. Rep. No. 104-274 at 14 (1995); S. Rep. No. 104-128 at 15

(1995). The DMCA was designed to enable new Internet distribution methods and

ensure that "the variety and quality of services on the Internet will continue to expand."

S. Rep. No. 105-190 at 2, 8 (1998). The Register completely ignored the purpose of

enacting a compulsory rather than voluntary license- to allow webcasters to obtain

licenses- by focusing on Congress's willing buyeriwilling seller language and stating that

"the Panel is not required to consider the potential failure ofthose businesses that cannot

compete in the marketplace." 67 Fed. Reg. at 45254. The result ofthe Register's failure

to consider Congress's intent, and of the Librarian's Final Rule, is to put webcasting out

of the reach of all but the wealthiest webcasters, or those that are part of large

corporations that can afford to lose money on webcasting if webcasting helps another

business unit to be more profitable. Robedee Decl. at $18, Wilier Decl. at /~26. This

means the public will have access to far less music, limited to genres and formats the

surviving webcasters find most profitable. Congress's compulsory license scheme has, in

effect, been rendered illusory. requiring the RIAA to license only the wealthiest

commercial stations. This tragedy is completely contrary to Congress's intent in enacting

a compulsory license. Live365 is therefore likely to succeed on the merits of its appeal,

which weighs in favor of granting the stay.

In the case relied upon by the Register, Nar '1. Cable Tel. Ass'n. v. Copriight Roy alrd Tribunal, 724 F.2d 176 (D.C. Cir. 1983) cable companies argued that the rate set by the Tribunal far exceeded the value of the signals to cable operators and that some distant signals therefore would not be carried. Jd. at 184. Nowhere does National Cable say that the gross majority of cable companies were likely to fail as a result of the rates or that the rates chosen would result in payments exceeding their gross revenues or that the Tribunal would have been justified in finding that such rates were fair market rates.

]2 C. Live365 Will Prevail Because The Librarian Acted In An Arbitrary Manner By Setting Rates Using The RIAA/Yahoo! Agreement As A Benchmark

The Register's recommendation is replete with references to the lack ofreliable

evidence in the record before the Panel. This paucity of evidence absurdly magnified the

weight ofthe single evidentiary item the Panel deemed reliable. the Yahoo! Agreement.

At least four problems are readily identifiable: The cost ofparticipating in the CARP.

which deprived the Panel ofneeded evidence. the lack ofwilling buyers and v illing

sellers in the real world. the lack of evidence acceptable to the Panel concerning factors

Congress instructed it to consider, and, most importantly. that Yahoo!, like the R1AA.

sought to set a high benchmark for per performance royalty rates, so as to ensure that

competitors'osts were prohibitively high.

The first problem was the extraordinary cost ofthe participation in the CARP

proceeding. Participants must pay the arbitrators'ees ($200-$400 /hr) out oftheir ovtx

pockets, and the cost of the arbitrators alone in the webcasting rate-setting proceeding

exceeded the annual budget of the old Copyright Royalty Tribunal in the last year of its

existence. There is no question that some interested parties could not afford the cost of

participating.'lthough many filed notices ofintent to participate (Declaration of

Eugenia L. Giuf5eda, Exh. D), only twelve webcasters fully participated in the

proceeding. Seven withdrew or were dismissed. 67 Fed. Reg. at 45241 and n.3. As a result, college stations that are not funded by CPB were simply not represented in the

CARP proceedings at all. Robedee Decl. at )116. The inability of many webcasters to

Statement of Marybeth Peters. Register of Copyrights Before The Subcommittee on Courts. The Internet and Intellectual Property of the House Committee on the Judiciary. 107'" Congress, June 13. 200". See ulso Robedee Decl at fjI6; Wilier Decl. at )gjI4. 15. 17: Jeffrey Decl. at $» 12-13.

13 participate undoubtedly deprived the CARP of useful evidence those webcasters could have presented had they been present.

The second problem was that there were few actual negotiations between the

RIAA and webcasters that the Panel could consider as evidence ofa willing buyeriwilling seller rate. The Panel and Remster recognized that there was little incentive for webcasters "to enter into negotiations for voluntary agreements, knowing they could continue to operate and wait for the CARP to establish the rate." 67 Fed. Reg. at 45245.

In short, there were no willing buyers. The Panel found that 25 ofthe 26 agreements offered by the RIAA were not eridence ofthe willing buyer/willing seller value of webcasting rights and "at best...establish an upper limit on the price of the digital performance right." Id. For example, the Panel "discounted any agreement that was not implemented, eliminated those [agreements] whet'he Service paid little or no royalties, or the Service went out ofbusiness, and evaluated the effect of a Service's immediate need for a license on the negotiated rate." Another agreement was rejected because the service, "OnAir" could not survive in the marketplace and did not renew the Agreement.

1d. The Register properly found that the Panel was not required to consider such agreements. Id. This left only one agreement offered by RIAA as evidence„ that with

Yahoo! This 26'" agreement should have been rejected as well, on the same grounds. It is undisputed that Yahoo! 'has not renewed the RIAA/Yahoo! agreement and has indeed changed its business model with respect to online music offerings. Yet instead this unrenewed agreement is the sole basis for the rates in the Librarian's Final Rule.

The Yahoo!/RIAA agreement should have been rejected as evidence along with the other 25 manufactured agreements. The Register recognized that RIAA's goal in

14 negotiating royalty agreements. pre-CARP, was to manufacture evidence of a market rate in the fledgling webcasting field. "RIAA recomuzed an opportunity to participate in this initial phase and moved forward to negotiate contracts with users with the intention of using those contracts to indicate what a willing buyer would pay in the marketplace." Id.

The Register also recognized that Yahoo! "wanted a negotiated agreement so that it could fully develop its business model based on certainty as to the costs of the use of the sound recordings." Id. at 45245. This is true. but what the Panel and Register failed to fully appreciate is that the "certainty as to costs" Yahoo! valued was not merely that as to its own costs. but. more importantly, the cost to the other webcasters. In that regard. R1AA and Yahoo! had a common goal and were not adversaries. The Panel and Register even noted that a most favored nation (MFN) clause was "primary" among the reasons Yahoo! was willing to accept "somewhat inflated royalty rates." Id. at 45251. But the Panel. the

Register and the Librarian somehow failed to draw the ineluctable conclusion that the very reason the MFN clause was important was to manufacture evidence for this CARP

(and perhaps future CARPs) and to set the "going rate" at a price webcasters could not possibly pay. Congress certainly never intended for a conspiratorial agreement like this to be the sole evidence considered in the CARP.

Yet another reason that the Yahoo! agreement was given wrong and disproportionate weight 'was that the Panel found it had insufficient evidence on two factors Congress expressly instructed it to consider. Under Sections 112(e)(4) and

114(f)(b) of Title 17. the panel was required to consider the effect of the use of sound recordings on the sale ofphonorecords and the relative contributions made by both industries in bringing these works to the public. instead, the Panel abdicated its

15 responsibility to evaluate those factors and conveniently found that both factors would be reflected in the willing buyeriwilling seHer analysis.

The Panel. after holding lengthy hearings, concluded that -the evidence offered

during the proceeding was insufhcient to demonstrate whether webcasting promoted or

displaced sound recordings"-one ofthe factors that Congress expressly directed the panel to consider in Sections 112(e)(4) and 114(f)(2)(B) of the Copyright Act., 67 Fed. Reg. at

45244. The CARP participants offered a study by Michael Fine of SoundData. illustrating the promotional value ofradio broadcasting. The panel rejected the

SoundData evidence, on the grounds that it concerned behavior in the analog rather than the digital world. Id. at 45244. This explanation runs counter to the evidence presented before the Panel. If it found it had no helpful evidence from the "digital world," the panel should have considered the next best evidence, competent survey evidence from the analogous broadcast music world. See Nal 7 Cable Tel. Ass 'n. v. Copyright Ro&&alrt

Tribunal, 724 F.2d 176, 186 (D.C. Cir. 1983) (when a tribunal has no more helpful evidence. it is proper to consider analogous marketplaces). With respect to broadcasters that simultaneously webcast their broadcast programming. it is undisputed —and axiomatic- that their web listeners are hearing exactly the same thing as their over-the-air listeners; they are simply using a computer rather than a radio to receive the transmissions. Because'the substance of such transmissions is identical whether they are broadcast over the air or via Internet, it was arbitrary not to consider evidence of the impact ofbroadcasting as strong evidence of the impact ofwebcasting."

Had all the interested parties been able to participate in the CARP process. the evidence would have shown that Internet radio transmissions do promote sales ofmusic recordings. Songwriter and recording artist 3anis lan receives numerous e-mails each month from listeners telling her they bought her CDs after they heard her songs on Internet radio. Ian Decl. at g I I. Recording artist Emilie Autumn also receives

16 Having determined. by discounting the SoundData survey. that there was no

reliable evidence in the record about the promotional value ofradio retransmissions. the

Panel abdicated its responsibility to evaluate that factor and conveniently found that it

would be reflected in the willing buyer/willing seller analysis. 67 Fed. Reg. at 45244.

Similarly, the Panel found that the other factor Congress ordered it to consider. the

relative contributions ofboth industries in bringing works to the public. was "factored

into the agreed upon price" in actual negotiated agreements. Id. The Register noted that

the testimony was that RIAA and Yahoo! did not, in fact. consider the promotional value

of webcasting when negotiating the Yahoo! agreement, but nevertheless accepted the

Panel's determination that the agreement was a suitable benchmark. 67 Fed.Reg. at

45252. Thus, the significance and evidentiary weight ofthe Yahoo/RIAA agreement was magnified many times, allowing the RIAA's machinations to frustrate the whole purpose

ofthe arbitration. Congress surely never intended for the CARP's consideration of effects ofwebcasting and the relative contributions of owners and usersthe'romotional to be limited to considering the "teflection" of such effects in a single, conspiratorial agreement between two corporate behemoths. As discussed above, that agreement should have been rejected along with the rest ofthe RIAA's tailor-made agreement

"evidence." Instead, it was became the lodestar of the CARP panel's finding and the

Librarian's resulting Order. This result cannot stand on appeal.

many fan letters that say, for example "I heard your song "Chambermaid" on Wolf-FM and I liked it and decided to buy the CD." Autumn Decl. at $7. Traitor Records'ales of CDs have tripled since they announced that Internet radio stations could use their recordings royalty-free. Jd. at 8-9. Many record labels and artists send free CDs to KXUL, a college radio and Internet station. seeking airplay on college radio to promote their recordings. See Wilier Decl. at $29 and Exh. 29 (emails from bands and labels). Such evidence illustrates how sadly the Panel was hog-tied by the inability of small webcasters —entities with access to some of the best evidence of the promotional value of webcasting to artists- to participate in the CARP process. While this evidence was not in the record before the panel. the Librarian can and should consider it in deciding this motion. in the interest ofjustice.

17 D. Live365 Will Prevail On Appeal Because The Librarian Acted Arbitrarily By Accepting A Recommendation That Condoned The Panel's Ignoring The National Public Radio License.

As just shown. there are many reasons that the Yahoo! license was no mote

reliable. and indeed less reliable, as evidence, than the 25 licenses the CARP discounted.

But before it ruled, the CARP did have access to one agreement between a willing buyer

and willing seller, for webcasting rights. which did not suffer 6om any ofthe defects

found in the agreements offered by the RIAA. Late in the proceeding, National Public

Radio ("NPR") reached a private settlement with R1AA and withdrew, prior to the

conclusion ofthe 180-day hearing period. 67 Fed. Reg. at 45241. The rates and terms of

the settlement are confidential, but "pursuant to joint request of the parties. on December

20, 2001„ the Panel issued an order to reopen the record for the limited purpose of

admitting into evidence the agreed-upon terms." Report ofthe CARP (interim Public

Version) at 17. After accepting the NPR agreement into the record, however, the CARP

seems to have utterly ignored it, even though "[fIirst the statute invites the CARP to

consider rates and terms negotiated in the marketplace" and "[s]econd„ the Panel

accepted the premise that the existence of actual marketplace agreements pertaining to

the same rights offers the best evidence of the going rate." 67 Fed. Reg. At 45247

(quoting CARP Report at 43). 1n light of the CARP's expressed conclusion that

voluntary agreements e'e the best evidence, it was arbitrary for the CARP not to even

consider the rates and terms in the NPR agreement.

The NPR agreement was relevant, even for the determination of rates for

commercial webcasters. as evidence ofwhat the RIAA, a willing seller to NPR, was willing to accept- from anyone. But the CARP's failure to consider —or even discuss- the

NPR agreement was particularly incomprehensible with regard to the determination of

18 rates for non-CPB Noncommercial Stations. NPR was one of only hvo representatives of

non-commercial stations participating in the CARP proceeding. 67 Fed. Reg. at 45258.

Among the parties that did participate in the CARP hearings. NPR is the party that has

most in common with college radio stations such as KTRU. Like NPR. CBI college

stations are non-commercial and have no revenues from broadcast advertising. Robedee

Decl. at fj17, Wilier Decl. at fi18. Thus. whatever NPR was willing to pay, as buyer, for

webcasting rights, is important evidence. ifnot the best possible evidence. available to

the CARP concerning what rates and terms a noncommercial willing buyer would agree

to. The NPR agreement is evidence, for example. that the RIAA would agree to I ) a

blanket license; 2) a different rate for noncommercial stations than for commercial

stations and 3) reduced record keeping requirements. Instead of considering the NPR

agreement, however„ the CARP and Librarian simply set the rate for noncommercial

stations at one third the rate for commercial stations. based on an earlier CARP panel's

methodology in the 1998 Noncommercial Educational Broadcasting Rate Adjustment

Proceeding. 67 Fed. Reg. at 45258.

An agency action is arbitraty when "it offers an explanation for its decision that

runs counter to the evidence presented before it." Motor I'ehi cle Mfrs. Ass 'n. v. State

Farm Mut. Auto. 1ns. Co., 463 U.S. 29, 43(1983); AirmarI& Corp. v. FAA, 758 F.2d 685,

691 (D.C. Cir. 1985). The Librarian's Order's setting a rate by accepting the Panel's methodology. notwithstanding the Panel's failure to consider the evidence before it counter to that decision, was arbitrary and cannot stand on appeal.

19 E. Live365 lA'ill Prevail On Appeal Because The Librarian Acted Arbitrarily By Accepting A Recommendation That Condoned The Panel "s Rejection of the Musical IVorks Benchmark.

The CARP Panel had no opinion on "the precise value of performance rights in sound recordings vis-a-vis musical works." CARP Report at 41. The Panel did,

however, observe that "the 'true relative value...is less important than the of that relative value." 1d. To music copyright lawyers, the copyrightparties'erception license for the right to perform musical works and the copyright license for the right to stream sound recordings are different and distinct creatures. and thus perhaps should be valued separately. But from the perspective of the webcaster- which is the perspective the

CARP was required to take in positing the likely behavior of a willing buyer- these two right are inextricably enmeshed. The would-be webcaster needs both licenses for each music recording it wants to stream. Neither license has value to the vvilling buyer without the other, because neither alone conveys the ability to legally webcast.

At bottom, the terrestrial radio broadcaster and the webcaster are bargaining for the ability lawfully to do the same act- play a recording and transmit it to as many distant listeners as choose to tune in. That the webcaster, under the DMCA, must obtain two separate licenses is secondary to the analysis. The primary question is, what will a willing buyer pay for all the rights needed to transmit musical recordings? Therefore„ the musical works model is not merely analogous- it shows the price a willing buyer and willing seller have agreed upon for the bundle of the rights necessary to do the same act, namely play a recording and transmit it to any distant listeners who have chosen to tune in. Only the la~ has changed to split that bundle, for webcasting, into two different and distinct property rights. Accordingly, the relevance of royalties paid for the use of musical works is far more than merely theoretical. Especially in light of the problems

20 with the methodology the panel chose to rely on- voluntary agreements- it was arbitran for the Librarian to salvage the CARP report when the Panel disregarded such a compelling benchmark. Webcasters are likely to prevail on appeal. and thus a stay is warranted.

F. Live365 Will Prevail On Appeal Because The Librarian Acted Arbitrarily By Setting A Minimum Fee That Punishes Small Webcasters.

That portion ofthe Librarian's Final Rule setting a $500 annual minimum pursuant to 17 U.S.C. (114(f)(2)(B)j is arbitrary and capricious because small stations, in paying the minimum fee and streaming relatively few "performances." will be paying many times the compulsory royalty rate the Librarian found to be the rate a willing buyer and willing seller would amee to. See Wilier Decl. at +20-22. Although the Librarian's detemunation establishes reduced performance fees for noncommercial educational stations'imulcast retransmissions, archived pro~mming, substituted programmin~ and limited side channel transmissions, it does not establish a minimum noncommercial fee distinct from the minimum fee applied to commercial entities. The illogical result makes the nominal noncommercial rate purely illusory, with most low-volume college webcasters paying per-performance royalties much higher than commercial entities. Id.

As it did in determining the rates, the Panel refused to use as a benchmark the minimum amounts that commercial and noncommercial entities pay to the performing rights organizations for performing musical works. Yet it offered no explanation ofwhy the performing rights organizations would agree to lower rates than R1AA, if the minimum fees are mainly intended to cover the rights owners'dministrative costs. 1his lack of explanation is grounds for the appellate court to vacate the Librarian's Final Rule as to the minimum fees.

21 Like the royalty rates. the $500 minimum amount was derived from negotiated

agreements between the RIAA and commercial webcasters. 67 Fed. Reg. at 45262-63.

The Panel chose the lowest minimum fee RIAA had arced to with a webcaster before

the CARP convened. The Panel used one of the very agreements. offered by RL&4.. that

it had deemed unreliable for purposes ofdetermining the royalty rates. In the willing

buyer and willing seller analysis. "the panel determined that RIAA would not have

negotiated a minimum fee that failed to cover at least its administrative costs and the

value of access to all the works up to the minimum fee." But as shown in kXUL General

Manager Joel Wilier's calculations. the minimum fees produce a ridiculous windfall for

the copyright owners when applied to most college stations. See Wilier Decl. at ',~~ 20-

22. It is not sutprising a seller would be willing to accept a $500 minimum in light of

these figures. But what ofbuyers? The Panel's only consideration ofthe perspective of the willing buyer with regard to the minimum fees was that "it assumed than an entity would not agree to a minimum rate that would result in a loss." 67 Fed. Reg. at 45263. Internet This is a clearly capricious assumption with respect to noncommercial stations, which regularly agree to terms that result in a loss. It does not follow, from an agreement acceptable to an entrepreneurial start-up company, that a noncommercial webcaster would willingly pay $500 per year in order to undertake some small-scale webcasting for educational purposes or pure self-expression.

The Panel's use of a single agreement as a benchmark for a minimum fee for commercial webcasters was also arbitrary. There was no evidence that the webcaster that agreed to a $500 minimum was representative of willing buyers. Commercial webcasters sizes, business models and other characteristics vary enormously from start-ups with few

22 listeners to webcasters with many thousands of listeners. As with the royalty rates. a

single ameement was arbitrarily chosen as the benchmark because the record was

inadequate because so few interested parties could participate. As Congressmen Boucher

observed, this "one size fits all approach" is the result of a "broken" CARP. See supra

n.3. Live365 is therefore likely to prevail on appeal and a stay should be panted to

preserve the status quo.

IV. THE MOVING PARTY WILL BE IRREPARABLY HARMED ABSENT A STAY.

Live365 is an Internet radio network offering listeners access to tens of thousands

ofindividual Internet radio stations, offering what is believed to be the widest breadth of

audio content available in the world. Jeffrey Decl. at f3. To individuals, Live365 offers

the ability to set up an Internet radio station with no more resources than a home

computer. a collection of CDs and an Internet connection. Id. at f',2. Over 90'/0 of the

Internet Radio Stations on Live365 stream music. Live365 also offers Professional

Broadcasting services. Some of its commercial customers are broadcast radio stations

that want to webcast their broadcast programs. Most ofthese are streaming music. In

addition to providing Internet-only radio, Live365 provides services to college, non-profit

and commercial radio stations, permitting them to simulcast their terrestrial signals or provide alternative programming to their terrestrial broadcast consumers via the Internet.

Jeffrey Decl. at ft 6.

Other professional broadcasting customers are companies that use streaming audio to transmit corporate addresses, training, meetings or speeches. Some of Live365's most popular sites are churches that use Live365 to stream religious programs. music or weekly services. Children's and school's sports leagues also use Live365 to broadcast

23 sporting events. Id. at ~7. Live365 earns revenue by aggregating all this individual

programming, and selling advertising. as well as broadcasting and listening subscriptions.

on the Live365.corn website. Id. at ~~i10. Many advertisers are likely waiting to see

whether Live365 can keep offering the kind of content they want and whether its business

model and the entire webcasting industry is ~~able. Id. at ~~16. The harm to Live365. if

the Librarian s order is not stayed. will be severe. Because Live365 is literally the

webcaster that is responsible for all its individual programmers'ransmissions. on

October 20, 2002. Live365 will be paying royalties on approximately 1.4 billion sound

recording performances. That means it will be paying in excess ofone million US dollars

for back royalties alone. Id. at $14. This exorbitant royalty threatens to put Live365 out

ofbusiness. The royalties mandated by the Librarian's order will increase its operating costs by more than $ 100,000 a month, based on its current levels ofperformance. 1ts investors have put millions of dollars into the company, with the expectation that internet radio would be allowed to grow. This high royalty was not contemplated since there is no basis for this royalty scheme in comparison to any other performing rights organization. The unintended consequence ofthe royalty rate ruling is to choke all independent webcasters or those not affiliated with the funding from large media conglomerates. Although Live365 is a privately held entity, its shareholders (including many who are employees and have spent years ofefforts building this company and this industry), its founders and investment groups. will be significantly hammed if this prohibitive royalty rate stands. For example. Live365 will be required to pay over 90'/o of its revenue for July 2002 for royalties alone. Id. at f 20. lfthe royalty rates remain unchanged it is difficult to calculate how Live365 will ever be able to achieve

24 profitability without charing listeners to access the content available on Live365.corn.

The company in its fifth year, after having built the most listened to Internet radio s~ice

in the world and having invested millions ofdollars on building the infrastructure to

deliver it. is still losing money every month and will continue to lose money for the

foreseeable future, with the most significant cost relating to the licensing of music. 1d. at

f 11. In addition to the harm to Live365 itself, there will be severe harm to Live365's

commercial customers absent a stay. While Live365 will pav the rovalties for

transmissions by the individual programmers using its services, its commercial customers

will owe at least the minimum fees of $500 per year. retroactive to 1998 and many v ill

owe more than that. 1d. at 'i[I 5. The credibility ofthe entire Internet radio network

industty is in the balance. Id. at~16. A stay, pending appeal, is warranted to avoid

severe and irreparable harm to Live365.

V. MANY OTHER ENTITIKS WILL BK IRREPARABLY HARMED ABSENT A STAY'.

College Webcasters Will Be Severely, Irreparably Harmed Absent a Stay.

Webcasting has, up until now, been a boon for college broadcasters. KTRU, Rice

University's radio and Internet station„and KXUL, University of Louisiana's radio and

internet station, are examples of college stations that have benefited enormously from

webcasting and will be harmed by the Librarian's Order. In addition to giving students a

forum in which to express themselves, as discussed above, they provide means for

students to access a radio station in a traditional setting and to use the technologies

tc Movant recognizes that harm to third parties from a stay is not one of the four stated factors in the test for granting a stay. inherent in the Court's power to balance the equities. however. is the ability to consider the totality of the circumstances. The Court may also consider these facts as bearing on the fourth factor, the interest ofthe public.

25 available today in the industry. Students leam many skills by operating a radio station.

Webcasting o8'ers students a v hole new set of tools to use to reach an audience.

Learning to develop and implement those tools is a great educational experience for the students. Robedee Decl. at ',.5. Students must have exposure to the use of new

technologies to gain a thorough~ understanding ofmediated communication. gained as the result of KXUL radio's Internet presence and the station'sStudents'xperience streamed audio programming is therefore a vital part of the students'omplete education.

Wilier Decl. at '~l9.

Webcasting allows KTRU to better pursue its mission and extend its reach beyond the local area, to further expose genres and artists to a wider audience. It allows students to reach many more listeners. and over a much wider geoyaphic area than they can reach with KTRU's FM signal. Robedee Decl. at fi9. Likewise. KXUL's Internet outreach makes the radio station's programming available to a worldwide audience that would not otherwise be able to experience the messages communicated by its students. KXUL has received numerous communications from listeners throughout this country, and has logged listening sessions from 53 nations outside of the United States. Wilier Decl. at ]l9.

KXUL views the use of digital technology to retransmit the programming ofnon- commercial radio stations as a natural extension of these stations'istorical service.

Noncommercial educational radio stations traditionally strive to program to otherwise underserved audiences with content not typically provided by their conunercial counterparts. The further distribution of educational and cultural programming via the

Internet allows noncommercial radio stations to effectively extend their public service to a geographically diverse audience. The Internet removes the physical boundaries

26 imposed by an educational radio station s terrestrial radio frequency transmission.

allowing a greater audience to experience each noncommercial station's pro@amming.

The Internet began. in part. to support education: the continuing use of the Internet by

noncommercial educational radio stations respects that tradition. Wilier Decl. at '.;10.

For some schools, webcasting is the only viable way to reach an audience of any

size, due to limited broadcast spectrum or fiscal constraints. Low power FM. cable

FM/TV. legal and unlicensed AM, and cafeteria public address broadcast systems all

have extremely limited audience potential. a problem solved perfectly by webcasting.

Robedee Decl. at f'5. For a new station. start-up costs for other means of transmitting are

much higher than those for webcasting. Webcasting also allows for a second station

where. for example, a college wants to have both an NPR station and a student station. or

where a college lacks the resources or the spectrum for a second FM station. Robedee

Decl. at f!6.

Most CBI member college radio stations, unlike public radio stations funded by

CPB, have to pay their operating costs from student fees or from their meager academic

budgets. Robedee Decl. at $13; Wilier Decl. at ~5. According to lntercolley'ate

Broadcast System ("IBS") surveys, the average college station budget is about $9,000.

Id. Historically. noncommercial radio stations have always paid copyright royalties to the performing rights organizations in the form ofa reasonable flat fee. while commercial stations have paid on a percentage ofrevenue basis. This has enabled college stations to operate on fixed budgets and avoided penalizing them if they succeed in reaching a wider audience. Robedee Decl. at $)I5. KTRU can afford to pay the back royalties due October

20. But going forward, KTRU may not be able to pay both the royalties. especially as its

27 audience increases. KTRU's audience has been doubling every ten months. as more

people get high speed lntemet connections and listeners discover KTRU through

"surfing" and promotion. Robedee Decl. at ~18. The fees, combined with the reporting

requirements. are also likely to force KXUL to cease its lntemet service. Killer Decl. at

~(26

As discussed above. college broadcasters are particularly harmed by the

Librarian's decision to set a minimum fee of $500 even for noncommercial webcasters.

As a result ofthe minimum fees, most low-volume college webcasters v ill be paying per-

performance royalties much higher than commercial entities. Wilier Decl. at '«',20-2".

For example, the University of Louisiana at Monroe operates a radio station. KXUL.

KXUL's nominal royalty for the 2001 calendar year, the station's peak listening period,

totals $ 105.78. Because KXUL will be required to disburse the minimum fee. the station will pay an effective per-performance rate for 2001 of0.09381'. or 469". o of the nominal noncommercial rate and 134'/G of the nominal commercial rate.

Unless the court grants necessary and justified relief, on October 20, 2002 college radio station KXUL will have to make payments for all past performances between

October 28, 1998 and August 31, 2002. N. at $22. Because ofthe effect ofthe minimum fee, the amount ofthat payment will evidently have to be $2,500.00. although KXUL's performance and ephem'eral copy royalties for the period total only $214.86. Id.

Another reason that college stations will be harmed is that under the sound recording performance rate determination adopted by the Librarian. the amount sound recording royalties will.be based on the number of "performances," which the determination defines as, "each instance in which any portion of a sound recording is

28 publicly performed to a listener via a Web Site transmission or retransmission." 67 Fed.

Reg. at 45273. However. webcasters like KXUL can technologically only measure

Internet streaming connections, not listeners. Wilier Decl. at & 23. For each and every month spanning the past two years KXUL has experienced one or more streaming

sessions extending for at least 24 hours. and many of these lasted for days on end. Id. at

~t,24. The record generated by KXUL proves the flaw of any royalty rate tied to unverifiable "performances" in this new technoloycal frontier. Other webcasters presumably suffer from the same phenomenon. Especially for lov -volume streaming services like many college radio stations, though, just a fev'uch marathon connections each month — these clearly are not ~listeoin sessions — dramatically and unfairly skew the

"performance" statistics in favor of the copyright owners.

The royalty rates and minimum fees are especially prohibitive in light of the extra costs that stations also v ill have to incur to comply with the record keeping requirements, as described in the Copyright Office's Notice of Proposed Rulemaking dated February 1,

2002. The cost of complying with these requirements would far exceed the fees

themselves at most college stations. Robedee Decl. at 'tP'9-20 . Even if there were a technological solution. it would be prohibitively expensive for college stations to purchase it. Id. at 21.

CBI's William Robedee started the Save Our Streams grassroots campaign and set up a website at www.rice.edu/cb/sos in order to track the issue of the nev webcasting regulations„royalties and fees being promulgated under the DMCA and also to track the resulting impact on college radio stations. He received about 1400 e-mails in support of

CBI's position paper, a small sample of which are provided for the Librarian's

29 consideration. Robedee Decl. at ~ 26 and Exh. B. The impact of CARP report and the

Librarian's order has already been devastating. Robedee has personally confirmed that

70 stations have already stopped webcasting. and has heard from credible sources that

many more have also stopped. Robedee Decl. at ~~ 23-24 (listing casualties). Some of

the most severely harmed college stations are those for which webcasting is the only

means of"broadcasting" such as UCLA-Radio, which has stopped streaming as result of

the Librarian's Order. Students at UCLA are losing their forum for free expression and

the opportunities offered by an educational station each and every day. If UCLA-Radio

is to explore other means of reaching an audience, it will expend considerable time. effort

and funds, and ultimately will reach a much smaller audience than it could through

webcasting. Id. at $ 7. Radio enthusiasts at other colleges, such as the University of

Texas at Dallas. had plans to start webcasting, but reluctantly suspended these when they

learned ofthe Panel's decision. because they cannot afford to webcast under the rates and

fees in the Librarian's Order. Id. at $ 25.

RIAA will not even negotiate with college broadcasters about royalty rates or record keeping at this time. Wilier Decl. at '~30; Robedee Decl. at ~~;28. Even if college stations are ultimately able to reach an agreement with RIAA, time will have passed and the harm to current students and the public will be irreparable. Robedee Decl. at fj28.

Similarly, even if legislat'ion is passed to exempt college stations from the per- performance royalties, however, an entire semester or more will likely have passed.

Those semesters will be gone forever. so the hami to current students who want to participate in webcasting, at colleges whose stations have ceased webcasting. never

30 started to webcast or have any kind of radio station at all. will be irreparable. 1d. at ~27.

The harm to college broadcasters and their listeners alone would justify wanting a stay.

B. Recording Artists Whose Work ls Played On Internet Radio Will Be Severely, Irreparably Harmed Absent A Stay.

Ifthe vast majority of Internet radio stations close their doors because they are

unable to pay the webcasting royalties and fees. and only those that are financed by huge

conglomerate or those that are instantly commercially profitable survive. musicians such

as multiple Grammy winner Janis lan will suffer severe and irreparable harm. Ian Decl.

Commercial terrestrial radio stations are locked into strict genres with narrow

playlists. The narrowing of commercial broadcast radio playlists is something that record

companies strive for, to allow them to control what consumers hear and want to buy.

Record companies make much more money selling millions of copies ofthe same CD

than by selling the same number of CDs divided among many different recordings and

artist. lan Decl. at 'f, 6. Record companies are wary of Internet radio precisely because

the variety of difFerent music heard on Internet radio leads to unpredictable consumer buying behavior. Autumn Decl. at $5.

The result is that the vast majority ofrecording artists do not get played on terrestrial radio. As an artist, if your music is not mainstream. and a big record company is not promoting you as one of its hot artists, your songs will not get played. lan Decl. at fj 7. Janis lan's songs are simply not played anymore on commercial terrestrial radio except on oldies stations. Oldies stations have a limited audience, which does not include many younger listeners, and they will not play her new songs. Ian Decl. at '~j8. The only place most oflan's songs can be heard is on Internet radio. Id. at 'J9. Similarly, 22 year-

31 uiu iania~x rue~ ~»i rniiee .~uiuim» recuruin» iecai c nine. u ani. aiipiai on

commercial terrestrial radio. Autumn Decl. at ~ 6.

Student-operated stations. particularly, tend to program music to an audience-

namely college students, teenagers and young adults —that is likely to purchase music

recordings. Exposure to music recordings drives music sales. so educational and college

stations help the artists whose recordings they play. This is especially true of local

music, which gets little. if any. exposute anywhere else. Robedee Decl. at fjl l. Many

artists who cannot sign with a record label, or who want more independence, go the do-it- yourselfroute, paying for their own recording time. arranging and paying for their own manufacturing, and doing all their own promotion and distribution. Internet radio gives these hardworking artists a chance. Ian Decl. at $12. Emilie Autumn is an example of such an artist. Autumn founded Traitor Records, an independent label, for the purpose of releasing her classical and fantasy rock albums without having to answer to major label record company executives. Autumn Decl. at $3. Traitor Records offers its entire catalog of recordings to webcasters, royalty-free. Autumn has confirmed that 237 different Internet radio stations are now playing and streaming these recordings.

There is ample evidence that airplay on Internet radio results in sales of CDs.

Emilie Autumn receives many fan letters &om listeners who say they heard one ofher songs on an Internet radio station and liked it and decided to buy the CD. Id. at $7.

Traitor Records'ales have tripled since they started the Internet radio campaign. They have also seen an increase in orders from Ireland, Scotland. the United Kingdom,

Australia and other countries where they have made no special efforts to promote their music. If Internet radio stations fall silent, Autumn will lose all these sales. Id. at $9.

32 Jdnl& idli dIBO recell 5& nuITlerOub e-llliilis edcll InOnui ITOITI ilslenerS leillng nel Ines bought her CDs after they heard her songs on Internet radio. If most Internet radio

stations„especially the college. nonprofit and start-up stations. are forced to stop

streaming because they cannot afford to pay the webcasting royalties and minimum fees. this will directly reduce sales of her CDs and drastically reduce ticket sales at her concerts. Ian Decl. at &11.

One reason internet radio helps create sales of CDs is that v ebcasters provide more announcements identifying the artists being played than commercial broadcast radio announcers do. Jd. at ~10. Allowing American internet stations to go silent would severely curtail American artists'bility to reach an international audience. As lan makes approximatelv 40-45'~o of her living from international sources. as do many other artists, silencing lntemet radio would have a disastrous effect on their livelihoods. Jd. at

$ 13.

On the other hand, individual artists do not stand to gain very much from collection of webcasting royalties. KXUL's joel Wilier performed an analysis ofhow much KXUL will pay in royalties for any one recording over a year. Based on a random week's data. the average title played by KXUL is played 1.17 times a day. Comparing this number to the total number of daily performances, using the Librarian's estimation method, shows that the 'average song represents 0.406'/0 of KXVL's airplay. Without accounting for administrative costs deducted by SoundExchange, the average song aired on KXUL would generate only $2.03 annually irI royalties for the sound recording. even though KXUL's royalty payment will have been magnified significantly by the effect of the $500.00 minimum fee. Of that, SL02 would be distributed to the recording label. WU.9i to tne ieaturea artist. ana SU.i u conectiveti io inc non-leatureu musicians on tne recording. In reality, these figures would each be reduced by the amount kept by

SoundExchange for administrative costs.' Estimating that there are 500 college webcasters nationwide. the featured artist would collect just $456.75 annually for the average recording receiving college radio airplay. The non-featured musicians would receive $50.75 collectively for each such recording. These estimates must be adjusted downward to reflect that 1) college radio playlists are generally even more diverse than

KXUL's playlist: 2) stations paying the minimum annual fee rather than the actual royalty liability inflate the total; 3) actual royalties distributed will be reduced by

SoundExchange administrative costs and 4) some records„unlike the average. receive only a few spins on a station or stations. Many record labels give KXUL free sound recordings to encourage students to play them. Wilier Decl. at ~ 29 and Exh. 2 (emails from bands and labels). This suggests that the value ofpromotion from airplay on a college radio station is worth more to the average record label and artist than a trifling

$2.03 in royalties. In short, the Librarian's Order. ifnot stayed, will cause irreparable harm to recording artists.

C. Companies That Benefit From Internet Radio Will Be Harmed Absent A Stay.

Many technology businesses benefit from Internet radio because it is compelling reason for consumers to purchase their products or services. XSVoice, for example, is a technology company that has developed a platform which enables mobile access to virtually any type oflive and on-demand media content. including Internet based streaming audio, radio, television or other audio source. They license the platform

These costs could be enormous, especially if they include legal fees expended in the CARP proceedings and related costs. leaving very little for the recording artists. See Jeffrey Decl. at ",, 13.

34 untie» priniariis tu v cornea iii e isexiei anu cinguar. was wen as to intro-pam'ervice providers that wish to add edgeless streaming audio to their service offerings.

Declaration of Tim Coble ("Coble Decl.") at ~ 2. XSVoice also offers a direct-to-

consumer live audio service that allows wireless listeners to use their existing v ~less devices to listen to a wide variety of audio content. Their network currently offers more than forty music-based audio streams from 26 Internet radio stations including %olf-FM.

Virgin Radio and Radioio, with additional stations being added on a regular basis. Id. at

~ 3. XSVoice's business plan assumes the existence oflarge numbers of Internet radio stations, offering a wide variety ofdifferent kinds of music. If these go away. it will have a severe impact on their ability to attract new users and their ability to motivate existing users to continue using its service. IfXSVoice lost aH its music listeners. that loss could decrease the number of streams they broadcast by as much as 65%. That. in turn„would make its offering much less attractive to both wireless carriers and the advertisers upon which the company depends for the majority ofits revenues. Jd. at ',I 11.

The availability ofInternet radio via wireless devices creates a significant value proposition for the wireless industry, because it increases the functionality ofwireless devices. creating more value for the customer and increased revenues for wireless service providers. Add headphones to your cellular phone or PDA and it works much like a portable radio—but with more stations. A number of wireless service resellers use this functionality as a selling point with customers. 1d. at f 5. The next generation of wireless networks and devices are expected to become widely available in the U.S. within the next two to five years. Device companies have invested tens ofbillions of dollars in purchasing wireless spectrum licenses, infrastructure building and device development. ii comumer~ cannot get a v iue range oi muscat content on tne internet. tney Nitt nave

less of an incentive to upgrade their current wireless devices and service plans. All

wireless carriers will face even greater obstacles to encouraging consumer adoption of

these technologies and. subsequently. recouping their development costs. if they cannot

offer access. through ax~less devices, to compelling multimedia offerings such as

Internet radio. Id. at ~: 8. In sum. XSVoice and other services that benefit from the

existence of a large and diverse body of Internet radio stations will suffer great harm as a

result ofthe Librarian's Order if it is not stayed pending appeal. Id. at & 12.

VI. COPYRIGHT OWNERS WILL NOT BE HARMED BY A STAY AND MOST WILL BENEFIT FROM THE SURVIVAL OF INTERNET RADIO.

In the unlikely event that the Webcasters do not prevail on appeal. the only harm

to owners and SoundExchange will be a short delay. The performances webcasters have

made already between 1 998 and August 2002, pursuant to the compulsory license, are a

finite number. The royalties for these licensed performances. therefore, have already accrued. It is the amount to be paid for these licensed performances that is in dispute.

The passage oftime while the duty to pay royalties is stayed, therefore, cannot affect the amount that will ultimately be due to copyright owners when all the appeals are exhausted. The additional time that owners will have to wait before receiving payments is a minimal inconvenience, compared to the harm that webcasters will suffer by calculating and paying royalties at a rate that will later be found to have been too high, if webcasters prevail. If, however, copyright owners are found. on appeal. to be entitled to royalties and fees at the rates and terms set out in the Librarian's order. they can be compensated for the delay in collecting payments by assessing reasonable post-judgment interest.

36 In some cases. because some webcasters simply do not have the resources to pay

fees and rovalties retroactive to 1998. the harm to owners from a stav is illusorv. Thev

are never going to be paid anyway. or will be paid pennies on the dollar. because these

payers will be bankrupt. Indeed. copyright owners'nly hope of collecting from some

webcasters that have already streamed many performances pursuant to the compulsory

license is that these webcasters stay in business. Thus, the potential harm to the owners is

minimal and does not weigh heavily against granting a stay.

Indeed. many copyriP&t owners will actually benefit from a stay, As discussed

above, for recording artists and labels whose sound recordings are played on Internet

radio but not on terrestrial radio, the Librarian"s Final Rule will kill the goose that laid

the golden egg. Accordingly. a stay will not cause any net harm to these artists but will

give them a net benefit. While they will lose the right to immediately collect

performance royalties, they will continue to receive airplay on Internet radio. which helps

them reach an audience. sell concert tickets and sell CDs. This free radio promotion is

worth much more to Janis lan, for example, than the webcasting royalties she could

collect from the few Internet radio stations that will be able to keep streaming without a stay. lan Decl. at $ 10. The potential royalties from webcasting would be a trivial source of income for most artists. not worth the loss of exposure to a worldwide audience that would result from the Iritemet radio stations ceasing to webcast. Autumn Decl. at f', 12;

Wilier Decl. at ~4~,27-29.

Vll. THE PUBLIC INTEREST FAVORS GRANTING A STAY

"[T]he primary [objective] in conferring the [copyright] monopo!y... [is] the general benefits derived by the public from the labors of authors." 20"'entum~ Music

37 Corp. i. Ail.en. 422 U.S. 151. 156 (1975). Granting a stay is in the interest of the public.

because the public vrill continue to enjoy access to the widest variety of musical works

via the Internet. as Congress intended. As Justice Kennedy wrote in Turner

Broadcasting:

[A]ssuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment. Indeed. "it has long been a basic tenet of national communications policy that "the widest possible dissemination of information &om diverse and antagonistic sources is essential to the welfare of the public."

512 U.S. at 663 (quoting United States v. Midwest Video Corp., 406 U.S. 649, 668 n.27

(1972) (quoting Associated Press v. United States. 326 U.S. 1, 20 (1945) at 20)).

In this regard, Internet radio fills a need that is simply not being met by terrestrial

radio for many music listeners. Live365, for example, offers a wide variety of audio

content. Listeners can find literally every kind ofmusic on the Live365 website,

including bluegrass, reggae, R&B, hip hop, Christian, Funk, new age, jazz, elevator, folk,

country & western, Irish, swing, Latin. Arabic, Salsa, Nigerian, Hawaiian. Gospel, Goth

and many, many other genres ofmusic. Jeffrey Decl. at f3. Although almost any

individual audio webcaster on the Live365 network has only a small number of listeners,

together all these little voices reach more many listeners than any competing networks

repurposing conglomerate owned terrestrial radio stations. Id. at '~19. Without a stay,

these listeners will not be able to readily find new unusual and rare audio material and

will lose the opportunity to discover new kinds ofmusic ofwhich they might not

otherwise have been aware. Id. at fj18. College radio offers similar diversity. For example. on Rice University's KTRU, one can hear independent artists'op songs back to back with African tribal drum music. Some students'hows spotlight local Houston

38 musicians. Some other genres heard on KTRU are world music. experimental music. and blues. Robedee Decl. at ~!8.

Listeners have almost no other means ofhearing new music that is not on commercial radio and discovering genres of music that are not mainstream. but could greatly enrich their lives. Autumn Decl. at ~13. Many thousands of listeners have sent faxes to their elected representatives in Congress, urging them to take action to save

Internet radio. College broadcasters'ill Robedee has received numerous e-mails &om listeners around the country and around the world. expressing support of saving college webcasting &om the harm wrought by the CARP. Many ofthese listeners say they have no other access to certain kinds of music. Others are housebound and use Internet radio as their link to the outside world. Still others use Internet radio to hear their far away loved ones who are student disk jockeys. Additionally, US troops stationed abroad have expressed concern at losing one of their ties to home. All of these listeners, and others like them, are suffering and will continue to suffer as a result of the rates and fees mandated in the Librarian's Order. Robedee Decl. at fj26 and Exh. C. KTRU via the

Internet also serves as a tie to home for the many Rice students who study abroad, and for alumni, parents and relatives of Rice students who live outside KTRU's broadcast area.

Robedee Decl.at $ 9.

Since the Librarian's order was announced, so many American webcasters have stopped streaming that America has fallen behind in the numbers of Internet radio stations. See, e.g., 8'ebcustingFee Crisis Decimutes Jniernet Rudio, Media Daily News.

Sept. 23, 2002, available at htto:/iia~~m.mediagost.comidtls dsn news.cfm?newsid=182815. On October 20, 2002„

39 absent a stay, a si~ficant segment of domestic industry will disappear, y'elding the webcasting field to foreign interests. Because of the nature of the Internet. it is iust as easy for American listeners to listen to foreign Internet stations as to listen to U.S. based stations-the only difference is hying a ".uk" or other country identifier instead of a

".corn" in the URL. Killing the American v ebcasting cominunity hurts America. Many foreign listeners depend on internet radio to leam about American music and culture. Ian

Decl. at ~i13. Robedee Decl. at ~ 26 and Exh. C. Today. Americans of Internet stations attract listeners in other promoting American artists and bands. and in increasing sales of

their CDs abroad. See Autumn Decl. at fj 9. Allowing America" s Internet radio stations to fall silent would severely curtail American artists'bility to reach an interiiational audience. Ian Decl.at ~13. As many artists derive substantial amounts of their incomes from international sources. this would have a disastrous effect on their livelihoods. It would also severely limit America's exportation of American music„wliich affects sales and cultures around the world. Jd.

VIII. CONCLUSION

For the reason set forth above„ the Librarian should mant this motion and issue a stay of the Order, relieving all parties bound by the Librarian's determination of the

40 obligation to make any payments under the compulsory license until the Court ofAppeals has decided the various pending appeals that will affect such obligations.

Respectfully Submitted. Li ve365, Inc.

9v:-" John O. Jeffrey Executive Vice President Corp. Strategy and General Counsel

Elizabeth H. Rader Stanford Law School Center for Internet & Society 559 Nathan Abbott Way Stanford, CA 94305-8610 (650) 724-0517

I, John O. Jeflrey, declare as follows:

I am the Executive Vice President, Corporate Strategy and General Counsel for moving party Live365, Inc., a Delaware Corporation ("Live365"). I am providing this declaration in support ofthe motion by Live365 to stay the Librarian's July 8 Order. Except as stated, I have personal knowledge of the facts in this declaration and could testify competently to them in a court of law.

Live365, Inc., (then named Nanocosm, Inc., also a Delaware Corporation) was founded in 1997 and launched Live365.corn on July 29, 1999, as a website that among other things created the possibility for an individual to set up an Internet radio station with no more resources than a home computer, a collection of CDs and an Internet connection. We initially supplied links to Internet webcasting sofbvare to permit an individual to create his or her own audio webcast, provided instructions detailing the processes to create such a webcast, and provided bandwidth to transmit such webcast to hundreds of persons simultaneously. In October 1999, Live365.corn added easy-to-use web interfaces, and added additional services including storage space for audio files and software to allow live broadcasts on Live365 servers, web interface to manage the station. Listener statistics, promotional tips, and additional station management tools have been added since that time.

More than one hundred thousand persons have registered to webcast using Live365's service. Live365.corn has hosted approximately forty- eight thousand active webcasts simultaneously, offering what is believed to be the widest breadth of audio content available in the world. In addition to talk stations, spoken word, literary and poetry readings and many other types of audio experiences, you can find literally every kind ofmusic on the radio stations on our site, including bluegrass, reggae, RAB, hip hop, Christian, funk, new age, jazz, elevator, folk, country & western, Irish, swing, Latin, Arabic, Salsa, Nigerian, Hawaiian, Gospel, Goth and many, many other genres of music. Over 90% ofthe Internet Radio Stations on Live365 stream music.

Thousands of individuals have each individually spent many hours selecting music, creating and uploading sound files, arranging playlists and promoting their individual stations. Creating an Internet radio station is, at its core, an act of pure self-expression, and one that can reach a worldwide audience. Our individual radio station creators use their own collections of music recordings, and often purchase new music, to create their stations. Most also write descriptions oftheir stations for a "station page" and write about themselves and how and why they chose specific music, on their personal "broadcaster page." Many of the stations found on Live365 are as unique as the fingerprints of the people creating them and are each a unique expression of creativity via the selection and arrangement ofthe musical works and other audio content that they present.

Some of our individual radio station creators use our live broadcast feature to provide live, on site news reports. Through our services, anyone can be a roving reporter, providing news coverage of events that are not covered by the professional media.

Live365 also offers Professional Broadcasting services. Some of our commercial customers are broadcast radio stations that want to webcast their broadcast programs. Most ofthese are streaming music. In addition to providing Internet-only radio, we also provide services to college, non-profit and commercial radio stations, permitting them to simulcast their terrestrial signals or provide alternative programming to their terrestrial broadcast consumers via the Internet.

Other Professional Broadcasting customers are companies that want to use streaming audio to transmit corporate addresses, training, meetings or speeches. Some of our most popular sites are churches that use our services to stream religious programs, music or weekly services. Children's and school's sports leagues also use our services to broadcast sporting events.

Live365 is not digitally transmitting perfect copies of recordings or anything approaching a perfect copy. While our content quality is unmatched in diversity, the sound quality of Live365's audio streams is below that ofFM radio. It would not be impossible to "capture" data from our streams, but it would be difficult, and the resulting file would be inferior to a tape more easily made from an FM radio broadcast.

Live365.corn is the top-ranked Internet radio network in the world for the past eleven (11) months, as ranked by Arbitron. Live365 served over 9.22 million listening hours to an audience of approximately three million unique listeners during the month ofAugust 2002. Terrestrial radio conglomerate Clear Channel was the second-ranked network in the same month, serving 5.47 million listening hours. This is significant because although almost any individual audio webcaster on the Live365 network has only a small number of listeners, together all these little voices reach more many listeners than any competing networks repurposing conglomerate owned terrestrial radio stations. We believe that this is in large part due to the breadth of musical content available on Live365. Live365 earns revenue by aggregating all our individual programming and selling broadcasting and listening subscriptions and advertising on the Live365.corn website. An advertiser can target listeners by geography, or by music genre. Because our listeners can find exactly what they are looking for, our advertisers can target exactly the listeners they want to reach. Our listeners tend to be aIItuent professionals in their 20's and 30's who are educated, tech-savvy and comfortable shopping online. According to a recent Arbitron report, over fifty percent of Internet users consume streaming media and the proportion ofAmericans who have listened to online radio stations has nearly quadrupled in three years. All this has made us attractive to advertisers in the past.

For our business model to succeed, however, the rate for compulsory royalties for webcasting performances must be fair and reasonable. For this reason, Live365 has on numerous occasions since 1999 attempted to negotiate a royalty rate with the RIAA and actively participated in the CARP process. If the royalty rates remain unchanged it is difficult to calculate how Live365 will ever be able to achieve profitability without charging listeners to access the content available on Live365.corn. The company in its fifth year after having built the most listened to Internet radio service in the world and having invested millions of dollars on building the infiastructure to deliver it, is still losing money every month and will continue to lose money for the foreseeable future, with the most significant cost relating to the licensing ofmusic.

Live365's participation in the CARP proceedings was a significant and costly expense. Early in the proceedings, we benefited from presenting our position as part the group of webcasters, most of which had significantly more resources than we do. Our greatest expenses came fiom the motions following the decision, when we filed separate motions to set out the independent webcaster viewpoint. Even with the advantages that we were afforded by participating with webcasters who had deeper pockets to fund the expense of the CARP; Live365 has spent well in excess of $300,000 in legal fees and expenses on the CARP and surrounding issues. It is impossible to imagine how any one of our individual radio station creators, or other small webcasters, could have afforded to participate in the costly and lengthy CARP proceedings.

I believe that the RIAA members have spent more than 10 million dollars building Soundexchange and for legal fees relating to the CARP. I believe this figure because, we are aware of the costs involved with building a database of the magnitude that they purportedly have built to track performances and make payments to the copyright holders. They also spared no costs in litigating the CARP. For example, when I testified, at least five full time RIANcopyright holder supported lawyers/staffers assisted with cross-examining me for much of one day. I was one of many witnesses who testified during the CARP. We are deeply concerned that the money that we pay in royalties will primarily go to recompensing these expenses and not to the artists for their efforts. We have not opposed a digital sound recording performance royalty, although the disparity between our position and that of terrestrial radio is significant to us. We believe that since terrestrial radio is not involved as in many other countries throughout the world, that Internet radio is bearing the costs ofbuilding a performing rights organization for the copyright owners without the assistance of terrestrial radio.

The harm to Live365, if the Librarian's order is not stayed, will be severe. Because Live365 is literally the webcaster that is responsible for all our individual programmers'ransmissions, on October 20, 2002 we will be paying royalties on approximately 1.4 billion sound recording performances. That means we will be paying in excess of -one million US dollars for back royalties alone,

The uncertainty cast over the industry while we waited for and even after receiving the ruling has been very hatmfiii to Live365's afKiated partners and companies that we provide our services to, who were raising or attempting to raise venture money. While we will pay the royalties for transmissions by the individual progranmers using our services, our commercial customers will owe at least the minimum fees of $500 per year, retroactive to 1998 and many who have streamed more than the minimum will owe more.

The credibility ofthe entire Internet radio network industry is in the balance. We believe that many of our advertisers are waiting to see whether we can keep offering the kind of content they want and whether our business model and the entire webcasting industry is viable.

We also have had to change our business model to respond to the new royalties. While we used to offer free accounts to individuals, we now charge modest fees of $ 11-20 per month. As a result, we have gone from having averaging over 40,000 simultaneous individual Internet Radio Stations to approximately 12,000 simultaneous individual Internet Radio Stations. All of those 40,000 stations were made available to listeners for free without a subscription fee. Currently less than 7,000 ofthe 12,000 remaining stations are available without a listener subscription fee.

Besides Live365 and its investors, Internet radio station owners and programmers, listeners and artists will suffer irreparable and severe harm ifthe Order is not stayed. Internet radio station owners and programmers are likely to lose the ability they have now to express themselves and share music with others via webcasting, or at least to be significantly hindered in their efforts. Listeners will not be able to readily find unusual and tare audio material and will lose the opportunity to discover new kinds ofmusic ofwhich they might not otherwise have been aware. And new, alternative, and small genre artists will lose an unparalleled opportunity to gain exposure and an audience for their work.

19. Live365 supports the Internet Radio Fairness Act, H.R. 5285, which would exempt small entities from the Order and make it easier for small entities to participate in future CARPs. Even if IRFA passes, however, it may come too late for many webcasters. A stay would preserve the status quo while we await a legislative solution and would provide additional time to seek an industry wide resolution with the copyright holders short of leg'slation.

20. This exorbitant royalty threatens to put Live365 out of business. The royalties mandated by the Librarian's order will increase our operating costs by more than $ 100,000 a month, based on our current levels of performance, Our investors have put millions of dollars into the company, with the expectation that Internet radio would be allowed to grow. This high royalty was not contemplated since there is no basis for this royalty scheme in comparison to any other performing rights organization. The unintended consequence ofthe royalty rate ruling is to choke all independent webcasters or those not affiliated with the funding from large media conglomerates. Although Live365 is a privately held entity, our shareholders (including many who are employees and have spent years of efforts building this company and this industiy), our founders and investment groups, will be significantly harmed ifthis prohibitive royalty rate stands. For example, Live365 will be required to pay over 90% of its revenue for July 2002 for royalties alone.

I declare under penalty ofperjury that the foregoing is true and correct and this declaration was executed by me on September 26, 2002 at Foster City, California. B ~t~. ZU, lOua 1l:U3A'It STANFOtti)LAWSCHOOL KC. 96'2 P.

I, WiQiarn C. Robedee, declare as faOows:

I arrt rruddng this declaration in support af the motion for a stay of the Librarian of Conyess's Order. Except as stated, I have personal lmowledge of the facts in this declaration and could. testify competently to them in a court of law.

I am the Genera,"i Manager ofKTRU-Bg 91.7, a broadcast and Internet radio station operated by Rice University in Houston, Texas. KTRU's mission is to educate the station membership, the greater Houston community and the students of Rice 'U'niveraity in the spirit of the station's noncommercial educational license, I became the first professional manager of this student station in 1998. Since then I have. with students, planned and implemented KTRU's wabcaating program.

I have been involved in college radio, in various capacities, since I was a student disk jockey in 1984 and have worked in radio station management since 1987, when I received a BA in Broadcast Communications from the State University of New Yorlt, New Paltz. I have written abont coQegc radio for College Broadcaster, the Joutnal of Conege Radio, and Radio %'arid, and have been a delegate and fluent speaker at the national conventions of the National Association of College Bmadcasters PTACB), IntercoQegiate Broadcasting System (IBS) and Collegiate Broadcasters. A copy of my resume is attached as Hxh. A to this Declaration.

I am also the Vice Chairrrum of Collegiate Broadcasters, Inc. ("CBF'). Pounded about four years ago, CBI is a nonprofit organization of about 100 members who are college rarho, televtston and Internet broadcasters. %'e have an annual fall convention to discuss common issues and problems in college broadcasting. As Vice Chairman of CBI, I am knowledgeable about the needs and concerns of our member stations. Primary among these concerns is that the royalty rates and fees in the Librarian's order ate prohibitive for college radio stations that are not Corporation for Public Broadcasting ("'(PB") quali5ed. These rates and fees have caused and will continue to cause irreparable harm to such stations.

Por some schools, webcasting is the only viable way to reach an audience of any size, due to limited broadcast spectrum or fiscal constraiata. Law power FM, cable FM/TV, legal and unlicensed AM, and cafeteria public address broadcast systems all have extremely limited audience potential, a problem solved perfectly by webcasung. SEI'. 20. 2002 11:04AM STANFOICDLAVIRCHOO NO, 962 P, 4

personnel management, fiscal management, event and programming promotions, sales, time management, technological exploration, asset management and nctworidng. XI''a student programmers get involved in the local music scene by, for example, putting on concerts by local musicians and lesser ltnowr,, artists who are on tour. W'ebcastlng offers students a whole new set of tools to use to reach an audience. The interest m streaming has led students to work more attentively cn KTRU's web site and to offer new features. Loarning to develop and implement those tools is a great educational experience for the students.

u. Student-operated stations tend to program music to an audience- namely college students, teenagers and young adults —that is lowly to purchase music recordings. Exposure to music recordings drives music sales, ao educational and college stations help the artists whose recordings they play. This ia ~ally true 4'. local music, which gets httle, if any, exposure anywhere else, Without a stay, the public will be irreparably harmed by the lass af diversity and choice in listening.

12. To the best of my knowledge, no college station is streaming perfect copies of sound recordings, AQ streumng formats use "perceptual based coding" to compress digital Ries for streaming. This means that even at very high bit rates„ the reproduced audio is never CD quaHty. The sound quality from KTRU's SlxeaxM. is inferior to the Sound quality received via PM radio.

13. Most CSI member college radio stations, unHlre public radio stations funded by CP3, have to pay their operating costs from studmt fees or from their meager academic budgets. According to IntercoHegiate Broadcast System ("IBS") surveys, the average collage station budget is about $9,000.

14. KTRU is funded from student activity fees paid by about 2600 undergraduates studying at Ice, KIRU'a budget for 2002 2003 ia $14,000. KTRU ~a to bring in an additional $9„500 per year for the next two years fmm an arrangement to broadcast Rice atMenc events. Bur these funda have to cover broadcasting equipment, maintenance and, repairs on equipment, music licenses, office supplies, office furniture, postage, production of training manuals, subacriptions to trade joutnala, telephone services, promotions to get listeners and volunteers, music recordings snd various other incidental costs.

15. H!storically, nor commercial radio stat!.ona have always paid copyright royalties to the Performing Rights Organizations in the fanu K a reasonable flat fee, while ccmtnercial stations have paid on a percentage of revenue basis. This has enabled college stations ro operate on fixed budgets and avoided penalizing tham if they succeed in reaching a wider audience.

16, KTRU did not participate in the CARP proceedings. In 1999, when the proceedings began, very little information was available about the royalty 0".I'. /V, ZUUZ II;U4ANI hlAWI.UNDLAWSCHOOL IIO 962 P. 5

arbitration process. By calhng around to others in the nonprofit radio community, I leaned that the cast af partIcipatian would be beyand tha xnaans of KTRU. In fact, I have since heard reports that the cast of participation was least 8300,000, and cauld. be as high as $1,000.000.00. This is far beyond the resouxces of KTRU, or indeed of any college station af which I am aware, and even beyond the resources af CBL As a result, college stations that axe nat funded by CPB ware simply not represented in the CARP proceedings at all.

17, Among the parties that did participate in the CARP heatings, NPR is the party that has most itt common with college radio stations such as KTRU. Like NPR, CBI college stations sxe non-commercial and have na revenues fxaxn bmadcast advertising. Unlike CBI college stations, however, NPR, because of its size and xesaUrccs, waa able ta negotiate a ~ and royalty agreement, which I understand was patt of the CARP xecord,. While I da nat 1enow the texxns of this agreement, it is evidence of the rate a willing buyer and willing seller would agrre upon fax webcasting xuyalties~videnca that was not cansidaxed by the CARP or 'by the Libraria.

18. KTRU can award ta pay the back royalties due October 20. But going forward, KTRU xnay not be able ta pay both the royalties, especially as its audience increases. KTRU xeaches an average of 10-15 internet lisranen at any onc time. But our Internet audience has been doubling every ten months, as moro people get high speed Internet connections and listeners discover KTRU through "suing" and prcnnotian, WhUe this is great for the students, who are xeaching a wider audience, and far sadists, who gain more exposure, it means even if wa can afford ta webcast today, ten months fram naw we cauld find ourselves with a bill we can't afford ta pay. It daas nat xuake sense to encourage studunta to succeed if the outcome af their successmaching a larger audience- causes them ta be penaHzad with higher fees while they are providing a nan-commercial, non~fit, educauonal service.

19. Vha royalty rates and minimum foes axe especially prahibi5va in light af the extra costs that stations also will have to incur to comply with the xecord keeping rcquirenmrts, as describe in the Copyright Ofhce's Notice of Proposed Rulemaking dated February 1, 2002. The cost af complyIng with these requirements would far exceed the fees themsa1ves at mast callege stations.

20. Many educational snd community stations do not have the caxnputarlzed systems generally found in commercial stations and CPB-funded stations that would sllaw far tha automation of xecord keeping tasks required by the proposed record. keeping requirements. Because many educational and community stations are multi-formatted, the sheer number of different recordings played is immense, compared ta those of tightly formatted commercial stations. Collage station libraries, accumulated over many years, include tens of thousands af campsct discs and albums that continue to be SEP. 20, 2002 Il:05AM 8iAtIIFGRDLAWSCHGG'. iXG. 952 P, 6

played. These are often not already cataloged in coinputer databases- nor are recordings that students use from their own music collectiona. The cost of inputting the data required by the proposed record keeping rules would be cnmnoua and extremely time~onauming. Many educational and community stations sre staffed principally or oxcluaively by vo]unteera, The volunteers at our stations are already donating their time, arnergy and iu some cases fiscal resources, to produce their program. To expect volunteers to contribute countless additional hours to input the data needed to comply with accord keeping requirements mould be'unreasonable and impractical for KTRU and xzuLny of the other college stations.

21. Anorher problem is the cost of thc yet -to- be-developed software and computer hardware acquisitions necessary to comply with the record keeping ~uirementa. Even if there were a technological solution, it would be prohibitively expensive for ua to purchase it. Por instance, the RIAA haa suggested that a company called %'ebaauud cauld provide record keeping services, but thar fee is $ 100 per month-many times the dollar annunt of royalties moat college stations will owe. This is beyond the means of KTRU and znost college stations. Moreover, Websound developed their product for wcbcaatera that use automated playliats with music files stored on ccruputer hard drives. They cannot currently address the specific needs, due to logistics, Hve data input and Iiming issues, unique to a live atudentmperated idio atatioii,

22. I started the Save Our Streams graasroots campaign and aet a website at M up regulstiona, roydtiea and fees being promulgated under the DMCA and also to track the resulting impact on college radio stations. With other professionals in the field, I wrote a position paper, attached aa Pxh. B, posted it on the Save Our Streams website and asked readers to e-mail IQc expressing thar support.

23. I have personally confirmed, by visiting their webaitea. that, the following educational and community stations have stopped webcasting and have not rcsurued: I-Radt.o-TX; 90.0 PM '"Ihe Hive"; WSOE-NC; Wh9%-MP.; KTSC.CO) %RVG-KY; %MSS-PA; KPG-TX; WVUA-AL; KTAI-TX;

KBOM-TX; The VOICP CA; UCLA Radio.CA; KKUP~; PVTXR-GA;

KNHC-WA.'OQH-WA,'A%J-CA,'PttMUA-MA;WEBR-VA; WDCB-VA 106-VIC-NY; O'ICB-ÃY; 89.1 The Paint»NY; WEH3-WY; WRUR-NY.'ACS-%'A; WAS-PA; WCLH-PA; WVKR-i~; ParSVlI-IN', WZBC-MA," IV%K-MQ; W4U-IN; WERS-XA; WCXZ-PA; KOFK-OK; KUPS-WA; ARSE-ÃJ. ANTI-NJ; %SUM-Pal,'WSP-WI; %PIC-1N,'STB-QH; WET'-PL; WONB-OH; WXOU-M; WZND.G.„'ZIP-OH; WUTK-TN: KE1;R-TX; 'WSBP-SC; WRMC-VT; KSDS-CA; PVNYU-NY; WSUW-%1; NEVI TN; KRW-UT,'SRN-PA; KXCI»AZ; WUVT-VA; WRUI-RI; 4".t'. 2II. j',:05AM 2002 STANFDRDLAWSCHOOL iX~0. 962 P. 7

WPTS-PA", KBCS-WA; WMHW-i%; WSDP-MI; KKUP-GA'BVR-OR'QQV-AR', WD%N-KY,

24. I have also hemi reports from cxediMe sources that many xnore college stations, in addihon to those listed above, have also ceased webcastin3;, as a result of thc Librarian's Order.

25, Radio enthusiasts at other colleges, such as the University of Texas at Dallas, have told me that they had plans to stlrt webcasting, for much the same reasons as KIR'U, but reluctantly suspended these when they learned of the CARP's recoxnxnendation, because they cannot afford ta webcaat under the rates and fees in the Librarian's Order

M. As a result of usinl the SOS page to solicit support, I have rocoivad, about 1400 e-xnails in support of the position paper since December 1S, 2001. I sent a reply to every such e-mail, m part to verify that it was really from the e-maG address in the "from" line. True copies of some of these e-msils axe attached as Exh. C. They come from all around the country and from listeners in foreign countries who rely on intexnei. radio to hear American music. Many of these listenexs say they have no other access to certain kinds of music. Others are housebound snd use Internet radio as their Iink to the outside world. Still others use Internet radio to hear thou far a@ray loved ones who are student disk jockeys, Additionally, US troops stationed abroad have expressed concern at losing one of their ties to home. AH of those listeners, and others like Ihem, are st;flaring and will continue to suffer as a xesult of the rates and fees mandated in the Librarian's Order. A stay would serve tho public interest

27. In July, Cangressmen Jay Inslee, Rick Boucher and George Nethcrcutt introduced H.R. 5285, the Internet Radio Fairncss Act ("IRPA"), intended to help webcasters by creating an exemption from rates and feos set by the Librarian'e July 8 2002 Orxier for transmissions by "smaQ entities" until now rates can be detcnnined under a different directive including factors other than the willing buyer/wiIHng seller detexxnination. KTRU snd most other college stations are operated by colleges and universities that do not qualify as "small entitios," bur. I a~|+ urging CBI members snd supporters of Internet radio tc ask their elected, representatives to support IRFA with amendments to cover educational webcastcrs. Even if such legisleion passes, however, an entire semester or more wiH liMy have passed, Those semesters will bc gone forever, so the hsxrn to current students who want to participate in webcasting, at colleges whose stations have ceased webcasting, never started to webcast or have any kind of radio station at all, wQ1 be irreparable. SEP. 20. 2002 ll:05AM S~ANFORDLAWSCHOOL iIIQ, 962 P. 8

28. I have tried to negotiate with Sound'Exchange and RIAA for a royalty rate for educational starstone that we could afford. I initiated a meeting with John Simson of SoundRxchange snd Steven Marina of RIAA, which took place on AQy 16, 2002, R that. meeting, they told me and Joel %'ilier that they would not negotiate with us while they were negotiating with commercial wobcsstera, Their counel had previously contacted me to discuss record keeping, but they were unresponsive to our attempts to negotiate royalty rates or reasonable recneReeping for all of CBI members and, in pedicular, the unlicensed stations. Even if we are ultimately able to reach an agreement, time wiH have passed and the harm to current students and the public will be irreparable.

29. A stay is desperately needed so that student webcastezs can continuo to male their unique coatribution tc the performance of copyrighted works in the digital domain.

I declare under penalty of perjury that the foregoing is cue and correct and that this declaraIion was executed on September'~ 2002 in uston, 'texas.

WilBarn C. R bedee William C. Robedee 3922 Marywood Drive Spring, Texas 77388 (281) 353-9730 (Home) (713) 348-2935 (Work)

General Mana er KTRU-FM 91.7 FM, Houston Rice University July 1998 - Present

Planned and deployed new fill-in translator Planned and implemented internet audio streams of on air programming Developed interdepartmental cooperation to offer alternative internet audio programming 24/7 and unattended operations coordinated with students Currently marketing the stations SCA, an unrealized potential source of income Became the first professional manager of this student station Successfully cordinated v ith students to plan and promote launch of new web site

Director of Radio Television and Audio/Visual Facilities WFNP FM, AM, CFM, CH3, CH17 WNPC-TV 3, 6) & 17 State University of New York, New Paltz September 1993 - June 1998

Chief Fiscal Officer Long Range Planner Established Unique Cable Access Facility Expanded on Campus Reach and Established New Cable Television Channel Coordinated FCC Proceeding for New FM Station Proposed, Designed and Developed Proposal for Relocation and Consolidation of Facilities Proposed, Developed and Implemented Internship Program On-Air host and Producer

Supervise staff, student employees, volunteer student management and staff for Radio, Television and Audio Video operations. Coordinate all facility usage, including Radio, TV, AV, Cable Television plant and satellite teleconferencing facilities. Overall management, supervision, development and long term planning of operations.

Instructor Communication and Media Department State University of New York, Netv Paltz - September 1993 December l 997

Teach upper division audio production course. Students produce a PSA on a current topic for broadcast on stations in the market. Coordinate scheduling ot'udio labs, teaching assistants and the selection of text books and materials. Advise and specify equipment purchases. Consulting Engineer September 1987 - December 1997

WZAD-FM (Commercial) Bard College SUNY New Paltz SUNY Purchase Dutchess Community College

Services performed include developing Request for Proposals, analyzing bids, equipment purchase specification, studio design, installation, maintenance, repairs, and AM carrier current plant repair/troubleshooting.

Assistant Director and Chief Engineer The Campus Media Center WFNP FM, AM, CFM, CH3 WNPC-TV 3, 6, Br, 17 State University of New York, New paltr January 1990 - September 1993

Launched New Non-Commercial FM Station Consulted on the Installation of Cable Television Plant Installed New On-Air Radio Studios and a Television Studio Designed and Rebuilt Audio Production Studio Designed and Built News Production Studio

Managed the radio and TV stations with respect to the student staff, fund raising, purchasing, training, FCC compliance, engineering and overall development. Performed and coordinated maintenance, purchasing, installation and scheduling. Trained students in all applicable laws, rules, regulations and guidelines. Practical hands on training and development in the use of radio, video, satelhte and cable facilities.

Marketing Consultant. Traffic Manager, Chief Operator. Conv Writer, Production Manager. On-Air Personalitv and Newscaster. WCZX 97.7 FM April 1987 - January 1990

~ Assisted Station in Computer Utilization and Development ~ Coordinated Internship Program ~ Developed and Maintained Tape Inventory and Management

Successfully executed cold call sales, list developments and account maintenance. Supervised and delegated to production staff all commercial production. Prepared copy, program schedules and reviewed operator logs. Initiated corrective measures to insure FCC compliance. Assisted sales and promotions managers in developing operational procedures and software utilization. General Manager WRNP AM/CFM. New Paltz, New York December 1984 - May 1987

Organized and Prepared FM Conversion Proposal for University and FCC Approval Planned, Organized and Orchestrated Radiothons Drafted By-Laws and Policies Manual for Executive Board Ratification Developed and Implemented Operator Training Programs Initiated Cable FM service

Started as a Disc Jockey and worked up to General Manager. Prepared station for on-air operations. Overhauled and organized fund raisers, events, advertising sales and promotions. Managed station finances and specified equipment purchases.

Professional Panels

Collegiate Broadcasters Annual Convention 2000

Session on the future of College Radio. Topics included webcasting, equipment, regulations, economics and technologies.

Intercollegiate Broadcasting System 1986, 1987, 1991, 1992, 1997

Annual National Convention. Sessions included Interviewing, Equipment Purchasing, Station Budgets and Finances, Careers in Broadcasting and Remote Broadcasting.

National Association of College Broadcasters 1992, 1996

Annual National Convention. Session covering engineering concerns of college broadcasters, including frequency searches, carrier current technology, FCC rules and regulations, starting stations and new technologies.

Published Work

Journal of Colleae Radio - Auril 1991 "Project Planning: Killing Studio Noise" - Article concerning station projects, highlighting studio renovations.

College Broadcaster - Februarv. 1992 Column focusing on planning and executing remote broadcasts.

Colleae Broadcaster - Web Site http://www.rice.edu/cb Web site for College Radio stations.

Professional Delegate

Collegiate Broadcasters Annual Convention 2000, 1999 National Association of Broadcasters Annual Convention 2001, 2000, 1997. 1995, 1993, 1992 National Cable Television Association Annual Convention 1993 National Association of College Broadcasters Annual Convention 1991, 1992, 1996 Intercollegiate Broadcasting System Annual Convention 1985, 1990, 1991, 1994, 1997 Education ———— Original Message ———— Subject: Streaming Date: Fri, 6 Sep 2002 17:07:54 EDT From: BisJQaol.corn To: [email protected]

Dear SOS,

I am a college professor working in The UK. I teach American Studies.

For some time I have advised my students to use the radio streaming services from the USA as part of their studies. It provides them with information on the USA that cannot be obtained elsewhere.

The internet is a wonderful aid to communication, streaming being a unique service that can be used world wide. The closing down of many radio stations'treaming facilities is a retrograde step. If the US government wants to project an image of aloofness from the rest of the world then they are going about it in the right way.

I can only express my strong support for your campaign. As a non US citizen I have no right to directly comment on internal US policies.

Good luck with the campaign

John ———— Original Message ———— Subject: I support the Position Paper! Date: Mon, 04 Mar 2002 11:37:25 -0500 From: anichol Qclemson.edu To: willr sos yahoo.corn hi! my name is amanda nichols and i am writing to ask you to put my name on the list supporting your sos site. i am a new dj at wsbf-fm clemson (south carolina). i find the webcast a fabulous thing, because i was able to listen to our great station when i was in germany studying. without the webcast, i never would have been able to listen to the station, which would have sucked. so, please add my name to your support list. thanx! -amanda- ———— Original Message ———— Subject: I support the Position Paper! Date: Fri, 15 Mar 2002 06:29:58 -0500 From: &robin chinadoll.net& Reply-To: &robin chinadoll.net& To: &willr sos yahoo.corn)

Hello, my name is Robin Wylie, I am a musician and songwriter based in Detroit, Michigan. Below is a copy of a letter that I have sent to my representatives in congress. Feel free to use this letter, in whole or in part, in any manner that you think will help save webcasting. Cheers, Robinhttp://chinadoll.net Dear Senator Stabenow: I am writing to you with regards to the Dig'tal Millennium Copyright Act (DMCA) and the recently-released recommendations of the Copyright Arbitration Review Panel (CARP). As a Michigan-based musician and songwriter, I feel that the CARP recommendations are ill-conceived and will have a detrimental effect on my ability to promote my work. As I'm sure you are aware, the DMCA will require webcasters to pay for all music played during their programming. Under the CARP recommendations, webcasters would be additionally required to pay for all music played since 1998! This could amount to tens of thousands of dollars for even a small webcaster. None of the webcasters that support my work are run as commercial operations and they have no income to speak of. There's no doubt that the CARP recommendations would force these operations to shut down, thus depriving me of an important outlet for my work. It has been suggested that the CARP recommendations are no different from the current arrangement that broadcast radio has with the performing rights societies such as ASCAP or BMI. However, there is at least one significant distinction: As a songwriter and musician, I can choose not to associate my work with a performing rights society. This allows broadcasters the right to play my work without being obligated to reimburse any performing rights society. Under the CARP recommendations, the choice is no longer mine to make. The RIAA has the right to collect payments from webcasters for the use of my work even if I do not give the RIAA permission to do so. I feel that this is a gross violation of my rights as a creative artist. Senator Stabenow, any time you could give to reviewing this legislation would be greatly appreciated. With grateful thanks, Robin Wylie ———— Original Message ———— Subject: I support the Position Paper! Date: Sat, 2 Mar 2002 21:49:38 -0500 From: "Shelia Price" ([email protected]) To; (willr [email protected]&

We live in Myrtle Beach, South Carolina. Our daughter is a DJ on the WSBF, Clemson Radio, 88.1 FM. The only way that we can hear her show is through the internet live stream. Please let us know what we can do to keep this long distance connection with our daughter and her college experience. This was also a way for her grandparents in Charlotte, North Carolina to have some interaction with their granddaughter. Many of her friends across South Carolina and neighboring states were also enjoying this feed. Please let us know what we can do. Thank you, William and Shelia Price

Get more from the Web. FREE MSN Explorer download: http://explorer.msn.corn ———— Original Message ———— Subject: I support the Position Paper! Date: Sat, 22 Dec 2001 21:05:07 +0000 From: "Steve Punch" &punchsteve hotmail.corn) To: willr [email protected]

Hello people, I write to express my suport for HR 2724 and grant you permission to use my name on your list of supporters. I listern to American radio on the web because I live in England and have little or no information about music and life in America. Web radio enables me to find out what is happening in other parts of the world and I feel it would be a crime to stop this so some individuals can make money from those who are trying to help their community. Good Luck. Steve Punchard 52 Haslar Crescent, Waterlooville, Portsmouth, Hampshire, PO7 6DH, U.K.

Join the world's largest e-mail service with MSN Hotmail. http://www.hotmai1.corn ———— Original Message ———— Subject: I support the Position Paper! Date: Tue, 25 Dec 2001 11:56:31 -0800 From: "rj" &padres74 mediaone.net) To: (willr sos yahoo.corn&

It's a sin that a college would have to pay a revenue because it is streaming audio on the Internet. To be able to play music on the Internet is an opportunity that students nor colleges CANNOT lose. Keep streaming audio free!

Richard J. Baca CC instructor Southern California Subject: I support the Position Paper! Date: Tue, 25 Dec 2001 20:57:45 -0500 From: "Robert M. Enger" [email protected]& To: &willr [email protected]& CC: [email protected]&

Non-commercial radio, especially student-operated college stations,provide the public with access to low-affinity (fringe) programming genres.For those living outside of the major metropolitan areas, and for thosewho cannot travel to the music meccas of the world, college radio isoften their only method of access to the 'new'nd the 'unusual'. Unlike their commercial bretheren, non-commercial broadcasters areoften poorly funded. Frequently, staffing is predominantly (or exclusively)volunteer. The requirements of the DMCA impose a financially unviableburden upon the non-commercial broadcaster, Congress should exempt non-commercial broadcasters from therequirements of the DMCA. Robert M. EngerCabin John, Maryland ———— Original Message ———— Subject: I support the Position Paper! Date: Fri, 28 Dec 2001 22:39:08 -0800 From: &polyform sbcglobal.net) To: &willr [email protected])

I have been a long time listener to radio, and over the last decade all of the local stations have lost interest to me due to their format changes, such as taking shows that I enjoy off of the air, and refusing to play music that I enjoy. Also many stations in my area are no longer music, or in a language that I speak...

This is why internet streams are so important to me. If it were not for them I would not be able to hear new music that is of interest to me. Therefore I would not purchace new recordings. In the end the artists loose, and I loose out in enjoyment of music.

I give you permission to use my comments, and my e-mail address is not as shown above but [email protected], as I use the above shared address only to send mail.

Paul ———— Original Message ———— Subject: HR 2724 Date: Fri, 4 Jan 2002 02:47:12 GMT From: asholtz @juno.corn To: will broadcast.net

As former News Director of KZSU-FM at Stanford University, I support your efforts to help prevent new Inernet streaming fees from crippling educational radio stations.

I remember struggling to buy tape and other supplies when I was a student working at the station. Student-run stations are an invaluable training ground for the next generation of broadcasters. We can't afford to burden them with new fees.

You may use my name in your efforts.

Regards, Andrew Holtz (KZSU-FM 1974-77) Portland, OR asholtz juno.corn

GET INTERNET ACCESS FROM JUNO! Juno offers FREE or PREMIUM Internet access for less! Join Juno today! For your FREE software, visit: http://dl.www.juno.corn/get/web/. —— —— —— —— Original Message@ Subject: I support the Position Paper! Date: Fri, 4 Jan 2002 08:32:06 -0800 From: Richard Schwaninger (Richard [email protected]) To: "'willr [email protected]'" (willr [email protected])

Here is something I sent to Ellen Tauscher today.

I listen to both KZSU and KFJC via streaming internet at home and at work. Without this I would not have access to these excellent stations.

I would like to show my support for HR 2724.

In general terms, the DMCA will place fees on college radio stations which they will not be able to absorb. Ultimatley, these stations will cease to provide streaming content via the internet. This would be regrettable.

In the Bay Area there are two station I regularly listen to via the internet; KZSU and KFJC. Neither of these stations is carried by cable operators in the Pleasanton area, nor is it possible to receive these stations over the air. Reception via the internet in Pleasanton is the only means by which these stations can be heard.

Please provide an exclusion or exemption from the DMCA for college radio stations.

Thank you for your time—

Richard Schwaninger

Richard Schv aninger SensArray 510 360 5652 ———— OriginalO Message ———— Subject: Save our Streams Date: Mon, 14 Jan 2002 16:06:09 -0600 From: "Doh-Joe T-Nuts" &dats90 hotmail.corn) To: Will Broadcast.net

Dear Sir or Madam:

My name is Travis Cagle, and I and my Co-Host Joe Schirmer host a show on Thunderweb radio. Our station is a small operation sponsored by North Dakota State University in Fargo. Our station is an actual school club, and we are having a hard enough time keeping our heads above finantial water the way things are. If any of these fees come into action, it would sink our station, instantly. Joe and I are against these new regulations going into action. Please add our names to the list.

Sincerely, Travis J. Cagle 1145 12th St. N Fargo, ND 58102

Joe Schirmer 1203 43 1/2 St SW Apt 101 Fargo, ND 58103

Send and receive Hotmail on your mobile device: http://mobile.msn.corn ———— Original Message ———— Subject: I support the Position Paper! Date: Fri, 25 Jan 2002 14:33:06 -0500 From: "Rob Haywood" (kruton13 hotmail.corn& To: &willr sos yahoo.corn&

My name is jesse cline. I live in gowanda Ny, and i am currently going to alfred state college. Out here we can barely pick up any stations, or any stations that i enjoy listening to. I like to go online and listen to 103.3 wedg out fo buffalo because it's the station i listened to at home. The college station doesen't always play music i enjoy, so my friend and i decided to go get our own show. We broadcast saturday nights from 11 to 3 am. Our friends and family are spread out all over the country, and they love the fact that they can get on the internet and listen to our broadcast through our stations beta test webcasting. I totally support webcasting, and i hope we can keep it going. ———— Original Message ———— Subject: I support the Position Paper! Date: Sat, 26 Jan 2002 09:39:59 -0600 From: "Laurel Barlow" [email protected]& To: &willr [email protected]&

Please use our name, as we would be very disappointed to lose access to the Harvard Men's Hockey Broadcasts. As we live in Alberta Canada, this is our only means of following the games. The availability of providing this service is a huge recruiting tool, and without this access, I would believe that some of the schools with the ability to continue to provide internet games, would definitely sway a persons decision as to where their son/daughter would play for their 4 years. We hope you will be able to continue this service, as it is in our opinion, a very important service!!!Laurel and Allan Barlow ———— Original Message ———— Subject: DMCA Date: Wed, 30 Jan 2002 00:12:15 -0500 From: "Jason Judy" [email protected]) To: &Willr sos yahoo.corn&

My name is Jason Judy and I am outraged by the effects of DMCA. I live in Charlotte, NC and can no longer listen to a very important radio station, WUVT over the internet. Please add my name to the list of supporters.

-jason Judy ———— Original Message ———— Subject: I support the Position Paper Date: Wed, 30 Jan 2002 11:15:23 -0600 From: Mitch Russell cMitch.Russell tvguide.corn) To: "'willr sos yahoo.corn'" &willr sos yahoo.corn&

I work deep in a building, and cannot receive radio broadcasts. I listen regularly to KALX and KRSC over the Internet.

Mitch Russell Principal Network Engineer, LAN/WAN Gemstar - TV Guide, Inc. 7140 S. Lewis Ave. Tulsa, OK 74055 (918) 488-4352 mitch.russell tvguide.corn & KWVA add a link to the website? This is extremely important to our & efforts!

& Will R

& Nathan wrote:

» KWVA Radio at the University of Oregon is an educational non-profit » station that streams live audio on the internet, and supports the » Position Paper, "Arguments for Changes to the Digital Millennium » Copyright Act (DMCA) via the Music Online Competition Act (MOCA)". » Please add us to the list of supporters on the ACT NOW web page. » Thanks. » Nathan Cox » Chief Engineer » nathan @pacinfo.corn » KWVA Radio 88.1 FM » University of Oregon » Eugene Oregon » 541-346-4091 » web page gladstone.uoregon.edu/-kwva

Subject: position paper Date: Sat, 2 Feb 2002 14:56:10 EST From: EmblaDLQ aol.corn To: willr sos @yahoo.corn

I am not sure if my name will qualify, but here goes: I am a US citizen living abroad and enjoy listening to radio stations from the US on the web. It is a small way to feel connected with "home" while living overseas. Patricia Dorn-Lopez Bernstorffsvej 12 2900 Hellerup Denmark

PS. Do not sell or loan my e-mail address to any organization. I do not want more spam.

Subject: I support the Position Paper! Date: Sat, 2 Feb 2002 17:00:35 EST From: Jfowens781 Qcs.corn TQ: willr [email protected]

Jeffrey Owens North Chelmsford, MA 01863

I give you permission to add my name to your list of supporters. I am a graduate of Florida State University and a very strong follower of College sports. Most of our football games are on television, but I have to listen on line to hear our basketball and baseball games. About halfway though last year the local Tallahassee station quit streaming their broadcasts. I have to hope that our opponents streamed their games. In this day and age it's very disheartening to see technology take a step backwards due to disgusting greed like this. I would like to due everything possible to help other stations from having to end their streaming.

aol.corn bject: I support the Position Paper! Date: Sat, 2 Feb 2002 18:35:56 EST From: SUINDIANS 0 TQ: v,illr sos yahoo.corn

It is very important to allow the colleges free access to internet radio TQ: willr sos 0 yahoo.corn

I am stating my support and granting permission to add your name to the list of supporters on the web page advocating i'm streaming media. from Hays Kansas 67601 and i love my streaming media, don't shut down the college radio stations, it's the only decent music i can get out here in the sticks!

thanks again tom

Subject: I support the Position Paper! Date: Sat, 16 Feb 2002 14:56:20 -0800 From: "Gary Crisp" &gary crisp Qhotmail.corn& TQ: &willr sos @yahoo.corn&

My name is Gary W. Crisp and I live at 3319 Shamrock Place, Merced, CA 95340. I urge those in power to NOT CHARGE any fees to schools who wish to give non-commercial (not for profit I mean) information to their fans via the internet. ALL schools face enough economical challenges to partake in first rate athletic competition. Give our athletes a break! Thank you for hearing me out on this subject.

Gary W. Crisp (209) 723-01457

Subject: SOS Date: Mon, 18 Feb 2002 23:46:16 From: "Roadside Monument" (eight [email protected]& To: Willr sos @yahoo.corn

This is in total support of allowing community and college radio stations to provide non-commercial orientened content in an intelligent and progressive manner. America is entering a state of unseen/unheard peril that must be fought by those who care about not only the right to speak but the right to listen. I grant permission to Save-Our-Streams to use my name as a vote of solidarity on this issue: Alex Vergara Lawndale, CA

MSN Photos is the easiest way to share and print your photos: http://photos.msn.corn/support/worldwide.aspx

ubject: I support the Position Paper! Date: Wed, 20 Feb 2002 02:00:16 EST From: Emi1y60087 8 aol.corn TQ: willr sos @yahoo.corn

Hi, my name is Emily Burleson. I currently live in Bloomington, MN. I'm a future radio broadcaster, and would like to help support your cause. Feel free to put my name on the list. rich! Richard Arroyo El Cerrito, CA 94530

Subject: HR 2724, the Music On-Line Competition Act Date: Sun, 24 Feb 2002 11:22:49 -0800 From: Anthony Tusler &atusler aboutdisability.corn& To: Lynn Woolsey (lynn.woolsey mail.house.gov)

Lynn,

Hi! Just wanted you to know that I support HR 2724, the Music On-Line Competition Act. Since the smaller Bay Area radio stations are no longer available on our cable system and stations such as UC Berkeley's KALX are drowned out by competing repeaters like San Mateo's jazz station KCSM I rely on internet radio more and more to for culturally diverse music and news.

Any help you can provide I would appreciate.

Thanks,

Anthony Tusler

Anthony Tusler PO Box 968 707 795-0515 Cotati CA 94931 707 792-7745 FAX USA ATuslerNAboutDisabiliy.corn

Accessible House Exchange: The Internet, England, &. My Summer Vacation http://www.disabilityworld.org/09-10 01/access/housetrade.shtml

Consulting &: Resources http://www.AboutDisability.corn New Paradigm of Disability Bibliography http://www.AboutDisability.corn/bib.html

Subject: I support the Position Paper! Date: Mon, 25 Feb 2002 17:36:49 -0500 From: "Peter Parrish" cpparrish twcny.rr.corn& To: &willr sos yahoo.corn&

Living in a remote community in northern NY, I almost totally depend upon the internet for music. I'm appalled that this might come to an end because of the DMCA. I heartily support any efforts to defeat this measure. Peter D. Parrish PO Box 446 Port Leyden, NY 13433-0446

Subject: SOS Date: Mon, 25 Feb 2002 20:04:53 From: "Dave Powers" (powersdc 8hotmail.corn& To: willr sos yahoo.corn

Will,

My name is Dave Powers. I am a producer/writer at MTV2, and I'm also freelance music critic/writer. One of the primary stations I review for is 3wk.corn. They are one of the most popular internet radio stations in the world, particularly for independent label music. I know their future and many other station's Date: Tue, 26 Feb 2002 22:21:52 -0800 From: "Roderic" &jenrica11Oattbi.corn& To: &willr sos yahoo.corn&

I oppose the additional fees that would keep community radio off the internet. Keep democracy and free speech alive. Feel free to use my name in support of this cause. Roderic Ridgway Teacher El Cerrito, CA

Subject: I support the Position Paper! Date: Wed, 27 Feb 2002 23:04:59 -0500 From: "dikboom" &dikboom @home.nl& To: &willr sos @yahoo.corn& CC: "M.G. Dikboom" &dikboom @home.nl&, "Hans Knot" &hknot home.nl&, &b.bossinkOtref.nl&

I'm living in The Netherlands and I listen to KXUL in Monroe every day. They give me the chance to listen to Rock bands like Houston, Varnaline, South, Adema, Fo Manchu, The Strokes, New Wet Kujak, The Juliana Theory and many more. New Rock Bands I never heard of. I go to my record Store in Groningen and try to buy the CD's. What is the problem? There is no problem. KXUL is a good rock station. They help me to buy CD's from unnown artists. And I help the American Record Industry and of course The Radio Industry.

Keep KXUL and the other progressive stations on the web site. They are the ambassador of good rock music from the USA to the world. Please let them stay.

Meindert Dikboom, Aart v.d. Leeuwlaan 25, 9721Te Groningen The Netherlands ———— Original Message ———— Subject: I support the Position Paper! Date: Fri, 30 Aug 2002 16:18:17 -0400 From: "Bill Nutt k. Debbie Lockwood" ([email protected]) To: ([email protected])

Will, I'm a DJ on WNTI, 91.9 FM, a listeners-supported station in Hackettstown, NJ. We have been broadcasting in RealAudio from our Web site for several years, and I truly value the feedback I have received from listeners as far away as Canada and New Mexico. More importantly, many of those far-flung listeners so value freeform radio that they contribute during our station's annual fundraiser. So the current legislation is not only cutting off listeners from a musical resource they cherish, it is depriving OUR STATION from needed pledge money. PLEASE count me in, include my name to the mailing list, and let me know whatever our station can do to help this effort. Sincerely, Bil] NuttHackettstown, NJ ———— Original Message ———— Subject: I support the Position Paper! Date: Sat, 31 Aug 2002 12:28:08 EDT From: Stanadelemal aol.corn To: willr rice.edu

We support your effort to save Internet broadcasting. We are old and shut-ins and this is our contact with the outside world.

Sincerely, Nora Skidmore 8z Alice Hazell Philadelphia, Pa. 19152 They have stopped streaming. They are thinking about starting again.

Will R

———— Original Message ———— Subject: DMCA is crap Date: Fri, 01 Mar 2002 00:18:00 -0800 From: Alexander P Starr (aps241 @nyu.edu& To: Willr [email protected]

I do a jazz show on WNYU AM in NYC...a huge part of our audience is on the web...and this would basically destroy the station. Any opposition to this legislature has my full support...

-Alex Starr New York, New York ———— Original Message ———— Subject: I support the Position Paper! Date: Sun, 3 Mar 2002 20:56:54 -0000 From: "Alan Downing" &downing. alan Qbtinternet.corn) To: &willr sos yahoo.corn)

I have just been to Houston and got hooked on your station. You have my support from UK as it is the only way I can now listen. Best RegardsAlan DowningLoft 4Akenside HoseAkenside HillNewcastle Upon TyneNE1 3UFEngland ———— Original Message ———— Subject: Just Starting Date: Mon, 04 Mar 2002 16:38:19 -0900 From: ([email protected]& To: willr sos yahoo.corn

Hi, Will. We have a group of students here who would like to start up a campus based (intranet) radio station. The statewide University system already pays licensing fees for BMVASCAP programs to air over traditional radio, although we don't have an existing broadcast station at our branch location.

Does this new CARP thing mean that even campus intranet stations must license, report, and pay additional royalties? Can you point me to a site somewhere that has step-by-step instructions for a small college to bring up an Internet radio station, especially one that is restricted by IP address to on-campus only? Thanks for any help you can give us. Susan Warner Media SErvices University of Alaska Southeast susan.warner0uas.alaska.edu ———— Original Message ———— Subject: I support the Position Paper! Date: Tue, 5 Mar 2002 15:09:48 -0700 From: "Shawna Claiborne" ([email protected]) Reply-To: "Shawna Claiborne" ([email protected]) Organization: KBUT To: (willr sos yahoo.corn)

As the program director of KBUT-FM in Crested Butte, Colorado, I am very supportive of your position paper and efforts to fight the DMCA. We do not stream our station, specifically due to this act and the heavy burden it places, not just financially but content-related as well.Feel free to add my name to your list of supporters and good luck in your efforts! Shawna ClaiborneProgram Director, [email protected] 308Crested Butte, CO 81224 ———— Original Message ———— Subject: SOS Date: Wed, 06 Mar 2002 22:43:09 -0500 From: chorn @email.unc.edu To: willr [email protected]

I definitely support the initiative to "save our streams"! I listen to WXYC UNC-Chapel Hill when I'm home, but I don't want to leave it behind once I graduate in May! It has the best free form programming that you would NEVER find on a commercial station. Claire Horn Chapel Hill, NC —— —— Original Message ———— Subject: what will they take next? Date: Thu, 07 Mar 2002 01:37:39 -0700 From: Chris Coleman [email protected]& To; Willr [email protected]

I just read today that the White House is trying to end funding for NPR and PBS. What's next? Just imagine if half our military spending went toward the arts?

I live in a small city with nothing vaguely interesting on the radio. College stations and Brave new Waves on CBC have been a breathe of fresh music to my ears.

Chris Coleman Flagstaff, AZ ———— Original Message ———— Subject: I support the Position Paper! Date: Tue, 12 Mar 2002 17:21:46 -0500 From: Geoff Seelinger &geoff foomedia.corn) To: willr sos yahoo.corn

I supportthe Position paper! I support webcasting of college and public radio content. I believe that the DMCA has a misunderstanding of the nature of the web and linking. Also copyright law needs to be amended to address the changing conditions of intellectual property in the age of digital distribution and reproduction. It is sad that restrictions on the web and reporting have become more restrictive than conventional radio. It is fine to use the web as a marketing tool for big corporate interests but not at the expense of other freedoms like what can be played and how. The DMCA also squelches emerging business models that are much more fair to the interests of the creators and artists behind the music. Furthermore, the laws do not protect the artists or promote the creators they simply serve the interests of companies that have long histories of questionable ethics and practices... It is unfortunate that the US government (the government of the corporations, by the corporations and for the corporations) has assisted them. Furthermore, I don't think DMCA can be effectively enforced, as it is so rich it misunderstanding of the nature of the web... Sincerely,Geoff Seelinger124 Armington St.,Cranston, RI 02905 ———— Original Message ———— Subject: I support the Position Paper! Date: Tue, 12 Mar 2002 20:02:34 -0500 From: "Eric Sheffield" &Eric SheffieldNmsn.corn& To: &willr sos yahoo.corn&

Please add me to the list of supporters of web streaming on your site. I live in an area with limited radio choices, and I appreciate the stations i listen to online for providing that service. Thank youEric SheffieldYoungstown Ohio ———— Original Message ———— Subject: SOS - KBCS Date: Tue, 19 Mar 2002 10:15:01 -0800 (PST) From: mikel vintners.net (Mike Lempriere) Reply-To: mikel 8vintners.net (Mike Lempriere) To: willr sos yahoo.corn

As a KBCS (Bellevue Community College) community member near the edge of their signal area, I strongly support the SOS move. When KBCS began streaming audio on the web, I was able to use to listen with good clarity as opposed to my expected fringe area reception. It was a shame when KBCS was forced to pull the plug. Mike Lempriere 1419 N. 52nd St. Seattle, WA 98103

Mike Lempriere, home: mikel @vintners.net; http://vintners.net/-mikel/ WA State resident: junk email prohibited by law: RCW19.190 0 RCW19.86 ———— Original Message ———— Subject: I support the Position Paper! Date: Thu, 21 Mar 2002 03:12:00 +0100 From: "Frode Langelo" (frode langelo.net& To: &willr [email protected])

I am from Norway...but I still want to hear C89.5fm here on the Web.... in Norway all this is free (also paid by the government...) ... why can't this be in the US? Sincerely,Frode LangeloNorway ———— Original Message ——-—- Subject: I support the Position Paper! Date: Wed, 20 Mar 2002 20:12:19 -0800 (PST) From: Luke Madison (!madison c895fm.corn& Reply-To: lmadison c895fm.corn To: willr sos yahoo.corn

I support your efforts to Save Our Streams. My name is Rem Roberti, a former student of C89.5FM (KNHC) at Nathan Hale High School, Seattle, WA. This highly influential Dance station has created a new genre that commercial radio stations are starting to adopt around the country. WKIE in Chicago and recently KXMG in Austin have both moved to the new Dance format.

C89.5FM can NOT afford to pay these high licensing fees for streaming audio. We are responsible for breaking many artists including Gigi D'Augustino, Laut Sprecher, Backstreet Boys and many more. It would be a shame if Seattle's Hottest Music could no longer be herd first and fresh throughout the world.

This station doesn't make a dime, in fact it is constantly fighting with the school district for funding to barely stay a float. For the first time in our history, C89.5 is going to have to hold a second annual pledge drive.

If you have any questions about the program, or station please feel free to reply. Make no mistake, this is a HIGH SCHOOL station run by High School students.

Thank you for your efforts to save our streams!

-REMROBERTI (on air as Luke Madison)

Get your free email at www.c895fm.corn http://www.c895fm.corn

Run a small business? Then you need professional email like you yourbiz.corn from Everyone.net http://www.everyone.net?tag ———— ———— Original Messa~eCI Subject: I support the Position Paper! Date: Wed, 20 Mar 2002 23:57:16 -0500 From: "paul" ([email protected]& To: &willr [email protected]&

Feel free to include me in on supporting internet radio without restrictive large broadcasting and production fees. As a person living in appalachia, access to a broad range of media culture greatly helps the quality of life of the local public, and greatly benefits the younger generation. I live in Portsmouth, Ohio finishing up my post-graduate training. I attended Saint Cloud State University and graduated in 1994. Add my name to the list of supporters. Paul A. Turcotte Thank you! ———— Original Message ———— Subject: I support the Position Paper! Date: Mon, 25 Mar 2002 08:47:30+1100 From: "Kirk Mower" &Kirk.Mower aad.gov.au) To: &willr [email protected]&

—— — = NextPart 002 01C1D37D.7F69D4A2 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

Hello: =20 I am writing to express my support for community and college radio streaming audio over the Internet. As an American citizen living in Australia, the issue is dear to my heart: =20 Kirk Mower 9 Digney Street Dynnyrne, Tasmania 7005 Australia =20 All the best, =20 Kirk Mower =20

Applications Programmer/Data Management Australian Antarctic Division Data Centre Channel Highway, Kingston, Tasmania, 7050, Australia Ph: 03 6232 3587

———- Original Message —— —— Subject: I support the Position Paper! Date: Mon, 25 Mar 2002 09:34:19 -0500 From: "Scott St. John" [email protected]& To: willr [email protected]

Please add my name to the list of supporters of Internet Radio. I have been in radio for 19 years and ———— Original Message ———— Subject: supporting non-profit non-commercial radio Date: Mon, 25 Mar 2002 12:07:39 -0800 (PST) From: Laszlo Marossy &marossy yahoo.corn) To: willr sos yahoo.corn

I am writing to express my strongest support to all non-profit college/independent music stations in their priceless efforts to broadcast music on the Internet. This is one of the greatest cultural assets the USA has, and the record industry only profits from this as 1s.

98% of my CD purchases in the past 7 years has been the direct result of hearing music by these very stations that are now threatened to be shut down by this legislation. So this will be extremely counter-effective to the commercial music industry itself, not to speak of the cultural effects. If they target radios, let them target the commercial radios where the objective is to make profit and represent the mainstream music industry.

Besides these stations, there are almost no media channels available for up-and-coming artist.

Laszlo Marossy New York, NY

Do You Yahoo!? Yahoo! Movies - coverage of the 74th Academy Awards http://movies.yahoo.corn/ ———— Original Message ———— Subject: STREAMING AUDIO Date: Mon, 1 Apr 2002 16:20:34 EST From: [email protected] To: willr [email protected]

Please do what you can to save streaming audio on the internet. I and many others get immense pleasure from listening to stations such as WGOC-am and WMAF-am and I can't see what harm it does. Its like a breath of fresh air over here and after a while you get an insight into the American way of life.

John Hayward 5a Burtley Road Southbourne Bournemouth BH6 4AP England ———— Original Message ———— Subject: I support the Position Paper! Date: Thu, 30 Sep 1999 01:02:41 -0400 From: Tom Wilkins CI'GWil @cccnj.net) To: willr sos Nyahoo.corn

Hello Will...

I am writing today to express my support for the Position Paper, "Arguments for Changes to the Digital Millennium Copyright Act (DMCA) via the Music Online Competition Act (MOCA)". I am a regular online listener to internet radio and got this message through KNHC in Seattle, which is broadcast from a high school. Internet streaming is a very important part of my everyday life because it gets me away from the same "boring" local radio stations that remain so predictable and do not "serve the public interest", as dictated by FCC regulations.

Clear Channel Communications, the largest radio network in America, shut down live streaming because companies and musicians complained about music and commercials being aired as well as wanting more money, which is nothing short of self-serving and ridiculous. We had to wait nearly 7 months to get the streaming back, and furthermore, showed the cyberpublic that Corporate Moronica does not care about people and what we wanted. They provided us with a service, but so-called "legal action" took away our freedoms. Other companies followed Clear Channel's lead, and that took away from the fun of listening to other stations.

To now have other fees come down because of online streaming is nothing short of a joke, a farce, and an outright outrage to everyone, especially in the public radio sector. As you mentioned, the primary message of your position paper is that Educational and Community stations need legislative relief from the fees, reporting requirements, and content restrictions.

Furthermore, why does money always have to be an issue? We live in America, so why can't companies realize that we are free to listen to what we please? It's already bad enough now in commercial radio where programming is so predictable and more and more syndicated. As I noted before, whatever happened to "the public interest?"

I totally support this message. Please, let's Save Our Stations and enjoy the online streaming once again!!

You are more than welcome to respond to me...the address above can not receive E-mail but can send, so please feel free to contact me at DJKrayzTom aol.corn.

Sincerely,

Tom Wilkins—Maple Shade, NJ ———— Original Message ———— Subject: I support the Position Paper! Date: Tue, 18 Dec 2001 13:24:07 -0700 From: John Hinds (jhinds Nweber.k12.ut.us) Reply-To: jhinds 0& weber.k12.ut.us Organization: Weber School District To: willr sos yahoo.corn

I listen to KRCL, radio free Utah, but whilst sojourning to my ivory towers loose the signal. I depend on the webcast to keep me in touch with reality. Save the Stream!

Kindness is more inportant than wisdom, and the recognition of this is the beginning of wisdom. —Theodore Isaac Rubin

John Hinds on sabbatical at Special Education Dept of SpEd and Rehab. Weber School District Utah State University 1100 Orchard Ave. Logan, Ut Ogden, UT 84401 (435)797-7567 ———— Original Message ———— Subject: I support the Position Paper! Date: Thu, 20 Dec 2001 15:32:22 -0800 From: David.Hewitt aerojet.corn (Hewitt, David) To: "'willr sos yahoo.corn'" &willr sos yahoo.corn&,"'mailman Qkrcl.org'" [email protected]&

Noooooooooo!!!! After a forced move from Ogden, UT, I depended on a webcast of KRCL to maintain my sanity. And it has all faded away. Please add me to your list of supporters. Please, Save Our Streams

Dave Hewitt

Project Engineer GenCorp Aerojet, Sacramento P 0 Box 13222 Sacramento CA 95813-6000

— ———- Original Message ———— Subject: Save Our Stream Date: Fri, 21 Dec 2001 09:05:42 -0800 From: "Block, Helen" &HBlock fm.ucsf.edu& To: "'willr sos yahoo.corn'" &willr sos yahoo.corn&

I have been involved with non-commercial radio since 1980, and cannot see any point to charging webcast fees. People who do college and community radio do not get paid for what they are doing; at both stations where I have volunteered I have been required to help raise money via fundraisers and getting underwriting. The people behind the DMCA do not seem to be aware of these facts. Please add my name and dj name to your list of supporters—

Helen S. Block "Amazing Grace" KALX Berkely formerly of WRFG Atlanta

follow's: ?, 3snis Ian, decree as behave

3,. I axn xns3rinI this declaxanon in support of the Motion for a Stay of the Librarian of C~eess's Order setnng xoys1tp rates for webzas5ag. Recept as stated., personal 1cnowiedIxe of the facts in this dechration and eaux testIfy coxnpctcnt1y to them in a court oflaw.

2„ I sxn a professional xnnaLcian e~m a livtng wraith songs, x cording CDs and performing for live audiences, I have been nominat d for a QrarxIxny Nvaxd. nine tixees. In 19VS, Irected the Granny amen@ Re Best Pop Female Voc~ for my self-wxitbN 856 self-xec~ song "At Seventeen, 'nd fnr Sest Htqpxeered racing fox my self-wcltten axId self-recorded albuxn '"Setwaen the Lines," I have recorded, I j albums for xrLa)or renal coxnpanics and four albuxns for KrxIited oircttlation atnong my own fans. Many other arhsts have also recorded my songs,

, Among &,ose artists sxe Bette Idler, John ReQexIcaznp, Joan Baca and Axgy Grant. I have over ten pjatinLlzn an5 twent/ goM slbuxes %066PPfdc, and, have 58d, nQGL'hex one records in the 73nited, Nates, RcHan4, Iapan, Australia, South A@ca, Israel, B5I.glllH1„P4@856 Qnd ZxelanCL

3 JxL additIon to 9'xiti5$, xocoNIng, a@6 )006'51 7,%Fly s xn05th]y colQREl for Perfomung Bonpvzitex xnagREin@. 7%88 also a xnonthlv co1uxnni8t fag T58 Advocate for five years. I sxn a xegulax'ectuxer (boaster Classes) and, a yosrly le~ (Ax( o$ Perfortrnng, Axt af SmyvritInm snd Athstry) fox 3erMee College oi'mc in Boston, an8, I, also gttest lecture at The Learninw Annex in Los Angeles and san Prancisco, the Viry'nia State Thespian Conference, %pcs, Philade1phia„and Palcon Ridge Pestiva1s„ and vsxiaus other institutions axe Nhoels.

4. I am xrLaMnm tMs cbsclsxation in support of QN xnovants'otion for a stay, lf the vast mgority of Intexnct xadio ststions close their'doors bccmse Grey are usable to pay the wabcasting rnyaIties and fees mandated'hc Librtxrian of Congress, and only those that are financedby huge cong1ceaerates Qr those that are instantly comrnerciaBy and ixrepaxttbke haxxn. profitable aurvivo, mttsicisxIs such as myself will suBa'evere featured on "Society's ChM'opped the chNLxts and, 1 %as En, 1966, my erst record, tb first 5. Look, Time and Newsweek, ma~~ines for The To 'ght Show and in Life, times Verve, had to release "Society's ChDd," thrse tLme. Put my record company, In reeorcI cannot afford to do anymore. &afore it 1seeara,e a hit - sorne&ng companies with ways li& Internet radio is today - independent, 8e 60'a, Phf. raSo ~vas in many audiences. own playHsts Nci developed their oem disl& jaokeg, who chose 6eh more record em'ake nyjc;s and were Seoause FM: radio tocI risks, companies is beIievel in and wait for. it to csrch on, PM radio @@ling to promote a reoord. they songs anci is the only viable mehl for exposure of no longer iQe this; Internet raho the song, were released today for the Qnt di such Is "Soaiety's CHAL" If ~ouM play it and give it composure to Qm time. Internet radia is the en1y format ks2 aQdieuce 't%t could make it a, hit. Reeorci &e PM ta@o business am different today. 6. %he recozdinN industry end considered as vAth/rL six to ten, weks cr the record is oamymHes want records to etsrt each Kith each hba1 releasing thousands of records Med, sad no looper promoted. CornrrLercial r@Bo don't have the urne or resources to bank on longevity, Tnonth, 4ey narrowmm of locked into sNet genes Kth narrow playhstL The stations aTe companies strive for, to eoraxn~sl broadcast radio playHsts )s sornetbin3; that record and%sat to buy. Record companies a11ew them to control Mat cons~ hear of tbe same CD thanby seQinm the znalre rnucb mare tnoney sellinm,'rnG8ons of copies zcc orl4+@5 and IKrtistsi satne nurfklcr vf CDs 4,'vIded enon/ many different

hm'ur xnusic, %'ithout perleaninm artists need most is for UAeers to 7. %hat CDs. Radio has always been the exposure, no one comes to kows, and no one buys vrha records and, carne to means of reaching s0 audience of listeners buy primary broadcs4 radi today costs mare money concerts, But getting your record ylayed an musie isn"t zneinstroarn, and a Mg tbsp xnost ef us ever dresxn of ewrninI, If your crf its hot. artists „your seeps won't I:t record carnpsny isn', prernotieg you sja one /lisped& and critical aco1aim, still v riting and, vx:ording eiih a record label geant 8, While I am are sitnply not played, bit single i'he United States was in 1905, My songs my ]sst ststions. Gldies stations on oornraereia1 terrestrial racho except on oNes anymore listeners and they have a limited audience, vAieh does not include many younger songs. 8 o I ararat hard. rnvself to promote my xnusie, by won't p1ay my new withrny fans and, nNv ceststanQy performing live. writing artioIea and communicating Pee'e, webcasting has 'been a boon. The only place xnost of my sonp can be heard is on Internet radio. Internet Radio pxoyaaaners are not nQed by Arbitxcn ratings that shoe who has tlte most listetNxs or by advertisers thar demand narrow formats Sat appeal to their target consumer groups. Specialty Internet radio stations, nonpro5t webcaetars, collese students and hobbyists simply play the music they love. They yIay music &am other cults'es, music that you cannot find anywhere but oa Internetxadio, They take Hks. They have personalities. The loss of this diversit. of oytioxts for onUM exposure vrmld.'be anirxeparable harm to musicians.

10. Another reason that webcasnng helps artists like me is that Lnmnet radio announcers about @o more f'xont-end a@6 baclc~d announcexnmts, telling listeners what they are broadcast radio announcers do. Pzont-m6 and. to hear or yeast heard„&an conunarcial back-crud mteuncements axe the oMy way fee a listener to icientify the artist they are heling. but radtI.o by and. large won't make the&e atutouncements. The xcasan is that every second a cotnrcercial ra8c rh& jockey spends telling you the aarrls of tbe seep oz the, artist is a, second tbc starton csn't se11 to advertisers. Bur. vrithcut back-end or izontend announcing, there ia na ws,y ftsr radio ta create sales for sxnsts whose vo)pcs End, styles a listener cannot irnruediarely identify. Internet broadcasters, on the otlter hand, %ant to educate listeners about new music and new hn6s of music, Ths kind at Me racKo yroxcatlon is worth much mose to tne than the vebcastiag royalties I could, caQect fram the fee'ntexttot radio ststIans that eill be able af~rd to lrcep stxeaxning under the new royalty scheme,

11. I knot webcasting helps my bottoxn Qne because F receive xlurnesous e-mails each manS &am listeners telling me that they bought ray CDs sZesr they heaxct, xuy songs on Internet radio. If most Internet radio stations, espacis3ly ttta coUcge, aoepraGt and. start:-up stations, are Forced. to stop stxeaxning because they cannot afford to pay the webcasting royalties and. mint trruxa fees, this will directly reduce salas af my Cos, It will also drastically reduce. ticket sales at ~ conccKts, 12. i4nay artists who cannot aiyl with a record. label, or vrho want xnore independence, and No the dost-yourself route, paying for their own rscnnHng studio tixne, axaec6ng ytLyJag Re thus ovrn xnsnufacturiag, and doing all their own promotion, and distribution. Internet radio @ives these harder'hnl artists a chance, Every act Mt. eau't get signed to a xnan m label, for whatever reason, can reach 19erally millions ef zlw Hstencrs, enticing them to bu.y the CD and carne ro the concerts,

UxL'Like terrestrial raiEn, Internet radio also crosses borders, allowing artists Kce 1S, Internet myself to xteacll, Hateners around,5e warlrL Many farci~, listeners depend, on ra4o to leam about Axuerican musie and cultcxe. Allowing In~acr radio stations to Io silent wouM severely curtail American artists'biHty to reach an irLternaticeal attdicnce, Since I make apprmixoatelv 46.49% of my living froru international sources, as do many'tbar artists, this waul have cEaastrous effect crt oe'valihoods, 7t woule1 also severely limit America's mpoxtatton of American music, which a8ecta sales and cultures amund, the woricL 14, ConggeN only hears froze tee xuulti-platinuzrt acts that have made it ceto the ztarzow piayUsts of'oznznercial, 'broadcast radio sad tlmrefora don't need Internet m5o to prostate their ivor@ 7he vast majority of%erkIztg recording Mats Eve in a diferent econoznie vrorld than multiylatittutn stars. In researching my article "Pmm the, Ms] ozs tc the Minors'vhich appeared iu HR July 2000 issue of Pelfozcning Songwritez, I calcu]ated that st v azfist's cltlauce of having an neord Sat is a substantial hit is about ene in '750. But, factoring R that due to continual nazTcwing playlists prozuocedby the four znajoz labels. the sazue hw aztists often have hx after hit, the odds for sozneozN tryiztg to Ircak izt tue tztore like 1 in 300G-5000, Hundreds of Sousands of artists need myosure more than ~e need azt e=tra royalty check. EKposut ~vill give ou= careers longevity,

1S. Tn short, a2owing vast Ttumbers of Internet radio statiorLs to gc silent, +hi]e the vvhole industry is still in its infancy, wou16 be stealing chances frozn young aud alternative artists, and rob'bing thee fans ofeqjoyznent and, oppozturdties to discover tv tastes. This is xleaQy dangerous for the oountry's overall artistic cliznate. This country is built ce irLnovalon, on among an old thing in a new way. Thc mast inncvatlvs ere@'N ized any art farm is not found in the mairmtzsIam. R music,, we'vo seen Ms with jun, big band music, @8th rock and. roll, tlmn with punk, all of ~%ch %~a",e we11 outside of the mainstrearI %'hen t)tey first 'burst ou the scene, Even classical composers an often not famous or popular in Ger awn liMmes. The only way ztew, irtztovative kinds of zrtusic ente: the public consciousness is through slWrnstive routes. These routes used to be vrord of mouth, self'gub1Mt&ed newsletters and, then unltcensed offshore radio Nations, Row Internet radio ia tbe rout@for nnv, innovative ztzusic. ld, In suzzt, if the new royalties foxce Internet radia stations to stop screazuiug xnusic it will hurt perforrniag azd,sts even more thw it will hara@ the webcastezs themselves,

T, dechec under pcna1ty of perjury that the foregoing is truo and correct aztd that Gri declaration alas executed cn September ~I''002, Q es

Jatd, Tan D Declaration ofJoel R. Miller

I, Joel R. Wilier, declare as follows:

I am making this declaration in support ofthe motion for a stay ofthe Librarian ofCongress's Order. Except as stated, I have personal knowledge ofthe facts in this declaration and could testify competently to them in a court of law.

I am an Assistant Professor ofMass Communications and Faculty Supervisor ofstudent- operated radio station KXUL at the University ofLouisiana at Monroe ("ULM"). I additionally serve as an Associate Member ofthe ULM Graduate Faculty. I have been employed as a faculty member of institutions within the University ofLouisiana System since 1982. I have been responsible for the supervision ofKXUL radio since 1985.

I first became involved in student radio in 1977, at Kent State University's unlicensed carrier current station WKSR. My work with student radio has continued for more than two decades. I have been selected by College Media Advisers {"CMA") as the 2002 Distinguished Broadcast Adviser honoree representing four-year institutions nationwide. In 1999, I received a CMA presidential citation for "outstanding service to CMA and to student media across the nation." I formerly served on the Executive Board ofDirectors {1995) and the Faculty/Staff Advisory Board {1996-1998) ofthe NationalHitcherAssociation ofCollege Broadcasters ("NACB"). I have been a frequent presenter at national and regional college media conferences for NACB, CMA, and Collegiate Broadcasters, Inc. ("CBI"). I have written for or have been cited in periodicals and books such as College Broadcaster, The Journal ofCollege Radio, College Media Review. Feedback, The Culture ofAmerican College Radio, The SPLC (Student Press Law Center) Reuort, Current, Chronicle of Education, Radio World, Los Angeles Times. and Salon.corn. A copy ofmy academic vita is attached as Exhibit 1 to this Declaration.

ULM is a regional four-year state-assisted public university located in the northeastern portion ofthe state of Louisiana, offering a broad array of academic and professional programs through the doctorate degree. KXUL, a non-commercial educational radio station, obtained its first broadcast license from the FCC in 1973. KXUL is staffed principally by student and community volunteers and is administered by the academic Department of Communication within the university's College ofArts and Sciences. Mass Communications students may receive academic credit for their involvement with the radio station. ULM is accredited at the institutional level by the Southern Association of Colleges and Schools ("SACS") and the ULM Mass Communications program is accredited at the departmental level by the Accrediting Council on Education in Journalism and Mass Communications ("ACEJMC").

Funding for the operation ofKXUL is derived exclusively from student fees levied by a popular vote of ULM students; KXUL receives no federal funding from the Corporation for Public Broadcasting ("CPB"). A Mass Communications faculty member serves as the station's supervisor, and the university provides the services of a part-time engineer to maintain the KXUL technical facilities. A small number ofstudent staff members receive part-time work- study wages. IVGJL has no full-time employees. A 1999 ACEJMC accreditation report listed among the strengths of the ULM Mass Communications academic program an "jojutstanding student radio station." The accreditation report also generally recognized the value of students'o-curricular involvement with KXUL to augment classroom instruction.

KXUL launched its first Internet site in 1996. In 2001, KXUL received a r&rst place national award from the Interactive Multi-Media Division ofthe Broadcast Education Association ("BEA") juried faculty competition, with additional Exceptional Merit recognition for online interaction.

Student-operated radio station KXUL, licensed at that time with the call letters KNLU, began retransmitting its over-the-air programming via Internet webcasting on July 2, 1998, utilizing free streaming software from RealNetworks, Inc. The station added a second audio streaming service utilizing a newer version ofRealNetworks'ree server and encoder software on June 6, 2000. A third streaming format, Windows Media, was added by KXUL on January 24, 2001, utilizing server software bundled with the academic version of the Windows 2000 Server operating system. None of the streaming technologies utilized by KXUL readily allow for listeners to copy programming KXUL provides to them.

Students must have exposure to the use of new technologies to gain a thorough understanding of mediated communication. Students'xperience gained as the result of KXUL radio's Internet presence and the station's streamed audio programming is therefore a vital part of the students'omplete education. Likewise, KXUL's Internet outreach makes the radio station's programming available to a worldwide audience that would not otherwise be able to experience the messages communicated by our students. KXUL has received numerous communications from listeners throughout this country, and has logged listening sessions from 53 nations outside of the United States.

10. KXUL views the use of digital technology to retransmit the programming of non-commercial radio stations as a natural extension ofthese stations'istorical service. Noncommercial educational radio stations traditionally strive to program to otherwise underserved audiences with content not typically provided by their commercial counterparts. The further distribution of educational and cultural programming via the Internet allows noncommercial radio stations to effectively extend their public service to a geographically-diverse audience. The Internet removes the physical boundaries imposed by an educational radio station's terrestrial radiofrequency transmission, allowing a greater audience to experience each noncommercial station's programming. The Internet began, in part, to support education; the continuing use of the Internet by noncommercial educational radio stations respects that tradition.

11. Internet audio streaming not only allows KXUL to deliver its programming to listeners beyond the station's over-the-air broadcasting area, but this service also allows the station to better reach listeners within the station's immediate area. For example, for each year during the period between October 28, 1998, and August 31, 2002, Internet audio delivered to the corporate offices of Century Telephone Enterprises, Inc., located approximately 6.75 miles from the KXUL transmitter site, represented &om 6-13% of the station's total Internet tuning hours. 12. KXUL, like the majority ofcollege radio stations, cannot afford to purchase, itself, Internet bandwidth necessary for streaming audio. Instead, the station makes use of excess bandwidth provided by the University through a statewide network ofgovernment agencies. The number and quality ofInternet audio streams IGGJL can offer is restricted because ofthis limited network bandwidth. To maximize the service we are able to provide to our audience through this finite resource, we have deliberately restricted the bandwidth capabilities of each ofour streams. As result, the audio quality ofour Internet stream is lower than that received by tuning in to our FM station.

13. Two ofour three streaming platforms can only provide Internet audio at a single bandwidth setting each. Because we know that many ofour listeners do not have access to wide- bandwidth connections, we have purposefully limited our audio streams to bandwidth requirements suitable to the lowest quality level, typified by listeners utilizing dial-up Internet connections. The resulting delivered audio is in no way a perfect copy ofthe original source recording.

14. KXUL was not represented in the CARP proceedings. The first I became aware ofthe online music issue related to the Digital Millennium Copyright Act ("DMCA") was in late 1999, when the broadcast trade press first publicized the need for non-subscription services to file with the Librarian of Congress the "Initial Notice ofDigital Transmissions of Sound Recordings Made under Statutory License." KXUL prepared the notice on November 29, 1999, as soon as I became aware ofthe issue. The Copyright Office copy ofthat notice, filed under the station's former KNLU call letters, bears the stamped "Effective Date" ofDecember 7, 1999. As of the date ofthis writing, radio station KXUL has received no communication from the Librarian of Congress, or from any others, as a result of filing the "Initial Notice of Digital Transmissions of Sound Recordings Made under Statutory License."

15. By the time I became aware ofthe statutory license under the DMCA, I was to later learn, the voluntary negotiation period had already lapsed and the Recording Industry Association of America ("RIAA") had petitioned the Librarian of Congress to commence the Copyright Arbitration Royalty Panel ("CARP"). At the same time that I first learned about the DMCA statutory license, I also was informed of a motion for declaratoryjudgment filed in the U.S. District Court for the Southern District ofNew York by the National Association of Broadcasters ("NAB"), seeking a ruling that transmissions ofa broadcast signal over a digital communications network, such as the Internet, are exempt from copyright liability under section 114(d)(l)(A) of the Copyright Act. KXUL, like many non-commercial educational broadcasters with limited financial and human resources, was compelled to rely on the better- funded efforts ofothers and to await the final outcome.

16. College webcasters generally expected the webcasting royalty rate decision would look very much like previous rate determinations for noncommercial statutory licenses for underlying musical compositions. Noncommercial broadcasters'tatutory licenses for musical compositions have always been based on a blanket fee, not on a per-performance royalty. 17. The station also lacks the substantial finances necessary to participate in the rate arbitration proceeding, even if we had learned ofthat process in a timely manner. Despite Congress* intent to provide the opportunity for all entities performing sound recordings to participate in the CARP hearings, in reality not all that wished to participate could. As a result, the CARP did not hear testimony about the characteristics of college stations.

18, The CARP report notes that a confidential agreement between National Public Radio {''NPR") and the RIAA was made part of the record. This Agreement affects only the services ofNPR, its member radio stations, and non-member radio stations which are eligible to receive federal funding from the Corporation for Public Broadcasting ("CPB"). College stations not funded by CPB, however, have similar fiscal constraints and other interests similar to those ofNPR and CPB stations. While the rates in this agreement are confidential and thus unknown to me, the Agreement is evidence that a willing seller and willing noncommercial station buyer would agree to 1) a blanket license, 2) a different rate for noncommercial stations than for commercial webcasters, and 3) reduced recordkeeping requirements.

19. The Librarian's final decision seemingly values Internet performances of sound recordings several orders of magnitude greater than over-the-air performances of musical compositions. International media research firm Arbitron estimates that, as of fall 2001, KXIJL's Average Quarter Hour ("AQH") audience measures 600 persons {Monroe„Louisiana Total Survey Area; Persons 12+; Monday-Sunday; 6 a.m.-Midnight). If KXUL attracted the same size audience to its Internet retransmissions as it does over the air, the digital rights fees adopted by the Librarian for KXUL would total $ 13,724.47 per year. The annual statutory performance royalty fees for the underlying compositions of these same recordings, as established in other proceedings by the Librarian of Congress, total just $673.00. For the calendar year 2001, KXUL's average Internet audience was just 0.77% of the station's over-the-air audience, yet the minimum sound recording performance fee ($500.00) is 74% of the total statutory musical composition license fees for noncommercial broadcasters ($673.00).

20. The $500 minimum fees in the Librarian's Order mean that most noncommercial college webcasters will effectively be paying higher per-performance royalty rates than the commercial webcasters for their actual webcasts of copyrighted works.

21. KXUL's performance and ephemeral copy royalty liability for the last 65 days of the year 1998, under the Librarian of Congress's nominal rate table, totals just $3.71. Yet the station apparently will be required to pay the "minimum fee of $500 for each calendar year, or part thereof, in which it makes such transmissions or recordings" [37 CFR ) 261.3{e){1)]. The station's effective royalty for the calendar year 1998 will therefore be 2.672( per song performed, or 13,359% ofthe nominal statutory rate adopted by the Librarian for retransmissions by noncommercial radio stations, or 3,817% of the nominal statutory rate adopted for all commercial webcasters, 22. KXUL's nominal royalty for the 2001 calendar year, the station's peak listening period, totals $ 105.78. Because KXUL will be required to disburse the minimum fee, the station will pay an effective per-performance rate for 2001 of 0.09381 j, or 469% of the nominal noncommercial rate of'the and 134% nominal commercial rate. Absent a stay, on October 20, 2002, radio station KXUL will have to make payment to RIAA's SoundExchange division for all past performances between October 28, 1998, and August 31, 2002. Because of the effect ofthe minimum fee, that payment will be $2,500.00, although KXUL's performance and ephemeral copy royalties for the period total only $2'14.86.

23. Another reason college webcasters will be harmed by the Order is that it is impossible to accurately measure the number of performances per listener. The Order bases royalty payments on the number ofperformances, which is defined as "each instance in which any portion of a sound recording is publicly performed to a listener via a Web Site transmission or retransmission (e.g,, the delivery of any portion of a single track from a compact disc to one listener)." %'ebcasters like KXUL can technologically only measure Internet streaming connections not iisteners

24. For each and every month spanning the past two years KXUL has experienced one or more streaming sessions extending for at least 24 hours. Eighty-eight percent of the past 24 months had at least one session lasting more than 36 hours, 46% of the months had at least one session lasting 48 hours, and so forth. Indeed, one month for which KXUL will soon have to pay retroactive royalty fees recorded a single session lasting 143.95 hours, or six straight days. Because a streaming client is connected to the station's streaming server does not necessarily mean is anyone listening. A few marathon connections like these each month dramatically and unfairly skew the performance numbers in favor of the copyright owner and against the webcasters. As more and more consumers subscribe to cable or Digital Subscriber Line ("DSL") "always on" Internet services, this phenomenon will only worsen.

Although the Librarian of Congress has not issued final recordkeeping regulations, the earlier Notice ofProposed Rulemaking and more recent Copyright Office staff comments have indicated that expectations will exceed the capabilities ofKXUL to comply. Even though KXUL is more technologically advanced than many college radio stations, the station would not be able to meet the likely recordkeeping requirements without significant financial expenditures, which are not in proportion to the value of the works licensed. Indeed, some of what the Copyright Office has indicated will be required is technologically impossible for the station to provide at any cost.

26, These recordkeeping requirements are inextricably intertwined with the more general issue of the royalty fees, and are as likely to cause KXUL and its student broadcasters damage by forcing the station to cease its Internet service. 27. By my calculations, individual recording artists will not see much compensation as a result of the rates royalty imposed on college stations. KXUL makes extensive use of computerized tools in its programming, compared with most college stations. Accordingly, I have accurate statistics available to me about what specific recordings are played and how often. We keep such data only a short time due to storage space limitations, but an analysis of one week's data is illustrative. Based on a random week's data the average title played by KXUL is played 1.17 times a day. Comparing this number to the total number of daily performances, using the Librarian of Congress's estimation method, shows that the average song represents 0.406% of KXUL's airplay. Without accounting for administrative costs deducted by SoundExchange, the average song aired on KXUL would generate only $2.03 annually in royalties for the sound recording, even though KXUL's royalty payment will have been magnified significantly by the effect of the $500.00 minimum fee. Of that, $ 1.02 would be distributed to the recording label, $0.91 to the featured artist, and $0.10 collectively to the non-featured musicians on the recording. In reality, these figures would each be reduced by the amount kept by SoundExchange for administrative costs. Estimating that there are 500 college webcasters nationwide, the featured artist would collectjust $456.75 annually for the average recording receiving college radio airplay. The non-featured musicians would receive $50.75 collectively for each such recording.

28. These estimates must be adjusted downward to reflect that 1) college radio playlists are generally even more diverse than KXUL's playlist; 2) stations paying the minimum annual fee rather than the actual royalty liability inflate the total; 3) actual royalties distributed wiH be reduced by SoundExchange administrative costs; and 4) those records that, unlike the average, receive only a few spins on a station or stations.

29. Many record labels give KXUL free recordings to encourage students to play them. A sample of e-mails from labels and bands seeking airplay or offering on-air interviews on KXUL is attached as Exhibit 2 to this declaration. I conclude from these facts that the value of promotion from airplay on college webcasters is worth more to the average record label and artist than a trifling $2.03 in royalties.

30. On July 16, 2002, I met with John L. Simson, Executive Director ofRIAA's SoundExchange division, and Steven M. Marks, RIAA Senior Vice President for Business and Legal Affairs, to discuss the possibility ofa negotiated agreement to cover webcasting royalties for college webcasters, These meetings were arranged as a result of the initiative ofWilliam C. Robedee, and took place in the RIAA's Washington, DC offices. These recording industry representatives told us the organizations they represent will not enter into negotiations with noncommercial college webcasters unless and until a negotiated agreement is reached with commercial webcasters. As of this date, I have personally had no further communication with any representative of the copyright holders. 31. A stay ofthe Librarian of Congress'ate determination and accompanying recordkeeping regulations is necessary to ensure the continuation ofthe Internet audio services provided by KXUL and its student broadcasters. The loss of this outlet will irreparably harm the students participating, audience members now able to listen to the station exclusively through the Internet, and recording artists benefiting from increased exposure through KXUL's Internet presence.

I declare under penalty ofperjury that the foregoing is true and correct and that this declaration was executed on September 20, 2002 in Monroe, Louisiana.

Joel Wilier JOEL R. WILLER 120 Stubbs Hall University of Louisiana at Monroe Monroe, Louisiana 71209-8821 Telephone: (318) 342-1426 EDUCA TION 1980- M.Ed., (May 1982) Kent State University, Kent, Ohio. 1982 Major: Theoretical Foundations.

1977- B.S., (May 1981) Kent State University, Kent, Ohio. 1981 Major: Telecommunications. Cognate (Minor): Theatre. Graduated Magna Cum Laude, with General Honors (Senior Honors Thesis/Project). TEA CHING EXPERIENCE 1984- Assistant Professor of Mass Communications, University of Louisiana at Monroe (formerly Present Northeast Louisiana University), Monroe, Louisiana. ~ Associate Member of the Graduate Faculty. ~ Tenured, 1997. ~ Promoted from Instructor, 1990. 'ourses taught include: Introduction to Radio and Television Practicum Copywriting Writing Broadcast News Radio and Television Programming Radio News (in Journalism) Audio Production (Multi-track) Television News (in Journalism) Seminar in Radio, Television, and Film (Graduate and Undergraduate) Station Management (Graduate and Undergraduate) Broadcast Regulations (Graduate and Undergraduate) BROADCASTING EXPERIENCE 1985- General Mana er of KXUL (formerly KNLU), a student-staffed 8.5 kilowatt FM station covering a Present population in excess of 211,500 people (117,000+ Metro). Implemented fiscal reform to successfully eliminate an accumulated deficit, developed an eight station radio network for university athletics, coordinated relocation and expansion of studio facilities, developed station's Internet site with accompanying live audio streams, prepared legal documents and engineering studies to secure the grant of two FCC Major Change Co ~~yf f~tinn Permits and License Modifications (1987 and 1992), supervised a third Major Change a consulting engineer (1990). 1988- ~anacaer of a 900'ail-tower broadcast transmission facility ov a Present University Foundation (1988-1993) and later by the Universit~ 3- Present). This site serves the University's two FM broadcast stat ts tenant FM, Multi-channel Multi-point Distribution Service (MIV I Cl government band transmitters. Responsible for lease negotic 1CI general site supervision. PROFESSIONAL ACHIEVEMENTS Distin ulshed Four-Year Broadcast Adviser, the fifth honoree selected by College Media Advisers since the 1993 inception of this award. Scheduled to be presented at the 2002 National College Media Convention, Kissimmee, Florida (November, 2002).

Broadcast Committee, College Media Advisers, Memphis, Tennessee (1999-Present).

Cited in the article, "Radio Silence: Fees force college stations to stop Webcasting,n published in the Chronicle of Hi her Education, concerning college radio stations'light resulting from new Internet copyright royalty fees (August 16, 2002). CIted in the guest commentary, "Webcasting Fees Hurt College Radio," published in Radio World, regarding the Librarian of Congress'oyalty rate determination for Internet audio streaming (August 14, 2002).

Web Site Desian, Mass Communications program, University of Louisiana at Monroe (July, 2002).

Adludlcator for all radio entries in the radio broadcast division of the Southwestern Journalism Congress annual student awards contest. The SWJC is comprised of mass communication programs within universities located in Texas, Oklahoma, Louisiana and Arkansas (June, 2002).

Cited in the article, "The CARPing Won't Stop Soon," published in Radio World, regarding royalty rates for Internet audio transmissions proposed under the Digital Millennium Copyright Act by the Copyright Arbitration Royalty Panel (May 22, 2002).

Written testlmonv, submitted on behalf of the University of Louisiana at Monroe and radio station KXUL to the U.S. Senate Committee on the Judiciary hearing "Copyright Royalties: Where is the Right Spot on the Dial for Webcasting" (May, 2002).

Panelist, the only representative nationwide from a public educational institution, for a roundtable hearing conducted in Washington, DC, by the U.S. Copyright Office regarding recordkeeping requirements proposed for Internet audio transmissions under the Digital Millennium Copyright Act (May 10, 2002).

Cited in the article, "Listeners Respond as College Radio Stations Join in Copyright-Fee Protest," published in the Chronicle of Hiaher Educafion, regarding an Internet "Day of Silence" protesting online copyright fees proposed by the Copyright Arbitration Royalty Panel (May 2, 2002).

Contributor, comments and reply comments filed on behalf of an ad hoc nationwide group of university broadcasters in response to a U.S. Copyright Office Notice of Proposed Rulemaking regarding recordkeeping requirements under the Digital Millennium Copyright Act (April, 2002).

Author, comments on behalf of the University of Louisiana at Monroe and radio station KXUL filed with the U.S. House of Representatives'ubcommittee on Courts, the Internet, and Intellectual Property with regard to online digital music issues relevant to the Copyright Act (April, 2002).

Cited in the article, "Why college radio fears the DMCA", appearing at Salon.corn, discussing content restrictions and royalty fees imposed by the Digital Millennium Copyright Act (December 13, 2001).

Contributor, position paper (http://www.rice.edu/cb/sos) on the impact of the Digital Millennium Copyright Act on university webcasters (2001).

Panelist, for five sessions — "Your Website, Your Face to the World," 'We Wanna Stream," "Just How Many People Do We Pay to Stream," "Ask the Experts," and "Underwriting & Fundraising 101: Staying Out of — Trouble" at the Associated Collegiate Press/College Media Advisers/Collegiate Broadcasters, Inc. 2001 National College Media Convention, New Orleans, Louisiana (October, 2001).

Moderator, for the broadcast session, "Radio Show and Tell," at the Associated Collegiate Press/College Media Advisers/Collegiate Broadcasters, Inc. 2001 National College Media Convention, New Orleans, Louisiana (October, 2001).

Co-oraanizer for the first-ever Student Radio Cybercast, featuring student broadcasters from across the nation, at the Associated Collegiate Press/College Media Advisers/Collegiate Broadcasters, Inc. 2001 National College Media Convention, New Orleans, Louisiana (October, 2001).

Cited in the article, "Will audio streaming be worth the cost?", published in Current, the biweekly national independent newspaper reporting on public broadcasting, regarding burgeoning costs of copyright royalty fees and compliance for Internet audio transmissions (September 24, 2001). First Place Award, entertainment category, Broadcast Education Association's Interactive Multi-Media Division juried faculty competition, for KXUL Radio web site development (http://kxul.corn). The site was additionally recognized for "Exceotional Merit On-line." (April, 2001)

Manuscrint Review, "College Radio and Religious Programming: A report on religious programming on state-owned college and university radio stations," Colleae Media Review, College Media Advisers (March, 2001).

Moderator, for the broadcast session, "Radio Show and Tell," at the Associated Collegiate Press/College Media Advisers 2000 National College Media Convention, Washington, DC (November, 2000).

Cited in the article, "Static on the Airwaves," Inland Valley Edition of the Los Anaeles Times, regarding the impact of interference from FM translators on noncommercial broadcast stations (October 25, 2000).

Interview providing background information for the article "The First Amendment on the Air" in The SPLC Report, Student Press Law Center, Arlington, Virginia (Spring, 2000).

Presidential Citation, College Media Advisers, Memphis, Tennessee. For "outstanding service to CMA and to student media across the nation" (October, 1999).

Panelist, for the broadcast session, "Leading your Staff," at the Associated Collegiate Press/College Media Advisers 1999 National College Media Convention, Atlanta, Georgia (October, 1999).

Elected Chairman of an ad hoc committee that planned a national organization for student-operated electronic media, Collegiate Broadcasters, Inc. (CBI). This committee was established at the Associated Collegiate Press/College Media Advisers 1998 National College Media Convention, Kansas City, Missouri (1998-1999). Cited in a book authored by Samuel J. Sauls, Ph.D., of the University of North Texas: The Culture of Ameri- can Colleae Radio, Iowa State University Press (1998).

Cited in the article, "An Examination of New and Existing FCC Rules, Policies and Procedures Affecting Student/Noncommercial Radio Stations," Feedback, Broadcast Education Association (1998). Cited in two books authored by Jim McCluskey, Ph.D., of Central Michigan University: Startina a Student/- Noncommercial Radio Station, Simon 8 Schuster, and Advisina. Manaaina 8 Ooeratj'na a Student/Noncom- merciai Radio Station, Simon & Schuster (1998).

Cited in "Building the Perfect Wave: Helpful Hints for Student Station Webmasters," in the National Association of College Broadcasters'o//eae Broadcaster. This article also contained multiple screen shots of the KNLU web site (1998).

Facultv/Staff Advisorv Board, National Association of College Broadcasters, Providence, Rhode Island (1996-1998).

Panelist, "Different Strokes" (various methods of teaching and advising stations) and "Building Bridges to the World" Outside (discussion of the link between academia and the industry) at the National Association of College Broadcasters'inth Annual National Conference of Student Electronic Media, Providence, Rhode Island (Fall, 1996). "Why Panelist, we put it on the Air" and "Making Your Presence Felt" at the National Association of College Broadcasters'ifth Annual Mid-South Regional Conference, Mississippi State University, Starkville, Mississippi (Spring, 1996).

Executive Board of Directors, National Association of College Broadcasters, Providence, Rhode Island (1995). Panelist for a seminar on radio remote broadcasts at the National Association of College Broadcasters'ighth Annual Conference of Student Electronic Media, Providence, Rhode Island (Fall, 1995). Adiudicator, National Association of College Broadcasters'ifth Annual National Student Television Pro- gramming Awards, including the ESPN-sponsored "Television Play by Play Coverage" and "Television Talk/- Magazine Program" (Fall, 1995).

Adiudicator, National Association of College Broadcasters'ifth Annual National Student Radio Awards, including Interep Radio Store "Radio Marketing/Promotion Campaign," SPIN Magazine "Radio Talk/Magazine Program," and "Radio Station of the Year" (Fall, 1995).

Author of the radio station underwriting media kit included in the 1994 and 1995 editions of the National Association of College Broadcasters'tation Handbook.

One of three faculty members used as case studies in a paper entitled Redefinina the Role of the Facultv Advisor in Student Electronic Media Oraanizations by Jim McCluskey, Ph.D., then coordinator of the Broadcasting/Electronic Media sequence at the H.H. Herbert School of Journalism and Mass Communication at the University of Oklahoma. This paper was presented for a panel, "Strategies for College Media: Advisors as Learning Facilitators," at the 1995 Broadcast Education Association annual meeting.

Enaineerlna Studv. Construction Permit Aoollcation. and License Modification for KNLU's frequency change (to 91.1 MHz), increase in height (to 716 feet HAAT) and power (to 8.5 kilowatts), resulting in a 130% gain in coverage area for the station. This application became a test case for a new FCC policy on Receiver Induced Third Order Intermodulation Effect (RITOIE) interference from sites with multiple transmitters (1992).

Honorable Mention, in the Community Service Category, for station KNLU, by National Association of College Broadcasters (1991).

Supervised and edited student-submitted articles on Persian Gulf War news coverage in the National Association of College Broadcasters'olleae Broadcaster, and in the Intercollegiate Broadcasting System's The Journal of Colleae Radio (1991). Initial proposal, preliminary planning, grant preparation, and equipment specification for KEDM (FM), Monroe, Louisiana, a new CPB-aualified NPR/PRI station which began broadcasting April, 1991 (1985-1990). Supervised FCC Aoolication process, with the assistance of a Washington, DC consulting engineer, and relocation of KNLU's transmitter from atop an on-campus dormitory to the University's off-campus broadcast tower, resulting in a 190% gain in coverage area for the station (1990).

Adiudicator, Georgia Associated Press Broadcasters'adio news competition (1988). Enalneerina Studv. Construction Permit Aoolication. and License Modification to replace Construction Permits for KNLU that had expired under previous management. The station was returned to compliance with its 10-watt Class D license while remedial action was taken to protect the license. Due to budgetary constraints all engineering and legal work for this project was completed personally, which ultimately resulted in a 2,258% increase in the station's licensed coverage area (1985-1987). MEMBERSHIPS Broadcast Education Association College Media Advisers Collegiate Broadcasters, Inc. Intercollegiate Broadcasting System ¹ ¹ ¹ Revised 09/02 State University of New York, New Paltz. 198 I, Bachelor of Arts Degree in Broadcast Communication E Aug-12-02 04:24pm From-Miller Van Eaton l zoz(aolzs4 I Uoe r ls/14 k'(4

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTMCT OF COLUMBIA CIRCUIT

INTERCOLLEGIATE BROADCAST SYSTEM, et al.,

Pert'tioners

No. 02-1220

JAIVIES H. BILUNGTON, Librarian of Congress,

Respondent.

Declaration ofEuaenia L. Giuffreda

1 am an employee ofthe United States Copyright Of5ce, the service unit ofthe Librmxy of Congress that has responsibility for the Copyright Arbitration Royalty panels pursuant to Chapter S ofTitle 17, United States Code. My current tide is Law Clerk. 1 have been an employee ofthe Copyright Once since December 1997.

2. From December 1997 to February 2002. I was the Copyright Arbitration Royalty Panel ("CARP") Specialist.. My duties as CARP Specialist included the receiving and processing of all papers filed in any CARP proceeding conducted before the Copyright OQice.

Title 37 ofthe Code of Federal Regulations requires that pames wishing to participate in a rate adjusunent or distribution proceeding file with the Librarian of Congress ("Librarian") a Notice ofIntent to Participate. 37 CZW $ 251.45(a). The Notices ofIntent to Participate are then used to compile the official Service L'ist for the rate adjustment or distribution proceeding. 37 C.F34 g 251A4(f).

As CARP Specialist, 1 was responsible for the preparation ofthe index ofthe Notices ofIntent to Participate filed in the proceeding that is the subject of the 3oint Petition for Review submitted by Intercollegiate Broadcasting System, Inc. and Harvard Radio Broadcasting Company, Inc. The puzpose of that proceeding was to set rates and terms for the stanitory license for eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions under 17 U.S C. f 114 and for the statutory license to make ephemeral recordings of sound recordings for use of sound recordings under 17 U.S.C. f 112 ("webcasting proceeding"). After preparing the index of the Notices ofIntent, I then used the Notices ofIntent to Participate to compile the official Service List for the webcaeting proceeding. I also updated the oKcial Service List whenever a party withdrew &om the webc~8ing proceedmg or was dismissed from the proceeding by the Librarian of Congress for failure to file a written direct case, as required under 37 C.F.R f 251.43(a). Aum-12-02 04:24pm From-Miller Van Eaton 202T851234 I 1 Uhn Y.14/14 t'f4

5 Neither Intercollegiate Broadcasting Systems Inc. nor Harvard Radio Broadcasting Company, Inc. filed a Notice ofIntent to Participate in the webcasticg proceeding. As such, they were never parties to the webcasting proceeding and, therefore, never appeared on the official Service List for the proceeding.

6. Attached are true and correct copies ofthe index of all the Notices ofIntent to participate filed in the webcasting proceeding and the Service List of all the parties who actually appeared and presented evidence to the panel of arbitrstors presiding over the webcasting proceeding.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 6~ day of August 2002 in Washington, D.C.

Rupia L. Giuffreda F Declaration of Kmilie Autumn

I. Emilie Autumn, declare as follows:

I am making this declaration in support of the motion of Live365 for a Stay the Librarian of Congress's Order setting rates for webcasting royalties. Except as stated, I have personal kaowledge of the facts in this declaration and could testify competently to them in a court of law.

I am an independent recording artist and performer. I began performing professionally as a classical violinist at age 12, and now record both classical music and adult alteraative rock music I call "fantasy rock."

3. I founded Traitor Records, an independent record label, for the purpose of releasing my albums without having to answer to major label record company executives. Traitor Records embraces the Internet's potential for low cost, high volume marketing. Traitor Records'ecordings are only sold online, through our website at www.traitorrecords.corn. Our catalog includes my classical recordings, my fantasy rock recordings, aad recordings by Raveasong, the lane Brooks Project, Convent and Dream k Sugar. As an artist and, a record label owner, I know a great deal about the music industry. Because I am a truly independent artist, it is my privilege and responsibility to speak out against actions that harm both artists and audiences.

The RIAA only represents the five major labels, not labels like mine. In my opinion, the major labels are afraid of Internet radio because the variety of different music heard on Internet radio leads to unpredictable record-buying behavior. They want to control radio to control the market for music. Internet radio is the most trustworthy and honest ouQet for exposing new and diverse artists to the public. What's on Internet radio is, in large part, not what's on commercial broadcast radio. There is no other outlet for independent, lesser-known artists or those in genres that are not Top- 40. iVyy recordings receive little, if any, airplay on commercial radio.

Internet radio is a great way for me to get music out in an honest way tp a vital music audience. I know that Internet Radio promotes sales of my recordings because I receive many, many fan letters that say, for example, "I heard your song "Chambermaid" on Wolf-FM and I liked it and decided to buy the CD."

To help Internet radio stations stay afloat, Traitor Records is offering the entire Traitor Records catalog to webcasters royalty-free. We can only do this because, unlike many recording artists, 1 hold the copyright to my work. Our policy is to be at the forefront of technological innovation in music distribution rather than falling behind the winds of change. I have confirmed, by obtaining their playliata, that 237 different Internet radio stations are now playing and streaming those recordings. I have also received a large number of orders for CDa directly from the people who run these Internet stations, even they already have electronic files of the records. Many of these are stations webcasting via Live36S, including Power Hit Radio, Ness Monster Radio, Xenergetic Radio and NRG PM among dozens af others.

Our sales have tripled since we started thc Internet radio campaign. I have also seen an increase in orders from Ireland, Scatland, the United Kingdom, Australia and other countries where I have made na special efforts to promote our music. These sales can only come as a result of buyers having heard my music on Internet radio. If Internet radio stations fall silent, I will lose all these sales.

10. I know that twenty-two Internet stations that used to play my recordings have already had to stop webcasting as a result of the rates and minimum fees sct out in the Librarian'a Order. This harms me directly, because every day I am losing the chance to reach new listeners. Bach such station that goes silent means a diminution in the potential audience for my work. While I hope my actions will help, I do not believe many Internet radio stations can survive playing only content that's been licensed royalty-free. Too few artists own their own copyrights, and some of those who do own them do not have the resources to produce high quality recordings. The only hope for Internet stations is a stay of the Librarian's Order pending the Court'a decision on appeal.

12. The potential royalties from webcasting would be a trivial source af incamc for most recording artists. These small royalty streams are not worth thc loss of exposure to a worldwide audience that will result from Internet radio stations ceasing to webcast

13. The silencing of Internet radio stations also harms the public, because listeners have almost na other means af hearing new music that is not on commercial radio and discovering genres of music that are not mainstream, but could greatly enrich their lives.

I declare under penalty of perjury that the foregoing is true and correct and that this declaratian was executed on September 11, 2002 in Chicago, Illinois.

Bmilie Autumn Cl~

I t I I

Pl Declaration of Tim Coble

I, Tim Coble, declare as follows:

I am the Director of Development for XSVoice. Inc.. a wireless platform and application developer. I am making this declaration in support of the motion for a Stay of the Librarian" s Order. Except as stated, I have personal knowledge of the facts in this declaration and could testify competently to them in a court of law.

XSVoice developed the SWInG (Streaming Wireless Internet Gateway) platform, which enables mobile access to virtually any type of live and on- demand media content, including Internet-based streaming audio, radio, television or other audio source. We license the platform primarily to wireless carriers like Nextel and Cingular, as well as to third-party service providers who wish to add wireless streaming audio to their service offerings.

XSVoice also offers a direct-to-consumer live wireless audio service called Mobile Broadcast Network, that allows wireless listeners to use their existing wireless devices- cellular phones, handheld personal data assistants and others- to listen to a wide variety of audio content, including music, news, sports, entertainment, business and finance, technology, religious services, weather reports, horoscopes and much more, The Mobile Broadcast Network currently offers more than forty music-based audio streams from twenty-six Internet radio stations including Wolf-FM„Virgin Radio and Radioio, with additional stations being added on a regular basis.

We act as a new distribution medium for wireless content providers while also providing a service to the wireless carriers. Our Mobile Broadcast Network offers wireless users access to about 1000 different audio stations.

There has been a lot of news coverage about the large number of Internet radio stations shutting down as a result of the Librarian's Order, but very little reporting about the effects of this mass extinction on other industries, including wireless services such as ours.

About 65% of our transmissions are music streams, virtually all of which originate from existing Internet radio stations. Internet radio is our most popular type of content, even though music stations account for less than 10 7o ofthe streams we offer. If Internet radio ceases to be a viable industry, it would have a significant negative impact on our ability to market our service and content offerings to third parties that want to offer their customers wireless access to a wide variety of music.

The next generation of wireless networks and devices (known as 3G technologies) are expected to become widely available in the U.S, within the next two to five years. Device companies have invested tens of billions of dollars in purchasing wireless spectrum licenses, infrastructure building and device development. If consumers cannot get a wide range. of musical content on the Internet, they will have less of an incentive to upgrade their current wireless devices and service plans . All wireless carriers will face even greater obstacles to encouraging consumer adoption of these technologies and, subsequently, recouping their development costs if they cannot offer access, through wireless devices, to compelling multimedia offerings such as Internet radio.

Listeners who use our service say they frequently cannot find the content they want on their car radios. They will put up with lesser audio quality to listen to Internet radio on their wireless devices. They will spend their wireless minutes to listen to Internet radio during prime time, because hearing the station they want is worth the cost. Also, many wireless services are now offering substantial "buckets" of night and weekend minutes as part of their service plans, so customers can listen to Internet radio nights and weekends for free or at very little additional cost.

10. XSVoice just recently changed the Mobile Broadcast Network from a subscription model to a free service supported by advertising Within the first two weeks of this new offering model's release, over seven thousand wireless listeners have used the MBN service to listen to wireless streaming audio. We conservatively anticipate that our user base will grow to well over 200,000 by the end of 2002. Again, a significant percentage of these use the service to hear music.

11. Our business plan assumes the existence of large number of Internet radio stations, offering a wide variety of different kinds of music. If these go away, it will have a severe impact on our ability to attract new users, and our ability to motivate existing users to continue using our service. If we lost all our music listeners, that could decrease the number of streams that we broadcast by as much as 65%. That, in turn, would make our offering much less attractive to both wireless carriers and the advertisers upon which our company depends for the majority of its revenues. 12. In sum, XSVoice and other services that benefit from the existence of a large and diverse body of Internet radio stations vill suffer great harm as a result of the Librarian's Order if it is not stayed pending appeal.

I declare under penalty ofperjury that the foregoing is true and correct and that this declaration was executed on September P&, 2002 in Nashville, Tennessee.

TmC ble. H Remote Host = dhcp065-024-056-146.columbus.rr.corn Name = Joe Peppercorn Affiliation = Mrs Children, Spanish Boy Records Phone = 614-459-7460 Location = Columbus, Ohio Comments = Hello, I came across your station on the web and was interested in submitting a CD to be considered for airplay. The band is Mrs Children, they are from Columbus, Ohio and have just released a new CD on Spanish Boy Records called "Break My Back."

The style is a pretty straightforward rock. We are looking for any radio station that will give our disc a listen and consider it for airplay, is there an address I can send a disc to?

Thanks! Joe Peppercorn www.mrschildren.corn

From: jason supercellonline.corn Sent: Thursday, September 12, 2002 5:22 PM To: tunes Qkxul.corn Subject: IGHJL Music Director Form

Sender = jason Qsupercellonline.corn Remote IP = 65.68.220.6 Remote Host = 65-68-220-6.metropcs.corn Name = jasonwWheelington Affiliation = SUPERCELL Phone = 214.362.0044 Location = dallas, tx, usa Comments = gabe, i am with the band SUPERCELL, from dallas. we are coming through monroe tomorrow (9/13/02-12:00p) for a show at the Blue Monkey. we are similar in style to Our Lady Peace, Foo Fighters, etc.

do you have any interest in doing any on-air promo, with us, before the gig with us. i will attempt to contact you via telephone too.

2 of us, will be in monroe early tomorrow, if you'd like to do any in-studio stuff. i (the singer- and usual spokesperson) will only be available via phone before the gig. we are all available saturday morning though.

jason www.supercellonline.corn 214.362.0044

From: Chandler, Erin [Erin.Chandler EMICAP.COM] Sent: Wednesday, September 11, 2002 3:00 PM To: KXUL (E-mail) Subject: thanks! hey gabe— thanks for getting coldplay at 12 this week. you rule! is there anything i can do to keep it or get it closer to tl??? also, be sure and check out my contest if you havent already

Erin Chandler The Cage — CollegelNonCommercial/Specialty Promotions Capitol Records 8th Floor 1750 N. Vine St. Hollywood, CA 90028 800-342-8842 AIM: SR97ME "The Hottest, Coolest College Promotion Department In America." J.G. From: lbowolin Otelus.net Sent: Thursday, September 12, 2002 3:02 PM To: tunes kxul.corn Subject: KXUL Music Director Form

Sender = lbowolin telus.net Remote IP = 209.53.116.164 Remote Host = slam0lm03-164.betel.ca Name = Louise Bowolin Affiliation = Robin Brock Phone = 1-250-836-2187 Location = Canada Comments = We have just released Robin Brock's second album "Hidden Power" to very good reviews in the U.K. and Europe. After checking your website I wanted to drop you a note and see if you would be interested in a promo kit. Some of the songs are in rotation on internet stations. (Seattle, Germany, MI to name a few)

If you have a moment you could check her website at www.robinbrock.corn. to get an idea of her music. If you would like a promo kit, please drop me a note and I will put one in the post for you.

Thank you for your time,

Regards, Louise Bowolin, Manager-Robin Brock*

From: Jesse Mraz jjesse ecompanypro.corn] Sent: Monday, September 09, 2002 5:45 PM To: 'tunes gabe,Qkxul.corn'ubject: jesse here hey man, i don't frequent houston's message board that much. i saw your post that said trainwreck2 got instant rotation. thank you very much. hope all is well.

Jesse Mraz E Company Productions jesse ecompanypro.corn ph: 612.379.0500 fx: 612.627.9360

From: Daniel Gill [daniel Qfanaticpromotion.corn] Sent: Wednesday, September 11, 2002 6:01 PM To: info fanaticpromotion.corn Subject: 01, THE OLD-FASHIONED WAY

Big ups go out to everyone that helped us succeed in our efforts to get Sleater-Kinney to 01 at CMJ this week — Woo Hoo!!!!! Now our goal is to keep "One Beat" on top for several weeks to come, so we appreciate your continued support! Arriving on your desk any minute now is another doozy of a record from Mr. Steve Earle (details below). Make sure you listen to it between now and Monday, Sept. 16 (the ADD date). As we'e mentioned before, we have a lot of bands on the road right now and in particular, I am the World Trade Center, VHS or BETA, Mecca Normal, Denison Witmer and The Sights are VERY interested in visiting stations when they come to your town, so please let us know if you'e interested ASAP. We also have a limited number of Sleater-Kinney guest list spots available, so act fast and let us know if you want to go check out the best band in the world!

For everyone who is already keeping track of happenings in NYC during CMJ this year we'd like to let you know that Fanatic and For Play will be having a party on Weds. Oct. 30 from 4-7pm at the Luna Lounge. The bands we'e booked so far are DJ Me DJ You, The Turn-Ons, Pas/Cal and Tandy. Look for an official announcement about our party soon!

-Daniel

Here's what's new....

STEVE EARLE "JERUSALEM" CD (ARTEMIS) ADD DATE 9/16 - 9/17

The 13th album from living legend, author, activist and artist Steve Earle is simultaneously political and emotional, angry and peaceful, seeking both answers and salvation. It's an unmatched accomplish- ment. In the hands of Earle, our current global climate is put under a microscope and on the controversial track "John Walker's Blues" Earle makes the point that Walker could have been anyone's son, that his situation is one worth exploring from more than one perspective. The best way to look at this song is as a portrait of Walker,similar to past songs written about criminals such as Jesse James or Bonnie & Clyde. Earle has pointed out that his stance is not an anti-US one, and that he feels that this is the most PRO-American album of his career. "Jerusalem" finds Earle making some changes in musical direction, the record has a more rock 'n roll feel than his previous work and is shook up even more on the R&B flavored "Conspiracy Theory." ALL TRACKS CLEAN Try 01,2,3.4,6,9 (duet w/ Emmylou Harris)

(Tour date information deletedJ

Daniel / FANATIC

Fanatic Promotion & Co. 630 9th Ave. Suite 1012 New York, NY 10036 tele: 888-349-4842 cell: 917-941-3282 IM: FanaticPro2 www.fanaticpromotion.corn

[[NOW]] Steve Earle + Bangs + Babalu + Sleater-Kinney+ Irving + Mecca Normal + I Am The World Trade Center + The Telescopes

[[SOON]] DJ Me DJ You+ The Blood Group+ Flare+ "Songs in the Key of Z Vol. II" + Pas/Cal+ Tandy+ The Sights+ Denison Witmer+ The Quails+ The Music Lovers+ Jenny Toomey + Xerophonics + Har Mar Superstar

[[FOR)PLAY]] The Turn-Ons + The Snitches + NoahJohn + Shearwater + The Bruces + The Fairline Parkway + Cigarbox Planetarium + Negativland + Hello )From Waveland + The Witches + The Operators + Sinkcharmer + Always + )Books On Tape + Scarborough Aquarium Club + Calvin, Don't Jump! + Say Hi To Your Mom + Darren Hanlon + Ral Partha Vogelbacher + Aqueduct+ The Freed Unit

From: jerry shaw hotmail.corn Sent: Monday, September 09, 2002 6:33 PM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = jerry shaw Nhotmail.corn Remote IP = 207.64.159.254 Remote Host = Name = Jerry Shaw Affiliation = Luke Productions Phone = 214-636-1819 Location = Dallas, TX Comments = I have a band that will be touring through Monroe on September 16th, and was wondering if perhaps we could work out a deal on doing some promotions. I do have CD's and bios available if interested. They will be playing at the Blue Monkey, and would like to come back through if all goes well there. Please contact me, and let me know what you need to make this work. Thanks for your time.

From: [email protected] Sent: Monday, September 09, 2002 1:49 PM To: tunes Qkxul.corn Subject: ICAL Music Director Form

Sender = valhere23 yahoo.corn Remote IP = 216.26.76.165 Remote Host = ip216-26-76-165.dsl.du.teleport.corn Name = Scott Affiliation = Valhere Phone = 503 810-2793 Location = Portland, Or Comments = Hi Gabe, This is Scott with Subtonic Records in Portland Oregon. I'm glad you'e taken the time to listen to the new Valhere cd, "This lonely highway...". I hope it is something that will fit into your playlist. Email me back and let me know what you think. I would love to add ICAL to the long list of stations across the country that are spinning Valhere. Thanks again, and I look forward to hearing from you.

Scott Subtonic Records www.valhere.corn

From: doug sateliterecords.corn Sent: Monday, September 09, 2002 11:44 AM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = doug Q sateliterecords.corn Remote IP = 66.106.55.105 Remote Host = ip66-106-55-105.z55-106-66.customer.algx.net Name = doug fraser Affiliation = satellite records Phone = 212-780-9305 Location = new york city,ny Comments = please send an e mail address so that we can send you a proposal about a new college record pool that we are rolling out this fall.Thanks! Doug

From: Josh Bloom [[email protected]] Sent: Monday, September 09, 2002 10:15 AM To: Fanatic Promotion Subject: SLEATER-KINNEY @I

Hello,

This is Josh at Fanatic writing. You don't really hear from me often, but today I am writing to you to ask for your support on the new SLEATER-KINNEY record from Kill Rock Stars, "One Beat".

As you are probably aware, Fanatic has never worked a major label record, we'e always been steadfastly committed to helping indies, and have only hoped in our wildest dreams to have a 01 at CMJ. We hope this will be the week when we do get that elusive @1, but we can't do it without you. Please give us your support on SLEATER-KINNEY this week. If it's not your chart topper, the terrorists have won.

Best, Josh

Fanatic Promotion 4 Co. 630 9th Ave. Suite 1012 New York, NY 10036 tele: 888-385-1231 cell: 917-744-1772 IM: FanaticPro fanaticpromotion.corn

From: steve theo [steve planetarygroup.corn] Sent: Monday, September 09, 2002 9:00 AM To: undisclosed-recipients: Subject: Records and ADDS...

ADDS 9/9: ~* Yohimbe Brothers—Front End Lifter—Ropeadope **Division of Laura Lee - Black City - Burning Heart/Epitaph** **CeDell Davis - When Lightnin'truck the Pine - Fast Horse Recordings** **Jason Mraz - Waiting For My Rocket to Come - Elektra** ** Filmmaker - An Invitation to an Accident - Faraway Records**

Records: **BEENIE MAN / TROPICAL STORM / VIRGIN** **LES SANS CULOTTES / FAUX REALISM / AERONAUT** **KENNY YOUNG AND THE EGGPLANTS / THE SEARCH FOR EGGPLANTIS / CONEY ISLAND** **ALEX WOODARD / SATURN RETURNS / KONA** **LIVESEXACT / SEGMENTED PURITY: THE REMAKES / HURLY BURLIES** **Bouncing Souls/ Anti- Flag—BYO Split Series Vol. 4 — BYO ** **Fear of Fred/ Another Bad Day/ Self Released** **Chris Emerson/ Tourist/ SR **

Regionals (feedback only please-limited mailing): BIEN / E (HIP HOP) MIDGET JESUS / WHAT WOULD MIDGET JESUS DO

**MARYKATE O'EIL / MARYKATE O'EIL / 71 RECORDINGS** **THE JOHN BUTLER TRIO / THREE / JARRAH**

Coming Soon... Lost City Angels, Tornado Squid, Mustard Plug, Kicked in the Head, The Spitvalves, One Man Army, The Forgotten, Ikara colt, Moon Theory, Cober, Dillinger Escape Plan, Guttermouth, Dropkick Murphy's, Lotusdog, Beatsteaks, Bettie Serveert, Duncan Sheik, Voyager One, Porcupine Tree, Hot Water Music ...... AND MORE TO COME, BABY!

From: info 4 spacecadetband.corn Sent: Tuesday, September 03, 2002 2:55 PM To: tunes kxul.corn Subject: KXUL Music Director Form Sender = info spacecadetband.corn Remote IP = 198.81,27.11 Remote Host = cache-ntc-ai06,proxy.aol.corn Name = Ted Levin Affiliation = Space Cadet Phone = 940-300-9073 Location = Dallas,TX Comments = Gabe, We'e all been really digging the station. We'e back at the Monkey on that Leif Garret show next week. Is there any way that we can get added? -Ted

Space Cadet From: promomorris8.corn'ent: Sunday, September 08, 2002 10:30 PM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = promo @morris8.corn Remote IP = 211.28.96.69 Remote Host = mcf2.wc.optusnet.corn.au Name = Ben Aitchison Affiliation = Morris 8 (Algorhythm Music) Phone =+61 (0)7 5446 1814 Location = Brisbaen, QLD, Australia Comments = Dear KXUL 91.1 FM Music Director My name is Ben Aitchison. I am a member of the trans-pacific band Morris 8. I live in Brisbane, Australia. The other band members reside in Toronto, Canada. I am currently managing the promotion of a North American college radio campaign of our debut album, Client Sausage. I have spent the last 6 weeks searching the net for stations that I felt might be interested in our music. If you have the time we would greatly appreciate a quick reply to this email. It will help us greatly in getting our CD promptly sent to your Music Department.

Could you please verify that the following details attained from your website are correct.

Current Music Director Gabe Cardinale

Current MD phone number (318) 342-5662

Current MD email address The email form I'm sending this on...

Current Mailing Address 130 Stubbs Hall, ULM Monroe LA 71209-8821 USA

Our album is quite a mix of styles and genres in the very general category of Pop/Rock. So if there are any particular styles of music that you are more likely to play, or if your station's playlist slants more towards the freeform programming format, this will help us to recommend songs that you may be more interested in reviewing and playing.

Thankyou so much for you time, we look forward to sending you a copy of Client Sausage in the next 2 weeks.

Regards, Ben Aitchison

From: TEXSR2 AOL.COM Sent: Sunday, September 08, 2002 8:41 PM To: tunesQkxul.corn Subject: KXUL Music Director Form

Sender = TEXSR2 AOL.COM Remote IP = 64.12.96.40 Remote Host = cache-mtc-ab03.proxy.aol.corn Name = JOE GALLUZZI Affiliation = SPIKE IVORY Phone = 908-810-8662 Location = UNION, N.J. USA Comments = I AM A SOLO ARTIST WITH A NEW ALBUM LOOKING FOR REVIEWS AND AIRPLAY . I AM CURRENTLY IN ROTATION ON CERTAIN COLLEGE STATIONS AND ON-LINE. WWW.SPIKEIVORY.COM

From: tetsoya netcom.ca Sent: Sunday, September 08, 2002 7:34 PM To: [email protected] Subject: KXUL Music Director Form Sender = tetsoya netcom.ca Remote IP = 142.154.204.195 Remote Host = van-bc66-163.netcom.ca Name = larry Affiliation = the fabricators Phone = 604 4127405 Location = Comments = the fabricators invite you to preview their latest release at their award winning site/www.vru.corn/fabricators/ this disc has been added to many stations worldwide.if your show/station would like a copy for airplay please drop me a line.yours in music larry smith/the fabricators.blues/roots/r b

From: helalexa msn.corn Sent: Saturday, September 07, 2002 4:25 PM To: tunes kxul.corn Subject: KXUL Music Director Form

Sender = helalexa msn.corn Remote IP = 166.152.67.141 Remote Host = vzw-166-152-67-141.airbridge.net Name = Helen Alexandra Affiliation = E.S.Time, Ltd. Phone = 917-771-4036 Location = New York, NY Comments = I represent a guitarist and composer named Erik Sootes, and try to get airplay for his music. The main idea of his creativity is guitar in various styles such as rock, fusion, flamenco, and so on. May I send you his CD for review?

From: Baldwin, Robert [RBaldwin mail.dot.state.de.us] Various Artists 'Peanut Butter Wolf's Jukebox 45's (Stones Throw) Speedometer 'Private' Run) BT 'Greatest Hits'Essential / FFRR / WSM)

Adds 9/17: Ryan Adams 'Demolition'Lost Highway - Island) Ladytron 'Light 8z Magic'Emperor Norton) Dr. Didg Dust Devils'Shakti / Narada) Mia Doi Todd 'The Golden State'Columbia) Boom Bip 'Seed to Sun'Lex) Various Artists 'Sounds Eclectic 2'Palm Pictures) Banco de Gaia '10 Years'Six Degrees) Jazzanova 'Tour EP'Rope a Dope / JCR) Lifesavas 12" (Quannum)

From: jerry shaw hotmail.corn Sent: Friday, August 30, 2002 3:21 PM To: tunes kxul.corn Subject: KXUL Music Director Form

Sender = jerry shaw hotmail.corn Remote IP = 207.64.159.254 Remote Host = Name = Jerry Shaw Affiliation = Luke Productions Phone = 214-636-1819 Location = Dallas, Tx Comments = I am the Promotions/Marketing Director for Luke Productions owned by NHL player Brad Lukowich. One of the bands we work with is going to be playing in Monroe at the Blue Monkey on September 16th. The band's bio can be found at www.highpointrocks.corn if you want some background on them. Would it be possible to bring them into the studio for an on-air interview and possible acoustic performance as well as get some songs from their new CD on air so people can hear their style of music? We would love to pack the place that night, and we would let the public know, that your station was the one who helped us promote. If this is possible, please contact me by phone or email. Thanks for your time.

From: steve theo [[email protected]] Sent: Friday, August 30, 2002 3:07 PM To: undisclosed-recipients: Subject: I am not really awake am I?

This week's story is very exciting. So exciting that I am not coherent enough to type about it right now. Sounds fun huh? Are you excited yet? I think I will sleep for about 40 hours tonight. Note: do not drive all the way to NYC for a show and drive all the way back pulling an all nighter and coming into the office the next day. Just don't do it.

Please help with BEENIE MAN / Tropical Storm this week. It is a mucho big priority. Adding are the Bouncing Souls/Anti-Flag split, Fear of Fred, and Chris Emerson.

Have a great LONG weekend! I WILL be here MONDAY if you want to chat give me a call. sTEVEtHEO

ADDS 9/2: **Bouncing Souls/ Anti-Flag—BYO Split Series Vol. 4 — BYO ** **Fear of Fred/ Another Bad Day/ Self Released** **Chris Emerson/ Tourist/ SR **

Records: **THE JOHN BUTLER TRIO / THREE / JARRAH** **BEENIE MAN / TROPICAL STORM / VIRGIN** ~*MARYKATE O'EIL / MARYKATE O'EIL / 71 RECORDINGS ~* **TUATARA / CINEMATHIQUE / FAST HORSE** **LES SANS CULOTTES / FAUX REALISM / AERONAUT** **KENNY YOUNG AND THE EGGPLANTS / THE SEARCH FOR EGGPLANTIS / CONEY ISLAND** **ALEX WOODARD / SATURN RETURNS / KONA** **LIVESEXACT / SEGMENTED PURITY: THE REMIXES / HURLY BURLIES**

Regionals (feedback only please-limited mailing): BIEN / E (HIP HOP) MIDGET JESUS / WHAT WOULD MIDGET JESUS DO 212-685-7161 x40 Noah studiodistribution.corn

From: MICHAELTRICOMI SMSD.ORG Sent: Thursday, August 29, 2002 10:36 AM To: tunesQkxul.corn Subject: KXUL Music Director Form

Sender = MICHAELTRICOMI SMSD.ORG Remote IP = 64.218.202.3 Remote Host = ad-app-nt.smsd.org Name = MIIW TRICOMI Affiliation = THE STORIED NORTHWEST Phone = (913) 993-6226 Location = SHAWNEE KS USA Comments = I WOULD LIKE TO HAVE YOU SAMPLE THIS BAND FROM KC WITH INFLUENCES FROM SHINER, HOUSTON, RADIOHEAD, PINK FLOYD, AND LED ZEPPELIN. THEY ARE ON MP3.COM UNDER STORIED NORTHWEST. IF YOU LIKE WE COULD PROVIDE YOU WITH A CDR. THEY ARE CURRENTLY WORKING DELIGENTLY ON NEW STUFF AND SCHEDULED TO PLAY AS THE HEADLINER AT THE BRICK IN DOWNTOWN KC WITH ANIMATED BY SOUND. THEY HAVE PERFORMED WITH SHINER, HOUSTON, TRAINDODGE, SEASON TO RISK, AND AEREOGRAMME. JORDAN HAS HEARD OF THEM AND HAS MET THE DRUMMER WHILE ON THE ROAD WITH SHINER. CHECK IT OUT AND LET ME KNOW, I WOULD LOVE YOU TO PLAY THEM ON THE RADIO DOWN THERE JUST TO SEE WHAT THE REACTION WOULD BE. THEY HAVE PRETTY MUCH BEEN IN THE KC AND LAWRENCE KS MUSIC SEEN FOR THE LAST 2 1/2 YEARS. THANKS FOR YOUR TIME AND ATTENTION. From: jibberjaw2 aol.corn Sent: Monday, August 26, 2002 10:09 PM To: tunes kxul.corn Subject: IVHJL Music Director Form

Sender = jibberjaw2 aol.corn Remote IP = 64.12.96.201 Remote Host = cache-mtc-ak04.proxy.aol.corn Name = Michael Garrett Affiliation = Jibberjaw Productions Phone = 1(818)951-1389 Location = Comments = Hello, how are you today? fine I hope, My name is Michael Garrett and I am a solo artist, I recently just released my debut album intitled Rebirth. I compose Alternative/Metal, Hard rock music for Video/Audio entertainment and would like to get some airplay on your wonderful station. I have some websites where you can preview my music and view photos as well. http://www.mp3.corn/michaelgarrett http://www.michaelgarrett.net can you send me some info if possible. Thank you for your time Michael Garrett

From: michael gyromart.corn Sent: Monday, August 26, 2002 10:20 AM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = michael Ogyromart.corn Remote IP = 216.155.40.123 Remote Host = Name = Michael Alan Affiliation = Bikini Bandits Phone = 215 923 6980 Location = Philadelphia, PA +44 7860 104 272 james Qblague.freeserve.co.uk

Drop me a line if you didn' receive either of the EPs and I'l send out new copies

From: blindsiderulz 8 yahoo.corn Sent: Tuesday, August 20, 2002 7:51 PM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = blindsiderulz @yahoo.corn Remote IP = 24.243.160.132 Remote Host = cs243160-132.jam.rr.corn Name = Jarred Jordan Affiliation = Blindside Phone = 396-8181 Location = west monroe, louisiana, usa Comments = hey man. i am on the blindside street team. and i am hoping that if i brought y'all a sampler cd would y'all play the single "pitiful" on air. blindside has just signed on to p.o.d.'s 3point record label and to elektra records. their cd just came out today. its called silence. it features such songs as "caught a glimpse", "pitiful", "cute boring love." i have a sampler cd with "pitiful", and "caught a glimpse" on it. and i was wondering that if i brought it to the station would they play it. hit me back asap man...thanks....jarred

From: cavorting 4 aol.corn Sent: Monday, August 19, 2002 10:30 AM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = cavorting aol.corn Remote IP = 199.222.14.2 Remote Host = gateway.tenethealth.corn Name = Tommy Bowden Affiliation = Soulscript Phone = 985-264-2409 Location = Covington, LA Comments = Hello I am part of a local trio called Soulscript. On July 24th, I mailed KXUL a cd for a review. Just wanted to touch base to see if ya'll had recieved our packet.

thanks, Tommy Bowden, M.D. Soulscript.corn

From: info 0 dannykatzmusic.corn Sent: Saturday, August 17, 2002 2:55 PM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = info dannykatzmusic.corn Remote IP = 162.83.229.16 Remote Host = pool-162-83-229-16.ny5030.east.verizon.net Name = Danny Katz Affiliation = Danny Katz Music Phone = 917-561-9042 Location = Brooklyn, NY 11215 Comments = Hello! I learned of your radio station through the 2002 edition of The Musician's Atlas. I am a New York based singer-songwriter specializing in songs ranging in style from Indie- Alternative/Rock to Folk/Pop.

I am writing to learn your radio station's submission policy. I http://www.teamclermont.corn — new site now up!

191 East Broad Street, Suite 211, Athens, Georgia, 30601 call * 1.888.548.TEAM! * fax 706.548.0094 »»»»»»»»&))»»»»»»»»»»)»& coming soon....Arson Welles, Hybrasil, Fabu, Elf Power (the Orange Twin release), Lucero, Jeff Mangum, Idaho, Low, Jackpot, Howie Beck, Great Lakes. Of Montreal, Maserati, Dexter's Lab & more. »»»»»»»»»»))»»»»»»»)»)»&

"...and I said, Hey Lama, how 'bout a little something, you know, for the effort? And he says, there won't be any money, but when you die, on your deathbed you will receive total consciousness So I got that going for me, which is nice."

From: [email protected] Sent: Thursday, August 15, 2002 2:23 PM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = jon uvulittle.corn Remote IP = 216.165.154.35 Remote Host = cvx1-289.madison.chorus.net Name = Jon Hain Affiliation = Uvulittle Records Phone = 608 259 1030 Location = Madison, WI Comments = Hello, I am writing to inquire about sending one of our new releases to you for possible airplay.

The band is The Coma Savants and we just released their debut CD, "Coma Savant." The sound is Garage Cabaret / Circus Rock and is based around the piano arrangements of pianist/vocalist Stephanie Rearick. Based in Madison, WI, The Coma Savants are quickly building a buzz in the mid-west. We are working hard to get the disc out to college radio and the band will be touring this fall.

* "Kurt Weill meets Captain Beefheart" says The Berkshire News

* Madison's Isthmus claims that "[The Coma Savants] could gig as the house band on the Island of Misfit Toys..."

* "Gypsy Magic meets Carnival Sideshow," says Laney Goodman, Women In Music

* The Midwest Ursine says, "It' the Talking Heads on downers" and "this is great, cabaret nouveau music that is meant to bring back the fun in music."

Please let me know if I can send this disc.

If you need more information, please do not hesitate to ask.

Yours, Jon Hain Uvulittle Records http://www.uvulittle.corn

The Coma Savants http://www.thecomasavants.corn

From: dazy dazychain.net Sent: Thursday, August 15, 2002 12:13 AM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = dazy dazychain.net Remote IP = 203.166.96.235 Remote Host = cache 1.syd.ops.aspac.uu.net Name = megan blume Affiliation = dazychain Phone = 0405479321 Location = syndey, australia Comments = hi, my names Megan Blume, i am in an unsigned band from Australia called "dazychain". I would like to know if i would be able to send out one of my cd's to your station, and if u would consider playing my bands music.

dazychain cd's can be purchased thought my website: www.dazychain.net

if you could get back to me with any information regarnding airplay, or any additional information that might assist me.

thank you again, megan blume

From: [email protected] Sent: Wednesday, August 14, 2002 1:45 AM To: wuvtamfm vt.edu; radiokid kohoradio.corn; [email protected]; gupsterl @execpc.corn; [email protected]; sylviacote O shaw.ca; shanghaii @earthlink.net; [email protected]; [email protected]; FrancoiskufferQRSR.CH; carolineOtriplej.abc.net. au; bradOtherock.net.nz; wayne.webster0mix999.corn; tome Qphantomfm.corn; allyson @hawaii.edu; jeast Qboisestate.edu; scooter.b Ocitcomm.corn; travis wpgu.corn; [email protected]; dcataldi Qfranklincollege.edu; [email protected]; kwarOwartburg.edu; [email protected]; jds0624Oksu.edu; [email protected]; tunes kxul.corn; rob.summers Oweareradio.corn; krok Q wnonline.net; wmhb colby.edu; localmotivesOyahoo.corn; annOmedia.umbc.edu; [email protected]; wgajradio yahoo.corn; [email protected]; [email protected]; wers music @emerson.edu; djdropkickQhotmail.corn; aykrua9Quaa.alaska.edu; djchitaQhotmail.corn; jenniferQkdkb.corn; garythomas Qcei.net; matt Q 1049x.corn; ray.boreham Qfreightfedex.corn; kcprmd Qkcpr.org; amyQkhum.corn; kusfmusic Q yahoo.corn; sty Qkpig.corn; ABCRS.KLOS.programming Qabc.corn; kdnz Qusfca.edu; ariana.morganstern Qkcrw.org; knab Qchapman.edu; rmullen Q kusp.org; kbcd Q kbcoradio.corn; wcni Q conncol1.edu: wkzeQ snet.net; NYCsEvi1 Q aol.corn; CraziDiamond Q aol.corn; wesu Q wesleyan.edu; serendipitydodamediaQyahoo.corn; nickfromspaceQhotmail.corn; wprkfmQrollins.edu; music.directorQwrek.org; theriverQ92.5theriver.corn; radioQbabson.edu; wmuaQ stuaf.umass.edu; Emily.C.Cinch Q williams.edu; wupx Qwupx.nmu.edu; btausig Q umich.edu; wqacduck Q hotmail.corn: sparks Q grcmc.org; kumm Q kumm.org; mwolfQclearchannel.corn; ABCRS.WGVX.Drive-Mail Q abc.corn; scotfox Q v, cprfm.corn; koksQsemo.net; Britkkfi Qaol.corn; kwagnerQumr.edu; jamieboscheeQhotmail.corn; lauriesteeleQkomp.corn; angelaskinnerQclearchannel.corn; music Qv unh.unh.edu; btQwfmu.org; WsouloaQ aol.corn; nwalkerQprinceton.edu; irag1954 Q yahoo.corn; almku Qunm.edu; Mosher28 Q aol.corn; fredec Qrpi.edu; wvkrmd QVassar.edu; wberQMonroe.edu; knotheadQmegagate.corn; wxycQunc.edu; kdix Qkdix.net; h- connorQonu.edu; wrmu Qmuc.edu; wmco Qmuskingum.edu; chadsevig Q hotmail.corn; alambertQrsu.edu; jimQy100.corn; grimmQwxdx.corn; wxlvQhotmail.corn; bnason Qpct.edu; MercedesPB Qkxul.corn; comments Q wriu.org; guliano Qicbsc.corn; kaorQusd.edu; tj conn Q ole.augie.edu; courtney.wilderQ vanderbilt.edu; wmtsprogram Q hotmai1.corn; ktswmusicQhotmail.corn; lorisQlbjs.corn; joshontheedgeQhotmail.corn; pamQthebuzz.corn; rummiesoioioi Qhotmail.corn; alextQweqx.corn; wiuvQcastleton.edu; wwpvQsmcvt.edu; wgdrmusic Qgoddard.edu; y101webdudeQcox.corn Subject: Our CD "No More Lies" is on it's way to you!

The alternative rock band "UNSTABLE'" from Southern California just mailed their newly "No released CD More Lies" to you for air-play on your station . Please expect a mailer with a Blue Jay return address. ( We'e 6000 feet up in the San Bernardino Mountains! As manager of "UNSTABLE" I hope you will take a minute of your time to send feedback occassionly, and let us know which tracks you and your listeners really like. I am tracking the play of "UNSTABLES" songs and appreciate your help. Please e-mail your comments to ManageJJJQaol.corn With much appreciation, Shar (Manager), Joey Chrisman, James Bellis, and Josh Newman of "UNSTABLE"

From: Chandler, Erin [Erin.ChandlerQEMICAP.COM] Sent: Tuesday, August 13, 2002 5:17 PM To: KXUL (E-mail) Subject: thanks gabe gabe— thanks so much for getting the vines at 9 this week. you rule. is there anything i can do to hold this position or get it to 1 next week??? thanks again so much for all the support!! Erin Chandler FIRETRUCS — 3, 8, 2, 10 BOX-0-CAR — 1, 4 MATT MARKA — 4, 1 MAIA BANKS — 3, 1 ALMOST THERE — 3 2ndBEST-3, 14,5

From: Spiritcreek nconnect.net Sent: Wednesday, August 07, 2002 5:21 PM To: tunes kxul.corn Subject: KXUL Music Director Form

Sender = Spiritcreek nconnect.net Remote IP = 66.84.172.190 Remote Host = mke1-4-190.nconnect.net Name = Neo Affiliation = Spirit Creek Phone = 414-541-8931 Location = Milwuakee WI USA Comments = Hello, I am sending this e-mail in regards to one of America' quickly rising rock acts. Spirit Creek has been seen performing with Creed, Nickelback, 3 Doors Down, and Drowning Pool to name a few of the 31 National acts they'e shared the stage with. This band is rapidly gaining ground in the music industry by blowing away audiences in over 12 states. This response has fueled the growth of an amazing fan base as well as attracting the attention of the recording industry. Their emotionally driven music and live performances are putting them ahead of the crowd in the very congested Rock genre. Recently selected out of 5300 acts Nationwide as Yahoo's Internet Life Magazine's Online Music Awards "Best Unsigned Artist In America." This honor has gotten them many accolades including write ups in Hits Magazine, Lip Service Magazine, Yahoo's Internet Life Magazine, and several other local and regional music magazines and websites. They'e also landed a sponsorship deal from Jagermeister's Jager Music program, and just signed a U.S. distribution deal with Action Music. We'd love any help you can give us with radio play and the promotion of this awesome band. I'd love to send you a promo packet and CD so you can see and hear for yourself what everyone is talking about. Just e- mail me with your mailing address andI will send it out ASAP. In the meantime check out the bands website, and let us know what you think.

www.spiritcreek.corn

Eric Addeo Equinox Network

From: catchtheband yahoo.corn Sent: Tuesday, August 06, 2002 8:09 PM To: tunesQkxul.corn Subject: KXUL Music Direotor Form

Sender = catchtheband @ yahoo.corn Remote IP = 24.242.113.95 Remote Host = Name = Blaine Rabalais Affiliation = CATCH Phone = 3186881673 Location = Shreveport, LA Comments = Hi Gabe, Please take a look at our webpage and let us know what you think. We can send you a copy of our latest CD if you feel it fits your audience www.catchtheband.corn

Thanks CATCH Blaine, Sarah, Joel and Jase

From: [email protected] Sent: Tuesday, August 06, 2002 5:19 PM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = [email protected] Remote IP = 12.247.48.208 Remote Host = 12-247-48-208.client.attbi.corn Name = Mike Cattouse Affiliation = V-Groove Productions Phone = 773-764-8688 Location = Chicago, IL 60626 USA Comments = Please allow me to introduce myself; I am Mike Cattouse, President and Founder of V- Groove Productions. For the past several years V- Groove has produced many artists with hits that have scored big on the music scene. We have worked with various artists and many genre of music ranging from ROB to Caribbean and World Music.

V- Groove Productions would like to introduce to you two of its artists for possible consideration for a CD review/radio play. They are:

STERIO This is a group that has served up Reggae and Caribbean music for the past 20 years. Their current CD entitled,'Sack Agairl'takes you on a musical journey and is sure to excite fans around the world.

RHODEE This artist CD entitled,'1N EXILE'serves up a unique blend of African, Caribbean and Latin rhythms, in addition to hard hitting Reggae and Dub Poetry. The energy in this music will have fans dancing around the world.

You can log on to our web site at: www.vgrooveproductions.corn or email mike Q vgrooveproductions.corn. Or call 773-764-8688.

Thank you for your time and Please let us know of your interest.

Sincerely, Michael Cattouse President K Founder V- Groove Productions

From: trip In msn.corn Sent: Sunday, August 11, 2002 8:04 PM To: tunes Okxul.corn Subject: KXUL Music Director Form

Sender = trip In msn.corn Remote IP = 67.249.43.190 Remote Host = 1cust190.tnt5.monroe.la.da,uu.net Name = Steevo Worster Affiliation = Triple Intake Phone = 644-8001 Location = Comments = Yo thank you for allowing our song to play our song on the radio Sunday august 11th and i would also like to say that yall did good in the redording studio and if you do not remember me i was the one with curly blond hair welp got to go bye.

From: G-Man [immediaQpacbell.net] Sent: Saturday, August 10, 2002 7:20 PM To: IQCUL Music Director Subject: Seeking Grin Groove CD info

Hello Gabe-

We'e seeking news of airplay and reviews of the GRIN GROOVE album by The G-Man.

A press kit is being prepared for the 3,000+ contacts on our list and we want to include everyone!

Reviews (including NY Times syndicate) have been raves, with songs being compared to Eno, Zappa, Art of Noise. One TV producer says it is like Moby meets Devo. My favorite comment is Spandau Ballet meets Salvador Dali.

The G-Man and I are looking forward to hearing from you.

++JA++ JanisAmy for Scott G The G-Man http://gmanmusic.corn From: Rob Cukierman [rob thesyn.corn] Sent: Thursday, August 08, 2002 12:53 PM To: tunes kxul.corn Subject: Nacho Cheese Hey Gabe,

Let me tell you, today is nacho cheese day here at the syndicate, and it's starting to get crazy! We got our selves a commercial size nacho cheese machine/dispenser and today was the unveiling. For the occasion we put together a feast! Chili (both turkey and vegan), sauteed onions and peppers, hot sauce, refried beans, home/office made french fries, and of course the cheese! If you ever have a need for nacho cheese, you know where to find it (especially considering that we need to use a hole bag a week or it will go bad)!

I have only one add this week and it's a big one!

Adds 8/12 - 8/13

Spoon - "Kill the Moonlight" - Merge Records

Thanks for supporting; GlassJaw, The Vines, Uptown Sinclair, and Brad! Other big records this week are; The Used, Beth Orton, Rhett Miller, Oasis, and Nerf Herder!'hanks

Gabe! Talk to you soon.

-Rob Cukierman The Syndicate 888-666-2061 (toll free)

From: thecharismatics @hotmail.corn Sent: Tuesday, August 06, 2002 4:17 PM To: tunes @kxul.corn Subject: KXUL Music Director Form

Sender = [email protected] Remote IP = 205.188.209.8 Remote Host = cache-dk04.proxy.aol.corn Name = Gabe Cespedes Affiliation = The Charismatics Phone = (817)921-1808 Location = Ft. Worth, TX Comments = My band, the Charismatics, will be playing in Monroe, LA on Thursday, August 22nd the BLue Monkey. We did a large coolege radio station campaign last fall, and I was wondering if KXUL still has our s/t CD (Stompbox Records) or if I should send another one. We are a rock/punk band. Also, we are available for in studio performance/interview if interested. Thanks, Gabe/The Charismatics www.thecharismatics.corn www.stompboxrecords.corn

From: dtravers Qcox.net Sent: Tuesday, August 06, 2002 1:20 PM To: tunes Qkxul.corn Subject: KXUL Music Director Form

Sender = dtravers cox.net Remote IP = 68.14.138.84 Remote Host = ip68-14-138-84.ri.ri.cox.net Name = Aaron Travers Affiliation = ETHIC Phone = 860-276-2499 Location = Southington CT Comments = Hi, and thanks for your time. I'm writing you for permission to submit my bands newest cd. We are a rock/hard rock quartet from CT looking for some exposure through college radio. any info you could email me regarding this matter would be greatly appreciated. thanks again. Aaron

From: Soundink1 aol.corn Sent: Monday, August 05, 2002 12:39 PM To: tunes Qkxul.corn Subject: Hi Gabe CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of September, 2002, the foregoing MOTION FOR

STAY PENDING APPEAL was served via overnight mail, postage prepaid, on the following:

Arthur Levine Patricia Polach Finnegan, Henderson, Farabow, Bredhoff k, Kaiser, P.L.L.C. Garrett & Dunner 805 Fifteenth Street, N.W. 1300 I Street, N.W. Suite 1000 Washington, DC 20005 Washington, D.C. 20005

Peter D. Isakoff Robert A. Garrett Kenneth L. Steinthal Michael J. Woods Adam I. Cohen Ronald A. Schechter Weil, Gotshal % Manges LLP Julie L. Sigall 767 Fifth Avenue Arnold S Porter New York, NY 10153 555 Twelfth Street, N.W. Washington, D.C. 20004

Bruce G. Joseph William Malone Karyn K. Ablin James R. Hobson Dineen Pashoukos Wasylik Miller k Van Eaton, P.L.L.C. Wiley Rein k, Fielding 1155 Connecticut Avenue 1776 K Street, N.W. Suite 1000 Washington, D.C. 20006 Washington, D.C. 20036-4320

David R. Berz Barry I. Slotnick Sandra M. Aistaus Loeb k Loeb Weil, Gotschal k, Manges LLP 345 Park Avenue 1615 L Street, N.W. Suite 700 New York, NY 10154 Washington, DC 20036

thia, reer ShaWPittman LLP

A Limited Liability Partnership Ineludimd Professional Corporatio&rs CYNTHIA D. GREER 202 663 8301 Cynthia,Greer shawpittman.corn ORIBlNAL September 30, 2002

B Hand Deliver

David O. Carson General Counsel MCEMRD& Office of the Copyright General Counsel James Madison Memorial Bldg. Room LM-403 sr~ 30 PM First and Independence Avenue, S.E. Washington, DC 20540 GEX68Al CQVbSK

Re: Motion for Stay Pending Appeal Live365.corn, Inc.

Dear Mr. Carson:

Please find enclosed an original and five copies and a receipt copy of the Motion for Stay Pending Appeal on behalf of Live365.corn, Inc. Please date-stamp both the cover letter and motion of the receipt copy and return to the courier.

If there are any questions, please contact the undersigned.

Sincerely,

Cynthia D. Greer

Enclosure

Document ¹: 1275955 v.1

Washington, DC Northern Virginia New York Los Angeles 2300 N Street, NW Washington, DC 20037-1128 202.663.8000 Fax:202.663.8007 wwwshawpittman.corn London