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Phonorecords (Phonorecords III) PUBLIC VERSION Before the UNITED STATES COPYRIGHT ROYALTY JUDGES Washington, D.C. In re Determination of Royalty Rates and Terms Docket No. 16-CRB-0003-PR for Making and Distributing (2018–2022) Phonorecords (Phonorecords III) GEORGE JOHNSON’S (GEO) PROPOSED CONCLUSIONS OF LAW AND FINDINGS OF FACT George D. Johnson, Pro se individual d.b.a. Geo Music Group 23 Music Square East, Suite 204 Nashville, TN 37203 E-mail: [email protected] Telephone: (615) 242-9999 George D. Johnson (GEO), an individual and digital sound recording copyright creator d.b.a. Geo Music Group (GMG) Dated: Friday, May 12, 2017 Page 1! of 46! PUBLIC VERSION TABLE OF CONTENTS INTRODUCTION A. CONCLUSIONS OF LAW…………………………………………………………….6 I. COPYRIGHT LAW PRINCIPLES APPLICABLE TO THIS PROCEEDING B. FINDINGS OF FACT………………………………………………………………….34 Page 2! of 46! PUBLIC VERSION TABLE OF AUTHORITIES George Johnson (GEO) Cases Page *American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff’d, 60 F.3d 913 (CA2 1994).………..…………………………………..……..…7, 8, 9 Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254-55 (3d Cir. 1983)……8 AT&T Corp. v. FCC, 86 F.3d 242, 247 (D.C. Cir.1996)…………………………………………10 *Care Net Pregnancy Ctr. of Windham County v. U.S. Dep't of Agric., 896 F. Supp. 2d 98 (D.D.C. 2012)……………………………………………………….10 Cary v. Longman, 1 East *358, 362 n. (b), 102 Eng. Rep. 138, 140 n. (b) (1801)…….…………7 *Covington & Lexington Turnpike Road Co. v. Sandford, 164 U.S. 578, 597, 17 S.Ct. 198, 205-206, 41 L.Ed. 560 (1896)………………………………………………………..……..10, 11 *Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989)…………………………………………11 Fed. Power Comm'n v. Natural Gas Pipeline Co., 315 U.S. 575 (1942)………………………..11 *Eldred v. Ashcroft, 537 U.S. 186, 212 (2003)………………………………………..…..………7 Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997)……………………………….…..……….10 Fox Film Corp. v. Doyal, 286 U.S. 123, 127, 52 S.Ct. 546, 547, 76 L.Ed. 1010…………..…..…9 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 585, 62 S.Ct. 736, 742, 86 L.Ed. 1037 (1942).11 *FPC v. Texaco Inc., 417 U.S. 380, 391-392, 94 S.Ct. 2315, 2392, 41 L.Ed.2d 141 (1974)…..11 Golan v. Holder, 132 S. Ct. 873, 888 (2012)…………………………………………………..….8 Graceba Total Comms., Inc. v. FCC, 115 F.3d 1038, 1042 (D.C. Cir. 1997))……….…………..10 *Herbert v. Shanley Co., Decision 242 U.S. 591 (1917)………………………..….…..………..9 *Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 546 (1985)……………6, 7, 16 Ill. Bell Tel. Co. v. FCC, 9300 U.S. App. D.C. 296, 88 F.2d 1254 (1993)………………………11 Page 3! of 46! PUBLIC VERSION *Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 387 U.S. App. D.C. 387, 295-96, 574 F.3d 748, 75657 (D.C. Cir. 2009)…………………………………………….……..…9 Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C. Cir. 2012)..… ..9 Iowa v. FCC, 342 U.S. App. D.C. 389, 218 F.3d 756 (2000) ........................................................10 Jondora Music Publ'g Co. v. Melody Recordings, Inc., 506 F.2d 392, 393 (3d Cir. 1974)……..18 *Klitzner Indus. v. HK James & Co., 535 F. Supp. 1249, 1259-60 (E.D. Pa. 1982)………….…..8 Lepre v. Dep't of Labor, 275 F.3d 59, 75 (D.C. Cir. 2001)……………………………..……10, 11 *Mazer v. Stein, 347 U.S. 201, 219 (1954)………………………………………………..……6, 7 Meredith Corp. v. FCC, 809 F.2d 863, 874 (D.C. Cir. 1987)…………………………...……10, 11 McBryde v. Comm. to Rev. Circuit Council Conduct, 264 F.3d 52, 62 (D.C. Cir. 2001) …..……10 *McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of Judicial Conference of U.S., 347 U.S. App. D.C. 302, 264 F.3d 52 (2001)…..10 *Permian Basin Area Rate Cases, 390 U.S. 747, 790, 88 S.Ct. 1344, 1372, 20 L.Ed.2d 312 (1968) …………………..…………………………………………………………………….…11 *Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010)………………………………………….…..….8 Salve Regina Coll. v. Russell, 499 U.S. 225, 238 (1991)………………………………………..14 Sirius XM Radio, Inc. v. SoundExchange, Inc., 12-cv-2259, slip op. (S.D.N.Y. [May 27, 2012]) ………………………………………………………………..…………………………..…..11, 12 *Smyth v. Ames, 169 U.S. 466, 546, 18 S.Ct. 418, 433-434, 42 L.Ed. 819 (1898)……………..11 *Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)…………………………….8 *United Space Alliance, LLC v. Solis, 824 F. Supp. 2d 68 (D.D.C. 2011)……….……..….……11 United States v. Raddatz, 447 U.S. 667, 690 (1980)……………………………………….19, 20 *Authorities upon which we chiefly rely are marked with asterisks. Page 4! of 46! PUBLIC VERSION CONSTITUTIONAL PROVISIONS U.S. CONST., art. I, § 8, cl. 8 U.S. CONST., amend I U.S. CONST., amend V U.S. CONST., amend XIV Dec. of Independence STATUTES 17 U.S.C. § 106 17 U.S.C. § 114 17 U.S.C. § 115 17 U.S.C. § 114(f)(2)(B) 17 U.S.C. § 801 Fed. R. Evid. 702 Page 5! of 46! PUBLIC VERSION INTRODUCTION George Johnson, (hereinafter “GEO") is an individual author, copyright creator, singer, songwriter, and publisher, pro se, who respectfully submits his Proposed Conclusions of Law and Findings of Fact in support of his proposal for rates and terms for underlying works under Section §115 of the Copyright Act. GEO is also considered an expert witness in songwriting, sound recording creation, and the music business. A. CONCLUSIONS OF LAW I. COPYRIGHT LAW PRINCIPLES APPLICABLE TO THIS PROCEEDING The following (opinions) are taken from Supreme Court cases (decisions), in which the Court has suggested (ruled or decided) that copyright is intended to reward the creator (first and foremost): 1. The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered. Mazer v. Stein, 437 U.S. 201, 219 (1954) (internal citations omitted) (holding that the original expression embodied within a statue intended to be used as a base for table lamps was entitled to copyright protection). 2. “This limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 546 (1985) (internal citations omitted) (finding that the use of an unpublished manuscript in a political commentary magazine was not fair use). “We agree with the Court of Appeals that copyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave Page 6! of 46! PUBLIC VERSION insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.” Id. at 545-46. “In our haste to disseminate news, it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Id. at 558. 2. “The ‘constitutional command,’ we have recognized is that Congress, to the extent it enacts copyright laws at all, create a ‘system’ that ‘promote[s] the Progress of Science.’ We have also stressed . that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003) (internal citations omitted) (rejecting Petitioner’s constitutional argument that the CTEA’s extension of existing copyrights does not “promote the Progress of Science” as contemplated by the preambular language of the Copyright Clause). JUSTICE STEVENS' characterization of reward to the author as "a secondary consideration" of copyright law, post, at 227, n. 4 (internal quotation marks omitted), understates the relationship between such rewards and the "Progress of Science." As we have explained, "[t]he economic philosophy behind the [Copyright] [C]lause . is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U.S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge. The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F.3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing] . Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides . with the claims of individuals." The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). JUSTICE BREYER's assertion that "copyright statutes must serve public, not private, ends," post, at 247, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.
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