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Soundexchange, Inc PUBLIC VERSION BEFORE THE UNITED STATES COPYRIGHT ROYALTY JUDGES LIBRARY OF CONGRESS WASHINGTON, D.C. 1 9 ) In re ) ) DETERMINATION OF ROYALTY ) DOCKET N0.14-CRB-0001-WR RATES AND TERMS FOR ) (2016-2020) EPHEMERAL RECORDING AND ) DIGITAL PERFORMANCE OF SOUND ) RECORDINGS (WEB IV) ) ______________________________ ) PROPOSED CONCLUSIONS OF LAW OF SOUNDEXCHANGE, INC. C. Colin Rushing (DC Bar 470621) Glenn D. Pomerantz (CA Bar 112503) Senior Vice President and General Counsel Kelly M. Klaus (CA Bar 161091) Brad Prendergast (DC Bar 489314) Anjan Choudhury (DC Bar 497271) Senior Counsel MUNGER, TOLLES & OLSON LLP SOUNDEXCHANGE, INC. 355 S. Grand Avenue, 35th Floor 1 1 733 l0 h Street, NW, 10 h Floor Los Angeles, CA 90071-1560 Washington, DC 20001 Telephone: (213) 683-9100 Telephone: (202) 640-5858 Facsimile: (213) 687-3702 Facsimile: (202) 640-5859 [email protected] [email protected] [email protected] [email protected] [email protected] Of Counsel Counsel for SoundExchange, Inc. Date: June 19, 2015 PUBLIC VERSION TABLE OF CONTENTS PAGE(S) CONCLUSIONS OF LAW .............................................................................................................1 I. THE STATUTORY STANDARD ......................................................................................1 II. AS A MATTER OF LAW, THE WILLING BUYER/WILLING SELLER STANDARD DOES NOT INCORPORATE A REQUIREMENT OF “EFFECTIVE” OR “WORKABLE” COMPETITION .......................................................6 A. The Willing Buyer/Willing Seller Standard Is Satisfied As Long As Neither Party Is Coerced and Both Have Reasonable Knowledge of the Facts .........................................................................................................................6 B. The Willing Buyer/Willing Seller Standard Has No “Effective” Or “Workable” Competition Requirement ....................................................................9 1. The Judges Are Not Authorized To Add A Requirement That Congress Has Not Included .........................................................................9 2. Precedent Does Not Compel An “Effective” Or “Workable” Competition Requirement ..........................................................................13 C. An “Effective” Or “Workable” Competition Requirement Would Render The Willing Buyer/Willing Seller Standard Indeterminate And Unworkable ............................................................................................................15 III. THE RATES AND TERMS OF THE PANDORA-MERLIN AGREEMENT ARE INADMISSIBLE AND MAY NOT BE TAKEN INTO CONSIDERATION IN SETTING RATES AND TERMS IN THIS PROCEEDING ............................................17 A. Section 114 (5)(C) Unambiguously Mandates That The Judges May Not Take Into Account Any Rate Structure, Fees, Terms Or Conditions In The Pandora-Merlin Agreement, Because Those Rates And Terms [Are Based Directly On] The Pureplay Settlement Agreement ................................................17 B. Introduction Of The Pandora-Merlin Agreement Improperly Deprives SoundExchange Of The Right To Conduct Effective Cross-Examination On The Shadow The Pureplay Settlement Agreement Cast Over The Negotiation Of The Pandora-Merlin Agreement ...................................................21 IV. OTHER LEGAL ISSUES ..................................................................................................23 A. The Judges Should Consider The Performance Of An Agreement As Well As The Parties’ Expectations In Analyzing The Benchmark Evidence ................23 B. Terrestrial Radio Is An Improper Benchmark In These Proceedings Because Performances Of Sound Recordings On Terrestrial Radio Are Not Subject To A Public Performance Right .........................................................27 C. The Rates Established By SDARS Are An Improper Benchmark In These Proceedings: Those Rates Are Not Market Data, And They Were Set Based On A Legal Standard That Does Not Apply Under § 114(f)(2)(B) ............28 i PUBLIC VERSION TABLE OF CONTENTS (continued) PAGE(S) D. iHeart’s Proposal to Amend the Sound Recording Performance Complement Is Impermissible ...............................................................................30 ii PUBLIC VERSION CONCLUSIONS OF LAW 1. The purpose of this proceeding is to set rates and terms for two complementary statutory licenses created by the Digital Millennium Copyright Act (“DMCA”) for eligible nonsubscription transmission services and new subscription services (i.e., webcaster licenses): (a) the performance license, 17 U.S.C. § 114(d)(2), which permits eligible webcasters to perform sound recordings over the Internet; and (b) the ephemeral reproduction license, 17 U.S.C. § 112(e), which permits webcasters to make temporary copies of sound recordings to facilitate such performances. 2. The Copyright Royalty Judges (“Judges”) must set the rates and terms that will apply from January 1, 2016 through December 31, 2020. 17 U.S.C. § 804(b)(3)(A). I. THE STATUTORY STANDARD 3. Section 114(f)(2)(B) of the Copyright Act requires the Judges to “establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” Section 112(e)(4) of the Copyright Act requires the Judges to “establish rates that most clearly represent the fees that would have been negotiated in the marketplace between a willing buyer and a willing seller.” 4. Section 114 further states: In determining such rates and terms, the Copyright Royalty Judges shall base their decision on economic, competitive and programming information presented by the parties, including – (i) whether use of the service may substitute for or may promote the sales of phonorecords or otherwise may interfere with or may enhance the sound recording copyright owner’s other streams of revenue from its sound recordings; and 1 PUBLIC VERSION (ii) the relative roles of the copyright owner and the transmitting entity in the copyrighted work and the service made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, and risk. In establishing such rates and terms, the Copyright Royalty Judges may consider the rates and terms for comparable types of digital audio transmission services and comparable circumstances under voluntary license agreements . 17 U.S.C. § 114(f)(2)(B). 5. Despite these additional factors that the Judges can consider, the “willing buyer/willing seller” standard is the single standard governing this proceeding. Web III Remand, 79 Fed. Reg. 23102, 23105 (Apr. 25, 2014) (“The Copyright Act clearly establishes the willing buyer/willing seller standard for the royalty rates at issue in this proceeding.”); Web II Remand, 72 Fed. Reg. 24084, 24087 (May 1, 2007); Web I CARP Report at 21, In re Digital Performance Right in Sound Recordings and Ephemeral Recordings, No. 2000-9 CARP DTRA 1&2 (Feb. 20, 2002) (“the willing buyer/willing seller standard is the only standard to be applied”). As the Register explained in interpreting the statutory standard, these additional factors are non- exclusive and do not themselves “define[] the standard” for setting rates. Web II Remand at 24087; H.R. Rep. No. 105-796, at 86 (1998) (“The test applicable to establishing rates and terms is what a willing buyer and willing seller would have arrived at in marketplace negotiations”). These factors “do not constitute additional standards, nor should they be used to adjust the rates determined by the willing buyer/willing seller standard.” Web II Remand at 24087. Instead, they “are merely to be considered, along with any other relevant factors, to determine the rates under the willing buyer/willing seller standard.” Id. 2 PUBLIC VERSION 6. Section 114 makes it clear that while copyright owners could be compelled to license their entire catalogues to eligible webcasters, Congress assured copyright owners that they would obtain a fair market value for their works. Accordingly, the purpose of this proceeding is to carry out Congress’s intent “to set a rate at fair market value.” Web I Librarian’s Decision , 67 Fed. Reg. 45240, 45254 (July 8, 2002) (codified at 37 C.F.R. pt. 261). As the Web I Librarian’s Decision made clear, the “willing buyer-willing seller” standard is not policy-driven, but “strictly fair market value.” Id. at 45244. 7. The directive to set rates and terms at a fair market value—in other words, rates and terms that otherwise “would have been negotiated” in the marketplace between a willing buyer and a willing seller—requires the Judges to replicate rates and terms that would have been negotiated in a hypothetical marketplace. Web II Remand at 24087. The market is hypothetical because the actual marketplace for sound recordings sold to webcasters is preempted by the compulsory license that is the subject of this proceeding. Id. By definition, outcomes in a market in which one party “has no choice but to license” cannot reflect fair market value. Id . The Judges therefore are called upon to establish a rate that would exist in this market if the parties were not subject to a statutory license.1 8. It is well established that the “willing buyers” in the hypothetical marketplace are the services eligible to avail themselves of the statutory license, the willing sellers “are the record companies,” and the product is the “blanket licenses for each record company’s repertory of 1 In considering the appropriateness
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