Stanford Center for Internet and Society

The U.S. Court of Appeals for DC upheld the rates that the librarian set, and found the non-participant plaintiffs had no standing.

We received the D.C. Circuit's order setting oral argument in the webcasting royalty cases for October 13, 2004 (a Wednesday) at 9:30 a.m. before Judges Sentelle, Henderson and Randolph, Courtroom 20.
The lawyers have to suggest by September 1 the most efficient format for oral argument, including such things as time for oral argument and how it should be allotted among the petitioners, who include both copyright owners (RIAA) and copyright users, and include both parties that participated in the CARP and parties that could not participate.

Here's coverage in Wired about the long-awaited final recordkeeping requirements for webcasting.

Today, February 12, we filed the Reply Brief in the small webcasters' and WCPE's appeal in the Internet Radio case. Much of the DOJ's brief defending the Librarian's order based on the webcasting CARP is devoted to reasons why the Court should not even consider our arguments. Once you get past those- which were pretty easy to demolish- you're almost home free. Now the Court will issue some orders setting oral argument. It's not clear whether non-CARP participants will get to present oral argument or not.

The Department of Justice filed the brief of the Librarian of Congress, responding to all petitioners (copyright owners and copyright users) on or around December 29, 2003.
Unfortunately my dear friends did not send me a PDF of their extremely long brief, so it isn't up here.
Reply briefs are due February 12, 2004. Elizabeth is working on the small webcasters-WCPE brief with David Kushner of the Brooks Pierce law firm. No oral argument has been scheduled yet.

The Copyright Office is still trying to figure out what to do about back recordkeeping supposed to be provided by webcasters from the passage of the DMCA in October, 1998 through N, where N equals whenever the Copyright Office gets around to promulgating its interim regulations on Notice and Recordkeeping. Toward that end the Office sought comments on what to do about past recordkeeping (which to a large extent doesn't exist). CBI filed these comments simply to clarify that college and nonprofit webcasters who have opted in to the May 31st Agreement with RIAA are not subject to whatever regime the Copyright Office ultimately adopts for this period.

On August 4, 2003, CIS filed a brief opposing the RIAA/DOJ Motion to Strike, pointing out that here, the Court needs to consider extra-record material in order to fulfill its constitutional mandate to reviewing the government's application of federal statutes for constitutionality. Some of the sources complained of are Congressional records or the Copyright Office's own web site! Moreover, many of the sources complained of are only provided for background or rhetorical purposes, not as evidence. The Court does not have to blind itself or, ostrich-like, refuse to even look at, public infomation available to the rest of the world. Here is the

July 18, 2003- The RIAA and friends filed a motion to strike, from the webcasters' appeal briefs filed June 20, all references to any documents and sources not in the record created in the CARP proceedings below.

Motion to Strike
So what are the moving parties complaining about?
Well, first, they really hate some statements of Mark Cuban, one of the pioneers of Internet radio and founder of Broadcast.com. Cuban sold Broadcast.com to Yahoo!, which took over negotiations with RIAA for webcasting licenses. The Copyright Arbitration panel then used the Yahoo! Agreement as the basis for webcasting rates for the entire webcasting field. When Cuban heard that, he sent this email to the Radio and Internet Newsletter explaining his strategy when he was negotiating with the RIAA for Broadcast.com before Yahoo acquired it.

On June 20, CIS's Cyberlaw Clinic, with Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, filed a brief in the U.S. Court of Appeals in support of petitions for review of the Librarian of Congress's determination last year of royalty rates for compulsory copyright licenses that apply to webcasting. Download file CIS represents Beethoven.com, InetProgramming Incorporated, Internet Radio Hawaii and WhereverRadio. Brooks, Pierce represents Educational Information Corporation (WCPE FM).

April 30, 2003-
Representatives of Commercial Broadcasters and Copyright Owners and Performers have advised the Library that they have reached an agreement on rates and terms for simultaneously webcasting their AM and FM radio broadcast programming. Their agreement will be proposed and published in the Federal Register soon.
As a result, both parties asked for a postponement of the May 5 deadline for filing a direct case. The Copyright Office has agreed and postponed all deadline for commercial entities for one week, including the deadline for Oppositions to the Copyright Owners' proposed Protective Order, which is now the Interim Protective Order.