The Librarian of Congress has announced the appointment of two new judges to the Copyright Royalty Board – marking a total change in the three judge board since the decision in the last webcasting royalty case (about which we wrote here). The two new judges are David Strickler and Jesse Feder. Mr. Strickler will serve through 2016, taking the position of Judge Wisnewski (who resigned about a year ago) as the economics expert required by the statute creating the Board. Mr. Stricker is currently Senior Counsel at a law firm in New Jersey, specializing in business litigation, according to his biography on the firm’s website, here. He also has a Masters Degree in economics, and is an adjunct economics professor as Brookdale College in New Jersey.
Mr. Feder takes the place of Judge Roberts, who was one of the original CRB judges and had worked in the Copyright Office in connection with the CARP process that set the first rates for webcasting back in 2002. Judge Roberts recently resigned from the Board. The position that Mr. Feder takes is required by statute to be filled by someone with Copyright experience. According to Mr. Feder’s online profile, he was the Director of International Trade and Intellectual Property at the Business Software Alliance, and previously held several supervisory positions at the Copyright Office and in the Library of Congress. His appointment, filling Judge Roberts’ seat, lasts only until 2014 (but he could be reappointed).
These two judges join Chief Judge Suzanne Barnett, appointed just over a year ago, who recently presided over the royalty decisions for satellite and cable radio (see our summary here). Thus, for the next webcasting proceeding, there will be an entirely new Board, none of whom have presided over a case to set Internet Radio royalties. Certainly, the Chief Judge will be familiar with many of the arguments about the valuation of music rights (see our post here on the differing perceptions of the value of music) which would have come up in the recent satellite radio case. But, as webcasting has a different legal standard that applies to the determination of the royalty rates (see our explanation of the different standards here), we will all have to see how the case develops.
The next webcasting royalty proceeding, to set royalties for internet radio for 2016-2020, will begin early in 2014, when participating parties will need to file an expression of interest in participating in the proceeding. After these petitions to participate are filed, the CRB will schedule a period during which the parties are to try to settle the case. If there is no settlement, under current rules, direct case exhibits (setting out the evidence that each party advances to support the rates that they think should be charged), would be filed in late 2014, with the actual litigation over the evidence presented – and the decision – coming before the end of 2015. Of course, this could all change should there be any action on the Internet Radio Fairness Act. To be continued….