Last week, the Copyright Royalty Board published in the Federal Register its decision on Internet radio royalties for 2011-2015. The question that I received many times since the publication last week is “huh, didn’t we already see that decision a long time ago?” Indeed we did – the original decision setting the rates was reached in December 2010 (which we wrote about here and here). But, as many will remember, there was also an intervening decision finding that the CRB had been unconstitutionally established. The Court remedied the unconstitutionality by changing the law’s provisions dealing with the ability of the Librarian of Congress to remove the Judges, and sent the decision back to the CRB to redo the 2010 decision. The redo is the result that was released last week. While the new decision did not change the rates for webcasters, it did contain some new analysis that presents some interesting insights into the Judge’s thought processes that may be relevant to webcasters who will be affected by the recently started proceeding to determine rates for 2016-2020. As the three Judges on the CRB have all arrived on the CRB since the 2010 decision, this rewritten decision provides some insight as to how they are approaching the new proceeding.
By the time the decision declaring the unconstitutionality of the “old” CRB was reached, the only party left fighting the decision was Intercollegiate Broadcasting Systems, a group of college broadcasters. All of the commercial broadcasters had either settled their royalty disputes, or dropped out of the proceeding (see our summary of the rates entered into by parties as part of the Webcasters Settlement Acts). Thus, no commercial webcasters participated in the remanded proceeding before the CRB. The CRB noted the lack of any challenge to the commercial rates, and given that they were not challenged, and that they fell in a zone of reasonableness, they were adopted. But, in determining that the rates were in the zone of reasonableness, the CRB did not just pay lip service to reviewing the prior decision, but it instead did a full review of that decision. And, some of the discussion that they offered may arise again in the new proceeding.
Continue Reading Copyright Royalty Board Reissues Decision on Internet Radio Royalties for 2011-2015 – Same Rates But New Analysis