Yesterday, a three judge panel of the US Court of Appeals in Washington, D.C. denied the Emergency Motion for a Stay of the Internet Radio Royalty rates set earlier this year by the Copyright Royalty Board. Our coverage of the stay motion can be found here and here. Coverage of the entire royalty issue and the surrounding controversy can be found in various posts on our blog, here. The denial of the stay means that, absent Congressional action or some voluntary agreement of the parties, the new rates will go into effect with payments for the period since the CRB decision being due on Monday, July 16.
The Court’s decision was very brief – in essence three sentences which merely stated that the moving parties had not met the high legal burden necessary for the Court to impose a stay. A stay is an extraordinary legal action, taken by a Court as part of its equitable powers to insure that justice is carried out. In order to justify a stay, a party must show the Court that there is a likelihood of success on the merits of the case (in other words, it must prove in a 20 page stay motion the likelihood that it will eventually win its appeal after full briefing and oral argument), plus it must prove that there will be irreparable harm if the stay is not issued (more than simply a loss of money – but harm that cannot be remedied if the appeal is eventually successful). Weighing those factors, and balancing the competing interests of the parties and the public interest, the Court decides whether or not to issue a Stay. In this case, as there was no more than the pro forma Order, we do not know what shortcomings the Court perceived in the Motion seeking the Stay, but no reasons are required as the Court can merely decide not to exercise its equitable discretion in a case.