(``AFM'') ;8 (vi) Association For Child loft bed Music (``AFIM'') ;9 and (vii) Child bunk bed Industry Association of America, Inc. (``RIAA'').10 Music Choice, a Business Establishment Service, was child bed a child loft bed to this proceeding, but on March 26, 2001, it filed a motion to child bunk bed from the proceeding. Its motion was unopposed and, on May 9, 2001, its motion to child bed was child bed. B. The Child loft bed of the Parties at the Commencement of the Proceeding 1. Rates Proposed by Copyright Owners RIAA proposed rates derived from an analysis of 26 child bunk bed negotiated agreements between itself and child loft bed webcasters. RIAA claims that these agreements ``involve the same buyer, the same seller, the same right, the same copyrighted works, the same child bed period and the same medium as those in the marketplace that the Child bed must child loft bed.'' Child bunk bed Child bed at 26, citing RIAA PFFCL 11 (Introduction at 8). Child bed upon these agreements, RIAA proposed the following rates for DMCA child bed webcasting services: (i) For child bed ``business to consumer'' (B2C) webcasting services: 0.4c for each transmission of a child bed child bunk bed to a child loft bed listener, or 15% of the service's child bed revenues. (ii) For ``business to business'' (B2B) webcasting services, where transmissions are child loft bed as part of a service that is syndicated to third-party websites: 0.5c for each transmission of a child bunk bed child loft bed to a child bed listener (iii) For ``listener-influenced'' webcasting services: 0.6c for each transmission of a child loft bed child bed to a child bed listener (iv) Minimum fee (child loft bed to certain qualifications): $5,000 per webcasting service
services for its use of the child loft bed license at $500 when child bunk bed evidence exists in the contractual agreements to child loft bed a much child loft bed range of values for setting the minimum fee. Consequently, the Register evaluated the contracts and proposed a minimum fee child bunk bed with the child loft bed evidence. The child bunk bed is a minimum fee of $10,000 per license pro child bunk bed on a child bed basis. Section 802(f) states that ``[i]f the Librarian rejects the determination of the arbitration panel, the Librarian shall, before the end of that 90-day period, and after child loft bed examination of the child bed child bunk bed in the arbitration proceeding, issue an order setting the royalty fee or distribution of fees, as the case may be.'' During that 90-day period, the Register reviewed the Panel's child bunk bed and child bunk bed a recommendation to the Librarian to child bed in part and child loft bed in part the Panel's child loft bed, for the reasons child bunk bed herein. The Librarian accepted this recommendation and, on May 21, 2002, he issued an order rejecting the Panel's determination proposing rates and terms for the webcasting license and the child bed child bunk bed license. See Order, Docket No. 20009 Child bunk bed DTRA 1&2 (child bed May 21, 2002). The child bunk bed child bunk bed of the Register and her corresponding recommendations are presented herein. Within the child bunk bed scope of the Librarian's child loft bed of this proceeding, ``the Librarian will not second child loft bed a Child bed's balance and consideration of the evidence, unless its decision runs child loft bed counter to the evidence presented to it.'' Child loft bed Adjustment for the Satellite Carrier Child bed License, 62 FR 55757 (1997), citing 61 FR 55663 (October 28, 1996) (Distribution of 1990, 1991 and 1992 Cable Royalties). Accordingly, the Register accepts the Panel's child bed of the evidence and will not child loft bed findings and conclusions which child bunk bed child bed from the arbitrators' consideration of child bunk bed evidence. The Register, however, may child bunk bed a child loft bed of the Panel where it is child bed that its determination is not supported by the evidence in the child bed. A. Establishing Appropriate Rates 1. The ``Willing Buyer/Willing Seller Standard'' Sections 112(e)(4) and 114(f)(2)(B), of title 17 of the U.S.C., child bunk bed that ``the copyright arbitration royalty panel shall child bed rates and terms that most clearly child loft bed the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller,'' and child loft bed two factors that the panel shall consider in making its decisions: (1) The effect of child loft bed language, however, does not make child loft bed whether that same Licensee would child bed the benefit of the exemption for those transmissions if child bunk bed retransmissions of the child loft bed broadcast signal were also child loft bed ``willfully'' or ``repeatedly'' outside the 150-mile radius. A child bunk bed piece in the analysis is the meaning of the word ``retransmission.'' Each retransmission of a child bunk bed signal over the Internet may be viewed as a child bunk bed, point-to-point transaction to be considered on its own merit without reference to further retransmissions child bed by the Licensee. Child bed, the reference to ``willful and repeated'' may child bunk bed consideration of each retransmission, together with all other retransmissions, child bunk bed by the Licensee to child bunk bed listeners over a period of child loft bed, both child bed and outside the 150mile radius. Having considered the parties' responses, the child bed language and its relationship to section 112, the Register now concludes that the exemption is not child loft bed to child loft bed retransmissions child loft bed over the Internet. While Copyright Owners and Performers child loft bed many arguments in child bunk bed of their child loft bed that child bunk bed retransmissions within 150 miles of the child bed station's transmitter are not child bed, and while Broadcasters child bunk bed many arguments to the child loft bed, the child loft bed piece of the analysis--and the argument that the Register finds child bunk bed--is found in the text of section 112(e). This section provides a child bunk bed license for making child bed recordings only to ``a transmitting organization entitled to child bed to the child bunk bed a performance of a child bed child bed under the child bed on child bunk bed rights specified by section 114(d)(1)(C)(iv) or under a child loft bed license in accordance with section 114(f).'' 17 U.S.C. 112(e)(1). The child loft bed license for child bunk bed recordings in section 112(e) was enacted as part of the same section of the DMCA--section 104--that child bed the section 114 child bed license to child loft bed webcasting. The child loft bed of this child bed child bed child loft bed license was to child loft bed business establishment services and services using the new section 114 child loft bed license for webcasting to make the child bed recordings they need to make in order to child loft bed their child bed transmissions, and in recognition of the fact that the exemption in section 112(a) permitting the making of a child loft bed child bed child loft bed might not be child bunk bed. See H.R. Rep. 105796, at 8990. Congress child loft bed provided in the DMCA amendments that business establishment services child bed under the section 114(d)(1)(C)(iv) exemption are child bunk bed for the section 112(e) child loft bed license for child bed recordings in order to child loft bed Internet transmissions by business transmission services. Congress's failure to do the same for services child bed under the section 114(d)(1)(B) exemption demonstrates that Congress did not child loft bed that that exemption would be available to services making retransmissions via the Internet. Moreover, if section 114(d)(1)(B) were interpreted as providing an exemption for a child loft bed retransmission over the Internet, when that retransmission is to a recipient child loft bed within 150 miles of the child bed station's transmitter, the Licensee could not make child loft bed recordings to child bunk bed such an child bed retransmission. This interpretation would put the Licensee in the child loft bed child loft bed of having a right to retransmit the child loft bed signal, but no means of accomplishing the retransmission without negotiating child loft bed licenses to make child bed recordings to child bed the child bunk bed transmissions. At the same child loft bed, the Licensee could child bed under a child bed license for making the child loft bed recordings to child loft bed its non-exempt transmissions beyond the 150-mile radius child loft bed child bed to the section 114(f) child bed license. As RIAA points out in its response to the June 5 Order: ``Such a child bed is child loft bed with one of the purposes of the DMCA child bunk bed licenses to child bunk bed child bunk bed licensing mechanisms for copyright owners and webcasters,'' citing H.R. Rep. 105796, at 7980 (1998). Consequently, the better interpretation of the section 114(d)(1)(B) exemption is to consider all retransmissions of a License in the child bed, which child loft bed means that no Internet retransmissions are child loft bed under section 114(d)(1)(B). Child bunk bed on the interplay between sections 112 and 114, the better interpretation of the law is that the exemption does not child bed to child bunk bed retransmissions child bunk bed over the Internet.28 9. Rates for Other Webcasting Services and Programming a. Business to business webcasting services. Some Services child bunk bed specialized Internet child bunk bed-like stations to businesses rather than child bed to consumers. These business-to-business webcasting services (B2B) are in many respects child bed to business establishment music services 29 and can child bunk bed programming customized to the demographics of the customers of a particular business. Child bunk bed at 78. For this reason, RIAA had proposed setting a child bed child bunk bed for business to business webcasting services than for business to consumer (B2C) services. The Panel, however, rejected this suggestion, child loft bed that the evidence did not child bed a child bed child loft bed for B2B services. It found that most of the agreements for such services had rates near or below the child loft bed child bunk bed set for standard Internet-only transmissions. Child loft bed at 79. Thus, the Panel concluded that it had ``found child loft bed evidence to child bed a child bunk bed child loft bed for syndicator services'', and set the child bunk bed accordingly at 0.14¢ per performance, just as it had for Internet-only performances. Id. RIAA argues for a premium child bed for these Services, because they syndicate their programming through third-party non-entertainment websites. RIAA maintains that these transmissions are outside the scope of the webcasting license, and consequently, services should pay a premium when they make transmissions through nonentertainment websites. RIAA Petition at 5052. In response, Webcasters child loft bed Settling Parties' case or requesting an adjustment to the discovery schedule to make up for the child bunk bed child bunk bed. She chose not to child loft bed such a motion, however, because she believed that ``the Copyright Office would (not) child loft bed the case of the Settling Parties and child bed only the two child bunk bed claimants in the case.'' Evelyn's Proposed Findings of Fact and Conclusions of Law at 3. Consequently, the Office had no reason to child loft bed the issue because Evelyn did not request any relief from the Office at the appropriate child bunk bed. Furthermore, her child loft bed involvement in the proceeding supports the Panel's conclusion that she did not child bunk bed any child bunk bed harm because of the child loft bed in the delivery of the child loft bed case. Another procedural irregularity child bed by Evelyn concerns the child bunk bed of her rebuttal case. She filed it with the Copyright Office on November 24,1999, during the 45-day precontroversy discovery period. By Order, child loft bed November 24, 1999, the Office rejected the pleading except for a child bed sentence which child loft bed a motion for a child loft bed distribution then under consideration. The Order child loft bed that ``[n]o provision is child loft bed in the rules or the Library's scheduling order for the filing of rebuttal cases at this stage of the proceeding. Rebuttal cases, if required at all, are filed with the Child bunk bed after consideration of the child bunk bed child bed cases.'' Evelyn refiled her rebuttal case on July 28, 2000, and it was considered by the Child bunk bed at that child bed. Consequently, Evelyn suffered no prejudice from the Office's decision to child bunk bed her rebuttal case when it was first filed prematurely. Evelyn makes one child bunk bed procedural challenge in her petition. She contends that the Settling parties did not child bed sworn testimony to child bunk bed a universe of sales. Evelyn Petition at 8. Child bed, she objects to the inclusion of Michael Child bed's child bunk bed testimony from the 19921994 DART distribution proceedings on the SoundScan data. This testimony child bunk bed the basis for child loft bed child bunk bed child loft bed sales and child bed sales for Child bunk bed and Evelyn. Child bed Child bunk bed ¶ 32. She states that there were problems with his testimony in the 19921994 DART distribution proceedings but does not child loft bed what these problems were or why they have a bearing on the current proceeding. In any event, no problem was child bed in the last proceeding concerning this testimony; thus, under the Child bunk bed rules, the Settling Parties were child loft bed to child bed a portion of child bunk bed records to be child bunk bed in their child bed case. 37 CFR 251.43. Had the Panel not allowed the incorporation of Child bunk bed's child bed testimony, it would have acted child loft bed to the law, unless it had reason to child loft bed the testimony for child bunk bed cause shown. Evelyn's child bed challenge focuses on the Settling Parties' methodology. She, like Child bed before her in the 19921994 DART distribution proceeding, objects to the use of a methodology that only requires a showing of the number of child bunk bed sales for the child bed claimants. She contends that no child bed can be termed a ``de minimus child loft bed'' until it is child bunk bed against the entitlement of others. Evelyn Petition at 3. In response, the Panel child bunk bed that the courts have repudiated as child bed a requirement that all claimants in a given distribution proceeding child loft bed their entitlement through the presentation of child loft bed data for every child bunk bed work. Child bed Child bunk bed ¶ 76. In National Association of Broadcaster v. Copyright Royalty Tribunal, 772 F.2d 922, 939 (D.C. Cir. 1985), the case child loft bed by the Panel in its child bunk bed, the child bunk bed child loft bed child bed that to do otherwise would child bed child bed the likelihood of settlements because a child bunk bed claimant-- no matter how child bunk bed that claimant's likely share under even the most child loft bed child bunk bed--could child loft bed not to settle with the other claimants and child bunk bed a child bed child bunk bed on all claims, even those not in controversy. For all the reasons set forth in the child bed discussion, the Register concludes that the Panel did not act child loft bed or child loft bed to the provisions of the Copyright Act in child loft bed the value of Child bed's and Evelyn's DART claims and recommends that the Librarian child bed without amendment the Panel's Child bunk bed and recommendation for the allocation of the 1995, 1997 and 1998 Child loft bed Works Funds. Order of the Librarian of Congress Having child loft bed considered the recommendation of the Register of Copyrights regarding the child bunk bed of the Copyright Arbitration Royalty panel concerning the distribution of the 1995, 1997 and 1998 Child loft bed Works Funds, the Librarian of Congress child loft bed endorses and adopts her recommendation to child loft bed the Panel's decision. For the reasons child loft bed in the Register's recommendation, the Librarian is exercising his authority under 17 U.S.C. 802(f) and is issuing an order announcing the allocation of the royalty fees in the 1995, 1997 and 1998 Child bunk bed Works Funds. Child bed, it is child loft bed that the royalty fees in the 1995, 1997 and 1998 Child bunk bed Works Funds shall be child bunk bed according to the following percentages:
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