including a minimum fee for the Section 112 license.^3229 Soon after, in SoundExchange, Inc. v.
Librarian of Congress,^3230 the court agreed with the Register’s determination that the conflation
of Section 112 and 114 rates was improper, but found that the evidence in the record was
insufficient for it to set a rate, and so remanded the case to the CRB to set a royalty rate that
disaggregated the Section 112 and 114 royalties.^3231
In January 2009, the CRB commenced another rate determination process for new
subscription services for the license period 2011-2015,^3232 and petitions to participate were
received from SoundExchange, Royalty Logic, and Sirius XM Radio. The parties reached a
settlement in late 2009, and on Jan. 22, 2010, the CRB published a notice seeking comments on
the rates proposed by the settlement.^3233 Having received no comments or objections, the CRB
adopted the proposed rates as final, amending 37 C.F.R. 383.^3234 The final rates for stand-alone
contracts are the greater of 15% of revenue, or the following monthly minimum payment per
subscriber:
$0.0155 for 2011
$0.0159 for 2012
$0.0164 for 2013
$0.0169 for 2014
$0.0174 for 2015For bundled contracts, the final rates are the greater of 15% of revenue allocated to reflect the
objective value of the licensee's service, or the following monthly minimum payment per
subscriber:
$0.0258 for 2011
$0.0265 for 2012
$0.0273 for 2013
$0.0281 for 2014
$0.0290 for 2015(^3229) 73 Fed. Reg. 9143, 9146 (Feb. 19, 2008) (“Royalties collected under section 114 are paid to the performers and
the copyright owners of the sound recordings, i.e., usually the record companies; whereas, the royalties
collected pursuant to the section 112 license are not paid to performers.”); “Copyright Office Declares Judges’
Ruling on Ephemeral Rates Was Legal Error,” BNA’s Patent, Trademark & Copyright Journal (Feb. 29, 2008)
at 446.
(^3230) 571 F.3d 1220 (D.C. Cir. 2009).
(^3231) SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220 (D.C. Cir. 2009); “Copyright Royalty Judges’
Rate Determination for Satellite Radio Performances Stands,” Bloomberg Law Reports – Intellectual Property,
Vol. 3, No. 30 (July 27, 2009) at 1-2.
(^3232) 74 Fed. Reg. 319 (Jan. 5, 2009).
(^3233) 75 Fed. Reg. 3666 (Jan. 22, 2010).
(^3234) 75 Fed. Reg. 14074, 14075 (Mar. 24, 2010).