United States government in violation of the Appointments Clause of the Constitution.^3204 To
cure the violation of the Appointments Clause, the court excised that portion of the Act
establishing the CRB that limited the Librarian of Congress’ ability to remove judges. Having
determined that the judges were not validly appointed at the time they issued the challenged
determination, the D.C. Circuit vacated and remanded the determination, so that a
constitutionally appointed panel of judges could render a new determination.^3205
On remand, the CRB reviewed the entire record in the proceeding de novo, and on Apr.
25, 2014 published its determination of rates and terms for digital performances of sound
recordings and the making of ephemeral recordings by webcasters for the period from Jan. 1,
2011 through Dec. 31, 2015.^3206 Specifically, the CRB determined that for commercial
webcasters subject to the agreement between the National Association of Broadcasters and
SoundExchange, the rates would be as stipulated in that agreement. For all other commercial
webcasters, the rates would be:
Year Rate per performance^3207
2011 $0.0019
2012 $0.0021
2013 $0.0021
2105 $0.0023
For noncommercial educational webcasters, rates would be as agreed by and between College
Broadcasters, Inc. and SoundExchange in the agreement approved by the judges in this
proceeding.^3208 For other noncommercial webcasters, the rate would be $500 per station or
channel, including side channels, up to a maximum usage of 159,140 Aggregate Tuning Hours
per month. Commercial usage rates would apply to usage in excess of 159,140 hours per month.
All parties in interest in the proceeding agreed that royalties payable for the Section 112(e)
license should be bundled with the Section 114 royalties and deemed to be 5% of the bundled
remittances.^3209
(^3204) Intercollegiate Broadcasting Sys. v. Copyright Royalty Board, 684 F.3d 1331, 1342 (D.C. Cir. 2012), cert.
denied, 133 S. Ct. 2735 (2013).
(^3205) Id. at 1334, 1342.
(^3206) 79 Fed. Reg. 23102 (Apr. 25, 2014).
(^3207) This rate is applicable from first performance, but subject to recoupment credit for the agreed minimum fee of
$500 per year for each station or channel. Id. at 23102.
(^3208) The terms of that agreement, which was first published by the Copyright Office at 74 Fed. Reg. 40616 (Aug. 12,
2009), provide for an annual, nonrefundable minimum fee of $500 for each station or individual channel,
including each of its individual side channels. Those educational webcasters whose monthly Aggregate Tuning
Hours exceed 159,140 per month pay additional fees on a per-performance basis. The agreement also provides
for an optional $100 proxy fee that noncommercial educational webcasters may pay in lieu of submitting reports
of use of sound recordings. 79 Fed. Reg. at 23120.
(^3209) Id. at 23102.