Copyright Royalty Judges’ Authority to Subpoena a Nonparticipant to Appear and Give Testimony or to Produce and Permit Inspection of Documents or Tangible Things, 13306-13310 [2010-5806]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Notices]
[Pages 13306-13310]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5806]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. RF 2009-1]


Copyright Royalty Judges' Authority to Subpoena a Nonparticipant 
to Appear and Give Testimony or to Produce and Permit Inspection of 
Documents or Tangible Things

AGENCY: Copyright Office, Library of Congress.

ACTION: Final order.

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SUMMARY: The Copyright Royalty Judges, acting pursuant to statute, 
referred a material question of substantive law to the Register of 
Copyrights concerning their authority to subpoena a nonparticipant to 
appear and give testimony or to produce and permit inspection of 
documents or tangible things. The Register of Copyrights responded by 
delivering a Memorandum Opinion to the Copyright Royalty Board on 
February 23, 2010.

DATES: Effective Date: February 23, 2010.

FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Deputy General Counsel, 
or Stephen Ruwe, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400, 
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.

SUPPLEMENTARY INFORMATION: In the Copyright Royalty and Distribution 
Reform Act of 2004, Congress amended Title 17 to replace the copyright 
arbitration royalty panels with the Copyright Royalty Judges 
(``CRJs''). One of the functions of the CRJs is to make determinations 
and adjustments of reasonable terms and rates of royalty payments as 
provided in sections 112(e), 114, 115, 116, 118, 119 and 1004 of the 
Copyright Act. The CRJs have the authority to request from the Register 
of Copyrights (``Register'') an interpretation of any material question 
of substantive law that relates to the construction of provisions of 
Title 17 and arises during the proceeding before the CRJs. See 17 
U.S.C. 802(f)(1)(A)(ii).
    On January 28, 2010, the CRJs delivered to the Register an Order 
referring a material question of substantive law for determination by 
the Register: ``Whether the Copyright Royalty Judges have authority 
under the Copyright Act to subpoena a nonparticipant to appear and give 
testimony or to produce and permit inspection of documents or tangible 
things?'' The CRJs also delivered to the Register the briefs filed with 
the CRJs by RealNetworks, Inc., Live365, Inc., SoundExchange, Inc., CBS 
Interactive, Inc., Pandora Media, Inc., and Slacker, Inc. in connection 
with a motion seeking the issuance of subpoenas to nonparty witnesses, 
as well as the transcripts of a hearing regarding consideration of that 
motion.
    The Order stated that the CRJs were requesting an interpretation of 
a material question of substantive law pursuant to 17 U.S.C. 
802(f)(1)(A)(ii), which allows a 14-day response period. However, 
section 802(f)(1)(B)(i) provides that when the CRJs request a decision 
by the Register on ``a novel material question of substantive law 
concerning an interpretation of those provisions of this title that are 
the subject of the proceeding'' (emphasis added), the Register shall 
transmit her decision within a 30-day response period. A novel question 
of law is one that ``has not been determined in prior decisions, 
determinations, and rulings described in section 803(a).'' Id. On 
February 11, the Register advised the CRJs that she had determined that 
the material question of law that is the subject of the Order is novel 
because it has not been determined in prior decisions, determinations, 
and rulings described in 17 U.S.C. 803(a). See 17 U.S.C. 
802(f)(1)(B)(ii).
    On February 23, the Register responded in a Memorandum Opinion to 
the CRJs that addressed the novel material question of law. To provide 
the public with notice of the decision rendered by the Register, the 
Memorandum Opinion is reproduced in its entirety, below. The timely 
delivery of the Register's response requires that ``the Copyright 
Royalty Judges shall apply the legal determinations embodied in the 
decision of the Register of Copyrights in resolving material questions 
of substantive law.'' See 17 U.S.C. 802(f)(1)(B)(I).


[[Page 13307]]


    Dated: March 11, 2010
David O. Carson,
General Counsel.

     Before the
     U.S. Copyright Office
     Library of Congress
     Washington, D.C. 20559

In the Matter of

Digital Performance Right in Sound
Recordings and Ephemeral Recordings

    Docket No. 2009-1
    CRB Webcasting III
----------------------------------------

MEMORANDUM OPINION
ON MATERIAL QUESTIONS OF SUBSTANTIVE LAW
I. Procedural Background
    On January 28, 2010, pursuant to 17 U.S.C. 802(f)(1), the Copyright 
Royalty Judges (``CRJs'') referred to the Register of Copyrights a 
novel material question of substantive law that has arisen in this 
proceeding. The Copyright Royalty Judges included briefs that had been 
submitted in December 2009 and January 2010 by the parties to the 
proceeding and transcripts of a hearing held on January 12, 2010, 
relating to the authority of the CRJs to subpoena a nonparticipant in a 
proceeding.
    After recounting the relevant statutory provisions of Chapter 8 of 
Title 17, the CRJs posed the following novel material question of 
substantive law:

     QUESTION: Whether the Copyright Royalty Judges have authority 
under the Copyright Act to subpoena a nonparticipant to appear and 
give testimony or to produce and permit inspection of documents or 
tangible things?

As required by 17 U.S.C. 802(f)(1)(B)(i), the Register hereby provides 
her response to the CRJs.
II. Statutory Authority in Chapter 8 of Title 17.
    In 2004, Congress passed the Copyright Royalty and Distribution 
Reform Act (``CRDRA''). This legislation created the CRJs and provides, 
in 17 U.S.C. 803(b)(6)(C)(ix), that:

     In proceedings to determine royalty rates, the Copyright 
Royalty Judges may issue a subpoena commanding a participant or 
witness to appear and give testimony, or to produce and permit 
inspection of documents or tangible things, if the Copyright Royalty 
Judges' resolution of the proceeding would be substantially impaired 
by the absence of such testimony or production of documents or 
tangible things. Such subpoena shall specify with reasonable 
particularity the materials to be produced or the scope and nature 
of the required testimony. Nothing in this clause shall preclude the 
Copyright Royalty Judges from requesting the production by a 
nonparticipant of information or materials relevant to the 
resolution by the Copyright Royalty Judges of a material issue of 
fact.

III. Summary of Parties' Arguments
    On December 10, 2009, RealNetworks, Inc. (``RealNetworks'') filed a 
motion for issuance of subpoenas directing Pandora Media, Inc., 
Slacker, Inc., and CBS Interactive, Inc.(``CBSi''), who are not 
participants in the proceeding, to present corporate representative 
witnesses competent to present documents and testify at deposition with 
respect to factual assertions included in the written direct statement 
of SoundExchange, Inc. (``SoundExchange'') as to which SoundExchange 
has no first hand knowledge. RealNetworks' motion\1\ focuses virtually 
all of its attention on the application of the CRJs' regulations 
addressing the discovery stages of a determination. In doing so, it 
does not attempt to analyze who may be the proper subject of a subpoena 
under the statute.
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    \1\ Another participant, Live365, Inc. (``Live365'') separately 
filed a brief in which it adopted the relevant arguments in 
RealNetworks' initial motion.
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    In response to RealNetworks' motion, SoundExchange\2\ argues that 
section 803(b)(6)(C)(ix) treats subpoenas to ``participants and 
witnesses'' separately from requests to ``nonparticipants.''\3\ In 
SoundExchange's view, ``with respect to participants and witnesses, 
[the statute] states that the CRJs `may issue a subpoena commanding a 
participant or witness to appear and give testimony, or to produce and 
permit inspection of documents or tangible things,' if certain 
conditions are met.''\4\ SoundExchange argues that the CRJs could, 
under certain conditions, issue a subpoena in a given proceeding to 
either a participant or a witness whose testimony has been previously 
submitted to the CRJs in the given proceeding.\5\ But, under 
SoundExchange's view, the CRJs may not issue subpoenas to persons who 
are neither participants nor witnesses who have previously submitted 
testimony in the given proceeding. SoundExchange asserts that ``with 
respect to seeking information from nonparticipants like Pandora, 
Slacker and CBS Interactive, Sec.  803(b)(6)(C)(ix) establishes a 
different standard that limits the CRJs' power. It does not include 
them among those individuals who may be subpoenaed. Rather, it provides 
that `[n]othing in this clause shall preclude the Copyright Royalty 
Judges from requesting the production by a nonparticipant of 
information or materials relevant to the resolution by the Copyright 
Royalty Judges of a material issue of fact.''' When asked by the Chief 
Copyright Royalty Judge at the hearing on the motion whether it was 
aware of any other federal statutes that provide for a power or duty 
but provide no mechanism for enforcement, SoundExchange stated that it 
was not aware of any such statute. SoundExchange further opined that 
the only enforcement mechanism available to the CRJs in the event of 
noncompliance with a subpoena would be the CRJs' authority to impose 
sanctions, such as striking testimony, when the subpoena was directed 
to a participant or a witness whose testimony has been previously 
submitted by a participant. SoundExchange observed that this ``suggests 
a reason why this statute should be interpreted to mean the Court [sic] 
can issue subpoenas to parties, participants and witnesses, but not to 
nonparticipants.''\6\
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    \2\ Pandora Media, Inc., Slacker, Inc., and CBSi adopted the 
relevant arguments SoundExchange's brief.
    \3\ In distinguishing between ``participants and witnesses'' on 
one hand, and ``nonparticipants'' on the other, SoundExchange 
apparently does not recognize that the ``witnesses'' that it 
includes within the group of ``participants and witnesses'' are in 
fact nonparticipants. In the parlance of CRJ proceedings, a 
``participant'' is a party to the proceeding. See 17 U.S.C. 
Sec. Sec.  801(b)(7)(A), 802(f)(1)(A)(ii), 802(f)(1)(B), 
802(f)(1)(D), 803(b)(1)(A)(ii), 803(b)(2)(C), 803(b)(3)(A), 
803(b)(4), 803(b)(5), 803(b)(6)(C), 803(c)(2), 803(c)(4), 803(d)(1), 
803(d)(2)(B), 805(1)
    \4\ SoundExchange cites to the full text of section 
803(b)(6)(C)(ix), which provides that CRJs may only issue subpoenas 
where ``resolution of the proceeding would be substantially impaired 
by the absence of such testimony or production of documents or 
tangible things.''
    \5\ While SoundExchange, in its written brief, initially argued 
that the CRJs could only subpoena ``participants and witnesses'' and 
that they could not subpoena nonparticipants, at the January 12, 
2010, hearing, SoundExchange conceded that the statute's grant of 
authority to subpoena a ``witness'' includes those who are not 
necessarily participants, provided they have previously submitted 
testimony as a witness in the relevant proceeding. Hearing 
Transcript at 76.
    \6\ Transcript at 72-74.
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    Having put forth an analysis of section 803(b)(6)(C)(ix) that 
involves a distinction between ``participants and witnesses'' on the 
one hand and ``nonparticipants'' on the other, SoundExchange cites to 
Bobreski v. E.P.A, 284 F. Supp.2d 67,76 (D.D.C. 2003) and United States 
v. Iannone, 610 F.2d 943, 945-47 (D.C. Cir. 1979) for the proposition 
that subpoena power should not be found to exist absent an express 
statutory grant. SoundExchange then cites to Peters v.United States, 
853 F.2d 692, 696 (9th Cir. 1988), asserting that even where an agency 
has broad

[[Page 13308]]

subpoena and investigatory authority, courts should be reluctant to 
assume the existence of authority to issue third party subpoenas where 
Congress has not specifically provided for them. SoundExchange also 
argues that if the CRJs were granted the authority to issue subpoenas 
to nonparticipants, then the last sentence of 803(b)(6)(C)(ix), which 
authorizes them to request information from nonparticipants, would be 
unnecessary, and that such an interpretation would violate an accepted 
principle of statutory construction against surplusage.\7\ RealNetworks 
and Live365 assert that section 803(b)(6)(C)(ix) authorizes the 
issuance of subpoenas to nonparticipants and that neither the statute 
nor regulations limit this power only to participants in a proceeding. 
Unlike the briefs supporting the initial motion, their reply briefs 
focus directly on whether the CRJs possess authority to issue subpoenas 
to persons who are neither participants in the proceeding nor persons 
who the participants have designated to testify. In its reply brief, 
and in the January 12 hearing, RealNetworks argues that the plain 
language of 803(b)(6)(C)(ix) demonstrates that the CRJs have power to 
subpoena ``witnesses.'' It asserts that SoundExchange's citations to 
case law assessing agencies' subpoena authority when Congress has not 
provided for such power through plain language are therefore 
irrelevant. RealNetworks argues that SoundExchange's analysis of 
section 803(b)(6)(C)(ix) is unduly cramped and that the plain text of 
the statute undermines SoundExchange's argument that ``witness'' should 
be understood to mean only a witness previously designated by a 
participant to give evidence in court. RealNetworks asserts that the 
common meaning of ``witness'' and ``testimony'' support its proposed 
plain language reading of the statute. RealNetworks also asserts that 
the plain language and the legislative history of section 
803(b)(6)(C)(ix) demonstrate that the CRJs have power to subpoena 
``witnesses,'' not just a small subset of witnesses as SoundExchange 
contends. RealNetworks offers that should the CRJs accept 
SoundExchange's argument that the CRJs may only subpoena a witness 
previously designated by a participant to give evidence, it would run 
counter to language in the legislative history of the Copyright Royalty 
and Distribution Reform Act of 2004 that explains that the subpoena 
power was intended to prevent a party from circumscribing the type and 
amount of evidence considered in a proceeding. H.R. Rep. No. 108-408, 
at 33 (2004).
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    \7\ CBSi, separately filed a brief in which it adopted the 
relevant arguments in SoundExchange's brief, and it reiterated many 
of SoundExchange's arguments at the January 12, 2010, hearing.
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    At the hearing, CBSi pointed out that the legislative history 
relied on by RealNetworks addresses proposed statutory language that 
was markedly different, and much broader, than that which was 
ultimately enacted by Congress.
    RealNetworks' reply brief also points out that the last sentence in 
section 803(b)(6)(C)(ix) does not create surplusage because the 
authority to subpoena and the authority to request are not redundant, 
especially when there are distinct threshold requirements for employing 
the two differing actions. Under RealNetworks' analysis, the threshold 
test for issuance of a subpoena to participants and witnesses is 
substantial impairment, whereas the threshold test for a request for 
information from nonparticipants is relevance.
    In its reply brief, Live365 goes on to argue that if the CRJs' 
subpoena power were limited to participants and witnesses who have 
already submitted statements to the CRJs, the subpoena power would be 
effectively meaningless since other provisions allow the CRJs to compel 
testimony from parties and their witnesses. See 17 U.S.C. 
803(b)(6)(C)(v)-(vii). Thus, according to Live 365, Congress must have 
been contemplating the ability to compel testimony from nonparticipant 
third parties.
IV. Register's Determination
    A review of the written submissions and oral arguments offered by 
the parties and third party witnesses who supported and opposed the 
motion reveals that the question is not precisely whether the CRJs have 
the authority to ``subpoena a nonparticipant,'' but rather whether the 
CRJs have the authority to subpoena a person who is neither a 
participant in the proceeding nor a witness whose testimony has been 
submitted as part of a participant's written direct statement. While 
SoundExchange's initial submission posited a distinction between 
participants and witnesses on the one hand and nonparticipants on the 
other hand, at the time of the hearing on the motion SoundExchange 
refined its position to acknowledge that some nonparticipants may 
nevertheless be ``witnesses'' for purposes of 17 U.S.C. 
803(b)(6)(C)(ix). Specifically, SoundExchange acknowledged that the 
CRJs have the authority to subpoena a nonparticipant whose testimony 
has previously been submitted by a participant in the relevant 
proceeding.\8\
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    \8\ SoundExchange acknowledges that ``there are times when some 
of the witnesses aren't even under the control of a participant, and 
so you would have to issue a subpoena.'' Hearing Transcript at 76.
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    SoundExchange's refinement of its position is more consistent with 
the language of section 803(b)(6)(C)(ix), which empowers the CRJs to 
``issue a subpoena commanding a participant or witness to appear.'' 
(Emphasis added). The question, then, is: who may be a ``witness'' for 
purposes of section 803(b)(6)(C)(ix)?
    In answering that question, one must look toward established canons 
of statutory construction which dictate that ``the meaning of a statute 
must, in the first instance, be sought in the language in which the act 
is framed, and if that is plain, and if the law is within the 
constitutional authority of the law-making body which passed it, the 
sole function of the courts is to enforce it according to its terms.'' 
Caminetti v. United States, 242 U.S. 470, 485 (1917). The plain meaning 
of the first sentence of this provision clearly authorizes the issuance 
of subpoenas to participants. The plain meaning of the same sentence 
also authorizes the CRJs to issue subpoenas to witnesses. Therefore, it 
is evident that certain persons other than participants (i.e. 
nonparticipants) may be subpoenaed, provided that they are 
``witnesses.'' Unfortunately, this analysis does not answer the 
critical question currently before the CRJs regarding whether the 
authority to subpoena ``witnesses'' is, as SoundExchange and the 
proposed subjects of subpoenas suggest, limited to witnesses whose 
testimony has been filed as part of a participant's written direct 
statement (a limited subset of nonparticipants), or whether the 
authority to subpoena witnesses includes any prospective witnesses, 
which would include all nonparticipants - subject to the other criteria 
regarding the probative value of their evidence.\9\
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    \9\ With regard to both participants as well as witnesses, the 
CRJs may only issue a subpoena if the resolution of the proceeding 
would be substantially impaired by the absence of such testimony or 
production of documents or tangible things.
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    In determining whether ``witness'' as used in section 
803(b)(6)(C)(ix) is limited to those who have already submitted 
testimony to the CRJs, one must, as noted above, look to the plain 
meaning of the statute. An accepted maxim of statutory construction 
dictates that in the absence of a definition, a statutory term should 
be construed in accordance with its natural meaning. FDIC v. Meyer, 510 
U.S. 471 (1994). The

[[Page 13309]]

question here is, what is the natural meaning of the word ``witness''? 
Black's Law Dictionary defines ``witness'' as ``One who sees, knows, or 
vouches for something.'' Black's Law Dictionary (8th ed. 2004). 
Additionally, Corpus Juris Secundum: A Contemporary Statement of 
American Law as Derived from Reported Cases and Legislation, states 
``The term witness, in its strict legal sense, means one who gives 
evidence in a cause before a court; and in its general sense includes 
all persons from whose lips testimony is extracted to be used in any 
judicial proceeding, and so includes deponents and affiants as well as 
persons delivering oral testimony before a court or jury.'' 97 CJS 
Witnesses Sec.  1 West, 1994. Neither of these definitions deems 
``witness'' to be restricted to those whose testimony has been filed 
with the CRJs as part of a written, direct statement or, more 
generally, to those who have already given testimony. Therefore, there 
is no basis to conclude that Congress intended an alternative, more 
restrictive, meaning. Instead, the Register determines that ``witness'' 
as used in section 803(b)(6)(C)(ix) includes anyone who knows something 
that is relevant, or alternatively anyone who has or gives evidence (as 
opposed to one who has given evidence) in a rate determination 
proceeding. This plain meaning interpretation includes witnesses who 
are nonparticipants, including those who have not previously been 
designated by a participant as a witness as well as those whose 
testimony has not been filed as part of a written direct statement.
    The statutory interpretation principle of in pari materia, which 
offers that statutes relating to the same or a closely allied subject 
or object should be construed together and compared with each other, 
indicates that it is also useful to look to other federal statutes that 
authorize the issuance of subpoenas. 73 Am. Jur. 2d Statutes Sec.  103 
(2009). The United States Code is replete with provisions that 
authorize various officers of the United States to issue subpoenas, and 
it is common for those provisions expressly to provide a power to 
``subpoena witnesses'' or ``issue subpoenas for the attendance of 
witnesses,'' or contain similar language. See, e.g., 5 U.S.C. Sec.  
1305 (Office of Personnel Management & Merit Systems Protection Board 
may ``subpena witnesses and records'' in certain matters relating to 
administrative law judges); 8 U.S.C.A. Sec.  1229a(b)(1) (Immigration 
judges ``may issue subpoenas for the attendance of witnesses and 
presentation of evidence''); 2 U.S.C. Sec.  437d(a)(3) (Federal 
Election Commission may ``require by subpoena, signed by the chairman 
or the vice chairman, the attendance and testimony of witnesses and the 
production of all documentary evidence relating to the execution of its 
duties''). In each of these cases, a plain reading of the statute leads 
to the conclusion that Congress was empowering the named officers to 
issue subpoenas to ``witnesses'' as the term is commonly understood, 
and not just to persons who were already participating in their 
proceedings. The same reading is the natural reading of section 
803(b)(6)(C)(ix).
    In arguing for a more narrow interpretation of ``witness,'' 
SoundExchange, joined by the proposed subjects of subpoenas, suggests 
that the final sentence of section 803(b)(6)(C)(ix) limits the CRJs' 
power with regard to nonparticipants. Under SoundExchange's reading, if 
section 803(b)(6)(C)(ix) were interpreted to allow the issuance of 
subpoenas to nonparticipants, the last sentence of the provision would 
be superfluous, and such a result would violate an accepted principle 
of statutory construction. However, the final sentence of section 
803(b)(6)(C)(ix), which states ``[n]othing in this clause shall 
preclude the Copyright Royalty Judges from requesting the production by 
a nonparticipant of information or materials relevant to the resolution 
by the Copyright Royalty Judges of a material issue of fact,'' does not 
address the CRJs' power to subpoena testimony. Instead, it speaks to 
the power of the CRJs to request testimony. As RealNetworks accurately 
points out, there may be situations where the CRJs conclude that it 
might be useful to have a nonparticipant testify, but at the same time 
conclude that the resolution of the proceeding would not be 
substantially impaired by the absence of such testimony. In such 
instances, the CRJs would not be able to subpoena the nonparticipant. 
However, in such instances, the CRJs could, under the final sentence of 
section 803(b)(6)(C)(ix), request the relevant testimony. Such a 
scenario clearly demonstrates that the final sentence is not rendered 
superfluous by a nonrestrictive interpretation of the subpoena power. 
The first part of section 803(b)(6)(C)(ix) authorizes the issuance of a 
subpoena to participants and witnesses, albeit bound by a finding that 
the absence of testimony would substantially impair the resolution of 
the proceeding. The second part of section 803(b)(6)(C)(ix), in a non-
superfluous manner, preserves the ability to request testimony from a 
nonparticipant, provided that such testimony is relevant to the 
resolution of a material issue of fact and even if the absence of that 
testimony would not substantially impair the resolution of the 
proceeding.
    SoundExchange correctly observes that the legislative history cited 
by RealNetworks was referring to proposed statutory text that was quite 
different from the statute as passed. However, it is unnecessary to 
look toward the legislative history for clarification where the plain 
meaning of the statute is clear. Even if there were ambiguity or lack 
of specificity in the statute, the legislative history that exists is 
consistent with the Register's finding that the CRJs' subpoena power is 
broad and not restricted to witnesses who have already submitted 
testimony to the CRJs. The legislative history evidences Congress's 
intent to allow ``the CRJs to subpoena additional witnesses.'' H.R. 
Rep. No. 108-408, at 33 (2004). This portion of the House Report 
indicates that Congress intended the word ``witness'' to include 
additional persons beyond merely those who have previously been 
designated by a participant to give evidence. While it is true that the 
language discussed in the House Report imparted broader authority than 
the statue as passed, there is no indication that in the legislation as 
enacted, Congress intended a more restrictive meaning of ``witness.'' 
Rather, it appears that subsequent to the filing of the House Report, 
Congress refined the statutory language in a way that required the CRJs 
to find a much higher degree of relevance and materiality before they 
would be permitted to issue subpoenas to witnesses, but not in any way 
that could affect the determination whether a particular person would 
be considered a ``witness.''\10\
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    \10\ At the time the House Report was filed, the language in the 
pending legislation permitted the CRJs to issue subpoenas ``only if 
the evidence requested to be produced or that would be proffered by 
the witness is relevant and material.'' H.R. Rep. No. 108-408, at 8 
(2004). In the enacted legislation, that authority was narrowed to 
permit the issuance of subpoenas ``if the Copyright Royalty Judges' 
resolution of the proceeding would be substantially impaired by the 
absence of such testimony or production of documents or tangible 
things.'' 17 U.S.C. 803(b)(6)(C)(ix).
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    The complete legislative history regarding the CRJs' subpoena power 
indicates that the type of restrictions that SoundExchange currently 
argues for were largely reflected in statutory language that was 
reported by the Senate Judiciary Committee but that ultimately was not 
adopted by Congress. As laid before the Senate, H.R. 1417 provided that 
the CRJs ``may issue a subpoena commanding a participant or

[[Page 13310]]

witness in a proceeding to determine royalty rates to appear and give 
testimony or to produce and permit inspection of documents or tangible 
things.'' 150 Cong. Rec. S10499 (daily ed. October 6, 2004) (Emphasis 
added). The final sentence of the relevant subparagraph also stated 
that ``A Copyright Royalty Judge may not issue a subpoena under this 
clause to any person who was a participant in a proceeding to determine 
royalty rates and has negotiated a settlement with respect to those 
rates.'' Id. However, these two limitations on the CRJs' subpoena power 
were amended on the Senate floor. The floor amendment removed the 
above-referenced final sentence of the relevant subparagraph, which 
would have prevented the CRJs from issuing a subpoena to any person who 
had been a participant in a proceeding to determine royalty rates and 
had negotiated a settlement. The floor amendment also removed any 
indication that a ``witness'' must be one ``in a proceeding to 
determine royalty rates.'' 150 Cong. Rec. S10590 (daily ed. October 6, 
2004). The fact that these two restrictions, which are closely 
analogous to the one SoundExchange currently argues for, were not 
included in the statute as enacted indicates that Congress did not 
intend such limitations to be placed on the CRJs' subpoena power.
    The cases cited by SoundExchange are also inapplicable to the 
current inquiry. Bobreski v. E.P.A, 284 F. Supp.2d 67 (D.D.C. 2003) 
addressed a statute that specifically withheld any grant of subpoena 
authority; United States v. Iannone, 610 F.2d 943 (D.C. Cir. 1979) 
spoke solely to the authority to subpoena the attendance and testimony 
of a witness, versus the mere authority to subpoena documentary 
information; and Peters v. United States, 853 F.2d 692 (9th Cir. 1988) 
addressed limitations on an administrative agency's ability to issue a 
very unique type of subpoena often referred to as ```John Doe' 
subpoenas'' which are directed in a blanket manner at unidentified 
targets. The court observed that such subpoenas, which are not at issue 
here, carry heightened privacy concerns and it was therefore 
``reluctant to assume the existence of the power to issue third-party 
subpoenas directed at unidentified targets where Congress has not 
provided for them specifically, nor provided procedural safeguards.'' 
853 F.2d 696.
    Additionally, the CRJs' regulations cited by the parties are not 
instructive in answering the referred question. The question presented 
to the Register is the breadth of the CRJs' statutory authority to 
issue subpoenas. In answering that question, the statutory language, as 
well as the relevant legislative history and case law, provide the 
appropriate authority. Any limitation adopted through regulation by the 
CRJs regarding their ability to issue subpoenas during the discovery 
process prior to the consideration of the underlying statutory question 
cannot inform the Register's determination as to the scope of the CRJs' 
subpoena power under the statute.
    Finally, Live355 argues in its reply brief that the CRJs would not 
need the subpoena power provided in the statute if it extended only to 
participants and witnesses identified in a party's direct case. It 
maintains that the subpoena power would be effectively meaningless 
under this interpretation since other statutory provisions allow the 
CRJs to compel testimony from parties and their witnesses, citing 17 
U.S.C. 803(b)(6)(C)(v)-(vii). That observation is persuasive. The CRJs 
can order a participant to provide additional documentation or 
testimony under their authority to conduct the rate setting proceeding. 
They do not need subpoena power to compel compliance from a 
participant. The participant can comply with the order or, should it or 
its witnesses fail to do so, the CRJs can strike the affected portion 
of the participant's testimony. This option is a powerful enforcement 
mechanism but it only can work with participants and witnesses that 
voluntarily appear before the CRJs. Subpoena power, on the other hand, 
allows the CRJs to reach nonparticipants who are not part of the 
proceeding and it provides the CRJs with tools to compel compliance 
from persons who are not initially part of the proceedings. While it is 
true that, as SoundExchange points out, the statutory authority to 
issue subpoenas is silent with regard to enforcement, that is 
irrelevant to the inquiry at hand. It is not uncommon for Congress to 
grant subpoena authority in a statute that contains no stated 
enforcement mechanism. Where Congress grants subpoena authority in a 
statute that contains no stated enforcement mechanism, enforcement is 
achieved through a U.S. district court, and may be sought through the 
assistance of the United States Attorney's office. Office of Legal 
Policy, U.S. Department of Justice, Report to Congress on the Use of 
Administrative Subpoena Authorities by Executive Branch Agencies and 
Entities, Pursuant to Public Law 106-544, at 9-10 (2002), (available at 
https://www.usdoj.gov/archive/index-olp.html).
    For the above-stated reasons, the Register concludes that the CRJs 
do have the authority to subpoena a witness to appear and give 
testimony or to produce and permit inspection of documents or tangible 
things even when that witness is not a participant in the proceeding 
and his or her testimony has not yet been submitted in the proceeding. 
This authority is restricted to instances where the resolution of the 
proceeding would be substantially impaired by the absence of such 
testimony or production of documents or tangible things. Additionally, 
Congress expressly preserved the CRJs' power to request information 
from nonparticipants in certain cases when the CRJs do not have the 
power to issue subpoenas. This power to request information may be 
invoked in those instances where such testimony is relevant to the 
resolution of a material issue of fact, even when its absence would not 
substantially impair the resolution of the proceeding (and, therefore, 
a subpoena could not be issued). The CRJs have not asked for any 
determination regarding what may constitute either substantial 
impairment of resolution of the proceeding or relevance to the 
resolution of a material issue of fact, and therefore no guidance is 
offered on those questions. It is, however, pertinent to observe that 
while the statute grants the CRJs the authority to issue subpoenas in 
certain circumstances, it does not compel them to issue subpoenas in 
any circumstance. Furthermore, it is noteworthy that even under the 
broader grant of subpoena power in the provision initially introduced 
in the House, Congress stated that it ``does not anticipate that the 
use of subpoena power will become a common occurrence'' and that 
``[t]he CRJs are expected to exercise this power judiciously and only 
in those instances where they believe a subpoena is necessary to obtain 
information that the parties have not provided and that the judges deem 
necessary to make their decision.'' H.R. Rep. No. 108-408, at 33 
(2004).

    February 22, 2010
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-5806 Filed 3-18-04; 8:45 am]
BILLING CODE 1410-30-S