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]
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Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Notices
* Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
* Enhance the quality, utility, and
clarity of the information to be
collected; and
* Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submissions
of responses.
III. Current Actions
Type of Review: New collection.
Title: Evaluation of the TechnologyBased Learning Grants.
OMB Number: 1205–0NEW.
Affected Public: Individuals.
Form(s): n/a.
Total Respondents: 1,500.
Frequency: One-time survey.
Total Responses: 1,050.
Average Time per Response: 20
minutes.
Estimated Total Burden Hours: 350
(see table 1, below).
Total Burden Cost for Respondents:
$17,991.
TABLE 1—ESTIMATED BURDEN HOURS
Activity
Sample size
Response rate
Monthly Administrative Data Requests .....
Final Administrative Data Request ............
Customer Survey .......................................
........................
........................
1,500
Number of
respondents
........................
........................
70%
20
20
1,050
Comments submitted in response to this
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and/or included in the request for Office
of Management and Budget approval of
the information collection request; they
will also become a matter of public
record.
FOR FURTHER INFORMATION CONTACT:
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Dated: March 15, 2010.
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SUPPLEMENTARY INFORMATION:
[FR Doc. 2010–6026 Filed 3–18–10; 8:45 am]
BILLING CODE 4510–FN–P
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
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AGENCY: Copyright Office, Library of
Congress.
ACTION: Final order.
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.
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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
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Frequency
7 ...................
Once ............
Once ............
Time per
response
(minutes)
120
240
20
Total burden
hours
280
80
350
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).
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Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Notices
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.
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.
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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
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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’ motion1
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.
In response to RealNetworks’ motion,
SoundExchange2 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
1 Another participant, Live365, Inc. (‘‘Live365’’)
separately filed a brief in which it adopted the
relevant arguments in RealNetworks’ initial motion.
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. §§ 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.’’
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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,
§ 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
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
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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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
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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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).
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
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previously been submitted by a
participant in the relevant proceeding.8
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
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
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.
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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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 § 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 § 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. § 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. § 1229a(b)(1)
(Immigration judges ‘‘may issue
subpoenas for the attendance of
witnesses and presentation of
evidence’’); 2 U.S.C. § 437d(a)(3)
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(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
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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
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
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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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
VerDate Nov<24>2008
14:14 Mar 18, 2010
Jkt 220001
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).
PO 00000
Frm 00067
Fmt 4703
Sfmt 4703
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
NATIONAL AERONAUTICS AND
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[NOTICE 10–027]
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AGENCY: National Aeronautics and
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[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Notices]
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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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ Another participant, Live365, Inc. (``Live365'') separately
filed a brief in which it adopted the relevant arguments in
RealNetworks' initial motion.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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