The Register of Copyrights’ and the Copyright Royalty Judges’ authority to determine the constitutionality of 17 U.S.C. 114(f)(5), 26278-26280 [2010-11116]
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices
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42; Sec. 3, Pub. L. 111–157, 124 Stat. 1116;
and Secretary of Labor’s Order 6–2009, 74 FR
21524 (May 7, 2009).
Signed at Washington, DC, this 30th day of
April 2010.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits
Security Administration.
[FR Doc. 2010–11101 Filed 5–10–10; 8:45 am]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. RF 2009–1B]
The Register of Copyrights’ and the
Copyright Royalty Judges’ authority to
determine the constitutionality of 17
U.S.C. 114(f)(5)
AGENCY: Copyright Office, Library of
Congress.
ACTION: Final Order.
SUMMARY: Two material questions of
substantive law were referred to the
Register of Copyrights concerning the
authority of the Register of Copyrights
and the Copyright Royalty Judges to
determine the constitutionality of 17
U.S.C. 114(f)(5). The Register of
Copyrights responded by delivering a
Memorandum Opinion to the Copyright
Royalty Board on April 30, 2010.
DATES: Effective Date: April 30, 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 March 31, 2010, the Register
received an Order from Copyright
Royalty Judge William J. Roberts, Jr.
referring the following two material
questions of substantive law for her
consideration:
Does the Register of Copyrights have the
authority under Chapter 7, or any other
provisions of the Copyright Act, to
determine the constitutionality of 17
U.S.C. 114(f)(5)?
Do the Copyright Royalty Judges have
the authority under Chapter 8, or any
other provisions of the Copyright Act, to
determine the constitutionality of 17
U.S.C. 114(f)(5)?
The Register also received the briefs
filed with the CRJs by RealNetworks,
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices
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Inc. and SoundExchange, Inc., in
connection with a February 12, 2010,
motion filed by RealNetworks, Inc.
seeking referral of novel material
questions of substantive law, which was
initially denied by the CRJs.
In the March 31, 2010, Order, Judge
Roberts referred the questions to the
Register on his own initiative pursuant
to 17 U.S.C. 802(f)(1)(A)(ii), which
provides in pertinent part that ‘‘[o]ne or
more Copyright Royalty Judges may, or
by motion to the Copyright Royalty
Judges, any participant in a proceeding
may, request from the Register of
Copyrights an interpretation of any
material questions of substantive law
that relate to the construction of
provisions of this title and arise in the
course of the proceeding.’’ Section
802(f)(1)(A)(ii) 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
April 20, 2010, the Register advised the
CRJs that she had determined that the
material questions of law that are the
subject of the Order are novel because
they have 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 April 30, 2010, the Register
responded in a Memorandum Opinion
to the CRJs that addressed the novel
material questions 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).
Dated: May 3, 2010
David O. Carson,
General Counsel.
MEMORANDUM OPINION
ON MATERIAL QUESTIONS OF
SUBSTANTIVE LAW
I. Procedural Background
On February 12, 2010, RealNetworks,
Inc. (‘‘RealNetworks’’) filed a motion
requesting referral to the Register of
Copyrights of what it identified as two
novel material questions of substantive
law. That motion was denied by the
Copyright Royalty Judges on March 30,
2010. Order Denying Motion Requesting
Referral of Novel Material Questions of
Substantive Law, Docket No. 2009–1
CRB Webcasting 111.
The second question proposed in
RealNetworks’ motion sought to identify
whether the Register of Copyrights
(‘‘Register’’) or the Copyright Royalty
Judges (‘‘CRJs’’), or both, have the
authority to determine the
constitutionality of 17 U.S.C. § 114(f)(5),
a provision that inter alia calls upon the
CRJs to allow agreements made
pursuant to the Webcaster Settlement
Acts to be admitted into evidence or
otherwise considered only if both
parties to such agreements authorize
submission of the agreements in a CRJ
proceeding. While RealNetworks’
motion did not properly frame that
question as novel within the meaning of
17 U.S.C. § 802(f)(l)(B), Copyright
Royalty Judge William J. Roberts Jr., in
an order issued subsequent to the CRJs’
initial denial of RealNetworks’ motion,
determined that there were referable
questions within the meaning of 17
U.S.C. § 802(f)(l)(A)(ii). That subsection
provides, in pertinent part, that ‘‘one or
more Copyright Royalty Judges may ...
request from the Register of Copyrights
an interpretation of any material
questions of substantive law that relate
to the construction of provisions of this
title and arise in the course of the
proceeding.’’ On March 31, 2010,
pursuant to 17 U.S.C. § 802(f)(1), Judge
Roberts referred the following two
questions of law to the Register of
Copyrights.1
1 On April 20, 2010, the Register informed the
CRJs that the referred questions are novel questions
of law because they have not been determined in
prior decisions, determinations or rulings (17 USC
§ 803(a)).
In the Matter of
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Docket No. RF 2009–1B
CRB Webcasting III
Does the Register of Copyrights have the
authority under Chapter 7, or any other
Before the
U.S. Copyright Office
Library of Congress
Washington, D.C. 20559
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Recordings
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26279
provisions of the Copyright Act, to
determine the constitutionality of 17
U.S.C. § 114(f)(5)?
Do the Copyright Royalty Judges have
the authority under chapter 8, or any
other provisions of the Copyright Act, to
determine the constitutionality of 17
U.S.C. § 114(f)(5)?
The order referring the two questions
was accompanied by the briefs that had
been submitted by the parties as part of
the pleading cycle on RealNetworks’
motion for referral.
As required by 17 U.S.C.
§ 802(f)(1)(B)(i), the Register hereby
provides her response to the novel
material questions of substantive law
that were referred to her by Judge
Roberts.
II. Summary of Parties’ Arguments
In its motion requesting referral of
novel material questions of law,
RealNetworks argues that the CRJs and
the Register lack authority to determine
that section 114(f)(5) is
unconstitutional. In doing so, it
observes that the Supreme Court has
repeatedly stated that ‘‘adjudication of
the constitutionality of congressional
enactments has generally been thought
beyond the jurisdiction of
administrative agencies.’’ Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 215
(1994) (citing Johnson v. Robison, 415
U.S. 361, 368 (1974)). Additionally,
RealNetworks notes the D.C. Circuit’s
observation that agencies may lack the
institutional competence to resolve
certain issues, such as the
constitutionality of a statute. Hettinga v.
United States, 560 F.3d 498, 506 (D.C.
Cir. 2009) (citing, McCarthy v. Madigan,
503 U.S. 140, 147 (1992)).
SoundExchange Inc.
(‘‘SoundExchange’’) filed a brief
opposing RealNetworks’ motion
requesting referral of novel material
questions of law in which it echoed
RealNetworks’ views that the CRJs and
the Register lack authority to determine
that section 114(f)(5) is
unconstitutional. In doing so,
SoundExchange notes that
RealNetworks does not attempt to argue
that the present circumstances offer an
exception to the general rule, set forth
in Thunder Basin, that agencies do not
have the authority to determine the
constitutionality of congressional
enactments.
In RealNetworks’ reply in support of
its motion for referral of novel material
questions of law, it observes that
RealNetworks and SoundExchange both
cited Thunder Basin for the proposition
that adjudication of the constitutionality
of congressional enactments is generally
beyond the jurisdiction of an
administrative body. RealNetworks
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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices
asserts that while the private parties
agree that the general rule should apply
in this case, the Court held in Thunder
Basin that the general rule did not apply
in that case, explaining: ‘‘This rule is not
mandatory, however, and is perhaps of
less consequence where, as here, the
reviewing body is not the agency itself
but an independent Commission’’ that
‘‘has addressed constitutional questions
in previous enforcement proceedings.’’
Thunder Basin, 510 U.S. at 215 (1994).
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III.Register’s Determination
The Register acknowledges the rule
set forth in Thunder Basin that
adjudication of the constitutionality of
congressional enactments is generally
beyond the jurisdiction of
administrative agencies. Thunder Basin,
510 U.S. at 215 (1994) (citing Johnson v.
Robison, 415 U.S. 361, 368 (1974)
(adjudication of the constitutionality of
congressional enactments has generally
been thought beyond the jurisdiction of
administrative agencies)); See also
Motor & Equipment Mfrs. Asso. v.
Environmental Protection Agency, 627
F.2d 1095, 1115 (D.C. Cir. 1979).2 The
parties are in agreement that this general
rule applies to foreclose the Register and
the CRJs from determining the
constitutionality of 17 U.S.C. § 114(f)(5).
However, in order to determine whether
the Register or the CRJs do not have the
authority under the provisions of the
Copyright Act to determine the
constitutionality of 17 U.S.C. § 114(f)(5),
the exceptions to the general rule must
be considered.
While the case law regarding
exceptions to the general rule against
agency adjudication of the
constitutionality of congressional
enactments is slim, in Thunder Basin,
the general rule was not found to apply
because the reviewing body was not the
agency itself. Rather the Federal Mine
Safety and Health Review Commission
was an independent Commission
established exclusively to adjudicate
disputed enforcement measures
undertaken by the Mine Safety and
Health Administration pursuant to the
2 Various administrative agencies have come to
the same conclusion when confronted with
questions regarding their authority to determine the
constitutionality of statutory provisions. 63 Fed.
Reg. 6614, 6620 (February 9, 1998) (Department of
Labor finding that, as the agency given the
administrative authority to implement a statutory
provision, it has no authority to question the
constitutionality of the statute); 56 Fed. Reg. 11653,
11660 (March 20, 1991) (Federal Trade Commission
finding that it does not have authority to determine
the constitutionality of the statutes it enforces); 50
Fed. Reg. 35418, 35422 (August 30, 1985) (Federal
Communications Commission finding that
administrative agencies are not tasked with the duty
to adjudicate the constitutionality of a federal
statute, citing Johnson v. Robison, 415 U.S. at 368).
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statute in question. The court also
observed that even if the agency or
independent Commission were not
authorized to determine the
constitutionality of congressional
enactments, the constitutional claims
could be meaningfully addressed in the
Court of Appeals, thus avoiding the
‘‘serious constitutional question’’ that
would arise if an agency’s organic
statute were construed to preclude all
judicial review of a constitutional claim.
Id.
Case law reveals additional
considerations that are relevant in
determining whether it is proper to
apply the general rule against agency
adjudication of the constitutionality of
congressional enactments. For instance,
the general rule ‘‘is subject to Congress’s
allocation of adjudicative
responsibility.’’ Riggin v. Office of
Senate Fair Employment Practices, 61
F.3d 1563, 1569 (Fed. Cir. 1995) (citing
Thunder Basin, 510 U.S. at 215 (1994)).
Additionally, a finding that the agency
lacks jurisdiction to decide
constitutional questions is especially
likely when the constitutional claim
asks the agency to act contrary to its
statutory charter. Riggin, 61 F.3d at
1569; See also Weinberger v. Salfi, 422
U.S. 749, 765 (1975); Johnson v.
Robison, 415 at 367; Public Utilities
Commission v. United States, 355 U.S.
534, 539 (1958). In the Riggin case, the
general rule was not applied in part
because the constitutional issue did not
require the agency to question its own
statutory authority or to disregard any
instructions Congress had given it.
In the case at hand, the established
exceptions to the general rule against
agency adjudication of the
constitutionality of congressional
enactments are not applicable. Nowhere
in title 17 are either the Register or the
CRJs allocated any adjudicative
responsibility to determine the
constitutionality of statutory provisions.
Additionally, the CRJs are not the type
of independent Commission at issue in
Thunder Basin, which was established
to review agency actions. While it is
true that 17 U.S.C. § 802(f)(1) calls upon
the Register to, in certain circumstances,
offer either ‘‘an interpretation of any
material questions of substantive law
that relate to the construction of
provisions of this title and arise in the
course of the proceeding’’ or ‘‘an
interpretation of those provisions of this
title that are the subject of the
proceeding,’’ these provisions address
interpretation of statutory provisions
themselves and do not authorize
determinations as to the
constitutionality of such provisions. 17
U.S.C. § 802(f)(1)(A)&(B). Similarly, the
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Register’s authority to review the CRJs’
final determinations for errors of law is
also directed toward material questions
of substantive law under title 17, not
toward the constitutionality of such
provisions. 17 U.S.C. § 802(f)(1)(D). Like
the Mine Safety and Health
Administration (‘‘MSHA’’) in Thunder
Basin, the CRJs are tasked with carrying
out statutory duties prescribed by
Congress. However, unlike the
independent Commission in Thunder
Basin, which had broad authority to
review the actions of the MSHA, the
Register, as indicated above, has a
narrower authority in these proceedings,
which allows her only to determine
issues of substantive law under title 17.
Finally, unlike the constitutional claim
in Riggin, a determination by the CRJs
that 17 U.S.C. § 114(f)(5) is
unconstitutional would necessarily
require the CRJs to act contrary to their
statutory charter, which pointedly
directs the CRJs to act in accordance
with the provisions of section 114(f)(5).3
Under that provision, the CRJs may
allow agreements made pursuant to the
Webcaster Settlement Acts to be
admitted into evidence or otherwise
considered only if both parties to such
agreements authorize submission of the
agreements in a CRJ proceeding.
As neither the Register nor the CRJs
have any specific authority under
Chapter 7, or any other provisions of the
Copyright Act, to determine the
constitutionality of 17 U.S.C. § 114(f)(5),
and because no other established
exceptions to the general rule against
agency adjudication of the
constitutionality of congressional
enactments are applicable, the Register
concludes that neither the Register nor
the CRJs have the authority under the
Copyright Act to determine the
constitutionality of 17 U.S.C. § 114(f)(5).
April 30, 2010
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010–11116 Filed 5–10–10; 8:45 am]
BILLING CODE 1410–30–S
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION
Records Schedules; Availability and
Request for Comments
AGENCY: National Archives and Records
Administration (NARA).
3 17 U.S.C. § 801(b)(1) calls upon the CRJs 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.’’ (emphasis added).
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Agencies
[Federal Register Volume 75, Number 90 (Tuesday, May 11, 2010)]
[Notices]
[Pages 26278-26280]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11116]
=======================================================================
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. RF 2009-1B]
The Register of Copyrights' and the Copyright Royalty Judges'
authority to determine the constitutionality of 17 U.S.C. 114(f)(5)
AGENCY: Copyright Office, Library of Congress.
ACTION: Final Order.
-----------------------------------------------------------------------
SUMMARY: Two material questions of substantive law were referred to the
Register of Copyrights concerning the authority of the Register of
Copyrights and the Copyright Royalty Judges to determine the
constitutionality of 17 U.S.C. 114(f)(5). The Register of Copyrights
responded by delivering a Memorandum Opinion to the Copyright Royalty
Board on April 30, 2010.
DATES: Effective Date: April 30, 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 March 31, 2010, the Register received an Order from Copyright
Royalty Judge William J. Roberts, Jr. referring the following two
material questions of substantive law for her consideration:
Does the Register of Copyrights have the authority under
Chapter 7, or any other provisions of the Copyright Act, to
determine the constitutionality of 17 U.S.C. 114(f)(5)?
Do the Copyright Royalty Judges have the authority under
Chapter 8, or any other provisions of the Copyright Act, to
determine the constitutionality of 17 U.S.C. 114(f)(5)?
The Register also received the briefs filed with the CRJs by
RealNetworks,
[[Page 26279]]
Inc. and SoundExchange, Inc., in connection with a February 12, 2010,
motion filed by RealNetworks, Inc. seeking referral of novel material
questions of substantive law, which was initially denied by the CRJs.
In the March 31, 2010, Order, Judge Roberts referred the questions
to the Register on his own initiative pursuant to 17 U.S.C.
802(f)(1)(A)(ii), which provides in pertinent part that ``[o]ne or more
Copyright Royalty Judges may, or by motion to the Copyright Royalty
Judges, any participant in a proceeding may, request from the Register
of Copyrights an interpretation of any material questions of
substantive law that relate to the construction of provisions of this
title and arise in the course of the proceeding.'' Section
802(f)(1)(A)(ii) 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 April
20, 2010, the Register advised the CRJs that she had determined that
the material questions of law that are the subject of the Order are
novel because they have 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 April 30, 2010, the Register responded in a Memorandum Opinion
to the CRJs that addressed the novel material questions 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).
Dated: May 3, 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. RF 2009-1B
CRB Webcasting III
MEMORANDUM OPINION
ON MATERIAL QUESTIONS OF SUBSTANTIVE LAW
I. Procedural Background
On February 12, 2010, RealNetworks, Inc. (``RealNetworks'') filed a
motion requesting referral to the Register of Copyrights of what it
identified as two novel material questions of substantive law. That
motion was denied by the Copyright Royalty Judges on March 30, 2010.
Order Denying Motion Requesting Referral of Novel Material Questions of
Substantive Law, Docket No. 2009-1 CRB Webcasting 111.
The second question proposed in RealNetworks' motion sought to
identify whether the Register of Copyrights (``Register'') or the
Copyright Royalty Judges (``CRJs''), or both, have the authority to
determine the constitutionality of 17 U.S.C. Sec. 114(f)(5), a
provision that inter alia calls upon the CRJs to allow agreements made
pursuant to the Webcaster Settlement Acts to be admitted into evidence
or otherwise considered only if both parties to such agreements
authorize submission of the agreements in a CRJ proceeding. While
RealNetworks' motion did not properly frame that question as novel
within the meaning of 17 U.S.C. Sec. 802(f)(l)(B), Copyright Royalty
Judge William J. Roberts Jr., in an order issued subsequent to the
CRJs' initial denial of RealNetworks' motion, determined that there
were referable questions within the meaning of 17 U.S.C. Sec.
802(f)(l)(A)(ii). That subsection provides, in pertinent part, that
``one or more Copyright Royalty Judges may ... request from the
Register of Copyrights an interpretation of any material questions of
substantive law that relate to the construction of provisions of this
title and arise in the course of the proceeding.'' On March 31, 2010,
pursuant to 17 U.S.C. Sec. 802(f)(1), Judge Roberts referred the
following two questions of law to the Register of Copyrights.\1\
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\1\ On April 20, 2010, the Register informed the CRJs that the
referred questions are novel questions of law because they have not
been determined in prior decisions, determinations or rulings (17
USC Sec. 803(a)).
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Does the Register of Copyrights have the authority under
Chapter 7, or any other provisions of the Copyright Act, to
determine the constitutionality of 17 U.S.C. Sec. 114(f)(5)?
Do the Copyright Royalty Judges have the authority under
chapter 8, or any other provisions of the Copyright Act, to
determine the constitutionality of 17 U.S.C. Sec.
114(f)(5)?*COM019*
The order referring the two questions was accompanied by the briefs
that had been submitted by the parties as part of the pleading cycle on
RealNetworks' motion for referral.
As required by 17 U.S.C. Sec. 802(f)(1)(B)(i), the Register hereby
provides her response to the novel material questions of substantive
law that were referred to her by Judge Roberts.
II. Summary of Parties' Arguments
In its motion requesting referral of novel material questions of
law, RealNetworks argues that the CRJs and the Register lack authority
to determine that section 114(f)(5) is unconstitutional. In doing so,
it observes that the Supreme Court has repeatedly stated that
``adjudication of the constitutionality of congressional enactments has
generally been thought beyond the jurisdiction of administrative
agencies.'' Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994)
(citing Johnson v. Robison, 415 U.S. 361, 368 (1974)). Additionally,
RealNetworks notes the D.C. Circuit's observation that agencies may
lack the institutional competence to resolve certain issues, such as
the constitutionality of a statute. Hettinga v. United States, 560 F.3d
498, 506 (D.C. Cir. 2009) (citing, McCarthy v. Madigan, 503 U.S. 140,
147 (1992)).
SoundExchange Inc. (``SoundExchange'') filed a brief opposing
RealNetworks' motion requesting referral of novel material questions of
law in which it echoed RealNetworks' views that the CRJs and the
Register lack authority to determine that section 114(f)(5) is
unconstitutional. In doing so, SoundExchange notes that RealNetworks
does not attempt to argue that the present circumstances offer an
exception to the general rule, set forth in Thunder Basin, that
agencies do not have the authority to determine the constitutionality
of congressional enactments.
In RealNetworks' reply in support of its motion for referral of
novel material questions of law, it observes that RealNetworks and
SoundExchange both cited Thunder Basin for the proposition that
adjudication of the constitutionality of congressional enactments is
generally beyond the jurisdiction of an administrative body.
RealNetworks
[[Page 26280]]
asserts that while the private parties agree that the general rule
should apply in this case, the Court held in Thunder Basin that the
general rule did not apply in that case, explaining: ``This rule is not
mandatory, however, and is perhaps of less consequence where, as here,
the reviewing body is not the agency itself but an independent
Commission'' that ``has addressed constitutional questions in previous
enforcement proceedings.'' Thunder Basin, 510 U.S. at 215 (1994).
III.Register's Determination
The Register acknowledges the rule set forth in Thunder Basin that
adjudication of the constitutionality of congressional enactments is
generally beyond the jurisdiction of administrative agencies. Thunder
Basin, 510 U.S. at 215 (1994) (citing Johnson v. Robison, 415 U.S. 361,
368 (1974) (adjudication of the constitutionality of congressional
enactments has generally been thought beyond the jurisdiction of
administrative agencies)); See also Motor & Equipment Mfrs. Asso. v.
Environmental Protection Agency, 627 F.2d 1095, 1115 (D.C. Cir.
1979).\2\ The parties are in agreement that this general rule applies
to foreclose the Register and the CRJs from determining the
constitutionality of 17 U.S.C. Sec. 114(f)(5). However, in order to
determine whether the Register or the CRJs do not have the authority
under the provisions of the Copyright Act to determine the
constitutionality of 17 U.S.C. Sec. 114(f)(5), the exceptions to the
general rule must be considered.
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\2\ Various administrative agencies have come to the same
conclusion when confronted with questions regarding their authority
to determine the constitutionality of statutory provisions. 63 Fed.
Reg. 6614, 6620 (February 9, 1998) (Department of Labor finding
that, as the agency given the administrative authority to implement
a statutory provision, it has no authority to question the
constitutionality of the statute); 56 Fed. Reg. 11653, 11660 (March
20, 1991) (Federal Trade Commission finding that it does not have
authority to determine the constitutionality of the statutes it
enforces); 50 Fed. Reg. 35418, 35422 (August 30, 1985) (Federal
Communications Commission finding that administrative agencies are
not tasked with the duty to adjudicate the constitutionality of a
federal statute, citing Johnson v. Robison, 415 U.S. at 368).
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While the case law regarding exceptions to the general rule against
agency adjudication of the constitutionality of congressional
enactments is slim, in Thunder Basin, the general rule was not found to
apply because the reviewing body was not the agency itself. Rather the
Federal Mine Safety and Health Review Commission was an independent
Commission established exclusively to adjudicate disputed enforcement
measures undertaken by the Mine Safety and Health Administration
pursuant to the statute in question. The court also observed that even
if the agency or independent Commission were not authorized to
determine the constitutionality of congressional enactments, the
constitutional claims could be meaningfully addressed in the Court of
Appeals, thus avoiding the ``serious constitutional question'' that
would arise if an agency's organic statute were construed to preclude
all judicial review of a constitutional claim. Id.
Case law reveals additional considerations that are relevant in
determining whether it is proper to apply the general rule against
agency adjudication of the constitutionality of congressional
enactments. For instance, the general rule ``is subject to Congress's
allocation of adjudicative responsibility.'' Riggin v. Office of Senate
Fair Employment Practices, 61 F.3d 1563, 1569 (Fed. Cir. 1995) (citing
Thunder Basin, 510 U.S. at 215 (1994)). Additionally, a finding that
the agency lacks jurisdiction to decide constitutional questions is
especially likely when the constitutional claim asks the agency to act
contrary to its statutory charter. Riggin, 61 F.3d at 1569; See also
Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Johnson v. Robison, 415
at 367; Public Utilities Commission v. United States, 355 U.S. 534, 539
(1958). In the Riggin case, the general rule was not applied in part
because the constitutional issue did not require the agency to question
its own statutory authority or to disregard any instructions Congress
had given it.
In the case at hand, the established exceptions to the general rule
against agency adjudication of the constitutionality of congressional
enactments are not applicable. Nowhere in title 17 are either the
Register or the CRJs allocated any adjudicative responsibility to
determine the constitutionality of statutory provisions. Additionally,
the CRJs are not the type of independent Commission at issue in Thunder
Basin, which was established to review agency actions. While it is true
that 17 U.S.C. Sec. 802(f)(1) calls upon the Register to, in certain
circumstances, offer either ``an interpretation of any material
questions of substantive law that relate to the construction of
provisions of this title and arise in the course of the proceeding'' or
``an interpretation of those provisions of this title that are the
subject of the proceeding,'' these provisions address interpretation of
statutory provisions themselves and do not authorize determinations as
to the constitutionality of such provisions. 17 U.S.C. Sec.
802(f)(1)(A)&(B). Similarly, the Register's authority to review the
CRJs' final determinations for errors of law is also directed toward
material questions of substantive law under title 17, not toward the
constitutionality of such provisions. 17 U.S.C. Sec. 802(f)(1)(D).
Like the Mine Safety and Health Administration (``MSHA'') in Thunder
Basin, the CRJs are tasked with carrying out statutory duties
prescribed by Congress. However, unlike the independent Commission in
Thunder Basin, which had broad authority to review the actions of the
MSHA, the Register, as indicated above, has a narrower authority in
these proceedings, which allows her only to determine issues of
substantive law under title 17. Finally, unlike the constitutional
claim in Riggin, a determination by the CRJs that 17 U.S.C. Sec.
114(f)(5) is unconstitutional would necessarily require the CRJs to act
contrary to their statutory charter, which pointedly directs the CRJs
to act in accordance with the provisions of section 114(f)(5).\3\ Under
that provision, the CRJs may allow agreements made pursuant to the
Webcaster Settlement Acts to be admitted into evidence or otherwise
considered only if both parties to such agreements authorize submission
of the agreements in a CRJ proceeding.
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\3\ 17 U.S.C. Sec. 801(b)(1) calls upon the CRJs 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.'' (emphasis added).
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As neither the Register nor the CRJs have any specific authority
under Chapter 7, or any other provisions of the Copyright Act, to
determine the constitutionality of 17 U.S.C. Sec. 114(f)(5), and
because no other established exceptions to the general rule against
agency adjudication of the constitutionality of congressional
enactments are applicable, the Register concludes that neither the
Register nor the CRJs have the authority under the Copyright Act to
determine the constitutionality of 17 U.S.C. Sec. 114(f)(5).
April 30, 2010
Marybeth Peters,
Register of Copyrights.
[FR Doc. 2010-11116 Filed 5-10-10; 8:45 am]
BILLING CODE 1410-30-S