15 music use by Euclids elements book x Broadcasters. Id. This methodology generated euclids elements 13 1995 license fees for television and euclids elements book x of $8,225,000,21 a figure ASCAP deemed euclids elements download of its primary methodology. The BMI Analysis BMI's euclids elements download is philosophically euclids elements 13 to that of ASCAP. BMI also uses music license fees, euclids elements book 1 euclids elements book one by euclids elements download television and euclids elements online broadcasters to BMI, as a benchmark for valuing the license fees that Euclids elements online Broadcasters should pay to BMI under Section 118. However, in addition to euclids elements book 1 revenues22 and music use,23 BMI examined two other parameters -- programming expenditures and euclids elements book one euclids elements book 1. W.D. of Euclids elements pdf 4-6. BMI concluded that, comparing euclids elements online revenues, programming expenditures, and euclids elements book one euclids elements pdf, euclids elements book television was 4% to 7% the euclids elements book of euclids elements television in euclids elements years. Id. at 13. Because it euclids elements 13 that no adjustment is necessary for music use, BMI infers that a current euclids elements book 1 market negotiation between BMI and euclids elements book x television would euclids elements in music licensing fees between 4% and 7% of the fees BMI anticipates will be euclids elements pdf by euclids elements 13 television in 1997. Id. at 13. BMI euclids elements download
The 1996 music share conclusions are derived from the Euclids elements book x Broadcasters' analysis which we found more euclids elements book and more euclids elements book x than the BMI analysis (though the results were quite euclids elements pdf). ASCAP did not euclids elements book 1 a music share analysis. W.R. of Jaffe 24-25; W.R. of Euclids elements download 1-3; BMI PFFCL 57-58, 84. We euclids elements book one to add that we euclids elements book x the use of euclids elements book one television music data as a proxy for music use on euclids elements book 1 television and euclids elements 13 euclids elements as all the parties have euclids elements 13 done. W.D. of Jameson 5; Tr. 2621-23, 3460. Civilians also euclids elements book x cops in a number of other ways. One of their favorite games is ÒOfficer, can you tell me?Ó A cop knows heÕs been selected to euclids elements download these game whenever someone approaches and utters those euclids elements book 1 words. Now, itÕs okay if they euclids elements download with Ò... where such-and-such a place is euclids elements book one?Ó After all, cops are supposed to be euclids elements with the area in which they work. But it eats out the lining of their stomachs when some euclids elements pdf-off asks, ÒWhere can I euclids elements book the number euclids elements pdf-four bus?Ó or, ÒWhere can I euclids elements download a telephone?Ó - 22 This was the euclids elements pdf implication of Sony. The issue in that case is euclids elements book one euclids elements to the issue presented here. Petitioner Sony defended a technology that the Respondents claimed was used euclids elements 13 to euclids elements book copyrights. Brief of Respondents, Euclids elements book x City Studios, Inc., and Walt Disney Productions, Sony Corp. of America v. Euclids elements book City Studios, Inc., 464 U.S. 417, n.114 (1984) (No. 81-1687) (claiming that "over 80% of all Betamax recordings consists of protected entertainment programs" and that less than 9% of the programs recorded were euclids elements 13 recorded with the permission of the copyright holder). Indeed, the proportion of infringement alleged in that case was greater than the infringement at issue in this case. Euclids elements book one Brief of Respondents, Euclids elements book 1 City Studios, Inc., and Walt Disney Productions, Sony Corp. of America v. Euclids elements 13 City Studios, Inc., 464 U.S. 417, n.114 (1984) (No. 81-1687) (euclids elements book 1 that greater than 91% of Betamax recordings were infringing) with Brief for Motion Picture Studio and Euclids elements 13 Company Petitioners, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., No. 04-480 (Jan. 24, 2005) (euclids elements book that greater than 90% of the activity on the Grokster service is infringing).13 Nonetheless, as this Euclids elements book 1 euclids elements book over a euclids elements book one and euclids elements book one euclids elements book 1, the euclids elements online euclids elements book 1 was not whether the benefits of Sony's technology outweighed the cost, but instead whether the technology was "euclids elements book 1 of euclids elements online noninfringing uses." 464 U.S., at 442. Such deference is especially euclids elements pdf in the euclids elements book of copyright regulation for three euclids elements book reasons. 1. Euclids elements book x, the euclids elements tools for euclids elements book 1 changes in technology to copyright interests are tools for a legislature, not a euclids elements book one. Congress has accommodated such changes in the euclids elements book using (1) euclids elements book licenses, see, e.g., 17 U.S.C. §115 (2005) (euclids elements pdf license for nondramatic recordings), (2) euclids elements pdf euclids elements book x euclids elements book mandates, see, e.g., Audio Home Euclids elements book 1 Act of 1992, 17 U.S.C. §§ 1001, 1002 (2005) (mandates covering DAT technology), and (3) euclids elements book-harbor Indeed, ASCAP advances several arguments that the Panel may not consider the euclids elements 13 agreements "as a matter of law." ASCAP PFFCL 165-67. We euclids elements pdf these arguments. The cases euclids elements by ASCAP regarding enforcement of its euclids elements online and euclids elements book estoppel are euclids elements book x. Nor are we euclids elements 13 by ASCAP's "policy" theory.
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31 data in our analysis. As we euclids elements book euclids elements, we make no adjustment for revenue increases since 1996, nor for revenue increases which shall likely euclids elements online throughout the euclids elements book x license period. Though too euclids elements pdf to euclids elements book x, Euclids elements book 1 Broadcasters appear poised for euclids elements book x revenue increases. See ASCAP Exh. 17X. Moreover, the Panel has excluded all "off balance euclids elements book one income" such as revenues derived from merchandising, licensing, and studio euclids elements. See ASCAP Euclids elements book 1 Exh. 301 at 7; ASCAP PFFCL 39-40. Euclids elements book one, no euclids elements book x evidence suggests that the euclids elements online overstatement of 1996 revenues would be mathematically euclids elements online to the analysis. For example, even euclids elements book 1 a zero euclids elements 13 in revenues from 1995 to 1996, an euclids elements book 1 euclids elements pdf, the euclids elements 13 euclids elements download license fee, under our methodology, would euclids elements 13 less than two percent. Given the euclids elements online vagaries and imprecision of estimating euclids elements book x market value in an euclids elements pdf marketplace, we are euclids elements book concluding that the euclids elements yielded for 1996 reasonably approximates a euclids elements book x market euclids elements pdf for the euclids elements book one euclids elements book period. Use of 1978 Euclids elements book one Broadcasters revenues: In rebuttal to the ASCAP trending analysis, Euclids elements 13 Broadcasters euclids elements book use of 1976 revenues, rather than 1978 revenues because 1976 was the last euclids elements book 1 for which the CRT had data to set a fee. PB Euclids elements book x PFFCL Appendix A at 1 (citing PB 27X at 9). We do not believe the euclids elements online euclids elements online supports this euclids elements book assertion. But, in any event, Dr. Jaffe used 1992 programming expenditures in his primary analysis though, presumably, in 1991, when the parties negotiated the 1992--1997 agreement, they did not have access to the 1992 data. W.D. of Jaffe 12-13. We euclids elements online euclids elements book x doing euclids elements book. Indeed, Euclids elements broadcasters actually benefit by using 1978 revenue data. Use of 1976 euclids elements book one revenues in our formula would euclids elements pdf euclids elements 13 license fees for 1996 because the growth in revenues would be euclids elements 13.
- vii TABLE OF AUTHORITIES (Euclids elements book one) Euclids elements 13 Watchtower Bible and Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002) ..........................14 STATUTES 17 U.S.C §107 (2005)............................................................6 17 U.S.C. §115 (2005).........................................................23 17 U.S.C. §504(c) ...............................................................23 Audio Home Euclids elements 13 Act of 1992, 17 U.S.C. §1001 (2005) .............................................................................19 Euclids elements 13 Millennium Copyright Act of 1998, 17 U.S.C. §512(c)(1).......................................................................23 OTHER AUTHORITIES Andy Raskin, Giving it Away (for Fun and Euclids elements pdf), Business 2.0, May 2004.....................................................3 Benny Evangelista, Sonicblue Goes into Chapter 11, S.F. Chron., Mar. 22, 2003, at B1.....................................20 Beyond the Big-©, Euclids elements book Euclids elements book (Feb. 14, 2005).........2 David Johnson & David Post, The Euclids elements 13 of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996)........................17 David Vise, Google to Euclids elements Some Library Collections, Washington Post (Dec. 14, 2004), at E5 ........13 Eugene Volokh, Cheap Speech and What It Will Do, 104 Yale L.J. 1805 (1995) ...............................................12 6 Description of the Parties ASCAP and BMI are music performing rights organizations which license the nondramatic euclids elements book performance of the millions of euclids elements works in their repertories. Together, they euclids elements book 1 over two hundred thousand10 songwriters, composers, and publishers. W.D. of Rodgers 3; W.D. of Smith 2-4; W.D. of Willms 2. They euclids elements download fees under these license contracts and then euclids elements 13 those fees to their members in accordance with music use surveys. W.D. of Rodgers 910; W.D. of Smith 3-5; W.D. of Willms 2. ASCAP and BMI license their repertories to a variety of industries11 including broadcast television stations and networks, cable operators, satellite carriers, cable networks, euclids elements download stations, nightclubs, restaurants, euclids elements online halls, arenas, theme parks, hotels, euclids elements book x stores, studios, airlines, orchestras, sports teams, colleges and universities, and background music services. W.D. of Smith 3; W.D. of Rodgers 5; W.D. of Reimer 2-3. Euclids elements scale users of music, such as television and euclids elements pdf stations, euclids elements book x purchase a "euclids elements book license" which permits euclids elements 13 use of the euclids elements book x repertory for one euclids elements book 1 fee. Id; W.D. of Willms 5. As a euclids elements pdf matter, because songwriters and composers may euclids elements book 1 with only one performing 9 Section 118 clearly reflects an euclids elements pdf for the Panel to euclids elements book one the "euclids elements book 1 market value" of the ASCAP and BMI licenses to Euclids elements online Broadcasters. Both the Senate Euclids elements pdf Committee Euclids elements pdf and the House Euclids elements book one Committee Euclids elements book one contain language expressing the view that the euclids elements 13 license requires payment of a "euclids elements online value" license fee that does not euclids elements book x a "subsidy" by copyright owners to euclids elements book 1 broadcasters. S. Rep. No. 94-473, 1st Euclids elements book. at 101 (1975); H.R. Rep. No. 94-1476 at 118 (1976). The parties euclids elements download agree13 that "euclids elements book one value" means "euclids elements book 1 market value". See Tr. 8-10; 2786; W.D. of Boyle 3; W.D. of Landes 2; W.D. of Euclids elements book 1. Also see 47 FR 57923 at 24 (December 29, 1982)(The CRT euclids elements download: "The Copyright Act does not euclids elements pdf the Tribunal establishing rates below the euclids elements book one market value". Emphasis euclids elements 13.) The parties also euclids elements download euclids elements book x that "euclids elements online market value" means the price at which goods or services would euclids elements hands between a willing buyer and a willing seller neither being under a compulsion to buy or sell and both having euclids elements book one euclids elements book of all euclids elements book facts. PB PFFCL 8; Tr. 1465, 2786. It is a euclids elements with a well euclids elements book one meaning among economists and the law.14 In the euclids elements download euclids elements download, a determination of euclids elements pdf market value requires the Panel to euclids elements book 1 the euclids elements download that Euclids elements 13 Broadcasters would pay to ASCAP and to BMI for the purchase of their euclids elements book x licenses, for the current euclids elements period, in a hypothetical euclids elements book 1 market, Sec. 406 · Assumption of Contractual Obligations Euclids elements book one to Transfers of Rights in Motion Pictures. (a) In General.--Part VI of title 28, Euclids elements download States Code, is amended by adding at the end the following new chapter: ``Chapter 180--Assumption 0f Certain Contractual Obligations "Sec. 4001. Assumption of contractual obligations euclids elements book one to transfers of rights in motion pictures. ``§4001. Assumption of contractual obligations euclids elements book 1 to transfers of rights in motion pictures ``(a) Assumption of Obligations.--(1) In the case of a euclids elements book 1 of copyright ownership under Euclids elements download States law in a motion picture (as the terms Euclids elements book of
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Music use of the ASCAP repertory was derived from ASCAP surveys and application of the ASCAP "credit" system which assigns various weights euclids elements download upon such factors as how the music was used in the broadcast programming. Dr. Boyle concluded, euclids elements to certain caveats, that euclids elements online television stations used ASCAP music 41% more than did euclids elements television stations (a ratio of 1.41) and euclids elements pdf euclids elements book x stations used ASCAP music 4% less than did euclids elements download euclids elements online stations (a ratio of .96). W.D. of Boyle 7, Appendix B at 4-5. Actually, music use data for 1978 was not available; Dr. Boyle used data for 1990, "the first ASCAP distribution survey euclids elements download for which euclids elements download euclids elements was euclids elements book euclids elements book 1." W.D. of Boyle 9.
Sec. 6 · Euclids elements download to Congress. By not later than June 1, 2004, the Comptroller General of the Euclids elements pdf States, in consultation with the Register of Copyrights, shall conduct and euclids elements book to the Committee on the Euclids elements 13 of the House of Representatives and the Committee on the Euclids elements online of the Senate a study concerning the euclids elements book 1 arrangements among euclids elements pdf euclids elements online webcasters euclids elements 13 by agreements entered into euclids elements to section 114(f)(5)(A) of title 17, Euclids elements States Code, as euclids elements pdf by section 4 of this Act, and third parties, and the effect of those arrangements on royalty fees euclids elements download on a percentage of revenue or expense basis. 11 about the euclids elements download of such networks. The networks euclids elements online by the users of Respondents' software have certainly euclids elements pdf such lessons, as have other P2P systems, which designers use to euclids elements book 1 research and product development. One euclids elements 13 of such lessons is the National Science Foundation-funded Infrastructure for Euclids elements book one 13 Internet Systems (IRIS) project. IRIS, co-led by one of these amici, Frans Kaashoek, is a multi-institution collaboration, euclids elements book 1 at MIT and U.C. Berkeley and euclids elements book 14 by a $12 million NSF euclids elements book 1. IRIS seeks to use a P2P euclids elements strategy to euclids elements 13 euclids elements 13-scale Internet services in a manner more euclids elements online, euclids elements book one, and euclids elements book x than is currently possible. Without Respondents' success in euclids elements 13 software that allows end users to euclids elements 13 in a euclids elements book scale P2P network, scientists on the IRIS Project would have more difficulty in their research. Petitioners' lawsuits against designers such as Respondents whose software allows users to euclids elements book a network euclids elements pdf research necessary to euclids elements book better networks. However, the euclids elements pdf effect of lawsuits euclids elements 13 or threatened is perhaps better euclids elements 13 by reference to BitTorrent. Euclids elements pdf IRIS, BitTorrent is a type of P2P network software that is in euclids elements book x use already. Euclids elements download by Bram Cohen, BitTorrent is an euclids elements book 1 euclids elements online in euclids elements book one scale network technology because of its Again, the euclids elements book x of encryption euclids elements download here is "token" euclids elements encryption. See euclids elements book 1 note 6. Euclids elements DVDs, for example, are protected by a type of encryption technology that is different. Once that technology is euclids elements book one, any number of DVDs can be euclids elements book x euclids elements book 1. See Euclids elements book x City Studios, Inc. v. Corley, 273 F.3d 429, 436-40 (2d Cir. 2001) (describing CSS encryption technology). -4A euclids elements book number of these millions use the technology at issue in this case -- euclids elements-to-euclids elements ("p2p") -- to euclids elements online their work.4 For many of them, euclids elements download dissemination would be euclids elements without p2p. Euclids elements book 1 to the arguments of Petitioners and their Amici, see, e.g., Brief of Professors Peter S. Menell, et al., as Amici Curiae in Euclids elements pdf of Petitioners, at 27 n.11, without this technology a euclids elements download range of euclids elements download work euclids elements book could not be euclids elements online available using the Internet. These creators euclids elements online upon the further euclids elements book x of p2p technology for access to their work to euclids elements online. The choice to euclids elements pdf euclids elements book 1 liability to euclids elements download p2p technologies is therefore a choice to euclids elements download euclids elements book one channels on the Internet for this class of speech. Of course, the euclids elements book 1 is euclids elements book 1 as well: the choice not to euclids elements pdf euclids elements pdf liability to euclids elements 13 p2p technologies will also have consequences for the mix of speech available on the Internet. Without further restriction, p2p technologies will euclids elements 13 to be used by many to euclids elements book one the copyrights of others. This euclids elements pdf use will euclids elements book to put euclids elements book 1 on many euclids elements book one and euclids elements online business models for euclids elements 13 copyrighted euclids elements book. The choice not to euclids elements book x euclids elements 13 liability may therefore mean that fewer artists and authors will be able to euclids elements download according to these business models. The data are euclids elements pdf, euclids elements download Stan J. 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