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List:       dmca-discuss
Subject:    [DMCA_Discuss] CARP-Satans tool against Webcasting!
From:       tegapath () dhbit ! ca
Date:       2002-04-26 13:51:55
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Hey Everyone,

This is a message I got back from the Copyright Office 
of the Library of Congress.  I sent them an e-mail expressing my opinions on 
the CARP and this is what I got back:


***********************************************************
We are responding to your recent communication regarding the Copyright 
Arbitration Royalty Panel ("CARP") report delivered on February 20, 2002. That 
report recommends rates and terms for the statutory license for eligible 
nonsubscription services to perform sound recordings publicly by means of 
digital audio transmissions ("webcasting") under 17 U.S.C. §114 and to make 
ephemeral recordings of sound recordings for use of sound recordings under the 
statutory license set forth in 17 U.S.C. §112. 
The proposed rates and terms for webcasters operating under a statutory license 
announced on February 20, 2002, are the recommendations made by a panel of 
three independent arbitrators. The Panel made its recommendations after a six-
month hearing. During this period, webcasters, broadcasters and copyright 
owners offered evidence for what the appropriate rates and terms should be for 
the public performance of a sound recording over the Internet. At the 
conclusion of this process, the Panel submitted its recommendations and a 
report explaining its rationale for the recommendations to the Copyright 
Office. The public version of the panel's report has been posted to the 
Copyright Office website. 

The panel's recommendations are now being reviewed. Under the law, only parties 
to the proceeding may request that the panel's recommendations be modified or 
set aside. These comments will be carefully considered during the review 
process. There is, however, no provision in the law for comments from the 
general public. A final determination as to the rates and terms will be made 
when the review process is completed. 

More information about the rate-setting process appears at 
http://www.loc.gov/copyright/carp/webcast_process.html and is also reprinted 
below. 

********************************** 
Copyright Office 
Library of Congress 
101 Independence Ave SE 
Washington DC 20559 
www.loc.gov/copyright 
________________________________________________ 

Information about the Process for Setting Webcasting Rates and Terms 

What is the Copyright Arbitration Royalty Panel (CARP)? 
It is a panel comprised of three independent arbitrators who, in this instance, 
conducted a proceeding to set rates and terms for two statutory licenses. The 
panel's job is to hear evidence from witnesses, consider legal argument from 
all parties, and make recommendations to the Librarian of Congress, based only 
upon this information, as to the appropriate rates that a licensee who chooses 
to operate under the statutory licenses should pay. The same panel also 
recommends terms concerning how and when royalty payments are made. 

In its February 20, 2002, report, the CARP recommended rates and terms for 
which licenses? 
The CARP recommended rates and terms for two separate statutory licenses, both 
of which deal with digital transmissions of sound recordings. In one case, the 
statutory license allows a noninteractive, nonsubscription service to make 
digital transmissions of sound recordings, provided that the service observes 
the conditions of the license and agrees to pay royalties for all transmissions 
made under the license. In other words, a webcaster can use the license to 
stream sound recordings over the Internet. The license can be found in section 
114 of the Copyright Act. 

The second license allows a webcaster who chooses to operate under the 
webcasting statutory license to make necessary reproductions of these same 
sound recordings for the sole purpose of facilitating the transmissions of 
these works. This license also covers the making of ephemeral reproductions by 
business establishments who make digital transmissions of sound recordings 
under an exemption in the law. The license can be found in section 112(e) of 
the Copyright Act. 

Who participated in the rate setting proceeding? 
Webcasters, broadcasters, business establishment services, and copyright 
owners, including artists and performers, took part in this proceeding. 

What did the CARP decide? 
The CARP recommended rates for services that stream sound recordings over the 
Internet (the "performance fee"), distinguishing between those that are 
Internet only-services and those that simultaneously stream AM/FM radio 
broadcasts. The CARP also set rates for the making of those copies of the sound 
recordings necessary to the transmission of these works, e.g., server copies. 
This rate is referred to as the "ephemeral license fee." In setting these 
rates, the panel distinguished between programming offered by commercial and 
noncommercial broadcasters and Internet-only webcasters. 

The CARP also recommended terms for the license that governs payment of the 
royalty fees. 

The CARP explains its reasons for setting different rates for different types 
of services in its report. 

What was the basis for the CARP's decision? 
The panel made its decision after a six-month hearing. During this period, 
webcasters, broadcasters, and copyright owners offered evidence for what the 
appropriate rate and terms should be for the public performance of a sound 
recording over the Internet. The record for this proceeding includes a written 
transcript approaching 15,000 pages, many thousands of pages of exhibits, and 
over 1,000 pages of post-hearing submissions. The CARP made its recommendations 
after carefully considering all the information gathered throughout the 
process. 

Are these rates and terms effective now? 
No. The proposed rates and terms are currently under review by the Copyright 
Office. It will review the report in light of the written record, comments 
filed by the parties to the proceeding, and the applicable statutory 
provisions. The statute requires the Librarian of Congress to accept the 
proposed rates and terms if they are not arbitrary or contrary to any provision 
in the Copyright Act. A decision to accept or reject must be made no later than 
May 21, 2002. 

The Librarian, however, may adopt some recommendations and reject others. If 
this occurs, the Librarian has an additional 30 days to issue a final 
determination setting the rates and terms for the licenses. 

Can I submit additional comments for consideration by the Copyright Office or 
the Librarian? 
There is no provision in the rules for the Copyright Office or Librarian of 
Congress to receive or consider comments from the general public. The rules 
governing CARP proceedings permit the Copyright Office and the Librarian to 
consider only the arguments made by parties to the proceeding. Webcasters, 
broadcasters, and copyright owners are well represented in this proceeding and 
have had multiple opportunities and every incentive to provide the Office with 
all the reasons why the CARP report should either be accepted, rejected, or 
modified. 





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