Distribution of 1993, 1994, 1995, 1996 and 1997 Cable Royalty Funds

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Notice of termination of proceeding.

SUMMARY:

The Librarian of Congress is announcing the vacatur of his Order rejecting the initial and revised reports of the Copyright Arbitration Royalty Panel (“CARP”) in the Phase II proceeding to determine the distribution of 1997 cable royalty funds in the syndicated programming category. The Librarian's Order as well as the initial and revised CARP reports are being vacated as moot because the parties have resolved their dispute.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or William J. Roberts, Jr., Senior Attorney for Compulsory Licenses, P.O. Box 70977, Southwest Station, Washington, DC 20024, Telephone: (202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION:

On October 17, 2000, the Librarian of Congress convened a Copyright Arbitration Royalty Panel (“CARP”) to resolve a dispute within the syndicated programming category between the Motion Picture Association of America (“MPAA”) and the Independent Producers Group (“IPG”) over the division of royalties collected in 1997 pursuant to 17 U.S.C. 111 for the retransmission of movies and syndicated television series by cable systems. 65 FR 60690 (October 12, 2000). At the conclusion of the six-month arbitration period, the CARP delivered to the Librarian its initial report setting forth its determination of the distribution of the 1997 cable royalty funds. Because of flaws in the CARP's decision, the Librarian, upon the recommendation of the Register of Copyrights, rejected the initial report and remanded the case to the CARP with instructions to alter the allocation of royalties and to explain its decisionmaking process. See Order in Docket No. 2000-2 CARP 93-97 (dated June 5, 2001). On June 20, 2001, the CARP delivered its revised report. On December 26, 2001, the Librarian issued an order identifying numerous flaws in the CARP's determination as well as in the cases presented by both IPG and MPAA. Because of these flaws, the Librarian concluded that no determination of the distribution of the 1997 cable royalties could be made based on the record presented to the CARP. Accordingly, he rejected the CARP's initial and revised reports and remanded the matter for a new proceeding before a new CARP. 66 FR 66433 (December 26, 2001).

MPAA and IPG each appealed the Librarian's decision to the United States Court of Appeals for the District of Columbia Circuit. Motion Picture Association of America v. Librarian of Congress, No. 02-1033; Independent Producers Group v. Librarian of Congress, No. 02-1040. However, they have recently settled the dispute. As part of the settlement, it was agreed that the Librarian's December 26, 2001, Order would be vacated. On April 21, 2004, the Court of Appeals dismissed the appeals. In order to facilitate the settlement, the Librarian issued an order vacating as moot the December 26, 2001, Order as well as the CARP reports of April 16, 2001, and June 20, 2001.

The text of the Order reads as follows:

Recommendation and Order

On December 26, 2001, the Library published an Order announcing the Librarian of Congress's decision to reject the initial and revised reports of the Copyright Arbitration Royalty Panel (“CARP”) in this Phase II proceeding in the syndicated programming category for distribution of the 1997 cable royalty funds. The Order identified a number of flaws in the cases presented by both IPG and MPAA and in the determination made by the Copyright Arbitration Royalty Panel (“CARP”), and concluded that a distribution of royalties could not be made based on the current record. Accordingly, the Librarian remanded the matter for a new proceeding before a new CARP. Order, 66 FR 66433 (Dec. 26, 2001).

Both parties, Independent Producers Group (“IPG”) and The Motion Picture Association of America, Inc. (“MPAA”) petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Librarian's determination. Motion Picture Association of America v. Librarian of Congress, No. 02-1033; Independent Producers Group v. Librarian of Congress, 02-1040.

The parties have now settled this dispute, making a remand for new proceedings unnecessary and making it possible to distribute the remaining funds that were in dispute. As part of the settlement, it has been agreed that the December 26, 2001 Order shall be vacated.

Because the parties have settled their dispute, and therefore there is no reason to remand the matter for further proceedings before a new CARP, the Register recommends that the December 26, 2001 Order be vacated as moot. Further, in light of the flaws in the determination made by the CARP as identified in the December 26, 2001 Order, the CARP's initial and final determinations should also be vacated, to make clear that those determinations have no precedential value. The recommendation that the December 26, 2001 Order be vacated is made in order to facilitate the settlement and because the matter is now moot; this recommendation should not be construed as a repudiation of the reasoning in the December 26, 2001 Recommendation and Order.

Order of the Librarian

Having duly considered the recommendation of the Register of Copyrights the Librarian accepts the recommendation in its entirety and orders that the December 26, 2001 Order, the April 16, 2001 initial Report of the CARP, and the June 20, 2001 revised Report of the CARP are hereby VACATED as moot.

In accordance with the Librarian's Order, this proceeding has been terminated.