82 FR 18601 - Proceedings of the Copyright Royalty Board; Violation of Standards of Conduct
LIBRARY OF CONGRESS
Copyright Royalty Board Federal Register Volume 82, Issue 75 (April 20, 2017)
Copyright Royalty Board
Federal Register Volume 82, Issue 75 (April 20, 2017)
| Page Range | 18601-18603 | |
| FR Document | 2017-07403 |
[Federal Register Volume 82, Number 75 (Thursday, April 20, 2017)] [Proposed Rules] [Pages 18601-18603] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-07403] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 350 [Docket No. 17-CRB-0013 RM] Proceedings of the Copyright Royalty Board; Violation of Standards of Conduct AGENCY: Copyright Royalty Board, Library of Congress. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Copyright Royalty Judges propose to adopt a new Copyright Royalty Board rule that would authorize the Judges to bar, either temporarily or permanently, certain individuals and entities from participating in proceedings before the Judges. DATES: Comments are due no later than May 22, 2017. ADDRESSES: The proposed rule is posted on the agency's Web site (www.loc.gov/crb) and at Regulations.gov (www.regulations.gov). Interested parties may submit comments via email to [email protected]. Those who choose not to submit comments via email should see How to Submit Comments in the Supplementary Information section below for online and physical addresses and further instructions. FOR FURTHER INFORMATION CONTACT: Anita Blaine, Program Specialist, at (202) 707-7658 or [email protected]. SUPPLEMENTARY INFORMATION: Regulations of the Copyright Royalty Board (CRB), 37 CFR part 350 (CRB Rules), address proceedings conducted by the Copyright Royalty Judges (Judges) under chapter 8 of the Copyright Act. 17 U.S.C. 801-805. Proceedings before the Judges are premised on the understanding that all participants, including party representatives, witnesses, attorneys, and agents, will provide only truthful evidence or testimony to the Board. For example, CRB Rule 351.10 (a) states that ``[a]ll witnesses shall be required to take an oath or affirmation before testifying.'' 37 CFR 351.10 (b). The oath or affirmation requires the witness to state that the evidence he or she is about to offer will be truthful. Neither Rule 351.10 nor any other CRB rule or provision of the Copyright Act specifies consequences for presenting to the CRB false or misleading information or testimony, or for filing false royalty claims.\1\ --------------------------------------------------------------------------- \1\ See 18 U.S.C. 1621 re perjury. --------------------------------------------------------------------------- In the few instances in which the Judges determined that a witness's testimony was not truthful, the Judges exercised their authority under Section 801(c) to strike the testimony from the record or to take such other action as the Judges believed was warranted under the circumstances. In 2008, for example, the Judges found that an expert witness knowingly affirmed incorrect testimony on the record and in the presence of the Judges. Order Striking Certain Witness Testimony and Refusing Witness as Expert at 3, Docket No. 2006-3 CRB DPRA (Feb. 14, 2008). As a sanction for that false testimony, the Judges struck all of the witness's testimony that offered ``conclusions and opinions only admissible if presented as qualified expert testimony.'' Id. at 4. At the Judges' discretion, they retained portions of the witness's testimony that were ``merely reports or compilations of industry facts and data such as might have been presented by a lay witness familiar with the industry and having access to documents provided in discovery.'' Id. Under the Copyright Arbitration Royalty Panel system,\2\ a participant in Library of Congress royalty distribution proceedings, pled guilty to a count of mail fraud for making fraudulent submissions to the Copyright Office in which he used false aliases and fictitious business entities to claim entitlement to cable and satellite system retransmission royalties. U.S. v. Galaz, [[Page 18602]] No. 02-230 (D.D.C. May 30, 2002); U.S. v. Galaz, CR 02-0230-01 (D.D.C. Dec. 23, 2002). --------------------------------------------------------------------------- \2\ The Copyright Arbitration Royalty Panels arbitrated royalty rate and distribution controversies prior to enactment of the Copyright Royalty and Distribution Reform Act of 2004, which initiated the Copyright Royalty Judges program. --------------------------------------------------------------------------- After serving a prison term, and with approval of the sentencing court, the sanctioned individual continued to represent claimants in proceedings before the CRB. In one such proceeding, the Judges found that the same individual did not testify truthfully. Memorandum Opinion and Ruling on Validity and Categorization of Claims at 8, Docket Nos. 2012-6 CRB CD 2004-09 (Phase II) and 2012-7 CRB SD 1999-2009 SD (Phase II) (March 13, 2015) (Memorandum Opinion and Ruling). In determining a sanction for the false testimony, the Judges analyzed whether they had authority to debar or otherwise disqualify a claimant representative for misconduct. The Judges concluded that ``[a]ssuming, without deciding, that the Judges do possess the inherent authority to debar or otherwise disqualify a claimant representative for misconduct, the Judges find that it would be inappropriate to exercise that authority in the absence of regulations governing how, and under what circumstances they may do so.'' Id. at 9. The Judges concluded that: Participants are entitled to ``official . . . guidance as to what acts will precipitate a complaint of misconduct, how charges will be made, met or refuted, and what consequences will flow from misconduct if found.'' Even though, in this particular instance, all of the participants know--or should know--that giving false testimony under oath in an official proceeding is serious misconduct, there is nevertheless no ``official guidance'' in either the Copyright Act or CRB Rules concerning the consequences of that misconduct. Sadly, this case highlights the urgent need for such official guidance. Id., quoting Gonzales v. Freeman, 334 F.2d 570, 578 (D.C. Cir. 1964) (internal citation omitted). In the absence of official guidance on what consequences would flow from misconduct, the Judges denied the claimant representative presenting the witness the presumption of validity that each filed claim is compliant with the authority, veracity, and good faith standards now codified in 37 CFR 360.3(b)(1)(vi).\3\ --------------------------------------------------------------------------- \3\ In response to the Judges' remedy, the claimant representative asserted that it could overcome the loss of the presumption of validity by simply appointing an agent to adjudicate the claims that it had been hired to represent. The Judges responded that ``[g]iven the circumstances that have led to [the representative's] loss of the `presumption of validity,' such a transparent subterfuge could well constitute fresh and sufficient evidence to cast doubt on [the representative's] representation, underscoring the need to place the burden on [the representative] to substantiate its claims.'' Memorandum Opinion and Ruling at 12-13, n.14. Nevertheless, in a subsequent distribution proceeding, the same representative assigned its right to represent claims to a family member doing business under a newly-registered business name, perhaps with the intention of avoiding the loss of the presumption of validity. See, e.g., MPAA's Motion for Disallowance of Claims Made by Multigroup Claimants at 3, Docket Nos. 14-CRB-0010 CD and 14-CRB-0011 SD (2010-2013) (Oct. 11, 2016). Regardless of the motivation behind the party's decision to replace itself as a claims representative with an affiliate in that particular proceeding, the claim representative's actions (about which the Judges do not currently opine) highlight the importance of a mechanism to sanction parties, witnesses, and counsel that violate CRB rules or the Judges' orders, or that otherwise engage in behavior that would warrant preventing them from future participation in proceedings before the Judges. --------------------------------------------------------------------------- The Judges have indicated they would ``welcome petitions for rulemaking that discuss their authority to adopt, and recommend the content of, rules, if any, sanctioning misconduct on the part of counsel or parties in CRB proceedings.'' Memorandum Opinion and Ruling at 9 n.7. The Judges received none. The Judges, therefore, propose these regulations to establish and publicize standards of conduct and to enumerate, without limitation, responses to violations of those standards. In designing procedures for imposing appropriate sanctions for fraud or misrepresentation to the CRB, the Judges stress the importance of providing more consistent guidance to individuals and entities that have business before the CRB. In addition, the Judges recognize the value of providing a mechanism that is less prone to evasion than the ad hoc approaches the Judges have employed in the past.\4\ The Judges intend the proposed new rule to supplement rather than replace the case-specific evidentiary rulings or sanctions they have imposed in the past. Consistent with these goals, the Judges propose a new CRB Rule 350.9: Violation of Standards of Conduct. The proposed new rule clarifies the expectation and requirement that all persons appearing in proceedings before the Judges act with integrity and in an ethical manner. --------------------------------------------------------------------------- \4\ In the past to address objectionable behavior, the Judges have imposed, for example, discovery sanctions, evidentiary burden shifting, and have declined to consider material offered for the record. --------------------------------------------------------------------------- The proposed new rule language authorizes the Judges, after notice and an opportunity for hearing, to deny, either temporarily or permanently, to a person or entity that violates the expected standards of conduct the privilege of participating as a representative, agent, witness, or attorney in a CRB proceeding. In particular, the proposed new language would authorize the Judges to deny participation to any attorney who has been suspended or disbarred by a court of the United States or of any State or to any person whose license to practice as an accountant, engineer, or other professional or expert, has been revoked or suspended in any State. Moreover, under the proposed rule, the Judges could bar participation by any person who has been convicted of a felony or a misdemeanor involving moral turpitude. The proposed new rule also would authorize the Judges to deny participation by any entity that employs or retains in any capacity any person described in paragraph (b)(1) to assist in administering the distribution of royalties to claimants or to submit or prepare royalty claims or evidence to be used in a proceeding before the Copyright Royalty Board. The proposed rule would authorize the Judges to deny participation by any person, agent, or attorney shown to be incompetent or disreputable. In addition, the proposed rule would authorize the Judges, after notice and opportunity for hearing, to deny participation by any person who knowingly or recklessly provides false oral or written testimony or who knowingly sponsors false documents under oath or affirmation in a proceeding. Finally, the proposed rule would authorize the Judges to deny participation by any person who has violated any CRB rule or regulation. The proposed rule would allow a person denied participation in a CRB proceeding or barred as a witness to apply for reinstatement at any time. The Judges may, in their discretion, permit a hearing on the reinstatement application, but the suspension or disqualification would continue unless and until the Judges have reinstated the applicant for good cause shown. Solicitation of Comments The Judges seek comments on the proposed new rule. Preliminarily, the Judges believe the proposed rule is necessary to allow them to carry out their responsibilities under the Copyright Act and is consistent with the Judges' goal to provide consistent guidance to people and entities regarding the Judges' expectations of conduct in Copyright Royalty Board proceedings and other dealings with the Copyright Royalty Board. The Judges seek comments on whether they should adopt the proposed rule. Any commenter that does not believe the proposed rule is necessary or appropriate, must discuss any alternatives that the Judges have available that would allow them to continue to preserve the integrity of Copyright Royalty Board proceedings. [[Page 18603]] The Judges also seek comments on whether the categories described in the proposed rule are sufficient for the Judges to achieve the goal of preserving the integrity of Copyright Royalty Board proceedings or whether additional categories also should be included. If so, which categories should be added? Should any of the proposed categories be removed from the proposal? If so, which categories and why? Should time limits be placed on any or all of the categories? For example, if a person violated a CRB rule in the distant past (e.g., 5 years ago? 10 years ago?), should that person still be subject to a denial of participation in future proceedings? What criteria should the Judges' consider in determining whether a denial of participation should be temporary or permanent? If a claims representative is barred from participation in proceedings before the Judges, how should the claims that that person or entity represented be treated? For example, should the claimants be required to represent themselves (either individually or jointly) or should they be allowed to select a new representative? In the alternative, should the Judges assign the claims of a barred representative to another claims representative already participating in the proceeding? With respect to reinstatement applications, does the proposal provide a sufficient means for persons or entities to seek reinstatement? If not, what other means should be available? If the Judges deny a reinstatement application, when, if ever, should the applicant be permitted to file a subsequent application? For example, should there be a ``cooling off'' period between applications? If so, how long should that period be? In considering subsequent reinstatement applications, should the Judges apply the same standard as they applied in considering the first application or should a different standard apply (e.g., a showing of new evidence, other than the mere passage of time, subsequent to the initial application denial)? How To Submit Comments Interested members of the public must submit comments to only one of the following addresses. If not submitting by email or online, commenters must submit an original of their comments, five paper copies, and an electronic version in searchable PDF format on a CD. Email: [email protected]; or Online: http://www.regulations.gov; or U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or Overnight service (only USPS Express Mail is acceptable): Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or Commercial courier: Address package to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue SE., Washington, DC 20559-6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE and D Street NE., Washington, DC; or Hand delivery: Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue SE., Washington, DC 20559- 6000. List of Subjects in 37 CFR Part 350 Administrative practice and procedure, Copyright. For the reasons set forth in the preamble, the Copyright Royalty Board proposes to amend 37 CFR part 350 as follows: PART 350--GENERAL ADMINISTRATIVE PROVISIONS 0 1. The authority citation for part 350 continues to read as follows: Authority: 17 U.S.C. 803. 0 2. Add Sec. 350.9 to read as follows: Sec. 350.9 Violation of standards of conduct. (a) Standards of conduct. All persons appearing in proceedings before the Copyright Royalty Board are expected to act with integrity and in an ethical manner. (b) Suspension and debarment. After notice and opportunity for hearing, the Copyright Royalty Judges may deny, temporarily or permanently, the privilege of participating as a representative, agent, attorney, or witness in a proceeding before the Copyright Royalty Board to: (1) Any attorney who has been suspended or disbarred by a court of the United States or of any State; any person whose license to practice as an accountant, engineer, or other professional or expert has been revoked or suspended in any State; or any person who has been convicted of a felony or a misdemeanor involving moral turpitude. A disbarment, suspension, revocation, or conviction within the meaning of this section shall be deemed to have occurred when the disbarring, suspending, revoking, or convicting agency or tribunal enters its judgment or order, including a judgment or order on a plea of nolo contendere, regardless of whether the person has taken or could take an appeal of the judgment or order. (2) Any entity that employs or retains in any capacity any person described in paragraph (b)(1) of this section to assist in administering the distribution of royalties to claimants or to submit or prepare royalty claims or evidence to be used in a proceeding before the Copyright Royalty Board. (3) Any person, agent, or attorney shown to be incompetent or disreputable. (4) Any person who knowingly or recklessly provides false oral or written testimony or who knowingly sponsors false documents under oath or affirmation in a proceeding before the Copyright Royalty Board. (5) Any person who has violated any Copyright Royalty Board rules or regulations. (c) Reinstatement. A person denied the privilege of participating in a Copyright Royalty Board proceeding or barred as a witness under this rule may apply for reinstatement at any time, but no more often than once in a 12-month period measured from the time of disposition of an application. The Copyright Royalty Judges may, in their discretion, permit a hearing on the application. The suspension or disqualification shall continue unless and until the Judges have reinstated the applicant for good cause shown. Dated: April 7, 2017. Suzanne M. Barnett Chief Copyright Royalty Judge. [FR Doc. 2017-07403 Filed 4-19-17; 8:45 am] BILLING CODE 1410-72-P
![Federal Register / Vol. 82, No. 75 / Thursday, April 20, 2017 / Proposed Rules 18601
enhance the safety and management of § 71.1 [Amended] SUPPLEMENTARY INFORMATION:
the standard instrument approach ■ 2. The incorporation by reference in Regulations of the Copyright Royalty
procedures for IFR operations at the 14 CFR 71.1 of FAA Order 7400.11A, Board (CRB), 37 CFR part 350 (CRB
airport. Airspace Designations and Reporting Rules), address proceedings conducted
Class E airspace areas are published Points, dated August 3, 2016, and by the Copyright Royalty Judges (Judges)
in Paragraph 6005 of FAA Order effective September 15, 2016, is under chapter 8 of the Copyright Act. 17
7400.11A, dated August 3, 2016, and amended as follows: U.S.C. 801–805. Proceedings before the
effective September 15, 2016, which is Judges are premised on the
incorporated by reference in 14 CFR Paragraph 6005 Class E Airspace Areas understanding that all participants,
Extending Upward From 700 Feet or More including party representatives,
71.1. The Class E airspace designation Above the Surface of the Earth.
listed in this document will be witnesses, attorneys, and agents, will
published subsequently in the Order. * * * * * provide only truthful evidence or
ASW AR E5 Arkadelphia, AR [Amended]
testimony to the Board. For example,
Regulatory Notices and Analyses CRB Rule 351.10 (a) states that ‘‘[a]ll
Dexter B. Florence Memorial Field Airport, witnesses shall be required to take an
The FAA has determined that this AR
(Lat. 34°05′59″ N., long. 93°03′58″ W.)
oath or affirmation before testifying.’’ 37
regulation only involves an established CFR 351.10 (b). The oath or affirmation
body of technical regulations for which That airspace extending upward from 700
requires the witness to state that the
frequent and routine amendments are feet above the surface within a 6.5-mile
radius of Dexter B. Florence Memorial Field evidence he or she is about to offer will
necessary to keep them operationally be truthful. Neither Rule 351.10 nor any
Airport.
current, is non-controversial and other CRB rule or provision of the
unlikely to result in adverse or negative Issued in Fort Worth, TX, on April 6, 2017. Copyright Act specifies consequences
comments. It, therefore: (1) Is not a Robert W. Beck, for presenting to the CRB false or
‘‘significant regulatory action″ under misleading information or testimony, or
Manager, Operations Support Group, ATO
Executive Order 12866; (2) is not a Central Service Center. for filing false royalty claims.1
‘‘significant rule″ under DOT Regulatory In the few instances in which the
[FR Doc. 2017–07782 Filed 4–19–17; 8:45 am]
Policies and Procedures (44 FR 11034; Judges determined that a witness’s
BILLING CODE 4910–13–P
February 26, 1979); and (3) does not testimony was not truthful, the Judges
warrant preparation of a regulatory exercised their authority under Section
evaluation as the anticipated impact is 801(c) to strike the testimony from the
so minimal. Since this is a routine LIBRARY OF CONGRESS record or to take such other action as the
matter that will only affect air traffic Judges believed was warranted under
procedures and air navigation, it is Copyright Royalty Board the circumstances. In 2008, for example,
certified that this rule, when the Judges found that an expert witness
promulgated, would not have a 37 CFR Part 350 knowingly affirmed incorrect testimony
significant economic impact on a on the record and in the presence of the
substantial number of small entities [Docket No. 17–CRB–0013 RM] Judges. Order Striking Certain Witness
under the criteria of the Regulatory Testimony and Refusing Witness as
Proceedings of the Copyright Royalty
Flexibility Act. Expert at 3, Docket No. 2006–3 CRB
Board; Violation of Standards of
DPRA (Feb. 14, 2008). As a sanction for
Environmental Review Conduct
that false testimony, the Judges struck
This proposal will be subject to an AGENCY: Copyright Royalty Board, all of the witness’s testimony that
environmental analysis in accordance Library of Congress. offered ‘‘conclusions and opinions only
with FAA Order 1050.1F, ACTION: Proposed rule. admissible if presented as qualified
‘‘Environmental Impacts: Policies and expert testimony.’’ Id. at 4. At the
Procedures’’ prior to any FAA final SUMMARY: The Copyright Royalty Judges Judges’ discretion, they retained
regulatory action. propose to adopt a new Copyright portions of the witness’s testimony that
Royalty Board rule that would authorize were ‘‘merely reports or compilations of
List of Subjects in 14 CFR Part 71 the Judges to bar, either temporarily or industry facts and data such as might
permanently, certain individuals and have been presented by a lay witness
Airspace, Incorporation by reference,
entities from participating in familiar with the industry and having
Navigation (air). access to documents provided in
proceedings before the Judges.
The Proposed Amendment DATES: Comments are due no later than
discovery.’’ Id.
Under the Copyright Arbitration
Accordingly, pursuant to the May 22, 2017.
Royalty Panel system,2 a participant in
authority delegated to me, the Federal ADDRESSES: The proposed rule is posted Library of Congress royalty distribution
Aviation Administration proposes to on the agency’s Web site (www.loc.gov/ proceedings, pled guilty to a count of
amend 14 CFR part 71 as follows: crb) and at Regulations.gov mail fraud for making fraudulent
(www.regulations.gov). Interested submissions to the Copyright Office in
PART 71—DESIGNATION OF CLASS A, parties may submit comments via email which he used false aliases and
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
B, C, D, AND E AIRSPACE AREAS; AIR to crb@loc.gov. Those who choose not to fictitious business entities to claim
TRAFFIC SERVICE ROUTES; AND submit comments via email should see entitlement to cable and satellite system
REPORTING POINTS How to Submit Comments in the retransmission royalties. U.S. v. Galaz,
Supplementary Information section
■ 1. The authority citation for 14 CFR below for online and physical addresses 1 See 18 U.S.C. 1621 re perjury.
part 71 continues to read as follows: and further instructions. 2 The Copyright Arbitration Royalty Panels
arbitrated royalty rate and distribution
Authority: 49 U.S.C. 106(f), 106(g); 40103, FOR FURTHER INFORMATION CONTACT:
controversies prior to enactment of the Copyright
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, Anita Blaine, Program Specialist, at Royalty and Distribution Reform Act of 2004, which
1959–1963 Comp., p. 389. (202) 707–7658 or crb@loc.gov. initiated the Copyright Royalty Judges program.
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![18602 Federal Register / Vol. 82, No. 75 / Thursday, April 20, 2017 / Proposed Rules
No. 02–230 (D.D.C. May 30, 2002); U.S. The Judges have indicated they would been suspended or disbarred by a court
v. Galaz, CR 02–0230–01 (D.D.C. Dec. ‘‘welcome petitions for rulemaking that of the United States or of any State or
23, 2002). discuss their authority to adopt, and to any person whose license to practice
After serving a prison term, and with recommend the content of, rules, if any, as an accountant, engineer, or other
approval of the sentencing court, the sanctioning misconduct on the part of professional or expert, has been revoked
sanctioned individual continued to counsel or parties in CRB proceedings.’’ or suspended in any State.
represent claimants in proceedings Memorandum Opinion and Ruling at 9 Moreover, under the proposed rule,
before the CRB. In one such proceeding, n.7. The Judges received none. The the Judges could bar participation by
the Judges found that the same Judges, therefore, propose these any person who has been convicted of
individual did not testify truthfully. regulations to establish and publicize a felony or a misdemeanor involving
Memorandum Opinion and Ruling on standards of conduct and to enumerate, moral turpitude. The proposed new rule
Validity and Categorization of Claims at without limitation, responses to also would authorize the Judges to deny
8, Docket Nos. 2012–6 CRB CD 2004–09 violations of those standards. participation by any entity that employs
(Phase II) and 2012–7 CRB SD 1999– In designing procedures for imposing or retains in any capacity any person
2009 SD (Phase II) (March 13, 2015) appropriate sanctions for fraud or described in paragraph (b)(1) to assist in
(Memorandum Opinion and Ruling). In misrepresentation to the CRB, the administering the distribution of
determining a sanction for the false Judges stress the importance of royalties to claimants or to submit or
testimony, the Judges analyzed whether providing more consistent guidance to prepare royalty claims or evidence to be
they had authority to debar or otherwise individuals and entities that have used in a proceeding before the
disqualify a claimant representative for business before the CRB. In addition, Copyright Royalty Board.
misconduct. The Judges concluded that the Judges recognize the value of The proposed rule would authorize
‘‘[a]ssuming, without deciding, that the providing a mechanism that is less the Judges to deny participation by any
Judges do possess the inherent authority prone to evasion than the ad hoc person, agent, or attorney shown to be
to debar or otherwise disqualify a approaches the Judges have employed incompetent or disreputable. In
claimant representative for misconduct, in the past.4 The Judges intend the addition, the proposed rule would
the Judges find that it would be proposed new rule to supplement rather authorize the Judges, after notice and
inappropriate to exercise that authority than replace the case-specific opportunity for hearing, to deny
in the absence of regulations governing evidentiary rulings or sanctions they participation by any person who
how, and under what circumstances have imposed in the past. Consistent knowingly or recklessly provides false
they may do so.’’ Id. at 9. The Judges with these goals, the Judges propose a oral or written testimony or who
concluded that: new CRB Rule 350.9: Violation of knowingly sponsors false documents
Standards of Conduct. The proposed under oath or affirmation in a
Participants are entitled to ‘‘official . . . proceeding. Finally, the proposed rule
guidance as to what acts will precipitate a new rule clarifies the expectation and
complaint of misconduct, how charges will requirement that all persons appearing would authorize the Judges to deny
be made, met or refuted, and what in proceedings before the Judges act participation by any person who has
consequences will flow from misconduct if with integrity and in an ethical manner. violated any CRB rule or regulation.
found.’’ Even though, in this particular The proposed new rule language The proposed rule would allow a
instance, all of the participants know—or authorizes the Judges, after notice and person denied participation in a CRB
should know—that giving false testimony proceeding or barred as a witness to
under oath in an official proceeding is
an opportunity for hearing, to deny,
either temporarily or permanently, to a apply for reinstatement at any time. The
serious misconduct, there is nevertheless no Judges may, in their discretion, permit
‘‘official guidance’’ in either the Copyright person or entity that violates the
Act or CRB Rules concerning the expected standards of conduct the a hearing on the reinstatement
consequences of that misconduct. Sadly, this privilege of participating as a application, but the suspension or
case highlights the urgent need for such representative, agent, witness, or disqualification would continue unless
official guidance. attorney in a CRB proceeding. In and until the Judges have reinstated the
Id., quoting Gonzales v. Freeman, 334 particular, the proposed new language applicant for good cause shown.
F.2d 570, 578 (D.C. Cir. 1964) (internal would authorize the Judges to deny Solicitation of Comments
citation omitted). participation to any attorney who has
The Judges seek comments on the
In the absence of official guidance on
proposed new rule. Preliminarily, the
what consequences would flow from Nevertheless, in a subsequent distribution
proceeding, the same representative assigned its Judges believe the proposed rule is
misconduct, the Judges denied the
right to represent claims to a family member doing necessary to allow them to carry out
claimant representative presenting the business under a newly-registered business name, their responsibilities under the
witness the presumption of validity that perhaps with the intention of avoiding the loss of Copyright Act and is consistent with the
each filed claim is compliant with the the presumption of validity. See, e.g., MPAA’s
Motion for Disallowance of Claims Made by Judges’ goal to provide consistent
authority, veracity, and good faith
Multigroup Claimants at 3, Docket Nos. 14–CRB– guidance to people and entities
standards now codified in 37 CFR 0010 CD and 14–CRB–0011 SD (2010–2013) (Oct. regarding the Judges’ expectations of
360.3(b)(1)(vi).3 11, 2016). Regardless of the motivation behind the conduct in Copyright Royalty Board
party’s decision to replace itself as a claims
3 In response to the Judges’ remedy, the claimant representative with an affiliate in that particular proceedings and other dealings with the
Copyright Royalty Board. The Judges
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
representative asserted that it could overcome the proceeding, the claim representative’s actions
loss of the presumption of validity by simply (about which the Judges do not currently opine) seek comments on whether they should
appointing an agent to adjudicate the claims that it highlight the importance of a mechanism to adopt the proposed rule. Any
had been hired to represent. The Judges responded sanction parties, witnesses, and counsel that violate
that ‘‘[g]iven the circumstances that have led to [the CRB rules or the Judges’ orders, or that otherwise commenter that does not believe the
representative’s] loss of the ‘presumption of engage in behavior that would warrant preventing proposed rule is necessary or
validity,’ such a transparent subterfuge could well them from future participation in proceedings appropriate, must discuss any
constitute fresh and sufficient evidence to cast before the Judges. alternatives that the Judges have
doubt on [the representative’s] representation, 4 In the past to address objectionable behavior,
underscoring the need to place the burden on [the the Judges have imposed, for example, discovery
available that would allow them to
representative] to substantiate its claims.’’ sanctions, evidentiary burden shifting, and have continue to preserve the integrity of
Memorandum Opinion and Ruling at 12–13, n.14. declined to consider material offered for the record. Copyright Royalty Board proceedings.
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The Judges also seek comments on by email or online, commenters must United States or of any State; any person
whether the categories described in the submit an original of their comments, whose license to practice as an
proposed rule are sufficient for the five paper copies, and an electronic accountant, engineer, or other
Judges to achieve the goal of preserving version in searchable PDF format on a professional or expert has been revoked
the integrity of Copyright Royalty Board CD. or suspended in any State; or any
proceedings or whether additional Email: crb@loc.gov; or person who has been convicted of a
categories also should be included. If so, Online: http://www.regulations.gov; or felony or a misdemeanor involving
which categories should be added? U.S. mail: Copyright Royalty Board, moral turpitude. A disbarment,
Should any of the proposed categories P.O. Box 70977, Washington, DC 20024– suspension, revocation, or conviction
be removed from the proposal? If so, 0977; or within the meaning of this section shall
which categories and why? Should time Overnight service (only USPS Express be deemed to have occurred when the
limits be placed on any or all of the Mail is acceptable): Copyright Royalty disbarring, suspending, revoking, or
categories? For example, if a person Board, P.O. Box 70977, Washington, DC convicting agency or tribunal enters its
violated a CRB rule in the distant past 20024–0977; or judgment or order, including a judgment
(e.g., 5 years ago? 10 years ago?), should Commercial courier: Address package or order on a plea of nolo contendere,
that person still be subject to a denial of to: Copyright Royalty Board, Library of regardless of whether the person has
participation in future proceedings? Congress, James Madison Memorial taken or could take an appeal of the
What criteria should the Judges’ Building, LM–403, 101 Independence judgment or order.
consider in determining whether a Avenue SE., Washington, DC 20559– (2) Any entity that employs or retains
denial of participation should be 6000. Deliver to: Congressional Courier in any capacity any person described in
temporary or permanent? If a claims Acceptance Site, 2nd Street NE and D paragraph (b)(1) of this section to assist
representative is barred from Street NE., Washington, DC; or in administering the distribution of
participation in proceedings before the Hand delivery: Library of Congress,
royalties to claimants or to submit or
Judges, how should the claims that that James Madison Memorial Building, LM–
prepare royalty claims or evidence to be
person or entity represented be treated? 401, 101 Independence Avenue SE.,
used in a proceeding before the
For example, should the claimants be Washington, DC 20559–6000.
Copyright Royalty Board.
required to represent themselves (either List of Subjects in 37 CFR Part 350 (3) Any person, agent, or attorney
individually or jointly) or should they
Administrative practice and shown to be incompetent or
be allowed to select a new
procedure, Copyright. disreputable.
representative? In the alternative,
should the Judges assign the claims of For the reasons set forth in the (4) Any person who knowingly or
a barred representative to another preamble, the Copyright Royalty Board recklessly provides false oral or written
claims representative already proposes to amend 37 CFR part 350 as testimony or who knowingly sponsors
participating in the proceeding? follows: false documents under oath or
With respect to reinstatement affirmation in a proceeding before the
applications, does the proposal provide PART 350—GENERAL Copyright Royalty Board.
a sufficient means for persons or entities ADMINISTRATIVE PROVISIONS (5) Any person who has violated any
to seek reinstatement? If not, what other Copyright Royalty Board rules or
■ 1. The authority citation for part 350
means should be available? If the Judges regulations.
continues to read as follows:
deny a reinstatement application, when, (c) Reinstatement. A person denied
if ever, should the applicant be Authority: 17 U.S.C. 803. the privilege of participating in a
permitted to file a subsequent ■ 2. Add § 350.9 to read as follows: Copyright Royalty Board proceeding or
application? For example, should there barred as a witness under this rule may
be a ‘‘cooling off’’ period between § 350.9 Violation of standards of conduct. apply for reinstatement at any time, but
applications? If so, how long should that (a) Standards of conduct. All persons no more often than once in a 12-month
period be? In considering subsequent appearing in proceedings before the period measured from the time of
reinstatement applications, should the Copyright Royalty Board are expected to disposition of an application. The
Judges apply the same standard as they act with integrity and in an ethical Copyright Royalty Judges may, in their
applied in considering the first manner. discretion, permit a hearing on the
application or should a different (b) Suspension and debarment. After application. The suspension or
standard apply (e.g., a showing of new notice and opportunity for hearing, the disqualification shall continue unless
evidence, other than the mere passage of Copyright Royalty Judges may deny, and until the Judges have reinstated the
time, subsequent to the initial temporarily or permanently, the applicant for good cause shown.
application denial)? privilege of participating as a
Dated: April 7, 2017.
representative, agent, attorney, or
How To Submit Comments witness in a proceeding before the Suzanne M. Barnett
Interested members of the public must Copyright Royalty Board to: Chief Copyright Royalty Judge.
submit comments to only one of the (1) Any attorney who has been [FR Doc. 2017–07403 Filed 4–19–17; 8:45 am]
following addresses. If not submitting suspended or disbarred by a court of the BILLING CODE 1410–72–P
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
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Document Created: 2017-04-20 01:42:27
Document Modified: 2017-04-20 01:42:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments are due no later than May 22, 2017. | |
| Contact | Anita Blaine, Program Specialist, at (202) 707-7658 or [email protected] | |
| FR Citation | 82 FR 18601 | |
| CFR Associated | Administrative Practice and Procedure and Copyright |
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