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RAIN 9/1: Live365 files suit over constitutionality of CRB

Posted on: 09/01/2009


Internet radio streaming and hosting company Live365 has filed suit in the D.C. federal court challenging the constitutionality of (and thus, the legitimacy of decisions by) the U.S. Copyright Royalty Board.

The CRB is the 3-judge panel that determines statutory royalties for sound recording copyrights for Internet radio when webcasters and copyright owners can’t reach marketplace agreements (which has happened for every royalty term since the passage of the law which established this process, the Digital Millennium Copyright Act).

Royalty collection agency Royalty Logic originally challenged the constitutionality of the judicial panel in a motion to the federal Appeals Court in May of 2008 (RAIN coverage here), then again this past March during the Appeal. And apparently, more than one appeals judge seemed to indicate the argument may have merit (here and here).

Royalty Logic argued the CRB judges were appointed in violation of the “Appointments Clause” (read more here and here). The CRB judges were named by the Librarian of Congress, and some interpret the Appointment Clause to require that only the Executive Branch can make such appointments.

In announcing the suit, Live365 quoted an appellate judge: “(The CRB) exercises expansive executive authority … unsupervised by the Librarian of Congress or by any other Executive Branch official… (This) statutory structure raises a serious Constitutional issue.”

The lawsuit seeks an injunction to prevent any further proceedings before the CRB until the Constitutional question is resolved. Arbitration for webcasting royalties for the 2011-2015 term is to begin shortly.


Apple has officially set the date of September 9 for its music-themed product launch event in San Francisco.

Of course, 09-09-09 is also the big launch date for the Beatles CD reissues and the Beatles Rockband video game, bolstering rumors that Apple’s announcements may include the long-awaited availability of Beatles music in the iTunes Music Store (never mind that the invitation Apple sent to journalists read, “It’s only rock and roll, but we like it,” paraphrasing the Rolling Stones.)

The event may also bring the announcement of Apple’s plan — codenamed “Cocktail” — to bundle albums sold on iTunes with extra digital content, as well as a new tablet-style device (more here).


Buy.com is selling the Slacker 4 GB Wi-Fi Portable Radio Player for $49.99 (it usually costs $250) here.

The Slacker device and Internet radio service allow the listener to tune in to personalizable Internet radio channels, even when not connected to the Internet (the device “caches” musical content). The service is available for free or with a subscription for ad-free streams.

PCMag, reporting the Buy.com sale, writes, “Although it’s bulky for a portable media player and there’s no video or photo support, (product reviewer Tim) Gideon praised its huge screen (4 inches), ability to store MP3s and WMAs, and ability to ban songs you hate.” The PCMag article is here.

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