us copyright office: ascap-brf

8/14/2019 US Copyright Office: ASCAP-brf

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No. 04-480IN THEprmr Qrm.n1 of t111 1lttb tt1i

METRO-GOLDW'(N-MAYER STUDIOS INC. , et aI.Petitioners

GR01::STER, LTD. et al.Respondents.

ON PFTIJON FOF: A WRI OF CERTIORARI TO THEUNIT!!D STATES COURT OF APPEALS FOR TH NINTH ClRCUTT

BRIEr OF THE AMCAN SOCIETY OF COMPOS!!RS, AUTHORS ANDPuUSJlRS BROADCAST 1\1USIC, INC., AsSOCATION or INDEPENDENTMusIC PUBLISHERS, CKt'RCH MUSIC PUBLISHERS ASSOCTATION,

NASHVLE SONGWRI TERS ASSOCIATION INTERNATIONALAND SONGWRERS CURD OF AMRICA AS AMICI CURIAE

TN SUf?ORT OF PETJTONERSMJCIiABL E. SALZMANHUGHES HUBBARD & REED LLPOne Batter Park PlazaNew York, NY 10004- 1482(212) 837-6000

MARVIN L. BERENSONBROADCAST MUSIC, INC-320 West 57th StreetNew York, NY 10019(212) 586-2000Counsel for amicusBroadcast Music, Inc.

1. FRED KOENGSBERGCouruel of Record

STEFAN M. MENTZERWHlE & CASEII55 Avenue ofthe AmericasNew York, NY 10036(212) 819-8200Counsel for amici AmercanSociety of Composers, Authewsand Publishers. Associationof independent Music PublishersChurch Music Publishers AssociationNashvile Songwriters AssociationInternational. and SongwritersGuild of America


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TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES. . . .INTEREST OF AM1CICURIAE

SUMMAY OF ARGUMENT, . .ARGUMENT

The Massive Infringements Faciltated byGrokster and StreamCast Seriously HarmAmici' Songwriters and Music Publishers.,...,.. ... ....-------- -".' .0.....II. Proper Interpretation ofthe Contributory

and Vicariolls Liabilty Doctrines IsCrucial for Amici' Songwriters and MusicPublishers. . . . . . . . . . I I . . . I . . . . .

A. Secondary Liabilty Is Indispensablefor the Enforcement of Copyrights inMusical Compositions as a Matter ofBoth Copyright Policy and PracticalJustice. -B. The Doctl"nes of Secondary LiabilityWere Established for Just SuchInfringements as Are Here Presented

...... .0...,....... ...CONCLUSION. . . .

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TABLE OF CITED AUTHORITIES

CASESIn re Aimster Copyright Litig. 334 F.3d 643(7th Cir. 2003) .. . . . . .Barnaby Music Corp. Catoctin Broad. Corp. of

Y., No. CrV-86-868E, 1988 WL 84169(W. Y, Aug 10 1988) ......

Blendingwell Music. Inc. v. Moor-Law, Inc. , 612F Supp. 474 (D. Del. 1985) ..........

Boz Scaggs Music KND Corp. 491 F. Supp. 908(D. Conn. 1980) . , . . . . . . . . .. .. . . . . . . . . .Broad. Music. Inc. v. Blueberry Hil Family Rests.

899 F. Supp. 474 (D. Nev. 1995)Broad. Music, Inc. v. Columbia Broad. Sys., Inc.441 U.S. 1 (1979) ............... ... 2, 11Broad. Music, Inc. Hartmarx Corp. No, 88 C2856 , 1988 WL 128691 (N. D. ll Nov. 17 , 1988)

Casella Morris 820 F.2d 362 (l1th Cir. 1987) ..Costello Publ 'g Co. v. Rotelle 670 F.2d 1035(D.C. Cir. 1981)

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Cited AuthoritiesGershwin Publ'g Com. v. Columbia ArtisTS Mgmt.Inc. 443 F.2d 115S (2d Cir. 1971) . ...........Robbins Music Corp. Y. Alamo Music, Inc., 119F. Supp. 29 (S. NY 1954) . . . . . . . . . . . . . . , , .Shapiro, Bernstein Co. v. H.L. Green Co. 316 F.2d304 (2d Cir. 1963) . . . . , . . . , 9 , 12

/ain. Inc. v. Kidde Consumer Durables Corp.D. 434 (D. Del 1977)STATUTES17 D. C. 9101

17 U.S. C. 115 ......

LEGISLATIVE MA1rERIALS150 Congo Rec. S71 ol (daily ed. June 22 , 2004)

(statement of Sen. Frist)

R. Rep. No. 94- 1476 , at 159-60 (1976) . . . . . . . .TREATISES3 Melvile B. Nimmer & David Nimmer Nimmer

on Copyright 9 12.03 (2004 ed.

7 Charles Alan Wrigh1 . et aI., Federal Practice andProcedure 9 1614 (:d ed. 2001) . . .. . . . .. . . . ..

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it.Cited Authorities

MISCELLANOUSAssociated Press Federal Government Takes Aim at

Music Piracy (Aug, 16 , 2004), at http://www.wsmy.com/Global/story. asp?S 2 182055&nav=ITcTPycm ................,...

Brooks Boliek, Working Folks Lobby Congress (Oct.2003), at http://ww.hollywoodreporter.com/thr/music/feature - display.j sp ?ynu - content

id=2007232 ..........

Chris Lewis, Songwriters Make Play to Curb IlegalDownloads (Aug. 17 2004), Nashville City Paperat http://ww.nashvilecityaper.com/index . cfm?section= 1 0&screen-news&news id=3 5 060

Jennifer Potash Experts Explore Ups, Downs ofDownloading (June I , 2004), at http://www.pacpub. comlsite/news.cfr?newsid= 11831777&BRD= 1091 &PAG=461 &dept id=346950&rf=8

Recording Industr Association of America , 2003Yearend Statistics at httpJ/www.riaa.com/news/newslettet/pdfi2003yearEnd.pdf .............

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The American E ociety of Composers, Authors andPublishers, Broadcast Music , Inc., Association ofIndependent Music Publishers, Church Music PublishersAssociation, NashvilE Songwters Association Internationaland Songwriters Guil j of America submit this amicus briefin support of the Petition for a Writ of Certiorar.

INTEREST OF AMICI CURIAETogether amici cilriae represent hundreds ofthousandsof songwriters and music publishers who create, ownprornole, disseminate, and license rights in virtually allcopyrghted musical works. ' We speak for a community thathas a compelling intcr' st in ending the massive infingement

of musical works on Respondents ' peer- to-peer ("P2P"networks. We have a I )ng history oflicensing and enforcing) egal rights in mus; cal works, possess vast practicalexperience utilizing the doctrines of contributory andvicarous liability tha' : are at issue in this case, and have agreat stake in seeing hat these doctrines remain robust.

1. Pursu nt (Q Supreme Court Rule 37. , counsel for amicicuriae state that they authored this brief and that no pergon or entityother lhan amici made a :nonetar contribution to its preparation orsubmission. All palties h, ve consented to filing ,his brief, and lettersreflecting their consent have been fied with the CleTk.

2. The Copyrght Act separately protects musical works (whichcomprise music and lyric created and owned by amici's wrters andpublishers) and sound re,;ordings (created and owned by recordingartists and record companies). The Copyright Act does not define

musical work.s but doe 7: defme "sound recordings" as uworks thatresult from the fixation of 1 series of musical, spoken, or other soundsbut not including rhe SOUI ds accompanying a motion picmre or otheraudiovisual work , regardless of the nature of the material objectssuch as disks , tapes, or other phonorecords , in which they areembodied." 17 V. C. : 01.


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The American Society of Composers, Authors andPublishers AS CAP") and Broadcasf Music, Inc. BMI"are performing rights licensing organizations ("PROsTogether, the PROs ' members and affliates comprise almostaU American songwriters, composers , and music publishers;through affiliation agreements with similar foreign entitiesthe PROs represent in the United States virtually all of theworld' s writers and publishers of music. The PROs licensenondramatic public performing rights in copyrghted musicalworks to users, including online music services, and enforcethose rights against infringement. See Broad. Music , Inc.Columbia Broad. Sys. , Inc. 441 S. 1 (1979).

The Association of Independent Music Publishers is anationwide group of approximately 400 music publishersrepresenting tens of Ihousands of musical works , whoseprimar focus is to educate and inform its members and othersabout the most current industry trends and practices , byproviding a forum to discuss the issues and problemsconfronting the music publishing industry.The Church Music Publishers Association founded in1926 , represents fort-six member publishers , including thoseof almost every major church denomination, the publishingcompanies or affiliates of every major contemporaryChrstian record label, the church music divisions of severalmajor secular publishing houses, several independent musicpublishers, and music publishers who are involved priarilyin educational markets.The Nashvile Songwriters Association International

NSAI") is a trade organization dedicated toserving3. PROs are sometimes tenned "performing rights societies,"a defined tenn in the Copyrght Act. 17 U.S. C. 9 101.


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songwriters of all gemes of music. NSAI operates workshopsin over 100 cities throughout the United States and in threeother countres , to help aspiring songwters fuer their craftand understanding of the music business, and operateseducational retreats for songwiters.

The Songwriters Juild of America with approximately000 songwriter mEmbers , has served the creative andbusiness needs of de\ eloping and professional songwritersfor more than 70 years. The Guild offers yet- to-be-published writers education, critiques, pitch opporturtiescompetitions, perfom: ance nights and other chances to honeand share their craft, and offers professional wrters assistancewith pubJishing, royalty audits and collection, catalogadministration, and legislative advocacy and protection-

SUMMilY OF ARGUMENTAmici' songwritErs and music publishers are sufferigserious economic 11 arm from the massive copyrightingement occurrng on Respondents ' online services. Thisinfr-ngement has , to a great extent, displaced the legitimatemarketplace for music 11 works, diverted royalty streams , andreduced incentives to ereate and furher disseminate musical

works. More generalJy amici' wrters and publishers dependon the courts properly to interpret the doctrines ofcontrbutory and vicarious liability which are at issue in thiscase. By immunizing ervices like Grokster and StrearCastfrom liability, the Ninth Circuit' s erroneous rulingsubstantiallyunderrines these doctrnes and the sound publicpolicy on which they rest, and, consequently, impairs theability of songwriters and music publishers to enforce theirrights effectively- The Court should grant certiorari to correctrhat error and vindicate the property rights Congress hasgranted to creators and other copyrght owners.


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ARGUMENTThe Massive Infringements Faciltated by Groksterand StreamCast Seriously Harm Amiei' Songwritersand Music PublisbersThe massive unauthorized use and infringement of

musical works occurrig on Respondents ' online servicesharm amici's writers and publishers in several ways:

Writers and publishers ear a ' 'mechaical royalty," setby statute, for each phonorecord (e. tape, record, orCD) of a sound recording sold embodying acopyrghted musical work. 17 U.S.C. 9 1I5. Downloadfrom serices like Grokster and StreamCast replacelegitimate sales of phonorecords and consequentlyreduce mechacal royalties.These services also hur legitimate online servceswhere sales of downloads generate Iheir own form ofmechancal royallies (termed "digital phonorecorddeliveries ). 17 U.S. c. II5(d). They almostcertainyhave also detelTed many other legitimate entrepreneurswho might otherise have entered the market. And theyhave undermined the legitimate serces' ability to pricetheir product because they are forced to compete withfree, albeit ilegal, services.Ilegal downloadig fuer displaces the market fortrditional music outlets (such as radio) and legitimateonline music serices which pay performance feesPROs.


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P2P networks lie Grokster and StreamCas can alsostream musical performances-if they have nocopyrght liability and require no licenes, wrters andpublishers lose these perfonnance royalties as well.Online infrngements of motion pictues and televisionshows on Respondents ' servces also har wrters andpublishers of music. Ordinarily, motion picture andtelevision pro:iucers pay "synchronization" licensingfees for the right 10 record the music onto thesoundtrack of films and TV shows. These fees are oftenbased on sale; of home videos and DVDs. AU suchrevenues an diminished when unauthorizeddownloading of an audiovisual work occurs on aservce lie G,okster or StreamCast.

Unauthorizec transmission of audiovisual workscontaining music also deprives wrters and publishersof perfonnance royalties for these transmissions.Sales of video games simlarly generate synchronizationfees for their use of musical works , but not whenillegally downloaded games replace legitiate sales.Sales of sheet music generate income for wrter andpublishers, b t are reduced when sheet music isavailable to milions of online users for free.

Thus amici's songwriters and music publishers have lostsubstantial income as 01 result of the pervasive infrngementoccurring on P2P s,:rvices , losses which reverberatethroughout the musical works community. Examplesabound-to name a few: Mechanical royalties , one of thelargest income sources , have dropped significantly, as the


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number of music unts shipped to retail outlets has droppednearly a quarer since 1999 and has not been replaced bylegitiate online uses.' Nashvile is a center of countr musicbut half of Nashvile s music publisher staff songwters havelost their jobs since P2P services began. ' Countr wrtershave had to change they way they work , sometimes beingdriven out of professional songwriting to make ends meet.Senator Frist of Tennessee recently lamented the state ofNashvile s music industry:

When I return home to Nashville and drivedown Music Row, my hear sins as I see the "ForSale" and "For Rent" signs everyhere. The oncevibrant music community is being decimated byonline piracy. No one is spared. It' s hitting aristswriters , record companies, performing rightsorganizations, and publishers.

150 Congo Rec. S7178-01 (daily ed. June 22 2004).4. Recording Industry Association of America , 2003 YearendStatistics at htt://ww.riaa. com/news/new sletter/pdf/2003 yearEnd.pdf5. Associated Press Federal Government Takes Aim or Music

Piracy (Aug. 16, 2004), at http://www.wsmv comiGlobal/story.asp?S=2182055&nav= 1 TcTPvcm.6. See id. Brooks Boliek Wor/dng Folks Lobby Congress (Oct.

, 2003). at hup ://www. hollywoodreporter. com/thr/music/feature display.jsp?vnu contellt id-2007232; Jennifer PotashExperts Explore Ups, Dowl1 of Downloading (June 1 , 2004), at http:!Iwww. pacpuh. com/site/news. cfm?newsid-l1 &31777 &BRD=1 091 &PAG 461&depUd-346950&rf=&; Chris Lewis SongwritersMake Play to Curb I/egal Downloads (Aug. 17 . 2004), NashvilleCity Paper at htt://ww.nashvilecityaper.com/index.cfm ?sectionI O&screen-news&newsid=35060.


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As we next expbin, the erroneous legal basis for thedecision below will exacerbate the serious economic harmto America s songwiters and music publishers. The Courtshould grant the Petiti,)n to provide an opportunity to remedythat legal eJTor and ccnsequent economic har.n. Proper Interpretation of the Contributory and

Vicarious Liabil ity Doctrines Is Crucial for Amici'Songwriters and Music PublishersThe Cour should grant the Petition so it can rectify theNinth Circuit' s erroneous interpretation of contrbutory and

vicarous liability-n.o doctries that songwters and musicpublishers depend on to enforce their statutory rights.A. Secondary Liability Is Indispensable forthe EnforcEment of Copyrights in Musical

CompositioD s as a Matter of Both CopyrightPolicy and PI:actical JusticeCreators and copyright owners need a practical and justway to enforce their rlghts. However, rightholders have no

realistic remedy if only direct infringers are liable, while thosewho facilitate, encourage, or jnduce iningement are immunefrom liability.The doctrnes of contrbutory inmngement and vicarousliability recognize the reality that those who induce

contribute to, Or can ccnlrol infringement-rather than thosewho directly infrnge--are often in the best position to endthe ilegal action. Indeed , justice and common sense requirethat those who derive the ultiate benefit from infrngementof copyrghted music should be liable , even if they do notcommit the direct infringement The live performance of


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music in bars and clubs provides an examplc: Ifperfonnaucesin a club are unauthorized, the musicians in the band aredirectly liable for the iningement. But it would make nosense either as a matter of copyrght policy or practical justiceto seek redress against them. As a matter of policy, the bandmay be likened to the bartender the club employs. Just as theclub owner pays the bartender for dispensing drinks topatrons , so too the musicians are paid to "dispense(i. perfonn) music for patrons. The bartender is notexpected to pay the cost of the liquor he dispenses-thatresponsibility is the club owner , for the ultimate benefit ishis. Neither should the musicians be expected to pay the costof the music to be performed, as , here too, it is the club ownerwho derives the ultimate benefit from their services. Furtheras a matter of practical justice, it is often impossible toidentify the musicians for putposes of an infrngement claimnor do the musician have the resources to pay the damagesawarded in the inevitable judgment. The club ownerhowever, can be located and does have those resources.As a matter of copyrght policy and practicality, then, theentity that ultimately benefits from the use of the copyrghtedproperty should be the party that shares responsibility andliability for unauthorized use.

B. The Doetrlnes of Secondary Liabilty WereEstablished for Jost Such Infringements as AreHere Presented

In response to demands of both copyrght policy andpractical justice, songwters and music publishers or theirrepresentatives brought the cases that established thedoctrnes of vicarious liability and contrbutory infrgementin copyright law. In Shapiro, Bernstein Co. H.L. GreenCo. several music publishers sued the owner of deparent


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stores in which an in:iependent concessionaire sold piratedrecordigs. The Second Ciruit found the deparent storesowner vicarously liable for the infigement conducted withinits stores by the COnc('ssionaire. Applyig the agency rule ofrespondeat superior the court found that when a defendant hasthe right and abiliiy to supervise" the inmngig conduct andreceives "an obviou; and direct financial interest in theexploitation of copyrEhted materials " then he or she is liablefor thc infngement e-"en if not the diect infinger. ShapiroBernstein Co. v. HI. Green Co. 3 I 6 F.2d 304, 307 (2d Cir.1963),

In Gershwin Publ' ? Corp. v. Columbia Artists Mgmt. , Inc.a PRO, on behalf of iti: music publisher member , brought anaction against a company that promoted unicensed concertsalthough local community concert associations directlysponsored the perfon ances. The Second Circuit held thepromoter, although not tbe diect inger, liable for contrbutoryinngement as "one who , with knowledge of the inmngingactivity, induces, causes or materially contributes to theinmngig conduct of another. . . " Gershwin Publ'g Corp.Columbia Artists Mgu:t. , Inc. 443 F.2d 1159, 1162 (2d Cir.1971).

Since prevailing in Shapiro , Berntein Co. and GershwinPubl '

songwriters and music publishers, and theirrepresentatives, have j IlVoked both doctries many ties toenforce Iheirrights against secondarinfingers.' But the Ninth7. See, e. , Casella v. Me",is 820 F.2d362, 365-66 (11th Cir.1987) (shareholder wh,) sold restauranr franchise rights held

contrbUtorily liable for in:lucing a frnchisee s infrgement); Broad.Music, Inc. Blueberry Hil Family Rests. 899 F. Supp. 474 , 480-81 (0. Nev. 1995) (owner ofrestaurants containing jukeboxes that(Conr


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Circuit's ruling dangerously undermines the doctrines ofsecondar liability that we helped establish. Our communitycould face serious repercussions as a result;First, the ruling substantially limits the ability ofsongwriters and music publishers to seek relief frominfrngement over P2P services. Copyrght infrngement is a

!Ort, for which all who paricipate are jointly and severallyliable. It is a fundamental principle of tort law that the injuredparty may select the joint tortfeasor he or she wishes to sue.(Contplayed music held vicarously liable); Broad. Music , Inc. Hartmarx:Corp. No. 88 C 2856, 1988 WL 128691 , at * 3 (N.D. II Nov. 171988) (holding company held vicariously liable for infringingperformances by its subsidiaries); Barnaby Music Corp. v. CalOctinBroad. Corp. of N. No, CIV-86-868E, 1988 WL 84169 , at '2-(W.D. Y. Aug. 10 , 1988) (owner and manager of infringing radiostation held vicariously liable); Blendingwell Music , Inc. v. Moor-Law, Inc. 612 F. Supp. 474, 481-82 (D. Del. 1985) (owner andmanager held contributorily and vicariously liable for infringementsby bar-restaurant); Boz Scaggs Music KND Corp. 491 F. Supp.908 913-14 (D. Conn. 1980) (general manager of infringing radiostation held vicariously Jiable).

8. See, e.g. , Costello Publ' g Co. Rotelle, 670 F, 2d 1035 1043(D.C. Cir. 1981) ("it is well esrabJished that a suit for (copyright)infringement is analogous to other tOrt actions and infrngers arejointly and severally liable; hence plaintiff need sue only suchparicipants as it sees fit"

fr/ain, Inc. Kidde Consumer DurablesCorp., 74 F. D. 434 , 437 (D, Del. 1977) (where join! and severalliability exists for infrgers of copyright, paten!, and trademarkrights

the pJaintiffhas ,be privilege of selecting his defendantRobbins Music Corp Alamo Music , Inc. 119 F. Supp. 29 , 31(S. NY 1954). See generally 7 Charles Alan Wright , eta!. FederalPractice and Procedure 1614, at 227 (3d ed. 2001) suit for(Conrd)


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Such an option makes sense, given the numerous evidentiarand financial burdens a copyrght plaintiffbears in enforcinghis or her rights in COllrt. This Court has noted, for example,that perfonning rights in music are "not self-enforcing.When the scope of direct infingement is vast , the burdensof bringing legal procE edings against all , or even a significantportion, of the indivi dual direct infingers may simply betoo great to stop the widespread infrngement. The copyrghtowner would have to identify each infinger, gather thenecessary evidence fj)r each, file a myriad of lawsuits indifferent jurisdictic ns , collect damages, and enforceinjunctions-all requiring inordinate time and expense, andproviding uncertain results." When P2P services induce tensof milions to infrnge , requig lawsuits against individualdirect infingers hardly makes sense as a matter of copyrightpolicy. This is especially tre when the direct infingers arefrequently minors and almost always without the resourcesto cure or redress tile overriding problem of massiveinfingement. But the Ninth Circuit has ignored this reality(Cont'(copyrightl infringement may be analogized to other tort actions; alljnfring 'Ts are jointly and ;everally liable. Thus, plainriffmay choosewhom to sue and is not required to join all infringers in a singleaction. ); 3 Melvile B. Nimmer & David Nimmer Nimmer onCopyright 9 12.03 (2004 "d.

Any member of the dislJibution chainmay be sued without the IIeed to join any of the other infrngers , andthose left out of the lawsuit are not indispensable paries. "9. Broad. Music, In"" 441 U. S. at 4.10. As the Seventh Circuit recently put it

the impracticabilityor futility of a copyright owner s suing a multitude of individualinfringers" justifies liabil ity for P2P services such as Respondentsas contrbutors to the inthngement. In re Aimscer Copyright Ling.334 F.3d 643 , 645 (7th Gr. 2003) (Posner, J.


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and the policy behind it, by concluding that copyrght ownerscan only sue the individual users ofP2P servces like Grksterand StreamCast. Faced with the impossible task ofproceedingindividually against milions of direct infringers, songwterand publishers are left with few meanngful ways to enforcetheir propert rights and protect their works.

Moreover, allowing the Ninth Circuit opinion to standwould encourage Respondents and olher P2P networks todesign online services thai avoid legalliabiIity, but continueto benefit from the massive infingement occurrng on them.The Shapiro , Bernstein Co. court itself explicitlyrecognized this danger if it did not hold secondary infrgersliable. Tn finding the defendant store owner vicarously liablethe court wrote:

Were we to hold otherwe, we might foresee theprospect-not wholly uneal--f large chai anddeparent store eslishing "dumy" concessionsand shieldig their own eyes from the possibilityof copyrght infrngement, thus creating a bufferagainst liability while reaping the proceeds ofinfrngement.

Shapiro , Bernstein Co. 316 F.2d at 309. Yet, the NinthCircuit has created those very incentives for P2P services.By weakening the secondary liability doctrnes , the NinthCircuit' s decision wil further encourage services likeGrokster and StreamCast to proliferate, making infrngementby individual users easier and even more widespread.The decision wil also impede the substantial efforts

made by amici songwriters and music publishers to educate


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the public about respecting rights in musical workseducational efforts necessitated in part by the intangiblenatue of copyrghled property, In the wake of the decisionP2P services now are !'een by many, and promote themselves,as a "legal" alternative to authorized, license-fee-payingonline services, confu:;ing the public and fuher encouragingindividual infrngement.

Mosttroublingly, ' he Ninth Circuit' s decision encouragespublic disrespect for rights in musical works and for thecopyright Jaw general: y. Congress expressly approved of tiedoctrines of vicarious liability and contributory iningementto aJlow meaningful protection of musical works. When itenacted the current copyrght statute , Congress explicitlyconsidered and rcjectod an amendment intended to exemptthe proprietors of an establishment, such as a ballroom ornight club , from li tbility for copyright infringementcommitted by an inde:Jendent contractor like a band leader.Congress explained:

A well-establish d principle of copyrght law isthat a person who violates any of the exclusiverights of the copyright owner is an infringerincluding persons who can be considered relatedor vicarious infringers. . . . The committee hasdecided that no justification exists for changingexisting law, and causing a significant erosion ofthe public performance right.R. Rep. No. 94- 1..76, at 159-60 (1976). By limitingenforcement actions Jnly to direct infringers, the Ninth

Circuit ruling overtums the Congressional poJicy to givemeanngful effect to rights in musical works. The ruling tellsthe general public tha-; they may ignore the property rights


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of creators and copyright owners , for the likelihood of theirbeing held responsible for acts of direct infringement isminuscule. As a matter of policy and law, that ruling is wrongand we look to this Court to correct it.CONCLUSION

Amici respectfully ask that the Court grant the Petitionto remedy the harm suffered by our community and to ensurethat the doctrines of vicarious liability and contributoryinfngement continue to protect our musical works.

MICHAEL E, SALZHUGHES HUBBAR

& REED LLPOne Battery Park PlazaNew York, NY 10004- 1482(212) 837-6000MARVIN 1. BERENSONBROADCAST MUSIC, INC.320 West 57th StreetNew York, NY 10019(212) 586-2000Counsel for amicusBroadcast Music, Inc-

Respectfully submitted1. FRED KOENIGSBERGCounsel of RecordSTEFAN M. MENTZERWIl & CASE LLP1155 Avenue of the AmericasNew York, NY 10036(212) 819-8200Counsel for amici AmericanSociety of Composers, Authorsand Publishers, Associationof Independent MusicPublishers, Church MusicPublishers Association,Nash 'ile SongwritersAssociation Internationaland Songwriters Guildof America

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