Federal Register / Vol. 84, No. 68 / Tuesday, April 9, 2019 / Rules and Regulations

14242 Federal Register / Vol. 84, No.
68 / Tuesday, April 9, 2019 / Rules and Regulations
LIBRARY OF CONGRESS recordings fixed before February 15, use of the Pre-1972 Sound Recording
1972 (‘‘Pre-1972 Sound Recordings’’). without violating section 1401(a).8
Copyright Office Under the provision, rights owners are The MMA requires the Copyright
eligible to recover statutory damages Office to issue regulations identifying
37 CFR Part 201 and/or attorneys’ fees for the the ‘‘specific, reasonable steps that, if
unauthorized use of their Pre-1972 taken by a [noncommercial user of a
[Docket No. 2018–8]
Sound Recordings if certain Pre-1972 Sound Recording], are
Noncommercial Use of Pre-1972 Sound requirements are met. To be eligible for sufficient to constitute a good faith,
Recordings That Are Not Being these remedies, rights owners must reasonable search’’ of the Office’s
Commercially Exploited typically file schedules listing their Pre- records and music services to support a
1972 Sound Recordings (‘‘Pre-1972 conclusion that a relevant Pre-1972
AGENCY: U.S. Copyright Office, Library Schedules’’) with the U.S. Copyright Sound Recording is not being
of Congress. Office (the ‘‘Office’’), which are indexed commercially exploited.9 A user
ACTION: Final rule. into the Office’s public records.1 This following these ‘‘specific, reasonable
requirement is ‘‘designed to operate in steps’’ will satisfy the statutory
SUMMARY: The U.S. Copyright Office is place of a formal registration requirement of conducting a good faith
issuing a final rule regarding the requirement that normally applies to search, even if the sound recording is
Classics Protection and Access Act, title claims involving statutory damages.’’ 2 later discovered to be commercially
II of the Orrin G. Hatch–Bob Goodlatte The MMA also creates a new exploited.10 Other searches may also
Music Modernization Act. In connection mechanism for users to obtain satisfy this statutory requirement, but
with the establishment of federal authorization to make noncommercial the user would need to independently
remedies for unauthorized uses of uses of Pre-1972 Sound Recordings that demonstrate how she met the
sound recordings fixed before February are not being commercially exploited. requirement if challenged.11 The Office
15, 1972 (‘‘Pre-1972 Sound Under section 1401, a person may file must also issue regulations
Recordings’’), Congress established an a notice with the Copyright Office ‘‘establish[ing] the form, content, and
exception for certain noncommercial proposing a specific noncommercial use procedures’’ for users to file NNUs and
uses of Pre-1972 Sound Recordings that after taking steps to determine whether rights owners to file Pre-1972 Opt-Out
are not being commercially exploited. the recording is, at that time, being Notices.12
To qualify for this exception, a user commercially exploited by or under the On October 16, 2018, the Office
must file a notice of noncommercial use authority of the rights owner.3 issued a notice of inquiry (‘‘NOI’’)
after conducting a good faith, reasonable Specifically, before determining that the soliciting comments regarding the
search to determine whether the Pre- recording is not being commercially specific steps a user should take to
1972 Sound Recording is being exploited, a person must first undertake demonstrate she has made a good faith,
commercially exploited, and the rights a ‘‘good faith, reasonable search’’ of both reasonable search; the filing
owner of the sound recording must not the Pre-1972 Schedules indexed by the requirements for the user to submit an
object to the use within 90 days. After Copyright Office and music services NNU; and the filing requirements for a
soliciting three rounds of public ‘‘offering a comprehensive set of sound rights owner to submit a Pre-1972 Opt-
comments through a notice of inquiry recordings for sale or streaming.’’ 4 At Out Notice objecting to such use.13 On
and a notice of proposed rulemaking, that point, the potential user may file a February 5, 2019, the Office issued a
the Office is issuing final regulations notice identifying the Pre-1972 Sound notice of proposed rulemaking
identifying the specific steps that a user Recording and nature of the intended (‘‘NPRM’’) soliciting comments on
should take to demonstrate she has noncommercial use with the Office (a proposed regulations regarding these
made a good faith, reasonable search. ‘‘notice of noncommercial use’’ or same issues.14 In response to the NPRM,
The rule also details the filing ‘‘NNU’’), and this notice is also indexed the Office received nine comments,
requirements for the user to submit a into the Office’s public records.5 discussed further below.15
notice of noncommercial use and for a In response, the rights owner of the Having reviewed and carefully
rights owner to submit a notice opting Pre-1972 Sound Recording may file a considered the comments, the Office
out of such use. notice with the Copyright Office ‘‘opting now issues a final rule.16
out’’ of (i.e., objecting to) the requested
DATES: Effective May 9, 2019. 8 Id. at 1401(c)(1).
noncommercial use (‘‘Pre-1972 Opt-Out
FOR FURTHER INFORMATION CONTACT: Notice’’), and a user nonetheless
9 Id. at 1401(c)(3)(A).
Regan A. Smith, General Counsel and engaging in such use may be subject to
10 Id. at 1401(c)(4)(B).
11 Id. at 1401(c)(4)(A)–(B).
Associate Register of Copyrights, by liability under section 1401(a).6 A rights 12 Id. at 1401(c)(3)(B), (5)(A).
email at regans@copyright.gov or Anna owner has 90 days from the date the 13 83 FR 52176 (Oct. 16, 2018) (‘‘NOI’’). Twenty-
Chauvet, Associate General Counsel, by NNU is indexed into the Office’s public five comments were received in response to the
email at achau@copyright.gov. Each can records to file a Pre-1972 Opt-Out NOI.
be contacted by telephone by calling Notice.7 If, however, the rights owner
14 84 FR 1661 (Feb. 5, 2019) (‘‘NPRM’’).
(202) 707–8350. does not opt-out within 90 days, the

15 The comments received in response to the NOI
and NPRM are available online at https://

SUPPLEMENTARY INFORMATION: user may engage in the noncommercial www.regulations.gov/docketBrowser?rpp=25&so=
DESC&sb=commentDueDate&po=0&dct=PS&D=
I. Background 1 17 COLC-2018-0008. References to these comments are
U.S.C. 1401(f)(5)(A)(i)(I)–(II).
Title II of the Orrin G. Hatch–Bob 2 H.R. Rep. No. 115–651, at 16 (2018); see S. Rep. by party name (abbreviated where appropriate),
followed by ‘‘Initial,’’ ‘‘Reply,’’ or ‘‘NPRM
Goodlatte Music Modernization Act,
amozie on DSK9F9SC42PROD with RULES2
No. 115–339, at 18 (2018).

3 17 U.S.C. 1401(c)(1)(A)–(B).
Comment,’’ as appropriate.
H.R. 1551 (‘‘MMA’’), the Classics 16 Public Knowledge alludes to the Office’s need
4 Id. at 1401(c)(1)(A).
Protection and Access Act, created 5 Id. at 1401(c)(1)(B), (C).
to address concerns raised in its written comments.
chapter 14 of the copyright law, title 17, Public Knowledge NPRM Comment at 10 n.13. The
6 Id. at 1401(c)(1). The Office notes that a rights
Office believes the NPRM and final rule reflect
United States Code, which, among other owner may opt out of the proposed use for any careful and appropriate consideration of comments
things, extends remedies for copyright reason. as required under the Administrative Procedure
infringement to owners of sound 7 Id. at 1401(c)(1)(C). Act.
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Federal Register / Vol. 84, No. 68 / Tuesday, April 9, 2019 / Rules and Regulations 14243
II. Final Rule largely adopts the proposed rule, with with rights owners’ need for
The final rule governs three specific some adjustments in response to public thoroughness.’’ 32
areas: (i) The ‘‘specific, reasonable steps comment, including one additional step. The final rule preserves this basic
that, if taken by a [noncommercial user Consistent with the statute’s directive to framework, with a few adjustments
of a Pre-1972 Sound Recording], are provide ‘‘specific’’ steps that are discussed below, including an
sufficient to constitute a good faith, ‘‘sufficient, but not necessary’’ to additional step for locating uses on
reasonable search’’ to support a demonstrate a Pre-1972 Sound YouTube authorized by the
conclusion that a relevant Pre-1972 Recording is not being commercialized, rightsholder. In sum, the final rule
Sound Recording is not being the rule adopts a ‘‘checklist’’ approach requires searching the following:
commercially exploited; (ii) the form, for users to search across categories 1. The Copyright Office’s database of Pre-
content, and procedures for a user, rather than an ‘‘open-ended’’ approach 1972 Schedules;
having made such a search, to file an to better provide certainty to users.22 2. One of the following major search
engines: Google, Yahoo!, or Bing;
NNU; and (iii) the form, content, and Users should progressively search
3. One of the following major streaming
procedures for a rights owner to file a through a set number of categories if services: Amazon Music Unlimited, Apple
Pre-1972 Opt-Out Notice.17 and until a match is found, with a Music, Spotify, or TIDAL;
As described in more detail by the match evidencing commercial 4. YouTube, for authorized uses;
NPRM, the Office confirms that the exploitation of the Pre-1972 Sound 5. The SoundExchange ISRC database;
noncommercial use exception under Recording.23 The categories to be 6. Amazon.com, and, where the
section 1401(c) is supplementary and searched are listed in recommended prospective user reasonably believes the
does not negate other exceptions and recording implicates a listed niche genre, an
search order, to reduce the likelihood of additional listed online retailer of physical
limitations that may be available to a duplicative searching.24 In cases where product; and
prospective user, including fair use and the type of recording (e.g., classical 7. In the case of ethnographic Pre-1972
the exceptions for libraries and music or ethnographic sound Sound Recordings of Alaska Native or
archives.18 Regarding fair use recordings) warrants searching an American Indian tribes, searching through
specifically, the Office notes that additional resource or more contacting the relevant tribe, association,
although certain noncommercial uses particularized search criteria, these and/or holding institution.
may constitute fair use, not all may be criteria are included on a tailored basis, As reflected by the bulk of the
fair; instead, courts will balance the as applicable to a particular genre.25 comments received, the Office
purpose and character of the use against concludes that the final rule steps are
the other fair use factors.19 Similarly, The comments received
overwhelmingly praised the proposed reasonable to expect of an individual
the Office confirms that the user, yet exhaustive enough to qualify
noncommercial use exception should rule, describing it as ‘‘balanced,’’ 26
that user for a safe harbor as to the
not affect application of the section ‘‘measured,’’ 27 ‘‘thoughtful and
search’s sufficiency from the
108(h) exception available for libraries realistic,’’ 28 and a ‘‘common-sense
perspective of rights owners’ interests.
and archives performing a reasonable approach.’’ 29 A number of stakeholders
As noted in the NPRM, the Office is
investigation regarding the availability favored the Office’s ‘‘checklist’’
concerned that limiting sources to be
of published works in the last twenty approach; 30 for example, EFF stated
searched to only the most commercially
years of their copyright term.20 that the ‘‘proposed five- or six-step popular services might obscure
In addition to promulgating this rule, search methodology for identifying perspectives of smaller, less mainstream
the Copyright Office intends to prepare commercial exploitation is generally creators and independent services who
additional public resources regarding reasonable,’’ 31 and A2IM and RIAA play a vital role in ensuring that a
Pre-1972 Sound Recordings and the new ‘‘believe the checklist-based approach diverse array of cultural contributions
noncommercial use exception, such as a aptly balances users’ need for simplicity are created and made available to the
public circular. public.33 The final rule attempts to
22 NPRM at 1663.
A. Good Faith, Reasonable Search account for the diversity of models
23 Id.
while prioritizing services with intuitive
The proposed rule identified five 24 Id.
search capabilities and minimizing
steps (six in the case of Alaska Native 25 Id. at 1663, 1669.
resources where a subscription is
and American Indian ethnographic 26 Copyright Alliance NPRM Comment at 1 (‘‘The
Copyright Alliance commends the Copyright Office required to access the search function;
sound recordings) that, if taken, would
for crafting a balanced rule that aligns with the the categories to be searched—with the
support a conclusion that a relevant Pre- statutory requirements and takes into account the potential exception of certain interactive
1972 Sound Recording is not being rights of sound recording owners and interests of streaming services, which are statutorily
commercially exploited.21 The final rule potential users.’’).
27 Recording Academy NPRM Comment at 1 (the required to be included—are all
17 17 U.S.C. 1401(c)(3)(A), (B). The final rule also proposed rule ‘‘represents a measured effort to available at no cost to the user.
confirms that 37 CFR 201.4 does not govern the allow potential users to effectively avail To further ensure the specific steps
filing of NNUs and Pre-1972 Opt-Out Notices. themselves’’ of the noncommercial use exception; are reasonable and not duplicative, the
Similarly, the final rule makes a technical edit to ‘‘applaud[ing the Office] for carefully considering
all of the diverse viewpoints that were reflected in
final rule clarifies that the user only
reflect that the filing of notices of use of sound
recordings under statutory license (17 U.S.C. 112(e), the comments . . .’’). needs to keep progressively searching
114) are not governed by 37 CFR 201.4. 28 Future of Music Coalition (‘‘FMC’’) NPRM the categories of sources until she has
18 NPRM at 1662–63 & n.19 (noting many Comment at 1 (‘‘we are grateful for the thoughtful located the sound recording (i.e., once
comments urging this approach). See 17 U.S.C. and realistic approach’’). she finds the sound recording in one
1401(f)(1)(A); id. at 1401(c)(2)(C), (c)(5)(B). 29 A2IM & RIAA NPRM Comment at 2.
category, which evidences commercial
19 See Campbell v. Acuff-Rose Music, Inc., 510 30 See, e.g., Copyright Alliance NPRM Comment
U.S. 569, 584–85 (1994) (noting ‘‘the commercial or at 1 (‘‘we applaud the Office for taking the exploitation, she can stop searching), or
nonprofit educational character of a work is ‘not checklist-based approach’’); Recording Academy at
conclusive’ ’’ to fair use (quoting Sony Corp. of Am. 2 (‘‘The steps are also thoughtfully sequenced so 32 A2IM & RIAA NPRM Comment at 2.
v. Universal City Studios, Inc., 464 U.S. 417, 448 that a potential user is more likely to find a 33 NPRM at 1663; see FMC Reply at 1–2;
(1984))); H.R. Rep. No. 94–1476, at 66 (1976) (same). commercial use quickly and with a minimal Copyright Alliance Initial at 1 (discussing
20 NPRM at 1662–63. amount of effort.’’). relationship between ‘‘existing general and niche
21 Id. at 1663–68; 17 U.S.C. 1401(c)(3)(A). 31 EFF NPRM Comment at 1. markets’’); A2IM & RIAA Reply at 9.
14244 Federal Register / Vol. 84, No. 68 / Tuesday, April 9, 2019 / Rules and Regulations
exhausted her search options by the steps are generally reasonable, in Recording is being commercially
searching each of the successive part because they can be conducted exploited on services offering a
categories without finding the sound relatively quickly to provide certainty comprehensive set of sound recordings
recording (i.e., finding no commercial for a potentially long-lasting safe harbor, for sale or streaming.42 Such cross-
exploitation).34 Public Knowledge using publicly available resources platform tools can quickly reveal
contends that ‘‘the proposed search ‘‘without creating an account or paying information relevant to whether a
steps, taken together, are extremely a fee.’’ 39 recording is being used on a variety of
likely to be duplicative of one In addition to the broadly positive services unequivocally involved in
another.’’ 35 The steps in the final rule, comments received and other specific commercially exploiting these sound
however, are purposely listed in suggestions from other commenters recordings. To exclude reliance upon
recommended order of searching, with (including broad-ranging comments these sources would hamper the Office’s
the understanding that searches of the from NCAI) that are discussed below in ability to craft a smaller list of ‘‘specific,
Office’s database of Pre-1972 Schedules reference to particular steps, Public reasonable steps’’ that a user may take
and search engines may render Knowledge raises additional general before filing a NNU.43 As such, the rule
searching on a streaming service or objections to the proposed rule. Public does not stray outside of the statutory
other service (i.e., subsequent search Knowledge contends that the Office language; each step is to be used as a
categories) unnecessary.36 lacks authority to include searches of finding aid for the statutory category of
For example, a search for ‘‘Eleanor ‘‘search engines, SoundExchange’s ISRC ‘‘services offering a comprehensive set
Rigby’’ in the Copyright Office’s database, and physical product of sound recordings for sale or
database currently returns one result for retailers’’ as part of a search ‘‘on streaming,’’ rather than expanding this
this Beatles recording, and also provides services offering a comprehensive set of category. As noted in the NPRM, the
contact information for Capitol Records sound recordings for sale or Office has concluded that it is more
as the listed rights owner. A prospective streaming.’’ 40 As noted in the NPRM, reasonable (and less burdensome, more
user will therefore learn at step one that searches of a search engine and the ISRC intuitive, cost-effective, and overall
the safe harbor is unavailable for this lookup tool are expected to serve as a user-friendly) to ask users to conduct
recording, and also how to contact the reasonable proxy for searches on a wide one search engine search that captures
rights owner to potentially negotiate a array of the statutorily identified multiple streaming services, rather than
permissive use. Similarly, taking Public services that offer a comprehensive set individually searching multiple
Knowledge’s example, if a user searches of sound recordings for sale or additional interactive services, and to
‘‘Don’t Fence me In’’ by Bing Crosby streaming, in an effort to avoid ask users to search the ISRC database,
and the Andrews Sisters on Google.com, duplicative searching.41 As explained in rather than any of the over 3,100 non-
and the results show the recording being the NPRM, the Office does not read interactive services that are exploiting
commercially exploited on services section 1401(c) so narrowly as to Pre-1972 Sound Recordings.44
offering sound recordings for sale or preclude searching resources—such as Next, and as noted in the NPRM, the
streaming, the user does not need to the SoundExchange ISRC lookup tool or noncommercial use exception is not
continue onto the next steps.37 But, major search engines—that are used ‘‘to intended to displace the important role
where search engine results do not show determine whether’’ a Pre-1972 Sound of licensed transactions to facilitate the
the recording being commercially use of Pre-1972 Sound Recordings.45
exploited on a section 1401(c)(1)(A) singles,’’ see Public Knowledge NPRM Comment at
6). In the former scenario, the user will quickly stop 42 17 U.S.C. 1401(c)(1)(A) (emphasis added).
service, the user should proceed to the searching, but the rule is necessarily more Compare Public Knowledge NPRM Comment at 2
next steps, which the Office has concerned with the latter cases, as the statute asks n.1 (‘‘The most generous reading of the search
concluded, based on the public users to search multiple ‘‘services,’’ suggesting a engine and ISRC requirements are that they serve
comments and its own research, lack an more robust search is appropriate to capture less as a reasonable proxy for locating works on
broad but nonetheless bona fide commercial ‘services offering a comprehensive set of sound
‘‘extreme likelihood of duplication’’ for exploitations. See FMC Ex Parte Letter at 1 (stating recordings for sale or streaming.’ ’’).
those rarer recordings that are not the statute was ‘‘written to protect the full diversity 43 For example, a Google search for the 1947
readily located through the initial of rightsholders, big and small, famous and Famous Blue Jay Singer’s recording ‘‘I’m Bound for
steps.38 The Office also concludes that obscure,’’ and that Billboard number one singles Canaan Land’’ reveals the work available through
‘‘don’t represent a reasonable proxy for the full Play Music and Deezer, two services the Office is
diversity of impacted recordings’’). not requiring to be searched. Similarly, a search for
34 See Hunter NPRM Comment at 2 (‘‘It is unclear
39 EFF NPRM Comment at 2. It is not clear which
the 1950 Kings of Harmony recording ‘‘God Shall
if the rule requires the person searching to look at step Public Knowledge believes requires Wipe All Tears Away’’ reveals that the recording is
each category, or to search the categories in order ‘‘subscription fees’’; as explained in the NPRM, the available for purchase through Apple Music,
until they have found the recording, or exhausted Office took the suggestion of Public Knowledge and Amazon.com, and sites such as singers.com. It
their options.’’). others to craft steps that minimize or eliminate the
35 Public Knowledge NPRM Comment at 4–5;
appears, however, that those recordings would not
need for users to establish paid subscription presently be returned in a search of the Office’s
Public Knowledge Ex Parte Letter at 1. accounts, despite persuasive comments from database, Spotify, or authorized YouTube results,
36 NPRM at 1665. See also FMC Ex Parte Letter rightsholder groups suggesting that it would not be and so the search engine step is an expedient way
at 1 (suggesting ‘‘that a search is not duplicative just inappropriate to require such searching before of confirming that the sound recording is in fact
because it yields the same results on multiple engaging in the proposed uses. Compare Public being commercially exploited through section
platforms—as soon as a positive result is found, the Knowledge NPRM Comment at 7 with NPRM at 1401(c)(1)(A) services, rather than the Office
searcher is able to stop.’’). 1664 & n.40. Instead, the Office included steps such requiring users to subscribe to and search these
37 Public Knowledge NPRM Comment at 6. ‘‘Don’t as the IRSC database and search engine searching additional services.
Fence Me In’’ is currently unlisted in the Office’s to provide a similar level of comprehensiveness 44 See NPRM at 1665–66. Put another way, given
database, but the top Google.com result shows it while minimizing potential user burdens. the current marketplace, it does not appear
‘‘available on’’ Play Music, Deezer, and 40 Public Knowledge NPRM Comment at 2–4.
‘‘reasonable’’ for the Office to ignore these
iHeartRadio. Google, https://www.google.com/ 41 NPRM at 1665, 1667; see also Public additional interactive and non-interactive streaming
search?client=firefox-b-d&q=%22don%27t+ Knowledge NPRM Comment at 5 (claiming that and for-sale services in crafting the list of steps, and
fence+me+in%22+andrews+sisters (last visited searching on Google or the IRSC database tool is so the Office has picked a reasonable way to search
Mar. 29, 2019). ‘‘extremely likely—perhaps practically certain—to these services, as the statute requires.
38 Public Knowledge may conflate the likelihood find commercial exploitation of any recording that 45 Id. at 1664. See, e.g., A2IM & RIAA Initial at
of duplicated results for broadly exploited would also appear in a direct search of a streaming 1–2 (suggesting that in many cases, voluntary
recordings with the likelihood of duplication for service.’’). Cf. Public Knowledge Initial at 2 licensing may prove more efficient within a short
less pervasively available recordings (as shown by (suggesting search requirements should be timeframe than this exception); Copyright Alliance
its choice to search for ‘‘Billboard number one ‘‘proportional’’). Initial at 2–3; SoundExchange Initial at 2.
Copyright Alliance, supported by A2IM proposing rule changes.50 Given the user of the sound recording, such as
and RIAA, suggests that the Office extensive comments aired in this label or version.
require a user to directly notify a rights rulemaking, the Office anticipates the
2. Searching With a Major Search
owner if that owner can be located.46 current rule to hold for the near term.
Engine
While the Office strongly supports But should market changes render the
resolving uses through voluntary list of specific search steps in the final Second, the proposed rule asked the
agreements, requiring prospective users rule unworkable, the Office encourages user to search for the Pre-1972 Sound
to generally contact rights owners stakeholders to petition the Office for Recording using at least one major
appears outside the scope of this changes at that time, and the Office will search engine, namely: Google, Yahoo!,
rulemaking. The statute asks the Office also take initiative to refresh this list or Bing, to determine whether the sound
to promulgate a list of ‘‘specific, should it become aware of the need to recording is being commercially
reasonable steps’’ that would constitute adjust in response to material changes exploited.55 As noted in the NPRM,
a search for a given sound recording in in the marketplace.51 users are widely accustomed to
the Office’s records and on services conducting internet searches, and such
i. Required Sources To Search
offering a comprehensive set of sound searching is free and may render
recordings for sale or streaming.47 With 1. Searching the Copyright Office’s searching on a streaming service or
the exception of the special case of Database of Pre-1972 Schedules other service unnecessary.56
ethnographic sound recordings, where First, section 1401(c) requires that the EFF asks the Office to clarify that ‘‘a
undisputed comments suggest the search must include searching for the reasonable search for commercial
available ownership information for Pre-1972 Sound Recording in the exploitation using a search engine does
these recordings is particularly poor, the Copyright Office’s database of Pre-1972 not require an exhaustive reading of
Office has concluded that searching the Schedules.52 The Office has issued a every web page returned as a result of
listed services is the more reasonable final rule governing how rights owners such search,’’ and that ‘‘reading the first
approach. The Office does, however, may file Pre-1972 Schedules and how 1–2 pages of results and drawing
encourage users to contact rights owners they are made publicly available reasonable inferences from those results,
that can be identified (including even through an online database.53 For each including following those links whose
after learning that a work is being sound recording, the Pre-1972 Schedule name or accompanying text suggest that
commercially exploited) to facilitate must include the rights owner’s name, commercial exploitation might be found
permissive uses of these recordings, the sound recording title, and the there’’ should be sufficient.57 The Office
including for licensed fees. featured artist, as well as the agrees with this suggestion, with the
Finally, the Office reaffirms its International Standard Recording Code caveat that depending upon the specific
commitment to periodically updating (‘‘ISRC’’) (if known and practicable), results, it may be reasonable for the user
this list of specific steps to take into and rights owners may opt to include to search more than 1–2 pages (although
account changes in the music additional information, such as album in other cases these first two pages will
marketplace.48 A2IM and RIAA request title, version, and alternate artist likely be sufficient). The Office’s
that the Office ‘‘publish [notices of name(s).54 regulations and instructions will
inquiry] at some regular interval seeking The Office did not receive any address this issue, and clarify that the
public input on whether the list of comments suggesting changes to the purpose of this search is to determine
specific steps’’ needs updating, or manner of searching the Office’s whether the Pre-1972 Sound Recording
‘‘establish a mechanism by which rights database of Pre-1972 Schedules, and the is being commercially exploited (i.e., by
owners and/or users can petition the final rule adopts this aspect of the being offered for sale in download form
Office to seek review of the existing list proposed rule without substantive or as a new (not resale) physical
of specific steps and consider whether change. The final rule requires users to product, or through a streaming service),
updates are warranted.’’ 49 Like other search for the title and featured artist(s) and not simply whether the internet
agencies, the Office accepts petitions of the Pre-1972 Sound Recording. If the includes web pages discussing the
user knows any of the following recording, such as musicological,
46 Copyright Alliance Initial at 2–3, 5. In response attributes of the Pre-1972 Sound historical, or other commentary about
to the proposed rule, Copyright Alliance, A2IM, and Recording, the search must also include: the work.
RIAA contend that while the Office declined to
Alternate artist name(s), alternate
generally require users to contact rights owners 3. Searching on a Digital Streaming
directly, the Office adopted a similar requirement title(s), album title, and the
Service
with respect to ethnographic Pre-1972 Sound International Standard Recording Code
Recordings of Alaska Native or American Indian (‘‘ISRC’’). The user may also optionally Third, the proposed rule asked the
tribes, by requiring a search through contacting the user to search at least one of the
relevant tribe, association, and/or holding
search any other attributes known to the
institution. A2IM & RIAA NPRM Comment at 4; following streaming services, each of
Copyright Alliance NPRM Comment at 2. As 50 5 U.S.C. 553(e) (providing that ‘‘[e]ach agency which offers tens of millions of tracks:
discussed below, ethnographic field recordings (and shall give an interested person the right to petition Amazon Music Unlimited, Apple
the metadata surrounding such recordings) are for the . . . amendment . . . of a rule’’).
51 The Office is not at this time exploring
Music, Spotify, or TIDAL. The Office
uniquely situated. See also NPRM at 1667–68; U.S.
Copyright Office, Federal Copyright Protection For ‘‘whether it possesses the authority to institute a proposed these streaming services
Pre-1972 Sound Recordings 52 (2011), https:// limited renewal requirement, under which entries because there appeared to be agreement
www.copyright.gov/docs/sound/pre-72-report.pdf in [Pre-1972 Schedules] would be subject to a from commenters on these services in
(‘‘Pre-1972 Sound Recordings Report’’). periodic renewal in the same vein as DMCA agent particular.58 These services currently
47 17 U.S.C. 1401(c)(1)(A), (c)(3)(A). designations.’’ Public Knowledge Reply at 17; see
48 See Report and Section-by-Section Analysis of NPRM at 1664, n.53. In response to the NPRM,
H.R. 1551 by the Chairmen and Ranking Members multiple commenters assert that the statute does not 55 NPRM at 1665. See A2IM & RIAA Initial at 5;
of Senate and House Judiciary Committees, at 25 extend such authority. See, e.g., A2IM & RIAA Copyright Alliance Initial at 4; FMC Reply at 6
(2018), https://www.copyright.gov/legislation/mma_ NPRM Comment at 11; Copyright Alliance (each suggesting that major search engines should
conference_report.pdf (‘‘Conf. Rep.’’) (search must Comment at 7. be searched).
52 17 U.S.C. 1401(c)(1)(A)(i), (f)(5)(A). 56 NPRM at 1665.
be based on ‘‘services available in the market at the
time of the search’’). 53 84 FR 10679 (Mar. 22, 2019). 57 EFF NPRM Comment at 2.
49 A2IM & RIAA NPRM Comment at 6. 54 37 CFR 201.35(f). 58 NPRM at 1665 & n.64 (citing comments).
offer some of the largest repertoires of above, a search using a search engine concern that a user conducting a section
tracks and ‘‘receive digital feeds from may indicate that the Pre-1972 Sound 1401(c) search on a service permitting
the major labels, large indie labels and Recording is available for streaming on user-uploaded content may have no way
significant distributors.’’ 59 The Office various streaming services, rendering of knowing if the use of a Pre-1972
invited public comment on whether further searching unnecessary; Google, Sound Recording is ‘‘by or under the
Google Play Music and/or Deezer for example, appears to index Deezer, authority of the rights owner,’’ a
should be included in the list of Play Music, and Spotify.66 While these condition required by the statute.71
streaming services, as they also offer services’ repertoires are not identical, In response to the proposed rule,
large repertoires of tracks. These two rather than requiring users to search multiple stakeholders suggest that a
services, however, were not identified additional services, the final rule limits good faith, reasonable search should
as possible sources from the majority of the number of streaming services to be include a separate search for a Pre-1972
commenters.60 searched, but includes qualitatively Sound Recording on YouTube.72 While
The Office also invited comment on different sources to search. In addition, A2IM, RIAA, and Copyright Alliance
whether users should be required to the Office’s determination to add recognize that YouTube may include
search a greater number of streaming YouTube as a separate search step may unauthorized uses of works,73 A2IM and
services as part of a good faith, identify commercial exploitations of RIAA note that ‘‘all of the major record
reasonable search.61 In response, some less mainstream recordings, reducing labels and certain indie labels—which
stakeholders contend that a search the need for a separate search of a collectively account for the vast
should include more than one streaming streaming service with a ‘‘specialized’’ majority of copyrighted sound
service.62 A2IM and RIAA propose repertoire. As with all of these steps, the recording—currently have licenses with
searching two streaming services, but as Office will consider adjusting this rule YouTube.’’ 74 A2IM, RIAA, and
part of two searches of services if conditions develop that demonstrate a Copyright Alliance explain that
‘‘grouped into two separate lists,’’ one need for adjustment, including adding YouTube does in many cases indicate
comprising ‘‘the four/five major additional steps (or removing steps), or when a work has been licensed.75
streaming services,’’ and the second the amount of services to be searched in Specifically, ‘‘a user can access
comprising services with ‘‘a more each step. information that may be useful in
‘specialized’ repertoire.’’ 63 They also helping to identify whether content on
contend that Deezer should be included 4. Searching YouTube for Authorized
YouTube is licensed or claimed simply
in the group of ‘‘specialized’’ streaming Uses
by clicking on the ‘Show More’ option
services,64 along with Bandcamp.65 The The proposed rule did not request that appears below each video and
comments, however, do not provide any that the user search services comprised
examples of recordings that would not of user-generated content, such as a persuasive source of authority to anything beyond
otherwise be found through the list of YouTube.67 In response to the NOI, the personal opinions of Representative Goodlatte.’’
proposed steps. commenters IMSLP.ORG and Public Public Knowledge Reply at 8; Public Knowledge
NPRM Comment at 7. Neither case cited suggests
After careful consideration, the Office Knowledge maintained that a search the wholesale dismissal of subsequent legislative
concludes that requiring searches of all should not include services permitting history, as Public Knowledge advocates. See Quern
these streaming services, or another user-uploaded content because such v. Mandley, 436 U.S. 725, 736 n.10 (1978)
category of streaming services, would services include unauthorized uses of (concerning Congress’s understanding of a
preexisting statute established by a prior Congress);
likely be largely redundant. As noted Pre-1972 Sound Recordings, which do Covalt v. Carey Canada, Inc., 860 F.2d 1434, 1438–
not constitute commercial exploitation 39 (7th Cir. 1988) (affidavits prepared for litigation
59 A2IM & RIAA Initial at 5. ‘‘by or under the authority of the rights by a lobbyist and a Member of the House of
60 NPRM at 1665. owner’’ as required by section Representatives years after the relevant statute was
61 Id.
1401(c)(1)(A).68 By contrast, Recording enacted did not constitute legislative history). In
62 FMC NPRM Comment at 2 (‘‘We would support this case, the timing of the ‘‘Report and Section-by-
Academy urged the Office to include Section Analysis of H.R. 1551 by the Chairmen and
including a greater number of streaming services,
anticipating that the marketplace may continue to YouTube.69 While the Office noted that Ranking Members of Senate and House Judiciary
move in a more fragmented and specialized legislative history states that ‘‘it is Committees,’’ which was signed and issued by the
direction in potentially unpredictable ways.’’); important that a user . . . make a robust principal House Sponsor and Chairman of Judiciary
Recording Academy NPRM Comment at 3 (stating Committee on October 19, 2018, eight days after the
search, including user-generated MMA was enacted into law, suggests that it is
that ‘‘searching only one subscription service is not
sufficient’’). A spectrum of commenters suggested, services,’’ 70 the Office expressed entirely proper to afford it some interpretive value
however, that the rule should not require a user to as legislative history.
71 NPRM at 1668–69; 17 U.S.C. 1401(c)(1)(A).
search all streaming services. A2IM & RIAA NPRM 66 The record also suggests it may be premature
Comment at 7 (proposing users search on two to include Google Play Music in the regulatory 72 A2IM & RIAA NPRM Comment at 4 (‘‘YouTube
services); EFF Initial at 4 (contending it is category, which may soon migrate to YouTube must be added as an additional, separate step in the
‘‘[r]easonable to include some subset’’ of services); Music. See A2IM & RIAA NPRM Comment at 2 list of categories users are required to search.’’);
Hunter NPRM Comment at 2 (advocating ‘‘to (stating they do not oppose including Google Play Copyright Alliance NPRM Comment at 2 (stating it
include as many services as possible in the list of Music, but requesting Google Play Music and is ‘‘essential that the Copyright Office add a
digital streaming services . . . to make sure that the YouTube Music be included as ‘‘Google is widely YouTube search as an additional separate step.’’);
statute allows people to be able to search whatever expected to migrate Google Play Music users to Recording Academy NPRM Comment at 3
music streaming service that they have.’’). Cf. YouTube Music sometime in 2019’’). See also Ara (‘‘Academy strongly urges the Copyright Office to
Internet Archive Initial at 1 (suggesting that a good Wagoner, YouTube Music vs. Spotify: Which is the add a search of YouTube as one additional step in
faith, reasonable search ‘‘should entail performing Better Streaming Music Service?, Android Central, the checklist in the final rule.’’).
a few high quality searches on a small number of (June 19, 2018), https://www.androidcentral.com/ 73 A2IM & RIAA NPRM Comment at 5–6 (stating
large services rather than performing a low quality youtube-music-vs-spotify (stating that YouTube ‘‘there certainly are instances of unauthorized
search across a large number of services’’); Public Music ‘‘doesn’t give out a hard number for the content on YouTube and other [user-generated
Knowledge Initial at 5, App. (proposing search of songs in its catalog’’). content] services’’); Copyright Alliance NPRM
‘‘no more than one to two’’ services). Commenters 67 NPRM at 1668–69.

Comment at 3 (stating ‘‘that user-generated services
also noted that searching multiple streaming 68 IMSLP.ORG Reply at 2; Public Knowledge may include both unauthorized and authorized
services might be duplicative. A2IM & RIAA Initial Reply at 11. copies of works and that it may not always be
at 7; Public Knowledge Initial at 2. 69 Recording Academy Reply at 4. readily apparent to a user whether a work on such
63 A2IM & RIAA NPRM Comment at 2. 70 NPRM at 1668 n.111 (citing Conf. Rep. at 25). a service is being commercially exploited by the
64 Id.
Public Knowledge asserts that the document authority of the rights owner’’).
65 See id. at 2–3 & n.3; see also Copyright Alliance 74 A2IM & RIAA NPRM Comment at 5.
characterized by the Office as a ‘‘Conference
NPRM Comment at 3. Report’’ is not valid legislative history and is ‘‘not 75 Id.; Copyright Alliance NPRM Comment at 3.
referencing the ‘Licensed to YouTube does not indicate whether the work has The NPRM, and the above discussion
by’ field.’’ 76 They also indicate that been licensed, the user should continue of Public Knowledge’s general
additional recordings may be to progressively search in the other objections, explain in detail the
commercially exploited on YouTube search categories until and if the sound propriety of including this step as part
with the authorization of the sound recording is found.80 of a reasonable search. Because the ISRC
recording rights owner that are lookup tool allows users to freely and
5. Searching With the SoundExchange
unavailable on other services.77 easily search a deep trove of sound
Upon review, because the ‘‘Show ISRC Lookup Tool
recording information that rights owners
More’’ option will indicate when a work Fifth, the rule asks the user to search themselves have submitted in
has been licensed ‘‘by or under the for the Pre-1972 Sound Recording using connection with commercializing those
authority of the rights owner,’’ and the free online ISRC lookup tool recordings—including on multiple
because YouTube is a predominant (located at https://isrc.sound streaming services—the Office again
service for the consumption of music in exchange.com/#!/search) to search concludes it is desirable and
the United States,78 the final rule SoundExchange’s database, which appropriate to include this tool as a step
includes YouTube as a separate search contains information for more than 27 in a sufficient good faith, reasonable
category for those uses that are million sound recordings, including search. Requiring a prospective user to
authorized by the sound recording Pre-1972 Sound Recordings.81 As search the ISRC lookup tool is thus
rights owner. If a user locates the use of detailed in the NPRM, an overwhelming expected to serve as a reasonable proxy
a Pre-1972 Sound Recording and the number of stakeholders representing for searches on a wide array of services
‘‘Show More’’ option indicates that the rights owners initially recommended that offer a comprehensive set of sound
work has been licensed, the user should inclusion of the SoundExchange ISRC recordings for sale or streaming, and
consider the sound recording being lookup tool as an important category of specifically, to address commenters’
commercially exploited.79 If a user search,82 and urged inclusion as a concerns that it is otherwise difficult to
locates the use of a Pre-1972 Sound mandatory step in response to the determine exploitation by non-
Recording and the ‘‘Show More’’ option proposed rule.83 As noted above, Public interactive services that offer limited
Knowledge objects to including this user search capability.85
76 A2IM & RIAA NPRM Comment at 5. lookup tool, alleging that it is not itself Accordingly, the final rule includes
77 Id. (‘‘Including YouTube in the list of categories a ‘‘service[] offering a comprehensive set the ISRC lookup tool as a mandatory
may also help to address the Office’s concern about of sound recordings for sale or
obscuring the perspective of smaller, less step.
mainstream creators, . . . many of whom post their
streaming.’’ 84
content on YouTube.’’); Copyright Alliance NPRM
6. Searching Sellers of Physical Product
Comment at 3 (stating that ‘‘in many instances . . . 80 The Office considered that the ‘‘Show More’’ Sixth, a user should search for the
works, though being commercially exploited on window can include licensing information
YouTube, would not be available on other unrelated to the sound recording, such as music
Pre-1972 Sound Recording on at least
authorized services’’). The Office’s own searches publishing or performance licensing information. If one major seller of physical product,
bear this out. For example, a search on YouTube for a user is unfamiliar with the licensor, she should namely Amazon.com, and if the user
Elizabeth Cotten’s 1959 recording ‘‘Freight Train’’ feel empowered to conduct additional diligence reasonably believes that the sound
or Daniel Santos & Sonora Matancera’s 1950 (such as a search engine search) to confirm whether
recording ‘‘Carolina Cao’’ reveals they are licensed the entity listed is likely to represent sound
recording is of a niche genre such as
to YouTube by The Orchard, an entity that recording interests (e.g., a record label or classical music (including opera) or
comments suggested ‘‘does not make its catalog distribution entity like CD Baby, TuneCore, or The jazz, one smaller online music store
publicly available.’’ A2IM & RIAA Initial at 6; see Orchard). While this commingling of licensing offering recordings in that niche whose
Elizabeth Cotten—Freight Train, YouTube (Jan. 27, information results is inelegant for purposes of this
2014), https://www.youtube.com/watch?v=g8UN_ rulemaking, the Office considered the risks of both repertoires are searchable online,
6AUgCw; Daniel Santos & Sonora Matancera— false positive and false negative results, and namely: ArkivJazz, ArkivMusic
Carolina Cao (©1950), YouTube (Apr. 10, 2010), determined that the better course is to ask (classical), Classical Archives, or Presto
https://www.youtube.com/watch?v=jXppKWTaw_I. prospective users to bear these additional and (classical).86 The Office invited public
Both ‘‘Carolina Cao’’ and the recording ‘‘I’m Bound manageable clearance activities, rather than neglect
for Canaan Land’’ discussed above appear to be a source that many comments pointed out is comment on whether there are
currently unavailable on services like Spotify. actively commercially exploiting relevant additional genres that similarly warrant
78 YouTube, Wikipedia, https://en.wikipedia.org/ recordings under authorization of the rights owner. searching another online music
wiki/YouTube (last visited Mar. 29, 2019) (‘‘As of The Office will consider providing additional
guidance on this point to aid users in public
service.87 In response, A2IM and RIAA
February 2017, there were more than 400 hours of
content uploaded to YouTube each minute, and one education materials. stated they ‘‘are not aware of specific
billion hours of content being watched on YouTube 81 NPRM at 1666–67; SoundExchange Initial at 2– online music services or other sources
every day. As of August 2018, the website is ranked 3. that users could search to find
as the second-most popular site in the world . . .’’). 82 See A2IM & RIAA Initial at 5 (rights owners
recordings in other niche genres, such
See also A2IM & RIAA NPRM Comment at 5 (stating provide metadata to SoundExchange ‘‘for royalty
that YouTube is ‘‘the predominant user-generated collection, which is a form of commercial
as blues and gospel, that are not
service in the U.S. and abroad’’); Recording exploitation’’); Copyright Alliance Initial at 5 available in the services already
Academy NPRM Comment at 3 (stating that in 2018, (‘‘SoundExchange’s ISRC search tool should be identified [in the proposed rule].’’ 88
YouTube ‘‘accounted for almost half of all on- searched, as it provides a vast library of information Accordingly, the final rule adopts this
demand music streaming globally, more than every concerning sound recordings that are submitted by
other streaming service combined’’). rights owners and their authorized representatives aspect of the proposed rule without
79 For example, a search for the 1927 recording to SoundExchange for the purpose of collecting substantive change.
‘‘Blue Yodel (T for Texas)’’ by Jimmie Rodgers royalties, which is a form of commercial Public Knowledge particularly objects
suggests that some results are licensed by RCA/ exploitation’’); SoundExchange Initial at 2–14; FMC to this search step, contending that the
Legacy (T For Texas (Blue Yodel #1)—Jimmie Reply at 6 (stating that inclusion of a sound
Rodgers, YouTube (Jan. 22, 2013), https:// recording in this database ‘‘is an unambiguous
85 See 17 U.S.C. 1401(c)(1)(A); (3). Compare
www.youtube.com/watch?v=X_3NC_kVmhk), while indicator that a recording is being commercially
other results reveal no licensing information after exploited’’); Recording Academy Reply at 3 Copyright Alliance Reply at 2–3; FMC Reply at 4;
clicking ‘‘Show More’’ (Jimmie Rodgers—Blue (‘‘SoundExchange’s ISRC Search tool is and Recording Academy Reply at 3 (expressing
Yodel No 1 (T For Texas), YouTube (Jun. 17, 2006), indispensable to a good faith, reasonable search.’’). concerns related to rights owner interests) with EFF
https://www.youtube.com/watch?v=qEIBmG 83 A2IM & RIAA NPRM Comment at 6; Copyright Initial at 4 and Public Knowledge Initial at 2
ZxAhg). Similar results were returned for other Alliance NPRM Comment at 2. (expressing concerns related to user perspectives).
86 NPRM at 1667.
recordings, such as Patsy Montana’s 1935 recording 84 Public Knowledge NPRM Comment at 2–3 &
87 Id.
‘‘I Want to Be a Cowboy’s Sweetheart’’ and Link n.1; Public Knowledge Reply at 10 (citing 17 U.S.C.
Wray’s 1958 ‘‘Rumble.’’ 1401(c)(1)(A)(ii)). 88 A2IM & RIAA NPRM Comment at 4.
statute’s use of the word ‘‘services’’ is proxy for ‘‘digital outlet,’’ it is not clear disadvantages Native American tribes
‘‘plainly a proxy for digital outlets.’’ 89 why Amazon.com, potentially the and tribal members face as they attempt
In support, it references the definition of largest e-commerce company in the to locate and protect their rights to
‘‘service’’ in section 115(e)(29) to claim world, would not be considered a ethnographic sound recordings.’’ 99
that searches under section 1401(c) ‘‘digital outlet.’’ 95 The Copyright Office is sensitive to
should be limited to outlets the need to ensure that regulations
7. Searches for Ethnographic Pre-1972
‘‘transmit[ting] music to customers in governing the noncommercial use of
Sound Recordings
some electronic form as opposed to Pre-1972 Sound Recordings do not
providing a market for physical The NPRM reflected concerns adversely impact Alaska Native and
copies.’’ 90 The Office does not find this regarding the noncommercial use of American Indian tribes or communities.
to be the better interpretation of the ethnographic Pre-1972 Sound The Office previously noted that
statute. Section 1401(c) expressly Recordings raised by the National ethnographic field recordings ‘‘are an
contemplates searches of multiple Congress of American Indians (‘‘NCAI’’), enormous source of cultural and
services, including those offering sound the oldest and largest national historical information, and come with
recordings ‘‘for sale’’ 91 in addition to organization made up of Alaska Native their own unique copyright issues,’’ 100
streaming. While the Office agrees that and American Indian tribal government, and that ‘‘librarians and archivists who
the term ‘‘services’’ suggests a focus on and Professors Trevor Reed, Jane deal with ethnographic materials must
online sources, as opposed to physical Anderson, and Robin Gray, who have abide by the cultural and religious
storefronts, it would be improper to worked on legal and cultural issues norms of those whose voices and stories
ignore evidence of commercial surrounding pre-1972 ethnographic are on the recordings.’’ 101 The Office
exploitation through sales of physical sound recordings. NCAI asserted that appreciates that the public ownership
product.92 The plain language of the ‘‘[t]he lack of complete and accurate record for these recordings may be less
statute is not qualified ‘‘for digital sale’’ information typically available on developed and less likely to be indexed,
or ‘‘digital commercial exploitation.’’ copyright interests in ethnographic and that as a result, searches that are
Indeed, section 1401(c) does not include sound recordings, and the cultural otherwise reasonable for a prospective
the word ‘‘digital’’ at all. Nor does sensitivity of the contents of many user may fail to identify that a specific
legislative history suggest that the ethnographic sound recording ethnographic recording is being
section 1401(c) exception is conditioned collections, merits consideration of commercially exploited by the rights
upon whether there is ‘‘digital’’ special opt-out rules carefully tailored owner.
commercial exploitation of Pre-1972 to the specific needs of Native American Accordingly, for ethnographic Pre-
Sound Recordings.93 Given this communities.’’ 96 As NCAI explains 1972 Sound Recordings of Alaska
background, it would be odd to read the further: Native or American Indian tribes or
word ‘‘digital’’ into a statutory chapter Often such recordings are the result of communities, the proposed rule asked
concerned with recordings that predate anthropological or ethnographical gatherings the user to contact the Alaska Native or
the digital age. Further, the definition of of sound recordings, frequently capturing Native American tribe and, if known to
‘‘services’’ referenced by Public ceremonial or otherwise culturally significant
Knowledge is expressly limited to songs. Further, due to the circumstances of
the user, the relevant holding institution
section 115 and does not apply to how these recordings were conducted—often to aid in determining whether the sound
section 1401.94 Finally, assuming without any documentation of the free and recording is being commercially
arguendo that ‘‘services’’ is indeed a prior informed consent of the tribal exploited.102 Specifically, the proposed
practitioners/performers—tribes today are rule asked the user to make contact by
89 Public
unaware of much of the content that they using contact information known to the
Knowledge NPRM Comment at 3 n.1.
90 Id.
potentially hold valid copyright claims user if applicable, and also by using the
(citing Orrin G. Hatch–Bob Goodlatte Music
over.97 contact information provided in NCAI’s
Modernization Act, Pub. L. 115–264, 132 Stat. 3676,
3721–22 (codified at 17 U.S.C. 115(e)(29) (2018)). Similarly, Professors Reed, Anderson, tribal directory.103 If no information is
91 17 U.S.C. 1401(c)(1)(A)(ii); see id. at
and Gray explain that ‘‘scholars have listed or the tribe is unknown to the
1401(c)(3)(A) (directing the Register to issue
regulations identifying ‘‘services offering a extensively documented the inequalities user, the user would contact NCAI itself.
comprehensive set of sound recordings for sale or and ethical dilemmas surrounding early No commenter opposed this extra
streaming’’ to be searched). ethnographic field recording,’’ claiming search step for ethnographic sound
92 See Hugh McIntyre, Report: Physical Albums
that ‘‘ownership interests in pre-1972 recordings. Indeed, FMC expressed its
Sell Significantly Better Than Digital Ones, Forbes
(Mar. 28, 2018), https://www.forbes.com/sites/
ethnographic sound recordings are ‘‘wholehearted[] support [of] the extra
hughmcintyre/2018/03/28/physical-albums-sell- presumed to have vested in and step in the search requirement for
significantly-better-than-digital-ones-even-today remained with the performers who
(‘‘All forms of physical purchases added up to $1.5 recorded them under the common-law 99 Id.
billion in the U.S. last year. CD sales experienced at 3.
a big hit, losing 10 million sales from the year prior, rule,’’ but that unrelated holding 100 Pre-1972 Sound Recordings Report at 52.
though at 87.6 million copies moved, they still institutions (e.g., libraries, archives, 101 Id. at 61 (citing Rob Bamberger and Sam
performed better than their digital counterparts. As museums, and universities) typically Brylawski, Nat’l Recording Preservation Board of
has been the case for several years now, vinyl the Library of Congress, The State of Recorded
possess the master recordings.98 Those Sound Preservation in the United States: A National
remains the one format of music that must be
bought outright that continues to grow by any professors suggest that regulations Legacy at Risk in the Digital Age 19 (2010)).
noticeable measure . . . .’’). governing the noncommercial use 102 See Reed, Anderson & Gray Reply at 2
93 See Conf. Rep. at 25 (‘‘Subsection (c) creates a exception under section 1401(c) ‘‘must (suggesting that the marketplace lacks ‘‘inaccurate
process for requesting from rights owners, at their be carefully tailored to the informational and unreliable information about these sound
sole discretion, permission to engage in recordings,’’ necessitating tribal consultation). For
noncommercial uses of pre-1972 sound recordings example, the professors’ comment suggests that
95 See Wikipedia, https://en.wikipedia.org/wiki/
that are not otherwise commercially exploited.’’). making contact may be valuable to provide title,
94 17 U.S.C. 115(e) (limiting definitions to section List_of_largest_internet_companies (listing artist, or other information relevant to a particular
115). Congress’s intent to have separate definitions Amazon.com at #1 on a list of ‘‘largest internet recording.
for sections 115 and 1401 is further evidenced by companies’’). 103 See Tribal Directory, Nat’l Cong. of Am.
96 NCAI Reply at 1.
those sections having different definitions of the Indians, http://www.ncai.org/tribal-directory (last
97 Id.
identical term ‘‘covered activity.’’ Compare 17 visited Mar. 29, 2019) (providing searchable
U.S.C. 115(e)(7) with id. at 1401(l). 98 Reed, Anderson & Gray Reply at 2. directory by tribe name, area, and keyword).
ethnographic sound recordings.’’ 104 aid in determining whether the sound further information about recordings
Regarding the proposed regulatory recording is being commercially that are being commercially exploited in
language, NCAI suggests that the final exploited. Specifically, the final rule order to facilitate permissive
rule define ‘‘Alaska Native or American asks the user to make contact by using transactions. A2IM and RIAA urge the
Indian tribes,’’ ‘‘at a minimum,’’ to those contact information known to the user, Office to list ‘‘all of the non-mandatory
that are ‘‘federally recognized,’’ and to if applicable, and also by using the sources in one place’’ as additional,
strike the word ‘‘communities’’ from contact information provided in the U.S. optional sources that users may wish to
any such definition.105 NCAI also asks Department of the Interior’s Bureau of search.112 While the Office does not
that for users who do not know the Indian Affairs’ tribal leaders directory. believe that regulatory text is the best
contact information for a tribe, the final The Office believes that this search place for this information to reside, the
rule direct users to the U.S. Department step is a reasonable burden to ask Office will include these sources in
of the Interior’s list of federally prospective users of such expressions of other publications, such as its
recognized tribes, which is published cultural heritage in light of the educational resources.
annually in the Federal Register,106 and complicated history of some of these iii. Search Terms and Strategy
the Department of the Interior’s Bureau sound recordings. The Office also
of Indian Affairs’ tribal leaders expects that the notification 1. General Rule
directory, which provides contact requirement will prove useful to rights The proposed rule asked users to
information for each federally owners who wish to exercise discretion search on the title and featured artist(s)
recognized tribe.’’ 107 to opt out of the noncommercial use by of the Pre-1972 Sound Recording in the
The Copyright Office appreciates that filing notice in the Copyright Office.109 various search categories.113 If the user
these issues are nuanced and is knows any of the following attributes of
committed to addressing them in a ii. Sources Not Required To Be Searched
the Pre-1972 Sound Recording, and the
sensitive and thoughtful manner. The The Office’s proposed rule did not source has the capability for the user to
Office must also be careful, however, include additional search steps or search such attributes, the user should
not to exceed its regulatory authority, services proposed by some commenters also search: Alternate artist name(s),
by, for example, prohibiting the use of at the notice of inquiry stage, alternate title(s), album title, and the
Pre-1972 Sound Recordings of American specifically: International Standard Recording Code
Indian and Alaska Native tribes without • Additional comprehensive streaming (‘‘ISRC’’).114 The user was encouraged to
the relevant tribe’s permission, services beyond the one the user elects to optionally search any other attributes
preventing the recordings from entering search from the proposed rule’s list of known to the user of the sound
the public domain, declaring that tribal services recording, such as label or version.115
law governs Pre-1972 Sound Recordings • Terrestrial or internet radio services, The Office determined that narrowing a
of American Indian and Alaska Native including non-interactive services subject
to the section 114 license
search by these attributes may inform a
tribes, or imposing a fee requirement on user’s good faith, reasonable
users to pay tribes for conducting • The to-be-created Mechanical Licensing
Collective database 110 determination whether or not a Pre-1972
commercial exploitation searches.108 • Dogstar Radio, which offers searchable Sound Recording is being commercially
The Office notes, however, that its playlists from Sirius XM exploited.116
inability to issue regulations beyond the • Online databases of U.S. performing rights The NPRM, responding to a relatively
scope of this rulemaking does not affect organizations general statement by IMSLP.org, invited
the ability of American Indian and • Other comprehensive databases offered by public comment on whether the final
Alaska Native tribes to raise such issues private actors (e.g., Songfile, Rumblefish, rule should address whether users
before the courts or Congress. The Office Songdex, Cuetrak, Crunch Digital)
should be able to use officially-
further notes that tribes themselves may • IMDB.com
• Video streaming services supported APIs to search and locate a
choose to impose fees on users to offset Pre-1972 Sound Recording on a
• The SXWorks NOI Tools
any administrative burden. • Music distribution services (e.g., CDBaby, streaming service.117 EFF maintains that
Within the regulatory authority Tunecore) the final rule ‘‘should promote and
granted to the Office, the Office has • Predominantly foreign music services encourage the development of third-
adjusted the final rule to reflect NCAI’s • SoundCloud or Bandcamp party tools and services that can assist
comments. The final rule defines • Niche streaming services (e.g., Idagio, in performing a reasonable search for
‘‘Alaska Native or American Indian Primephonic) 111 commercial exploitation,’’ and clarify
tribes’’ as those federally recognized by The Office reiterates that the steps in that ‘‘searches of the various databases
being included in the U.S. Department the final rule, including the requirement listed in the proposed rule can be
of the Interior’s list of federally to search major search engines, may conducted through any computer-
recognized tribes. If the user does not likely reveal some of the very same accessible or human-accessible
locate the relevant sound recording in information contained in the above interface.’’ 118 Copyright Alliance,
the Copyright Office’s database of Pre- services, and therefore should result in A2IM, and RIAA assert that the final
1972 Schedules or other search identifying a vast amount of the Pre- rule does not need to expressly include
categories, the final rule asks the user to 1972 Sound Recordings being the use of APIs.119 Copyright Alliance
contact the Alaska Native or Native commercially exploited at the time
American tribe and, if known to the searches are conducted. At the same 112 A2IM & RIAA NPRM Comment at 6.
user, the relevant holding institution to time, the Office recognizes that these 113 NPRM at 1669.
114 Id.
locations may provide relevant
104 FMC NPRM Comment at 2. 115 Id.

105 NCAI NPRM Comment at 3–4.
information to users wishing to obtain 116 Id.;see EFF Initial at 3.
106 Id. at 4; see, e.g., 84 FR 1200–05 (Feb. 1, 2019). additional information, including 117 NPRM at 1666.
107 NCAI NPRM Comment at 4; Tribal Leaders 118 EFF NPRM Comment at 2.
109 See17 U.S.C. 1401(c)(1)(C).
Directory, U.S. Dep’t of the Interior, Indian Affairs, 119 A2IM & RIAA NPRM Comment at 3 (stating
https://www.bia.gov/tribal-leaders-directory (last 110 The Office is open to revisiting the MLC that distinctions between a user ‘‘conduct[ing] an
visited Mar. 29, 2019). database once it is up and running. otherwise sufficient search of a service like Spotify
108 Compare NCAI NPRM Comment at 4–6. 111 NPRM at 1668. Continued
also expresses concern ‘‘that such The Office invited public comment on iv. Other Considerations
search capabilities will enable bulk whether other genres of sound 1. Searches for Foreign Pre-1972 Sound
submissions of NNUs, placing a burden recordings require searching additional Recordings
on rights owners comparable to the terms to identify the sound recording
burden placed on individual sufficiently. A2IM and RIAA confirm Stakeholders questioned whether the
songwriters and music publishers when section 1401(c) exception applies to
that they are not aware of any such
reviewing bulk Notices of Intention to foreign Pre-1972 Sound Recordings (i.e.,
additional genres.126 FMC suggested
Obtain Compulsory License under 17 Pre-1972 Sound Recordings originating
‘‘adding film, TV, and theater outside the United States). As detailed
U.S.C. 115.’’ 120 FMC also expressed soundtracks . . . as the quality of
concern that searches with APIs may in the NPRM, certain foreign Pre-1972
metadata implementation is sometimes Sound Recordings have been granted
‘‘result in undesirable false negatives’’
inconsistent, if generally improving,’’ 127 copyright protection in the United
that may go unnoticed if searches are
automated.121 While not commenting on but did not provide examples where the States through the Uruguay Round
IMSLP.org’s statement, the Internet proposed search terms would fail to Agreements Act, and the MMA does not
Archive had previously submitted a identify a recording being commercially reference foreign sound recordings
comment drawing on its own exploited, or suggest specific search specifically.131 Noting conflicting
experience ‘‘automating the process of criteria to address soundtrack uses. comments, the NPRM stated ‘‘[w]hether
searching for commercial availability at Without more information, the Office the noncommercial use exception under
scale,’’ noting it was ‘‘more complex declines to adjust the general criteria section 1401(c) can immunize content
than we anticipated,’’ but that ‘‘human and the final rule adopts this aspect of actionable under title 17 for restored
searchers would generally not make the the proposed rule without substantive works that are foreign Pre-1972 Sound
same sorts of mistakes’’ that change. If evidence develops that the Recordings may ultimately be a matter
necessitated refinements in Internet adopted search criteria are insufficient, for the courts to resolve.’’ 132 In
Archive’s code.122 Given these concerns the Office will consider subsequent response, A2IM, RIAA, and Copyright
regarding the use of APIs or other adjustments to the rule. Alliance contend the state of the law is
automated searching, the final rule does clear, and that because foreign sound
not expressly permit the use of APIs in 3. Remastered Pre-1972 Sound recordings restored under section 104A
conducting a good faith, reasonable Recordings ‘‘enjoy full federal copyright
search. protection,’’ they are not subject to the
As discussed above, at EFF’s In the NPRM, the Office suggested
section 1401(c) exception for
suggestion, the Office amended the rule that should the user find a ‘‘remastered’’ noncommercial use.133 They urge the
to clarify the scope of searching via version of a Pre-1972 Sound Recording Office to communicate to prospective
search engines.123 The final rule is through searching in any of the users ‘‘(1) the fact that certain pre-72
otherwise retained without substantive categories listed in the proposed rule, sound recordings may be protected by
change. such a finding likely evidences copyright under Section 104(a) and thus
commercial exploitation of the Pre-1972 not subject to the limitation in 1401(c),
2. Classical Music Sound Recordings
Sound Recording.128 The Office noted and (2) the existence of the Copyright
Because classical music sound that ‘‘remastering’’ a sound recording Office’s records of [notices of intent to
recordings require more information to may consist of mechanical contributions enforce] for restored works, which
sufficiently identify the sound or contributions that are too minimal to would show whether a particular pre-72
recording, the proposed rule required be copyrightable, and that it would thus sound recording is a restored work
the user to search on additional be prudent for a user to consider a 1948 under Section 104(a).’’ 134
attributes for those types of sound track that was remastered and reissued As the NPRM noted, section 1401
recordings.124 Under the proposed rule, provides sui generis protection running
in 2015 to qualify as a Pre-1972 Sound
a user wishing to determine whether a parallel to any copyright protection
Pre-1972 Sound Recording of classical Recording.129
afforded to foreign Pre-1972 Sound
music is being commercially exploited A2IM and RIAA agree that finding a
Recordings under section 104A.135
must search on the composer and opus ‘‘remastered’’ version likely evidences While the Office appreciates A2IM,
(i.e., the work’s title) and the conductor, commercial exploitation of the Pre-1972 RIAA, and Copyright Alliance’s
featured performers, or ensemble, Sound Recording, and ask for the perspective, this rulemaking does not
depending upon the work (i.e., the Office’s regulations to ‘‘make this a clear require the Office to interpret whether
work’s ‘‘featured artist’’).125 presumption.’’ 130 The Office has
provided clarifying language in its 131 NPRM at 1670.
using an API that is otherwise voluntarily provided regulatory definition of ‘‘Pre-1972 132 Id.
by the service, rather than some other interface to
the service (e.g., a desktop or mobile user interface), Sound Recording.’’ 133 A2IM & RIAA NPRM Comment at 12 (‘‘To the
extent that a sound recording meets the

. . . [do] not seem worth mentioning in
requirements to be covered by Section 104(A), those
regulations’’); Copyright Alliance NPRM Comment
Right?, NPR The Record (June 4, 2015, 10:50 a.m.), recordings enjoy full federal copyright protection,
at 2 (‘‘We see no reason why the rule needs to
not the sui generis intellectual property right
encourage APIs or other specific means for https://www.npr.org/sections/therecord/2015/06/
created by Section 1401. Accordingly, they are not
searching.’’). 04/411963624/why-cant-streaming-services-get-
120 Copyright Alliance NPRM Comment at 2.
subject to use pursuant to the Section 1401(c)
classical-music-right (last visited Mar. 29, 2019) exception.’’); Copyright Alliance NPRM Comment
121 FMC NPRM Comment at 2 (giving example of
(describing the metadata conundrum in classical at 7 (‘‘We disagree that the applicability of 17 U.S.C.
using the Sonos application to search Apple Music music and difficulty searching streaming services). 1401(c) to foreign pre-72 sound recordings restored
and Spotify for Ethel Merman’s recording of 126 A2IM & RIAA NPRM Comment at 4. under Section 104(a) is uncertain. Sound recordings
‘‘Everything’s Coming Up Roses,’’ with the incorrect 127 FMC NPRM Comment at 2. restored under Section 104(a) enjoy full federal
song being located on Spotify). copyright protection.’’).
122 Internet Archive Initial at 1. 128 NPRM at 1669.
134 See A2IM & RIAA NPRM Comment at 12.
123 EFF NPRM Comment at 2. 129 Id. (citing U.S. Copyright Office, Compendium
Users may locate notices of intent to enforce by
124 NPRM at 1669. of U.S. Copyright Office Practices sec. 803.9(F)(3) searching the Office’s public catalog.
125 Id. at 1669, 1676; see also Anastasia Tsioulcas, (3d ed. 2017) (‘‘Compendium (Third)’’)). 135 NPRM at 1670; see Conf. Rep. at 15; see also
Why Can’t Streaming Services Get Classical Music 130 A2IM & RIAA NPRM Comment at 12. IFPI Initial at 1–2.
the noncommercial use exception is or before submitting an NNU with the ‘‘the current or last-known rights
is not applicable to these restored Office.141 The Office did not receive any owner,’’ such as a record label, to the
foreign sound recordings. Regardless, comments regarding this proposed 90- extent that the information is known or
because protection and enforcement for day period, and so the final rule adopts can be reasonably discovered by the
foreign restored rights is fact-intensive— this aspect of the proposed rule without user.147 Copyright Alliance suggests that
implicating the specific country, date substantive change. such a requirement ‘‘would greatly
and location of publication, duration of assist rights owners—particularly those
B. Notices of Noncommercial Use with large catalogs—in being able to
term in both the United States and the
(NNUs) determine when one of their recordings
country, and compliance with
formalities—the Office reiterates that i. Form and Content of NNUs is the subject of an NNU,’’ and that
prospective users of foreign Pre-1972 ‘‘merely listing track title and artist on
1. Overview of Final Rule
Sound Recordings should proceed an NNU will in some cases provide
cautiously before relying on the section The final rule largely adopts the inadequate notice, since some artists
1401(c) exception.136 The Office will provisions of the proposed rule may have recorded the same track for
provide general guidance in its NNU regarding which information must be different record labels.’’ 148 A2IM and
form instructions regarding the provided in NNUs, with some RIAA contend that ‘‘where a user is
noncommercial use exception and the adjustments in response to public accessing a pre-72 sound recording from
parallel protection afforded to certain comment. an old 33 or 78 rpm record and that
foreign sound recordings, including Commenters initially disagreed on record has a label affixed to it, the user
how to search the Office’s records to whether a user should be required to should have no trouble identifying the
determine whether a particular Pre-72 document her search, such as by name of the record label that released
Sound Recording is a restored work submitting screen shots from searched that recording and including that
under section 104A. websites.142 Under the proposed rule, information in an NNU.’’ 149 The Office
users would not have to submit agrees, noting that in cases where a user
2. Reliance on Third-Party Searches documentation of searches to the possesses a physical copy of the work,
The proposed rule did not permit a Copyright Office as part of conducting a she may have ready access to record
user to rely on a search conducted by a good faith, reasonable search.143 In label and other information that would
third party, unless the third party response, A2IM and RIAA request that improve the public record regarding
conducted the search as the user’s users be required to ‘‘save evidence of these recordings if included on the NNU
agent.137 As explained in the NPRM, their searches for three years from the (and decrease potential false positive
reliance upon a third-party search is date of their first use of the work, in opt-outs by owners of different
unlikely to be reasonable because that much the way that the Internal Revenue performances or versions). Accordingly,
party may have conducted an Service requires taxpayers to save the final rule requires the user to
inadequate search, or the Pre-1972 documentation that supports a tax provide the current or last-known rights
Sound Recording may become subject to return for at least three years.’’144 owner (e.g., record label), if known.
commercial exploitation after a third Copyright Alliance suggests that users In addition, the proposed rule stated
party has conducted a search, but before be required to provide a ‘‘list of the that an NNU may not include a
another user desires to use the same search terms that they used or other proposed use for more than one Pre-
sound recording for a noncommercial evidence of their searches.’’145 Although 1972 Sound Recording unless all of the
use under section 1401(c).138 In the final rule does not require users to sound recordings include the same
addition, a user must certify that she submit documentation of their searches featured artist and were released on the
conducted a good faith, reasonable or provide the search terms used, it adds same pre-1972 album or other unit of
search when submitting an NNU, and a regulatory language encouraging users publication.150 Copyright Alliance,
user cannot certify the actions of an to keep records of their searches for at A2IM, and RIAA request that users
unrelated third party.139 least three years in case of dispute (i.e., should not be permitted to include all
The Office received one comment if challenged, users may need to provide sound recordings released on a ‘‘greatest
from the Copyright Alliance, agreeing evidence that they in fact conducted a hits’’ or compilation album, which may
with the decision not to permit a user good faith, reasonable search).146 include recordings owned by multiple
to rely on third-party searches.140 The Copyright Alliance, A2IM, and RIAA rights owners if the featured artist
final rule adopts this aspect of the also request that users be required to list switched labels throughout her
proposed rule without substantive 147 A2IM & RIAA NPRM Comment at 6; Copyright
change. 141 See NPRM at 1670.
Alliance NPRM Comment at 4; see also FMC NPRM
142 Compare Copyright Alliance Initial at 6 (user Comment at 3 (‘‘It would be very helpful for any
3. Timing of Completing a Search Before should be required to document the search); available information about the label to be
Filing an NNU IMSLP.ORG Reply at 1 (same); A2IM & RIAA Initial included—this would help avoid false negatives
at 21 (same); with Public Knowledge Reply at 14 and false positives because of the frequency of re-
To ensure that search results are not (section 1401(c) does not require documentation of recordings that artists often made over the course
stale, the rule requires the user (or the the search for the safe harbor to apply); EFF Reply of their careers for multiple rightsholders.’’).
user’s agent) to conduct a search under at 4 (same); Wikimedia Foundation Reply at 3 (any 148 Copyright Alliance NPRM Comment at 4; see
documentation only becomes relevant if the
section 1401(c) no later than 90 days adequacy of the search comes into dispute). See
also A2IM & RIAA NPRM Comment at 6 (‘‘Merely
listing the track title and artist, where additional
also FMC Reply at 5 (requiring a user to upload information is readily available to the user, would
136 Conversely, the MMA does not address screenshots is an ‘‘inelegant solution’’). impose an undue and unsustainable burden on
whether restored sound recordings that were given 143 NPRM at 1672.
rights owners, who would be forced to research
protection under the URAA, then subsequently fell 144 A2IM & RIAA NPRM Comment at 7.
each title covered by an NNU to determine if it
out of term in their home countries would receive 145 Copyright Alliance NPRM Comment at 4. belonged to them.’’).
additional sui generis protection under section 146 See id. (‘‘[T]he Copyright Office should 149 A2IM & RIAA NPRM Comment at 6.
1401(c). See also 84 FR 9053, 9060 (Mar. 13, 2019).
137 NPRM at 1670.
provide clear language to users that if a use is 150 NPRM at 1671. A ‘‘unit of publication’’ exists
subsequently challenged in court, users would need where multiple works are physically bundled or
138 Id.; see A2IM & RIAA Reply at 9.
to demonstrate they engaged in a good faith, packaged together and first published as an
139 NPRM at 1670.
reasonable search, so they should document their integrated unit. U.S. Copyright Office, Circular 34:
140 Copyright Alliance NPRM Comment at 1. search and retain that documentation.’’). Multiple Works, https://www.copyright.gov/circs/.
career.151 The NPRM recognized that reasonable search within the last 90 the NPRM, the Office acknowledged
where multiple rights owners own the days without finding commercial that defining ‘‘noncommercial’’ in
various Pre-1972 Sound Recordings exploitation of the sound recording, and relation to section 1401 is complex,162
listed in one NNU, it may be difficult for that all information submitted to the and sought to identify certain
rights owners as well as prospective Office in the NNU is true, accurate, and touchstones through its public
users to evaluate opt-outs to proposed complete to the best of the individual’s education functions that could help
noncommercial uses.152 Accordingly, knowledge, information, and belief, and filers and other interested parties
the final rule states that an NNU may is made in good faith.156 evaluate whether a use is
not include a proposed use for more Because the specific steps under the noncommercial for purposes of this
than one Pre-1972 Sound Recording final rule are sufficient, but not exception.163 The NPRM further noted
unless all of the sound recordings necessary, to demonstrate that a user that ‘‘it is not the Office’s intention to
include the same featured artist and has conducted a good faith, reasonable constrain resolution of gray areas or
were released on the same pre-1972 search under the section 1401(c) edge cases through private negotiation
album or unit of publication, and in the exception,157 the NNU certification or, if necessary, the courts.’’ 164
case of ‘‘greatest hits’’ or compilation alternatively allows the user to certify In response, commenters provided
albums, all of the listed sound that she conducted a good faith, additional insights regarding proposed
recordings on the NNU share the same reasonable search for, but did not find, considerations to be included in the
record label or other rights owner the sound recording in the Copyright Office’s guidelines.165 For example, the
information.153 Office’s database of indexed schedules Organization for Transformative Works
Next, Copyright Alliance, A2IM, and listing right owners’ Pre-1972 Sound (‘‘OTW’’) noted that the ‘‘guidelines will
RIAA request that the user must specify Recordings, or on services offering a be extremely useful to individuals and
the start and end dates of the proposed comprehensive set of sound recordings small businesses that don’t have
use, not merely ‘‘when the use will for sale or streaming.158 familiarity with copyright law or the
occur.’’ 154 The final rule adopts this resources to reach out to someone who
approach. 2. Determining Whether a Use Is does,’’ while urging the Office to stress
In sum, the final rule requires the user Noncommercial the approach, as articulated in the
to provide: The section 1401(c) exception applies NPRM, that such guidelines are
(1) The user’s full legal name, and whether only to noncommercial uses of Pre-1972 informational in nature and not hard-
the user is an individual person or corporate Sound Recordings.159 Section 1401(c) and-fast rules.166 OTW recommended
entity, including whether the entity is a tax- does not define ‘‘noncommercial,’’ and that the Office ‘‘emphasize that the fact
exempt organization as defined under the although other parts of title 17 refer to that a creator makes money from their
Internal Revenue Code; ‘‘commercial’’ or ‘‘non-commercial’’ art or craft does not necessarily make
(2) The title and featured artist(s) of the uses, nowhere in the statute are they any particular use commercial,’’ and
Pre-1972 Sound Recording desiring to be disagreed that ‘‘measurable benefit’’ is a
used; 155
defined terms.160
(3) If known, the current or last-known Stakeholders initially disagreed on workable standard when considering
rights owner (e.g., record label), alternate whether or to what extent the Office educational uses.167 In addition, OTW
artist name(s), alternate title(s), album title, should provide guidelines on what would take the opposite approach of
and ISRC; and constitutes ‘‘noncommercial’’ use.161 In A2IM, RIAA, and FMC, who each
(4) A description of the proposed strongly advocated that a work being
noncommercial use, including a summary of 156 NPRM at 1671–72. commercially exploited by a platform
the project and its purpose, how the Pre-1972 157 17 U.S.C. 1401(c)(4)(B) (‘‘Taking the specific, (e.g., though advertising) must be
Sound Recording will be used in the project, reasonable steps identified by the Register of
the start and end dates of the use, and where Copyrights . . . shall be sufficient, but not
considered a commercial use of that
the proposed use will occur (i.e., the U.S.- necessary, for a filer to satisfy the requirement to recording, even if the work was
based territory of the use). conduct a good faith, reasonable search . . . ’’). uploaded by a user who does not herself
158 See Public Knowledge NPRM Comment at 9
‘‘monetize’’ or otherwise economically
Finally, the rule substantively adopts (advocating for same). benefit from the upload.168 EFF further
the provision of the proposed rule 159 17 U.S.C. 1401(c)(1); Conf. Rep. at 25
suggests that the Office note that while
requiring the individual submitting the (‘‘Subsection (c) applies only to noncommercial
uses.’’). posting on the ‘‘open, accessible
NNU to certify that she has appropriate
160 See, e.g., 17 U.S.C. 107(1); 108(a)(1), (c), internet’’ is not a ‘‘private home use,’’
authority to submit the NNU, that the (h)(2)(A); 109(a), (b)(1)(A); 110(4), (8); 506(a); see
user desiring to make noncommercial also Kernochan Center Reply at 2–3 (discussing fact-specific contexts that are still being explored by
use of the Pre-1972 Sound Recording (or various statutory provisions); 37 CFR courts).
the user’s agent) conducted a good faith, 201.40(b)(1)(i)(B) (2018) (regulatory exception for 162 NPRM at 1672.
certain uses of motion pictures in noncommercial 163 Id. at 1672–73.
151 See A2IM & RIAA NPRM Comment at 7;
videos). But cf. 17 U.S.C. 901(a)(5) (defining 164 Id. at 1672.
‘‘commercially exploit’’ with respect to mask
Copyright Alliance NPRM Comment at 4. works).
165 See, e.g., A2IM & RIAA NPRM Comment at
152 NPRM at 1671. 11–12; EFF NPRM Comment at 3; FMC NPRM
161 Compare A2IM & RIAA Reply at 6 (‘‘[I]t is
153 This requirement is similar to the requirement
vitally important for both users and rights owners Comment at 3; OTW NPRM Comment at 2.
when registering multiple works under the unit of that the Office issue guidelines to help users
166 OTW NPRM Comment at 1.
publication option. See U.S. Copyright Office, recognize appropriate uses of section 1401(c) and 167 Id. at 2–3.
Circular 34: Multiple Works, https:// help rights owners assess the NNUs that get filed.’’), 168 See A2IM & RIAA NPRM Comment at 11–12
www.copyright.gov/circs/ (‘‘The copyright claimant and FMC Reply at 6 (noting prevalence of incorrect (asking for Office’s guidelines on noncommercial
for all of the works claimed in the unit is the understanding of copyright published by users in use to ‘‘make clear that all publicly accessible
same.’’). connection with user-uploaded content on videos available on YouTube are considered
154 A2IM & RIAA NPRM Comment at 7; Copyright

YouTube), with Kernochan Center Reply at 3–4 commercial’’); FMC NPRM Comment at 3 (stating
Alliance NPRM Comment at 5; see NPRM at 1671. (providing a run-down of key court opinions with that ‘‘if a use is not being monetized by the
155 As noted above, classical music metadata ‘‘differing conclusions as to what constitutes uploader, it may indeed still be commercially
raises unique issues. For such proposed uses, the commercial versus noncommercial use’’), and exploited by the platform on which it appears’’).
prospective user should include information that is Wikimedia Foundation Reply at 3 (cautioning See also OTW NPRM Comment at 3 (‘‘The mere fact
similar to the attributes the user is asked to search against creating ‘‘complex presumptions’’ for that a platform is making money from a user’s use
upon for title and featured artist(s) before claiming specific anticipated fact patterns, and suggesting should not be enough to make the use
the statutory safe harbor. that terms like ‘‘noncommercial’’ are defined in commercial.’’).
neither is it ‘‘presumptively concern regarding the proposed fee, as Recording.180 A2IM and RIAA suggest
commercial.’’ 169 The Office will discussed below.174 that ‘‘there should be some finite limit
consider these comments as it develops on the number of times a user can file
iii. Indexing NNUs Into the Copyright
a public circular or other general the same/similar request involving the
Office’s Online Database
materials to help filers and other same recording.’’ 181 They note that ‘‘it
interested parties in evaluating whether The final rule largely adopts the seems unlikely that a bona fide user
a use is noncommercial for purposes of provisions of the proposed rule wishing to make a bona fide
the section 1401(c) exception. regarding the indexing of NNUs, with noncommercial use would still be
some adjustments adopted in response seeking permission to use the same
ii. Filing of NNUs, Including Copyright recording for the same or a similar
to public comment. Section 1401(c)
Office Review purpose two or three years later,’’ and
requires NNUs to be ‘‘indexed into the
The final rule adopts the provisions of public records of the Copyright that because the initial opt-out filing
the proposed rule in regards to the filing Office.’’ 175 As under the proposed rule, will identify the rights owner, ‘‘the user
of NNUs and the Office’s level of the final rule states that an NNU will be will have obtained all of the information
review. As with similar types of filings considered ‘‘indexed’’ once it is made necessary to contact the rights owner
made with the Office, the final rule publicly available through the Office’s directly to negotiate a voluntary
states that the Office does not review online database of NNUs. The Office has license.’’ 182 They propose limiting a
NNUs for legal sufficiency.170 Rather, created an online and searchable user from filing the same NNU two or
the Office’s review is limited to whether database of indexed NNUs for rights three times, or prohibiting the user from
the formal and legal procedural owners to search. filing additional requests for the same/
requirements established under the rule A2IM and RIAA request the ability to similar use of the same recording at any
(including completing the required search the Office’s database of indexed time more than five years after the
information and payment of the proper NNUs by rights owner name, as initial request was filed.183 The Office
filing fee) have been met. For example, ‘‘[w]ithout this option, rights owners believes that a one-year waiting period
as noted in the NPRM, the Office’s will be impeded in their ability to is sufficient, and that the Office’s
indexing of an NNU thus does not mean exercise their statutory opt-out database of indexed NNUs should
the proposed use in the NNU is, in fact, right.’’ 176 This suggestion has been provide rights owners with notice
noncommercial.171 Users are therefore adopted. Rights owners will be able to (particularly because the database will
cautioned to review and scrutinize search on the current or last-known list the most recently-indexed NNUs
NNUs to assure their legal sufficiency rights owner, as well as the prospective first). Accordingly, the final rule states
before submitting them to the Office. user’s name, the title of the sound that if a rights owner files a timely Pre-
recording (which includes alternate 1972 Opt-Out Notice, the user must wait
While the Office is adopting the one year before filing another notice
title(s)), the featured artist(s) (which
proposed rule with respect to proposing the same or similar use of the
includes alternate artist name(s)), and
examination, it also clarifies that it does same sound recording(s).
the ISRC.177
intend to review and reject ‘‘facially As with NNUs and similar filings
deficient’’ NNUs as part of its In support of the proposed rule, A2IM
and RIAA agree that users cannot rely made with the Office, the final rule
examination process.172 The Office will states that the Office does not review
review an NNU to confirm that the on NNUs filed by third parties (other
than the user’s agent).178 The final rule Pre-1972 Opt-Out Notices for legal
correct form has been used, that all sufficiency, but rather whether the
required information has been provided adopts this provision, as well as the
provision stating that a user cannot rely formal and legal procedural
and is legible, and that the NNU has requirements have been met. The Office
been properly certified. Such review on her own NNU once the proposed
term of use ends (i.e., she must conduct will exercise discretion to reject a Pre-
parallels the Office’s examination of 1972 Opt-Out Notice that fails to
documents pertaining to copyright a new good faith, reasonable search and
file a new NNU). The Office’s comply with the Office’s requirements
before recording them and making them or instructions, such as failing to
part of the Office’s public record.173 As instructions will further clarify that
filers should not rely on information provide required information or
stated in the final rule, the Office may containing other facially obvious errors.
contained in NNUs filed by third
reject an NNU that fails to comply with Rights owners are cautioned to review
parties.179
the Office’s requirements or and scrutinize Pre-1972 Opt-Out Notices
instructions. This clarification is C. Opt-Out Notices to assure their legal sufficiency before
expected to assuage rightsholders’ submitting them to the Office.
The proposed rule stated that if a
concern regarding expenditure of
rights owner files a timely Pre-1972 Opt- D. Fraudulent Filings
resources responding to facially
Out Notice, the user must wait one year
deficient NNUs, and may also mitigate Section 1401 contemplates civil
before filing another NNU for the same
or similar use of the Pre-1972 Sound penalties for the filing of fraudulent
169 EFF NPRM Comment at 3 (citation omitted). NNUs (e.g., fraudulently describing the
170 See, e.g., 37 CFR 201.4(g); 201.17(c)(2);
174 See A2IM & RIAA NPRM Comment at 10–11.
proposed use) and for the filing of
201.18(g).
171 See A2IM & RIAA NPRM Comment at 7 175 17 U.S.C. 1401(c)(1)(C). fraudulent Pre-1972 Opt-Out Notices.184
(agreeing that the Office’s indexing of an NNU does 176 A2IM & RIAA NPRM Comment at 7. In connection with the Office’s exercise
not mean that the proposed use is noncommercial); 177 Similar to the database of Pre-1972 Schedules of the regulatory authority directed
Copyright Alliance NPRM Comment at 5 (same). discussed above, the Office’s database of NNUs will under the MMA and its general
The Office will include this caution on the NNU allow for wildcard searching by using an asterisk authority and responsibility to
form and/or instructions. to fill in partial words.
172 See A2IM & RIAA NPRM Comment at 10–11 178 See id. at 2.
180 NPRM at 1675.
(expressing concerns regarding facially deficient 179 See Copyright Alliance NPRM Comment at 4
181 A2IM & RIAA NPRM Comment at 8.
NNUs). (‘‘The Copyright Office should clarify to third
173 See generally U.S. Copyright Office, Circular 182 Id.
parties that it does not verify the validity or
183 Id.
12: Recordation of Transfers and Other Documents, accuracy of information on NNUs, and third parties
https://www.copyright.gov/circs/circ12.pdf. may not rely on the information.’’). 184 17 U.S.C. 1401(c)(6)(A); id. at 1401(c)(6)(B).
administer title 17,185 the proposed rule contemplates civil penalties for both with commercial uses, there is a much
stated that if the Register becomes aware fraudulent NNUs and Pre-1972 Opt-Out higher risk that a substantial fee will be
of abusive or fraudulent notices from a Notices, the proposed rule similarly uneconomical for many users and/or
certain filer, she shall have the sought an evenhanded approach. otherwise deter the use of this
discretion to reject all submissions from Moreover, the proposed penalty provision.’’ 196 Similarly, A2IM, RIAA,
that filer under section 1401(c) for up to assumed that the Office has general Copyright Alliance, and FMC contend
one year.186 regulatory authority to discipline that if the Office’s review will not serve
Copyright Alliance, A2IM, and RIAA repeated, abusive filers (such as filers of a ‘‘gatekeeping’’ function (i.e., review
object to imposing such a penalty or spoof notices) who may be undeterred NNUs for legal sufficiency) rights
one-year ‘‘ban.’’ 187 Copyright Alliance even by threats of monetary penalty, as owners should not have to pay to file
asserts that ‘‘a rights owner can opt-out part of its general obligation and Pre-1972 Opt-Out Notices.197 Copyright
of a[n] NNU without needing any authority to administer this filing.193 Alliance further contends that ‘‘the
justification, so the circumstances To accommodate concerns about burden of administering this exception
where there would be abuse or fraud disproportionally penalizing should fall primarily on the user seeking
present are, at best, exceedingly rightsholders, while providing to benefit from it rather than the rights
narrow,’’ and that such a ‘‘ ‘lock-out’ flexibility should civil penalties be an owner seeking to maintain her exclusive
mechanism . . . would be unduly insufficient deterrent in other cases, the rights,’’ 198 and A2IM and RIAA suggest
prejudicial to rights owners, as it would final rule states that if the Register that ‘‘the Office should monitor the
prevent them from opting out of the use becomes aware of abuse or fraudulent NNUs to determine what percentage of
of works they own exclusive rights filings by or from a certain filer or user, them are facially deficient and modify
to.’’ 188 While Copyright Alliance, A2IM, she has discretion to impose civil the filing fee as appropriate,’’ as well as
and RIAA maintain that the statute does penalties ranging up to $1,000 per ‘‘determine the actual costs of accepting
not support a ‘‘ban,’’ 189 they instance of fraud or abuse, and/or other and indexing opt-out notices at its next
acknowledge that civil penalties may penalties to deter additional false or opportunity to do so.’’ 199
not be a sufficient deterrent in all fraudulent filings from that filer, As noted above, the Office does
cases.190 including potentially rejecting future intend to review NNUs for regulatory
By including the words ‘‘abuse’’ and submissions for up to one year. compliance, including to confirm that
‘‘fraud’’ in the proposed rule, this aspect the correct form has been used, that all
E. Filing Fees required information has been provided
of the rule targeted filers intentionally
filing false or fraudulent filings, not The Copyright Act grants the Office and is legible, and that the NNU has
‘‘bona fide rights owners’’ who authority to establish, adjust, and been properly certified—and will reject
mistakenly file Pre-1972 Opt-Out recover fees for services provided to the NNUs failing to comply with the
Notices containing errors.191 Indeed, public.194 The NPRM proposed that the Office’s requirements or instructions.
section 1401(c) targets the filers of fee to file an NNU or an Opt-Out Notice Such review parallels the Office’s
NNUs and Pre-1972 Opt-Out Notices should be the same as the current fee to examination of other documents before
where such filings are ‘‘willful’’ and/or record a notice of intention to make and they are incorporated into the Office’s
‘‘knowing’’ acts of fraud.192 The Office distribute phonorecords under section public record.200 Accordingly, while the
anticipates that few filings would reach 115 (‘‘NOI’’), as such filings are Office does not intend to index ‘‘facially
the level of ‘‘willful’’ and/or ‘‘knowing’’ generally processed similarly by the deficient’’ NNUs (or Opt-Out notices),
acts of fraud to trigger such civil Office (i.e., at the same internal cost).195 this gatekeeping process accordingly
penalties. And as the statute Commenters expressed concern that involves some provision of resources.
the proposed fees are too high for both The Office notes that potential filers
185 See id. at 1401(c)(3), (5)(A); id. at 701(a), 702. users and rights owners. Public of both notices have objected to the
186 NPRM at 1674–75. Knowledge maintains that proposed fees, which the Office has
187 A2IM & RIAA NPRM Comment at 9 (objecting ‘‘noncommercial uses will neither be endeavored to set based on the cost of
‘‘to the penalty to the extent it may limit a bona fide motivated by, nor likely result in, providing the services. In scrutinizing
rights owner’s ability to file opt-out notices’’).
188 Copyright Alliance NPRM Comment at 5; see
significant or foreseeable financial the projected cost for these new filings,
also A2IM & RIAA NPRM Comment at 10 (‘‘[U]sers revenues or other material rewards,’’ the Office also recognizes that NNUs
and filers are not similarly situated. Most users will and so ‘‘unlike the filing fees associated
not be repeat filers, at least not to the degree that 196 Public Knowledge NPRM Comment at 9; see
larger rights owners will be, so a ban would not 193 Id. at 702; id. at 1401(c)(3)(B); id. at also Public Knowledge Ex Parte Letter at 1–2.
impact them in the same way it would a bona fide 1401(c)(5)(A). 197 A2IM & RIAA NPRM Comment at 10–11
rights owner, who may be filing opt-out notices on 194 See id. at 708. Because they do not involve (asking the Office to ‘‘either review NNUs for legal
an ongoing basis.’’). services specified in section 708(a), the fees sufficiency before indexing them or eliminate the
189 A2IM & RIAA NPRM Comment at 9; Copyright filing fee associated with filing opt-out notices’’);
proposed in this NPRM are not subject to the
Alliance NPRM Comment at 5. adjustment of fees provision in section 708(b). Copyright Alliance NPRM Comment at 6; FMC
190 See RIAA et al. Ex Parte Letter at 2 (suggesting 195 NPRM at 1675; see 37 CFR 201.3(e)(1) ($75). NPRM Comment at 3; see also Recording Academy
that Copyright Office should have ‘‘discretion’’ to The proposed fee was lower than the cost to record NPRM Comment at 4.
‘‘address . . . concerns about malicious bad actors a document for a single title. See id. at 201.3(c)(17)
198 Copyright Alliance NPRM Comment at 6.
that are abusive filers); A2IM & RIAA NPRM ($105). Basing the cost of a service on the cost for Copyright Alliance also expressed that the proposed
Comment at 10 (proposing ‘‘that the Office retain a similar service is appropriate. See 83 FR 24054, fee to file an NNU ‘‘does not appear excessive,’’ as
the proposed ban but exempt bona fide rights 24059 (May 24, 2018) (proposing setting new fees it ‘‘provides a benefit analogous to a free license to
owners (who could be identified by an Office- at the same level for ‘‘analogous’’ services). In 2017, use a work otherwise protected by the law.’’
issued log-in credential) from the proposed ban’’); Booz Allen Hamilton conducted a study of the Copyright Alliance Ex Parte Letter at 2. If the cost
Copyright Alliance NPRM Comment at 6 Office’s most recent fee structure. When asked to file an NNU decreases, Copyright Alliance
(suggesting that ‘‘where the Office believes an opt- whether existing rates could be leveraged for new maintains that ‘‘the fees for filing opt-out notices
out has not come from the bona fide rights owner, group registration options, it concluded it was should also be lowered to maintain, at a minimum,
that it attempts to correspond with the filer to appropriate if the work required was of a similar parity between the fees.’’ Id.
establish that they own the rights and take grade and compensation level. Booz Allen 199 A2IM & RIAA NPRM Comment at 11.
appropriate action from there’’). Hamilton, U.S. Copyright Office, Fee Study: 200 See, e.g., U.S. Copyright Office, Circular 12:
191 See A2IM & RIAA NPRM Comment at 9.
Question and Answers 6 (Dec. 2017), https:// Recordation of Transfers and Other Documents,
192 17 U.S.C. 1401(c)(6)(A); id. at 1401(c)(6)(B)(i); www.copyright.gov/rulemaking/feestudy2018/fee_ https://www.copyright.gov/circs/circ12.pdf; see
see also id. at 1401(c)(6)(C). study_q&a.pdf. generally Compendium (Third) sec. 2300.
and Pre-1972 Opt-Out Notices will policy function.201 In line with its Authority: 17 U.S.C. 702.
typically include information about general approach to fee-setting, the ■ 2. Amend § 201.3 as follows:
only one sound recording, which may Office will consider whether adjustment
require less review than Pre-1972 (including potentially increasing the ■ a. Revise paragraph (c)(22).
Schedules and notices of intention to fees) is necessary after data regarding ■ b. Redesignate paragraph (c)(23) as
make and distribute phonorecords these filings are available. paragraph (c)(24).
under section 115, which the Office
List of Subjects in 37 CFR Part 201 ■ c. Add new paragraph (c)(23).
evaluated as most comparable filings.
Accordingly, and to encourage use of Copyright, General provisions. ■ d. Add paragraph (c)(25).
these new filing mechanisms in advance The additions read as follows:
of usage data, the filing fees for NNUs Final Regulations
and Pre-1972 Opt-Out Notices will be For the reasons set forth in the § 201.3 Fees for registration, recordation,
lowered to that which copyright owners and related services, special services, and
preamble, the Copyright Office amends
pay to file a notice to libraries and services performed by the Licensing
37 CFR parts 201 as follows:
archives that a published work in its last Division.
twenty years of copyright protection is PART 201—GENERAL PROVISIONS * * * * *
subject to normal commercial (c) * * *
exploitation, another potentially ■ 1. The authority citation for part 201
analogous filing that services a similar continues to read as follows:
Fees
Registration, recordation and related services ($)
* * * * * * *
(22) Notice of noncommercial use of pre-1972 sound recording ................................................................................................................ 50
(23) Opt-out notice of noncommercial use of pre-1972 sound recording ................................................................................................... 50
* * * * * * *
(25) Removal of PII from Registration Records .......................................................................................................................................... ................
(i) Initial request, per registration record .............................................................................................................................................. 130
(ii) Reconsideration of denied requests, flat fee .................................................................................................................................. 60
* * * * * * *
* * * * * recordings (17 U.S.C. 1401(c)(1)(C); see 15, 1972. A post-1972 remastered

■ 3. Amend § 201.4 as follows: § 201.37). version of a pre-1972 sound recording
■ a. Revise paragraph (b)(3). * * * * * that consists of mechanical
■ 4. Add § 201.37 to read as follows:
contributions or contributions that are
■ b. In paragraph (b)(10), remove ‘‘;
too minimal to be copyrightable
and’’ and add a semicolon in its place.
§ 201.37 Noncommercial use of pre-1972 qualifies as a pre-1972 sound recording
■ c. In paragraphs (b)(11) through (13), sound recordings. for purposes of this section.
remove the period at the end of each (3) For pre-1972 sound recordings of
(a) General. This section prescribes
paragraph and add a semicolon in their classical music, including opera:
the rules under which a user, desiring
place. (i) The title of the pre-1972 sound
to make noncommercial use of a pre-
■ d. Add paragraphs (b)(14) and (15). recording means, to the extent
1972 sound recording pursuant to 17
The revision and additions read as U.S.C. 1401(c), conducts a good faith, applicable and known by the user, any
follows: reasonable search to determine whether and all title(s) of the sound recording
§ 201.4 Recordation of transfers and other the sound recording is being and underlying musical composition
documents pertaining to copyright. commercially exploited, and if not, files known to the user, and the composer
a notice of noncommercial use with the and opus or catalogue number(s) of the
* * * * *
Copyright Office. This section also underlying musical composition; and
(b) * * *
prescribes the rules under which a (ii) The featured artist(s) of the pre-
(3) Notices of use of sound recordings rights owner of a pre-1972 sound 1972 sound recording means, to the
under statutory license and notices of recording identified in a notice of extent applicable and known by the
intention to obtain a compulsory license noncommercial use may file an opt-out user, the featured soloist(s); featured
to make and distribute phonorecords of notice opposing a proposed use of the ensemble(s); featured conductor; and
nondramatic musical works (17 U.S.C. sound recording, pursuant to 17 U.S.C. any other featured performer(s).
112(e), 114, and 115(b); see §§ 201.18 1401(c)(1)(C). (4) An Alaska Native or American
and 370.2); (b) Definitions. For purposes of this Indian tribe is a tribe included in the
* * * * * section: U.S. Department of the Interior’s list of
(14) Notices of noncommercial use of (1) Unless otherwise specified, the federally recognized tribes, as published
pre-1972 sound recordings (17 U.S.C. terms used have the meanings set forth annually in the Federal Register.
1401(c)(1)(B); see § 201.37); and in 17 U.S.C. 1401. (c) Conducting a good faith,
(15) Opt-out notices of (2) A pre-1972 sound recording is a reasonable search. (1) Pursuant to 17
noncommercial use of pre-1972 sound sound recording fixed before February U.S.C. 1401(c)(3)(A), a user desiring to
201 37 CFR 201.3(d)(13) (stating fee for notice to U.S.C. 108(h)(2). The final rule makes a technical edit to 37 CFR 201.3(c) to correct an inadvertent
libraries and archives for a single title is $50); 17 error.
make noncommercial use of a pre-1972 exploited. If this contact information is comply with the requirements of this
sound recording should progressively not previously known to the prospective section.
search for the sound recording in each user, the user should use the (2) Content. A notice of
of the categories below until the user information provided by the U.S. noncommercial use shall contain the
finds the sound recording. If the user Department of the Interior’s Bureau of following:
finds the sound recording in a search Indian Affairs’ Tribal Leaders directory, (i) The user’s full legal name, and
category, the user need not search the which provides contact information for whether the user is an individual person
subsequent search categories. If the user each federally recognized tribe. or corporate entity, including whether
does not find the pre-1972 sound (2) A search under paragraph (c)(1) of the entity is a tax-exempt organization
recording after searching each of the this section must include searching the as defined under the Internal Revenue
categories below, her search is sufficient title of the pre-1972 sound recording Code. Additional contact information,
for purposes of the safe harbor in 17 and its featured artist(s). If the user including an email address, may be
U.S.C. 1401(c)(4), establishing that she knows any of the following attributes of optionally provided.
made a good faith, reasonable search the sound recording, and the source (ii) The title and featured artist(s) of
without finding commercial being searched has the capability to the pre-1972 sound recording desiring
exploitation of the sound recording by search any of these attributes, the search to be used.
or under the authority of the rights must also include searching: alternate (iii) If any are known to the user, the
owner. The categories are: artist name(s), alternate title(s), album current or last-known rights owner (e.g.,
(i) Searching the Copyright Office’s title, and the International Standard record label), alternate artist name(s),
database of indexed schedules listing Recording Code (‘‘ISRC’’). A user is alternate title(s), album title, and
right owners’ pre-1972 sound recordings encouraged, but not required, to search International Standard Recording Code
(https://www.copyright.gov/music- additional known attributes, such as the (‘‘ISRC’’).
modernization/pre1972- label or version. A user searching using (iv) The user may include additional
soundrecordings/search- a search engine should draw reasonable optional information about the pre-1972
soundrecordings.html); inferences from the search results, sound recording as permitted by the
(ii) Searching at least one major including following those links whose Office’s form or instructions, such as the
search engine, namely Google, Yahoo!, name or accompanying text suggest that year of release.
or Bing, to determine whether the pre- commercial exploitation might be found (v) A description of the proposed
1972 sound recording is being offered there, and reading additional pages of noncommercial use, including a
for sale in download form or as a new results until two consecutive pages summary of the project and its purpose,
(not resale) physical product, or is return no such suggestive links. A user how the pre-1972 sound recording will
available through a streaming service; need not read every web page returned be used in the project, the start and end
(iii) Searching at least one of the in a search result. dates of the use, and where the
following streaming services: Amazon (3) A search under paragraph (c)(1) of proposed use will occur (i.e., the U.S.-
Music Unlimited, Apple Music, Spotify, this section must be conducted no later based territory of the use). The user may
or TIDAL; than 90 days of the user (or her include additional optional information
(iv) Searching YouTube, to determine authorized agent) filing a notice of detailing the proposed use, such as the
whether the pre-1972 sound recording is noncommercial use under paragraph tentative title of the project, the playing
offered under license by the sound (d)(1) of this section to be sufficient for time of the pre-1972 sound recording to
recording rights owner (e.g., record label purposes of the safe harbor in 17 U.S.C. be used as well as total playing time of
or distribution service); 1401(c)(4). the project, a description of
(v) Searching SoundExchange’s (4) For purposes of the safe harbor in corresponding visuals in the case of
repertoire database through the 17 U.S.C. 1401(c)(4), a user cannot rely audiovisual uses, and whether and how
SoundExchange ISRC lookup tool on: the user will credit the sound recording
(https://isrc.soundexchange.com/#!/ (i) A search conducted under title, featured artist, and/or rights owner
search); paragraph (c)(1) of this section by a in connection with the project.
(vi) Searching at least one major seller third party who is not the user’s (vi) A certification that the user
of physical product, namely authorized agent; or searched but did not find the pre-1972
Amazon.com, and if the pre-1972 sound (ii) A notice of noncommercial use sound recording in a search conducted
recording is of classical music or jazz, filed under paragraph (d)(1) of this under paragraph (c) of this section, or
searching a smaller online music store section by a third party (who is not the else conducted a good faith, reasonable
that specializes in product relative to user’s authorized agent). search for, but did not find, the sound
that niche genre, namely: ArkivJazz, (5) A user is encouraged to save recording in the Copyright Office’s
ArkivMusic, Classical Archives, or documentation (e.g., screenshots, list of database of indexed schedules listing
Presto; in either case, to determine search terms) of her search under right owners’ pre-1972 sound
whether the pre-1972 sound recording is paragraph (c)(1) of this section for at recordings, or on services offering a
being offered for sale in download form least three years in case her search is comprehensive set of sound recordings
or as a new (not resale) physical challenged. for sale or streaming.
product; and (d) Notices of noncommercial use—(1) (vii) A certification that the individual
(vii) For pre-1972 ethnographic sound Form and submission. A user seeking to submitting the notice of noncommercial
recordings of Alaska Native or American comply with 17 U.S.C. 1401(c)(1) (or her use has appropriate authority to submit
Indian tribes, searching, if such contact authorized agent) must submit a notice the notice, that the user desiring to
information is known to the user, by of noncommercial use identifying the make noncommercial use of the pre-
contacting the relevant Alaska Native or pre-1972 sound recording that the user 1972 sound recording (or the user’s
American Indian tribe and the holding intends to use and the nature of such authorized agent) conducted a search
institution of the sound recording (such use using an appropriate form and under paragraph (c) of this section or
as a library or archive) to gather instructions provided by the Copyright else conducted a good faith, reasonable
information to determine whether the Office on its website. The Office may search under 17 U.S.C. 1401(c)(4),
sound recording is being commercially reject any submission that fails to within the last 90 days without finding
commercial exploitation of the sound new notice of noncommercial use under rights owner or the individual
recording, and that all information paragraphs (c) and (d) of this section, submitting the opt-out notice that the
submitted to the Office is true, accurate, respectively. proposed use is in fact noncommercial.
and complete to the best of the (7) Filing date. The date of filing of a The submitter may choose to comment
individual’s knowledge, information, notice of noncommercial use is the date upon whether the rights owner agrees
and belief, and is made in good faith. when a proper submission, including that the proposed use is noncommercial
(3) Noncommercial use of a pre-1972 the prescribed fee, is received in the use, but failure to do so does not
recording under this section is limited Copyright Office. The filing date may constitute agreement that the proposed
to use within the United States. not necessarily be the same date that the use is in fact noncommercial.
(4) A notice of noncommercial use notice, for purposes of 17 U.S.C. (3) Where a pre-1972 sound recording
may not include proposed use for more 1401(c)(1)(C), is indexed into the has multiple rights owners, only one
than one pre-1972 sound recording Office’s public records. rights owner must file an opt-out notice
unless all of the sound recordings (8) Fees. The filing fee to submit a
for purposes of 17 U.S.C. 1401(c)(5).
include the same featured artist(s) and notice of noncommercial use pursuant
were released on the same pre-1972 to this section is prescribed in (4) If a rights owner files a timely opt-
album or other unit of publication. In § 201.3(c). out notice under paragraph (e)(1) of this
the case of ‘‘greatest hits’’ or (9) Third-party notification. A person section, a user must wait one year before
compilation albums, all of the sound may request timely notification of filing another notice of noncommercial
recordings listed on a notice must also filings made under paragraph (d)(1) of use proposing the same or similar use of
share the same record label or other this section by following the the same pre-1972 sound recording(s).
rights owner information, as listed on instructions provided by the Copyright (5) Legal sufficiency. The Copyright
the notice. Office on its website. Office does not review opt-out notices
(5) The Copyright Office will assign (e) Opt-out notices—(1) Form and submitted under paragraph (e)(1) of this
each indexed notice of noncommercial submission. A rights owner seeking to section for legal sufficiency. The
use a unique identifier to identify the comply with 17 U.S.C. 1401(c)(1)(C) (or Office’s review is limited to whether the
notice in the Office’s public records. her authorized agent) must file a notice procedural requirements established by
(6) Legal sufficiency. (i) The Copyright opting out of a proposed noncommercial the Office (including payment of the
Office does not review notices of use of a pre-1972 sound recording filed proper filing fee) have been met. Rights
noncommercial use submitted under under paragraph (d)(1) of this section owners are therefore cautioned to
paragraph (d)(1) of this section for legal using an appropriate form provided by review and scrutinize opt-out notices to
sufficiency. The Office’s review is the Copyright Office on its website and assure their legal sufficiency before
limited to whether the procedural following the instructions for submitting them to the Office.
requirements established by the Office completion and submission provided on (6) Filing date. The date of filing of an
(including payment of the proper filing the Office’s website or the form itself. opt-out notice is the date when a proper
fee) have been met. The fact that the The Office may reject any submission submission, including the prescribed
Office has indexed a notice is not a that fails to comply with the fee, is received in the Copyright Office.
determination by the Office of the requirements of this section, or any
notice’s validity or legal effect. Indexing (7) Fee. The filing fee to submit an
relevant instructions or guidance
by the Copyright Office is without opt-out notice pursuant to this section is
provided by the Office.
prejudice to any party claiming that the (2) Content. An opt-out notice use prescribed in § 201.3(c).
legal or formal requirements for making shall contain the following: (f) Fraudulent filings. If the Register
a noncommercial use of a pre-1972 (i) The user’s name, rights owner’s becomes aware of abuse or fraudulent
sound recording have not been met, name, sound recording title, featured filings under this section by or from a
including before a court of competent artist(s), an affirmative ‘‘yes’’ statement certain filer or user, she shall have the
jurisdiction. Users are therefore that the rights owner is opting out of the discretion to impose civil penalties up
cautioned to review and scrutinize proposed use, and the unique identifier to $1,000 per instance of fraud or abuse,
notices of noncommercial use to assure assigned to the notice of noncommercial and/or other penalties to deter
their legal sufficiency before submitting use by the Copyright Office. Additional additional false or fraudulent filings
them to the Office. contact information for the rights owner, from that filer, including potentially
(ii) If a rights owner does not file an including an email address, may be rejecting future submissions from that
opt-out notice under paragraph (e) of optionally provided. filer for up to one year.
this section, when the term of use (ii) A certification that the individual Dated: April 1, 2019.
specified in the notice of submitting the opt-out notice has Karyn A. Temple,
noncommercial use ends, the user must appropriate authority to submit the
cease noncommercial use of the pre- Register of Copyrights and Director of the
notice and that all information U.S. Copyright Office.
1972 sound recording for purposes of submitted to the Office is true, accurate,
remaining in the safe harbor in 17 Approved by:
and complete to the best of the
U.S.C. 1401(c)(4). Should the user desire individual’s knowledge, information, Carla D. Hayden,
to requalify for the safe harbor with and belief, and is made in good faith. Librarian of Congress.
respect to that same recording, the user (iii) Submission of an opt-out notice [FR Doc. 2019–06883 Filed 4–8–19; 8:45 am]
must conduct a new search and file a does not constitute agreement by the BILLING CODE 1410–30–P

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68 / Tuesday, April 9, 2019 / Rules and Regulations

(202) 707–8350. does not opt-out within 90 days, the

and NPRM are available online at https://

No. 115–339, at 18 (2018).

‘‘no more than one to two’’ services). Commenters 67 NPRM at 1668–69.

104 FMC NPRM Comment at 2. 115 Id.

extent that a sound recording meets the

154 A2IM & RIAA NPRM Comment at 7; Copyright

* * * * * recordings (17 U.S.C. 1401(c)(1)(C); see 15, 1972. A post-1972 remastered

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