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Case number 13-1274 at L. Independent Producers Group Appellant versus Library of Congress at L. Appellant IPG, Mr. Boyston.

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Appellant Settling Devotional Claimants, Mr. McLean.

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Government Appellees, Ms.

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McNeil.

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Intervenor Appellees Joint Sports Claimants, Mr. Curtis.

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Intervenors Appellees MPAA-Representative Program Suppliers, Mr. O'Larian.

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Good morning.

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May it please the Court, Brian Boyst on behalf of the Appellate Independent Producers Group.

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We're here, of course, regarding a decision rendered by the Copyright Royalty Board, a part of the Librarian Congress, with regard to the award of copyright distribution royalties for the years 2000 and 2003.

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The first issue I'm going to address comes along chronologically.

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I'm going to kind of move chronologically in terms of the underlying proceeding.

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And other than filing of initial claims and things like that, one of the first things that happens is discovery.

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First issue we profiled in our briefing and the first issue we want to address has to do with discovery.

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Now discovery sometimes can get to be a thicket, as we all know.

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Anyone who's been in litigation in the United States knows that sometimes discovery gets contentious, gets petty, et cetera, et cetera.

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And frankly, a lot of times, it's a tempest in a teapot.

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There's a lot of attorneys that every day make a big deal out of something that's not that big a deal in discovery.

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But this is fundamentally different.

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In the proceeding to distribute the 1997 copyright realties, IPG filed a motion to compel the Motion Picture Association to produce all of the underlying data and electronic files regarding its methodology.

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The MPA did not.

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IPG moved to compel, and the predecessor to the Copyright Realty Board, the CARP,

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granted IPG's motion, compelled the MPA to produce all of their documentation, all of their electronic documentation behind their methodology.

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In this proceeding, the same thing happened, but here the CRV did not compel the MPAA to produce everything.

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The MPAA produced much of that material, but not all.

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And as a result, IPG was unable to replicate the MPA methodology.

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The MPA has tried to say, well, if you look at Dr. Robinson's testimony, she equivocates.

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She says, well, I could have done this.

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I could have done that.

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But at root, her testimony was, I was not able to replicate it.

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Now, curiously enough, the proceedings we're in right now before the CRB involving the satellite years 1999 to 2009 and cable 2004 to 2009, same thing happened.

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The MPA produced some of its material behind its methodology, not all.

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And it's interesting to note that in their methodology in that present proceeding, they use the same information that they used in this proceeding for the years 2000 and 2003.

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IPG filed a motion to compel.

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This time, the judges, these same judges whose decision we are reviewing now, granted IPG's motion.

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And when IPG got the full enchilada, IPG's experts were able to go recreate the MPA methodology.

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And lo and behold, what did they find?

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They found that using the MPA's methodology for 2000 to 2003, the numbers came up instead of being IPG entitled to a half a percent, three quarters of a percent.

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IPG was entitled to as much as 7.5% to 4.69%.

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an enormous increase, an increase tenfold.

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IPG was then able to identify how it was that the MPA's expert, Dr. Gray, in this proceeding said that despite that, IPG should only get half a percent or three-quarters of a percent, was because what Dr. Gray then did is he made an assumption that for every program

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that where there was a conflicting claim between the MPAA and IPG, he automatically attributed all of those to the MPAA.

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And that crushed down IPG's numbers.

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despite the fact that there was no adjudication or establishment that all those programs were in fact belonging to the MPA and not IPG.

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How did the lack of discovery cause that problem?

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I mean, you were certainly aware, because you've argued here, that they made that attribution to themselves.

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So the discovery problem here didn't stop you from making that argument.

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Well, no, but what we didn't know is that if you ran the MPA's methodology, you came up with 7.5% to 4% and change for IPG.

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that would have made this difference.

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It was a file which would have identified my name in the papers called, I believe it's final, under slash net, or something similar to that.

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And we explained in the papers, and Dr. Roberts explains in her testimony why it was that that was.

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What evidence is there in the record that that was ever actually a saved file as opposed to a temporary document?

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Well, we know that it's been turned over in the current 2004 to 2009 proceeding.

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So clearly it existed.

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It exists now.

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Did the royalty judges know that?

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Did they have that information?

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2004 to 2009 proceeding before them?

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Well, no one knew it because nothing was ever produced.

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But for discovery rulings, we have to look at the decision based on the record that was before them.

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So what information did they have that that was actually the type of preserved formal saved file that would have been required to be disclosed under their rules?

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I don't think anyone knew because, again, what happened was the IPG produced a certain amount of information, and IPG said, make an order telling them that they have to produce everything underlying their study, not just some things.

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Now, it could have been that if the judges had granted that order, that MPA would have come back and said, we have nothing more.

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But the judges didn't grant the order.

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And so the MPA was never put in a position of having to say under oath, yes, this is all of it, or this is all of it, plus there's more.

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In the present proceeding, that order was issued.

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And then the MPA had a choice.

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It could either tell the truth and produce all the documents, all the files, which it did, or say, no, nothing exists.

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So the point is that had the judges issued the order, the MPA to produce everything, then the MPA would have had to produce everything.

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What would that file have added to your knowledge, or your expert's knowledge?

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It would have allowed us to replicate the MPA methodology.

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Without that, our expert was not able to replicate the MPA methodology.

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Well, how much of her inability to replicate it was due to time factors?

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I mean, if she'd been hired six months earlier, would she have had the time?

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There was plenty of time.

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We just never got the information.

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We had time to file a motion to appeal.

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It wasn't that she didn't have sufficient time.

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It was that she didn't have the information.

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In the current proceedings... I didn't understand her testimony to say that.

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She's at least more equivocal about that.

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And I thought one of the things she wanted was this listing that they gave you in hard copy, not electronic copy.

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But that was the barrier.

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That was part of it.

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But in addition to that, not everything underlying the methodology was produced.

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But not everything underlying the methodology not being produced is not the same thing as saying we had to have that stuff to be able to do.

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I'm really trying to figure out what you had to have to be able to replicate the experiment.

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And what we had to have was that last file, final underscore dash net, and I'm not sure if I have that exactly right, but I know the word file is in it.

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And when that was obtained in the present proceeding, our experts were able to replicate the methodology in very short order.

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I mean, I think it was within a week.

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So I mean, you can imagine, it's like trying to bake a cake and not knowing some of the ingredients.

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You can sit there and it may take until the cows come home to try and experiment.

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Should I put in eggs?

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Should I put in a ham sandwich?

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How do I make this cake?

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Whereas if you have the ingredients and you know what they are, it's relatively quick.

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In 1997, did they give you that same file?

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In 1997, it was a different method.

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I don't think it was the same methodology exactly.

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So I don't think it was.

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But what I know is that the order in 97 was that they had to produce everything.

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And as far as we know, they did.

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And the important point about that is that the judges and their predecessors have essentially flip-flopped on this a bit.

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The copyright royalty tribunal for 97 made the order, you must produce this stuff.

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these judges in this proceeding said, no, you don't have to produce them all.

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And now those same judges in the current proceeding said, yes, you do have to produce it.

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I'll submit to you that I think, I mean, we don't know, but I think it's possible that the judges realized that they probably should have made that order in the prior proceeding, didn't, but did in the current proceeding.

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I think that speaks towards the issue, certainly.

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With regard to the issue of precedent,

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As we've explained in our papers, there is a rich precedent here from the copyright, the CARP, the CRT, before the CRB in dealing with these different issues.

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And the CARP and the CRT issued an opinion saying that viewership-based studies look at the wrong thing.

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Then one step further was when they looked at the 97 proceeding and they said, in addition to that, viewership-based studies have a huge problem.

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There's too much zero viewing.

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And the zero viewing problem is a very, very significant problem.

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And I'll illustrate it like this.

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But didn't they just say you're going to need to explain it better?

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determining value here.

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And so what you're going to need to do is make sure your methodology and your explanations of what you've done address the problems that we have with the Nielsen studies.

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That one decision put it like that.

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Other decisions said viewership is looking at the complete wrong thing.

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And then that became compounded by the understanding that one of the problems with viewership-based is not just that it's focusing on the wrong thing.

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Viewership focuses on how many eyeballs actually see the program, whereas the decision here made by a cable system operator is not how many people are going to watch, how many people are going to subscribe to my service.

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And the CARP recognized that that was a fundamental difference, and that was why the CARP said,

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Looking at ratings is looking at the wrong thing.

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You have to look at what the cable system operator is buying, not how many people are actually watching the show and buying tide detergent because they're watching a particular show.

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Compounded with that was then the decision in 97 when the zero viewing issue was brought up.

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And the court said this zero viewing problem is very significant and it has to be addressed.

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And if it's not satisfactorily addressed,

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We shouldn't be using purorship-based studies.

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Right, and so here they addressed it.

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They acknowledged the problems.

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They added a regression element to the methodology that was supposed to broaden some additional information to sort of patch over some of the problems.

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And some of they said were probably valid zeros.

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And so the question before us is not what they said in the past, but whether the judges

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reasonably concluded that there was a sufficient explanation here.

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Correct.

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With all the deference that that judgment is due.

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That's correct.

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And if you look at the record on this, you'll find that the MPA that the explanation offered was not at all sufficient.

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Basically what they said is, Dr. Gray said that he was going to aggregate up the numbers to fill in the blanks.

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And what that meant is as follows.

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If you look at a picture, you can see the picture of Justice Berger.

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But if you focus in on that picture so much that you get down to little pixels of color and all you're looking is looking at those little pixels of color, it doesn't make any sense.

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It's only when you move away that then the picture forms.

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The problem with zero viewing is this.

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It's as if you focus in like that, so all you see are pixels.

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But there are very few of them.

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There just aren't that many, period.

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So that then when you focus back, you don't get a picture of Chief Justice.

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You get a picture that's kind of like a cloud, because there's too many missing gaps.

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What Dr. Gray said is, I'm going to fill in those missing gaps.

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And the way I'm going to do it is, I'm going to take all the data points I do have and make some averages on those, and then assume that those are all standing in the blank spaces, which statistically makes absolutely no sense at all.

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And I encourage you to go back and look at Dr. Gray's testimony.

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Because this is where it went down.

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In the hearing itself, after Dr. Robinson had explained this problem,

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The MPA brought Dr. Gray back from the bullpen, so to speak, and had him try and give an explanation as to, well, what about zero viewing?

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And that's the best he could come up with.

[00:13:24] Speaker 09:
Well, they put me, judges rejected the methodology that your client proposed.

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You haven't challenged that decision.

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You haven't argued that they should have admitted your methodology.

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You challenged aspects of theirs, as I understand it.

[00:13:38] Speaker 03:
Well, we do think that ours had quality.

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I didn't see that as she presented for review for us to overturn.

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I didn't see you arguing that in your papers.

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So if your methodology's out, they're in a proceeding here, and they go, they've come forward with methodology, they've given explanation.

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Maybe it's not perfect, but it's for our purposes, and they adjusted it some in your favor at the end.

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What more are they supposed to do?

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You didn't give them a good counter methodology.

[00:14:07] Speaker 03:
Well, Your Honor, our contention is, no, that we do think ours is better.

[00:14:10] Speaker 09:
We think that ours is... Well, you argued for reversal here, of that decision here.

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So we're stuck with the determination, you're stuck with the determination for the purposes of the appeal that your methodology is out.

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So what they did was they took the methodology before them, made sure it had the explanations, more information than before, made their own adjustments.

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What basis do we have to reverse that?

[00:14:31] Speaker 03:
the basis upon which I've just stated, which is that it's not a valid methodology.

[00:14:34] Speaker 09:
And our position has been... And what happens if there... So the answer is there's no methodology in this case.

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I'm trying to get to that point.

[00:14:40] Speaker 03:
No, our position's always been, it should be our methodology that's been selected because the problems they have... Yes, okay, maybe they had some problems with our methodology, but what we were trying to say is, based upon the precedent and the testimony regarding zero viewing, their methodology has more problems.

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Their methodology is one that the predecessor entities have said you should never base the distribution methodology on this.

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That would leave just our methodology, which is what we're advocating or what we're asking for.

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I want to turn quickly to the issue of Canadian rights.

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This has been misunderstood, I think, a little bit in the government's papers.

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The issue of the Canadian broadcast is this.

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The MPAA's expert said anywhere between 75 to... Just to clarify one thing, when you say Canadian broadcast, do you mean U.S.

[00:15:29] Speaker 09:
copyrights broadcast into Canada or Canadian?

[00:15:33] Speaker 03:
No, and I'm glad you asked because the problem is exactly where you're going.

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The Copyright Act provides, or not the Copyright Act, but the way that the phase one categories are set up.

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There's a Canadian broadcasters category.

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So if you are a Canadian company, and one of your programs is broadcast in the United States, you obtain royalties only through the Canadian broadcasters group.

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However, if you're an American broadcaster, but material viewers is rebroadcast from Canada back into the United States,

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which happens, oddly, but it does, then you, the American owner of that Canadian-originated broadcast, have a right in the program suppliers category.

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And the judges acknowledged that.

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They agreed with that.

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What happened was that Dr. Gray didn't understand that distinction.

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And Dr. Gray said, I conclude that in certain years, IPG's programming is 75%, 30% Canadian, and it's not compensable.

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Well, he was wrong.

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It was compensable because IPG's programming was coming from Canada, but it was only American-owned programming.

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And then the judges even acknowledged all this and said, yeah, yeah, okay, fine, but we're not gonna give you any more money because we think it's a small percentage because the overall percentage of programming that comes like that from Canada is only about 3%.

[00:16:58] Speaker 03:
Here's the problem.

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Take a given year where the MPA methodology, IPG gets half a percentage point of the overall pie.

[00:17:08] Speaker 03:
Well, if it's half a percentage point of the overall pie, and they were throwing out Canadian broadcasting, which was anywhere from 30% to 75% of our total, then logically, we should have been seeing a doubling, or perhaps even a tripling, of that percentage.

[00:17:25] Speaker 03:
Because they're saying, OK, we think you get 50%.

[00:17:29] Speaker 03:
Oh, and also, 50% of it was Canadian, so you didn't get that.

[00:17:33] Speaker 03:
Well, the judge has said that's incorrect.

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But then they didn't say, because of that, we're going to bump you up.

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They said it's insignificant.

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And that's just simply not mathematically correct.

[00:17:43] Speaker 03:
The last thing is, and I know I've gone over my time, so I'll wrap up soon, but with regard to the preliminary hearing issues, there are a host of things that went on in that preliminary hearing that just made absolutely no sense at all.

[00:17:57] Speaker 03:
The biggest one, of course, was when they threw out claims that weren't even contested.

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And we brought a motion for reconsideration saying, look, you've made an error.

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You've got to at least give us these programs.

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And they didn't.

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And no one in any brief has given an explanation for that, because there simply isn't one.

[00:18:16] Speaker 03:
It was a mistake.

[00:18:19] Speaker 03:
It's a complicated procedure, sure.

[00:18:22] Speaker 03:
And things like that happen.

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But that's why we have a court of appeal.

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Because if nothing else, the stuff that was wiped out of the preliminary hang that wasn't even contested, we should get credit for that.

[00:18:32] Speaker 03:
I've asked for two minutes on rebuttal.

[00:18:34] Speaker 03:
I don't know if I still have that or not, but thank you.

[00:18:37] Speaker 08:
Thank you, Council.

[00:18:53] Speaker 02:
May it please the Court, I'm Matthew McLean representing the settling devotional claimants.

[00:18:57] Speaker 02:
I'd like to reserve two minutes of my time for rebuttal.

[00:19:00] Speaker 02:
In the devotional category of these proceedings, the Copyright Royalty Board excluded evidence that should have been admitted.

[00:19:07] Speaker 02:
ignored evidence that was admitted without objection and, by its own admission, decided the matter based on no substantial evidence.

[00:19:16] Speaker 02:
Now, the board correctly and properly rejected IPG's distribution methodology, which it found to be unusable and to lead to absurd results, and that issue is not on appeal.

[00:19:28] Speaker 02:
But it refused to consider the SDC's proposed methodology, creating a quandary of its own making in which it had no methodology before it in the devotional category.

[00:19:39] Speaker 02:
So without any methodology, without considering any methodology and faced with two competing claims, the SDC's claim and IPG's claim,

[00:19:48] Speaker 02:
It arbitrarily chose IPG's unsupported allegations for the years 2000 and 2002.

[00:19:54] Speaker 09:
What are the judges supposed to do?

[00:19:57] Speaker 09:
That you take the position that IPG was properly disregarded and they haven't appealed that here?

[00:20:06] Speaker 09:
Your methodology is procedurally barred by the judges.

[00:20:11] Speaker 09:
Very difficult thing for us to reconsider our review.

[00:20:15] Speaker 09:
What are they supposed to do when they have no, when neither party has proven their case essentially?

[00:20:20] Speaker 02:
So two things.

[00:20:22] Speaker 02:
First of all, Your Honor, our methodology was not procedurally barred.

[00:20:25] Speaker 02:
The second thing was Mr. Witt.

[00:20:26] Speaker 02:
Assume that it is.

[00:20:27] Speaker 09:
What are the judges supposed to do?

[00:20:28] Speaker 09:
I mean, the judges thought it was out.

[00:20:30] Speaker 09:
So just assume for purposes of argument, for this question at least, that it's out.

[00:20:34] Speaker 09:
What are they supposed to do when neither party has proven its case?

[00:20:38] Speaker 02:
Well, Your Honor, there are several things they could have done.

[00:20:41] Speaker 02:
They could have requested the parties to present further evidence, which the board has.

[00:20:45] Speaker 09:
They're running out of time, right?

[00:20:46] Speaker 09:
Under the statute, do they have time for that?

[00:20:49] Speaker 02:
Your Honor,

[00:20:51] Speaker 02:
First of all, obviously, we don't control the schedule.

[00:20:55] Speaker 02:
We were following the schedule that the board presented to us.

[00:20:57] Speaker 02:
I would also point out in the current proceedings that are ongoing right now, the board has actually requested the parties to consent to an extension of the statutory time period, and all the parties have consented to that.

[00:21:07] Speaker 02:
So I'm not sure that that would be an absolute bar.

[00:21:09] Speaker 09:
Did you ask the judges to have a consensual bypass of the time limit so that you all could have a second chance?

[00:21:16] Speaker 09:
Putting on methodologies?

[00:21:17] Speaker 02:
Your Honor, it never came up one way or the other.

[00:21:20] Speaker 02:
So, no, but the time limit though, Your Honor, is a time limit that restricts, that's a time limit on the board.

[00:21:28] Speaker 02:
I mean, they've got to do their job.

[00:21:30] Speaker 09:
Right.

[00:21:31] Speaker 09:
So they've got to do their job.

[00:21:32] Speaker 09:
Both two parties have come in, neither of which has managed to prove their case.

[00:21:37] Speaker 09:
I'm just speaking for their determination at this point.

[00:21:39] Speaker 09:
I assume this is for the question.

[00:21:41] Speaker 09:
What's left for them to do?

[00:21:43] Speaker 09:
Are they supposed to come up with their own methodology, or is this like an adversarial trial system where somebody doesn't prove their case, then they go home empty-handed?

[00:21:54] Speaker 02:
Your Honor, neither the SDC nor IPG

[00:21:58] Speaker 02:
have the burden of proving any particular methodology.

[00:22:00] Speaker 02:
The burden was on the board to articulate a substantial basis in evidence, a non-arbitrary substantial basis in evidence for its determination.

[00:22:09] Speaker 02:
It could have requested witnesses.

[00:22:12] Speaker 02:
by its own rules, although the board disagrees with this, but according to its own rules, it could have subpoenaed witnesses.

[00:22:18] Speaker 09:
Can they come up with a methodology on their own, or do they really have to get it from the parties?

[00:22:22] Speaker 09:
They're really trying to figure out if it's like an expert agency, they can just devise something on their own, or are they reactive to what the parties present as options?

[00:22:29] Speaker 02:
Your Honor, they're not limited to what the parties, to the methodology the parties put into evidence.

[00:22:34] Speaker 02:
And that's, in fact, the board has

[00:22:37] Speaker 02:
has routinely argued and has ruled, we're not bound to use any particular methodology, and they're right.

[00:22:43] Speaker 02:
They're not bound to use any particular methodology, except that they are bound to use a methodology that is not arbitrary and that is based on substantial evidence.

[00:22:51] Speaker 02:
Neither IPG nor SDC has the burden.

[00:22:53] Speaker 02:
The board is composed of judges by statute, but those judges comprise not a lower court, but a board, and they're a party in this appeal.

[00:23:02] Speaker 02:
Their lawyers are sitting right here.

[00:23:04] Speaker 02:
The burden was on the board to articulate a non-arbitrary basis in substantial evidence, and the board failed to meet its burden.

[00:23:15] Speaker 09:
As part of the problem here, the difficulty here, you came into the case, your clients came into the case asserting 100% of the funds, the royalties.

[00:23:27] Speaker 09:
even though you knew another party was there asserting claims you didn't know the scope or extent of the claims is my understanding, but you knew they were there and they were going to be pressing for something.

[00:23:38] Speaker 09:
So as a part of the problem here, essentially a strategic choice that you made to go in

[00:23:45] Speaker 09:
guns blazing, asking for 100 percent, and essentially ignoring the fact that someone else was going to be asking for funds, as opposed to going and saying, we think we get 100 percent, but if you need a methodology to live it up, here's what you should do.

[00:23:57] Speaker 02:
Your Honor, we went in, it's not just a matter of us not knowing what IPG's claims were, although it's true that we didn't.

[00:24:03] Speaker 02:
We went in with a 100 percent

[00:24:06] Speaker 02:
allocation because we were moving to dismiss all of IPG's claims.

[00:24:13] Speaker 02:
Now, ultimately, we lost that motion.

[00:24:15] Speaker 02:
and the board substantially ruled against us.

[00:24:18] Speaker 02:
At the same time, they substantially ruled against us on that position.

[00:24:24] Speaker 02:
They issued a decision, they issued an order saying the parties are prohibited from filing amending direct... Well, I understand, but this happens in litigation all the time.

[00:24:30] Speaker 09:
You have to go in with alternative positions.

[00:24:33] Speaker 09:
Our position is 100%, but we acknowledge the fact that someone else has a claim here.

[00:24:39] Speaker 09:
We think those can all be disposed of, and for some reason they can't.

[00:24:43] Speaker 09:
Here's a methodology.

[00:24:44] Speaker 09:
What prevented you from doing that?

[00:24:48] Speaker 02:
Your Honor, I don't think the rules required us to do that.

[00:24:51] Speaker 09:
I didn't say what required.

[00:24:53] Speaker 02:
I said what prevented you from doing that?

[00:25:00] Speaker 02:
What prevented us was that we were confident in our position that IPG would be... Well, then that was a strategic judgment you all made that turned out to be mistaken.

[00:25:08] Speaker 02:
A strategic judgment in reliance upon the rules and the board's past practice, which was to allow rebuttal methodologies.

[00:25:17] Speaker 02:
It's a perfectly valid rebuttal to a methodology to present a better methodology that leads to different results.

[00:25:23] Speaker 02:
And that's what the board has allowed, and the board's predecessors have allowed in the past.

[00:25:26] Speaker 02:
This is the first case that we're aware of in which the board has ever prevented a party from presenting a methodology on rebuttal to rebut an opposing party's methodology.

[00:25:39] Speaker 04:
If we agree with you on this, what should happen?

[00:25:42] Speaker 02:
Your Honor, the case should be reversed and remanded and sent back to the board for further determinations.

[00:25:46] Speaker 04:
And what directions, if any, would we give under your theory?

[00:25:52] Speaker 02:
Your Honor, all we're asking for is for a remand with an order to decide the case based upon substantial evidence.

[00:26:01] Speaker 02:
And the Board could have a wide range of discretion as to how they do that.

[00:26:06] Speaker 02:
They could consider the evidence that's already in the record.

[00:26:09] Speaker 04:
Keep going.

[00:26:10] Speaker 02:
They could consider the evidence that's already in the record, which includes Dr. William Brown's rebuttal testimony that sets forth our entire methodology.

[00:26:19] Speaker 02:
ask and request the parties to present further evidence, which the board and its predecessor... That's what you really prefer, isn't it?

[00:26:26] Speaker 02:
Actually, Your Honor, what we believe the Board should have done was to decide the case on the evidence before it, which includes Dr. William Brown's rebuttal testimony.

[00:26:37] Speaker 02:
That would be our proposal to the Board.

[00:26:40] Speaker 02:
But I acknowledge they have discretion.

[00:26:42] Speaker 09:
They're not remand.

[00:26:43] Speaker 09:
You're essentially getting, let's assume that from the perspective of the judges, there was essentially procedural default on your end.

[00:26:50] Speaker 09:
And then what you're getting on remand is getting right around that.

[00:26:53] Speaker 09:
You're getting either having them crediting what you put in at rebuttal, which they didn't think was fair.

[00:26:59] Speaker 09:
They thought it was trial by ambush.

[00:27:01] Speaker 09:
They were there.

[00:27:01] Speaker 09:
I wasn't.

[00:27:02] Speaker 09:
That's how they characterized it.

[00:27:04] Speaker 09:
Or you're getting a second chance to do what you could have.

[00:27:07] Speaker 09:
quite easily done the first time around.

[00:27:10] Speaker 09:
Is that fair to the judges?

[00:27:11] Speaker 02:
Well, first of all, Your Honor, the judges decided this case based upon a theory and an approach that no party had suggested.

[00:27:20] Speaker 02:
If there was a trial by ambush here, it was by the board.

[00:27:23] Speaker 02:
because nobody had an opportunity to rebut its contentions in this matter, which were not based on evidence.

[00:27:31] Speaker 02:
But aside from that, they don't have to do what I'm saying that would be the best option, which would be decided based on the record before them, because there was no objection to the admission of Dr. Brown's testimony.

[00:27:42] Speaker 02:
But they could request further evidence.

[00:27:45] Speaker 02:
They could, we believe, although the board disagrees, subpoena their own witnesses,

[00:27:52] Speaker 09:
No, subpoena.

[00:27:57] Speaker 02:
The board could subpoena witnesses.

[00:28:00] Speaker 09:
I thought you said you could subpoena the board's witnesses.

[00:28:02] Speaker 09:
I'm misunderstood.

[00:28:02] Speaker 09:
I'm sorry.

[00:28:03] Speaker 02:
The board's regulations provide that the board can subpoena witnesses.

[00:28:08] Speaker 02:
The board itself has ruled that it doesn't have that authority, notwithstanding its regulations.

[00:28:12] Speaker 02:
We believe it does.

[00:28:13] Speaker 02:
The parties don't have that power, but the board does.

[00:28:15] Speaker 02:
The board could subpoena witnesses, we believe.

[00:28:17] Speaker 02:
The board could hire its own expert witnesses.

[00:28:20] Speaker 02:
There's authority for incurring costs.

[00:28:24] Speaker 09:
If they do that, then do you get discovered, their witnesses?

[00:28:26] Speaker 09:
How does that work so that you wouldn't have, as you said, ambushed by the board?

[00:28:31] Speaker 09:
Just procedurally, has that ever happened or how would that work?

[00:28:34] Speaker 02:
Your Honor, we would certainly be required to have notice and an opportunity to respond to whatever evidence the Board chooses to rely on.

[00:28:43] Speaker 02:
And this is consistent with this Court's decision in the intercollegiate case, which is cited in our brief, in which this Court ruled that the parties in that case

[00:28:54] Speaker 02:
in reversing the board's decision could hardly challenge a theory first presented in the judge's determination and not advanced by any participant.

[00:29:01] Speaker 02:
That's exactly what the board did in this case, in our case, was to present a resolution, I suppose you would say, that was not advanced by any participant.

[00:29:14] Speaker 02:
So clearly, we would have to have the opportunity to respond to whatever evidence the board chose to rely on.

[00:29:21] Speaker 02:
All I'm saying is the board has broad discretion, but it must decide based on substantial evidence.

[00:29:30] Speaker 02:
I see that I'm out of time.

[00:29:33] Speaker 06:
Thank you.

[00:29:49] Speaker 07:
Good morning.

[00:29:50] Speaker 07:
Sonia McNeil for the government.

[00:29:51] Speaker 07:
Unless the panel has a different preference, I'd like to start with the distribution of the religious programming royalties.

[00:29:57] Speaker 07:
A party has to enter its methodology in its written direct statement.

[00:30:01] Speaker 07:
A party who waits for rebuttal to offer this evidence prejudices the opposing party, denies the judges an adversarial presentation of any critiques or flaws of that methodology,

[00:30:11] Speaker 07:
and impairs the streamlined process that Congress established for the efficient and orderly distribution of cable royalties.

[00:30:19] Speaker 09:
So what happens if, because of one methodology getting thrown out, another one, in the judge's view, coming in too late, being procedurally barred, they go through this whole proceeding and they have no methodology in front of them,

[00:30:35] Speaker 09:
Your view is they get to just devise their own methodology as they did here.

[00:30:39] Speaker 09:
Nobody has any notice of it or ability to address it.

[00:30:42] Speaker 09:
That's how this should go.

[00:30:44] Speaker 07:
Your Honor, the judge's obligation under 803A is to make a decision based on the record.

[00:30:48] Speaker 07:
And here, when the judges rejected one party's methodology on the merits and another party's methodology as procedurally barred, they looked to the record before them to see if there was another rational... What if the record's incomplete or the record is such that they're unable to make a reasoned determination?

[00:31:05] Speaker 04:
Because the final determination here does seem

[00:31:11] Speaker 04:
I'm going to load the dice here, but it does seem arbitrary how they came up with the final determination.

[00:31:17] Speaker 04:
And if that's the final determination, shouldn't they go back and say, well, we need to supplement the record or we need to do something to provide us a better basis for making a reasoned determination?

[00:31:28] Speaker 07:
Two points.

[00:31:28] Speaker 07:
First of all, Your Honor, I have to disagree with your characterization of the determination as arbitrary.

[00:31:32] Speaker 07:
What the judges did here was they looked at the parties' own proposals.

[00:31:36] Speaker 07:
And they said, for two of the four years in question, the parties either actually agree about what an appropriate distribution might be, or they've come pretty close to agreeing.

[00:31:45] Speaker 09:
Can I just back you up?

[00:31:46] Speaker 09:
Because I'm aware of that position.

[00:31:47] Speaker 09:
But to follow up or continue on Judge Kavanaugh's question, let's assume a hypothetical case.

[00:31:53] Speaker 09:
And so both methodologies presented by the parties have been thrown out.

[00:31:57] Speaker 09:
And the record is incomplete.

[00:31:59] Speaker 09:
And the clock is about to run on the time limit.

[00:32:04] Speaker 09:
What are the judges supposed to do then?

[00:32:06] Speaker 07:
If what you mean by the record is incomplete is that the parties haven't even told the judges what they would accept as far as a distribution.

[00:32:13] Speaker 09:
Neither party has given them a rational basis for methodology for divvying up the funds.

[00:32:20] Speaker 09:
It's not sufficient in the record.

[00:32:22] Speaker 09:
What would happen?

[00:32:23] Speaker 09:
Your Honor, the party's own proposals in general and specifically here, I ask a hypothetical question where there is, the record is incomplete and does not allow, you assume the numbers are far apart.

[00:32:37] Speaker 09:
What is your view?

[00:32:37] Speaker 09:
What are they supposed to do?

[00:32:39] Speaker 07:
Well, in that case, I think it's a hard question, and the judges have never been presented with it.

[00:32:45] Speaker 07:
But what they did here was... No, I know what they did here.

[00:32:47] Speaker 09:
I'm really trying to figure out what they're supposed to do.

[00:32:50] Speaker 09:
If the record doesn't give them a methodology, are they just supposed to come up with something completely on their own?

[00:32:58] Speaker 09:
Nobody gets any chance to address it.

[00:33:01] Speaker 09:
like they did here.

[00:33:02] Speaker 09:
They came up with a sort of Solomonic, I guess, approach, splitting the baby.

[00:33:08] Speaker 09:
Nobody had any idea that was coming.

[00:33:10] Speaker 09:
Nobody got to address it.

[00:33:11] Speaker 07:
Your Honor, I don't mean to be a broken record, but it cannot be the case that nobody had any idea that this was coming when the party's own proposals overlapped for the year 2000.

[00:33:21] Speaker 07:
And if the proposals hadn't overlapped, what would happen then?

[00:33:24] Speaker 07:
If the proposals hadn't overlapped, I think the judges would have been in a very difficult position.

[00:33:30] Speaker 07:
Congress didn't set this up as an inquisitorial system.

[00:33:33] Speaker 07:
I know it's a difficult position.

[00:33:35] Speaker 09:
I'm really trying to get what they should do.

[00:33:37] Speaker 09:
What do you think they should do?

[00:33:38] Speaker 09:
Should they call for more evidence?

[00:33:40] Speaker 09:
Should they say, we give up on you guys.

[00:33:43] Speaker 09:
You haven't given us anything rational.

[00:33:45] Speaker 09:
Here's our proposed approach.

[00:33:46] Speaker 09:
Let them have reactions to it.

[00:33:50] Speaker 09:
So they've got this clock ticking.

[00:33:52] Speaker 07:
Well, I suppose that one thing they could have done, and this is an issue that the court considered in the recent music choice case, is looked to the distribution in the prior year.

[00:34:02] Speaker 07:
It's a common sense proposition that the world simply doesn't change overnight.

[00:34:06] Speaker 07:
And so if the parties had given them absolutely nothing to go on, they could have said, well,

[00:34:10] Speaker 07:
How did this all come out last time?

[00:34:12] Speaker 07:
Were the same parties in front of us?

[00:34:14] Speaker 07:
Do we have any reason to believe that the world looks completely different?

[00:34:17] Speaker 07:
In the music choice case, and I refer the court especially to 774 F3rd at 1009, the judges were confronted with evidence that they felt was seriously flawed.

[00:34:26] Speaker 07:
And so, as further guidance, they looked to the record in a prior proceeding.

[00:34:32] Speaker 07:
Here, though, we do not have that problem.

[00:34:35] Speaker 07:
The copyright royalty judges recognized that the parties actually agreed on one of the four years in question, and they very nearly agreed on the 2002 year.

[00:34:45] Speaker 09:
How binding is the statutory time limit, in your view, on the judges?

[00:34:50] Speaker 09:
Can they agree with the parties to go past it, or is it really a hard and fast limit on them?

[00:34:57] Speaker 09:
That's going to be part of the problem here, is they were concerned about bumping up against the time limit.

[00:35:02] Speaker 07:
Well, nobody thought in this – nobody proposed in this case to the judges that they extend the statutory time limit.

[00:35:08] Speaker 07:
And I think it's hard to fault the judges for trying to do the job that Congress set for them in the way that Congress told them to do it and in the time that Congress told them to finish it.

[00:35:16] Speaker 09:
Does the judge have the authority on their own or upon proposal by the parties to go past that time limit?

[00:35:22] Speaker 07:
Your Honor, that question's not presented in this case.

[00:35:24] Speaker 07:
Perhaps it will be in a future cable distribution appeal, but I'm simply not able to address that at this stage.

[00:35:29] Speaker 09:
You don't have a position on what they could do there?

[00:35:31] Speaker 07:
We have no position, Your Honor.

[00:35:35] Speaker 07:
Here, as the judges recognized, the fact that the settling devotional claimants waited nine months after all other parties amended their written direct statements to introduce what was functionally the guts of its methodology.

[00:35:49] Speaker 04:
Can I interrupt?

[00:35:50] Speaker 04:
You said for one of the years, I guess for 2002, it was nearly, it was close.

[00:35:56] Speaker 07:
Yes.

[00:35:57] Speaker 04:
But it wasn't, they didn't agree, actually.

[00:36:00] Speaker 04:
You said nearly agree.

[00:36:02] Speaker 07:
That's correct.

[00:36:03] Speaker 04:
Right.

[00:36:04] Speaker 04:
So, I mean, that strikes me there's a difference there.

[00:36:09] Speaker 07:
There is a difference, Your Honor.

[00:36:10] Speaker 07:
But again, the settling devotional claimants calculated risk in this proceeding, presented the judges with a problem that they had to solve.

[00:36:17] Speaker 07:
Their job was to find a rational way to distribute the pool of money in front of them between the two people who said that they wanted it.

[00:36:25] Speaker 07:
And so what they did was they looked at the numbers, and they took the figure that IPG proposed.

[00:36:31] Speaker 07:
And IPG, I might... And then what about 2001 and 2003?

[00:36:34] Speaker 04:
What do you say for them?

[00:36:37] Speaker 07:
For 2001 and 2003, the party's proposals didn't coincide, and there was also, as we discussed, no other evidence in the record that the judges could turn to.

[00:36:47] Speaker 04:
So they took the 2001... Isn't that the classic situation, then, where the agencies should say, we need more, rather than just throwing a dart at the dartboard?

[00:37:01] Speaker 07:
But of course they didn't throw a dart, Your Honor.

[00:37:03] Speaker 07:
They looked at the 2000 and 2002 years and they said, not only do the parties substantially agree, but these two numbers are close.

[00:37:11] Speaker 04:
And the 2001 and 2003, those years are... Substantially agree is another way of saying they didn't agree for 2002, right?

[00:37:21] Speaker 04:
They didn't agree.

[00:37:22] Speaker 07:
It is, Your Honor, but if you conceived, you could conceive of what the judges did as taking the parties' proposals as a zone of reasonableness and trying to fix a point within that zone.

[00:37:34] Speaker 07:
As the judges pointed out in their rehearing order... It's outside.

[00:37:39] Speaker 04:
Go ahead.

[00:37:39] Speaker 04:
It's the same.

[00:37:39] Speaker 04:
I think we had the same question.

[00:37:40] Speaker 04:
It's outside the zone on the one year.

[00:37:43] Speaker 09:
Isn't it outside on all years?

[00:37:48] Speaker 09:
all the preceding parts of their decision, they said IPG's methodology, which produced that number they were using, was entirely invalid.

[00:37:57] Speaker 09:
So how do we even know the IPG number that they were relying on is even a valid number to be employed for purposes of the approach that they took?

[00:38:08] Speaker 07:
Well, the inquiry here is relative market value, and it's reasonable for the judges to think that what a party thinks its own content is worth might have some bearing on what relative market value might be.

[00:38:19] Speaker 09:
That's true in a case where they've said many times that viewership is at least a key component of that relative market value, and IPG's numbers came to them without factoring in viewership at all.

[00:38:35] Speaker 09:
and using the methodology that they said absolutely could not be credited.

[00:38:40] Speaker 09:
So how could they even give that money any role at all, excuse me, that number that they had, any role at all in their decision making?

[00:38:49] Speaker 09:
How can you say it's bad, bad, bad, bad, bad, but we're gonna use it?

[00:38:53] Speaker 07:
The analysis can be bad, bad, bad, but the judges can rely on the record in making their determination and a party's own proposal, its own statement about what it would accept

[00:39:05] Speaker 07:
He's a part of the record and a proper basis for the judge's determination.

[00:39:08] Speaker 09:
It's not what it would accept.

[00:39:09] Speaker 09:
It's what it thought it was entitled to based on doing an analysis that they said couldn't be credited.

[00:39:15] Speaker 07:
Well, I think it's difficult to fault the judges for looking at the party's own assessment of what they thought the market value of their content was.

[00:39:24] Speaker 07:
For whatever reason, they thought that that number was inappropriate.

[00:39:28] Speaker 09:
Even if they knew that they had come to that market value number using a definition of market value that the judges had said was entirely invalid and didn't even factor in the most important consideration that they were using?

[00:39:41] Speaker 07:
Your Honor, the judge's obligation is to make a decision on the record and to find a rational way to split up a pot of money between two parties.

[00:39:50] Speaker 07:
Do we wish that the evidence in this case was better?

[00:39:53] Speaker 07:
Absolutely.

[00:39:54] Speaker 07:
But we had a job to do, we had a time to do it in, and we resolved the problem that the parties presented us with in a rational way based on the agreement between the parties for 2000, the

[00:40:09] Speaker 07:
close proximity of the party's numbers in 2002 and relying on the common sense proposition that at the stroke of midnight on December 31st of 2000, everything we already know about what might be market value doesn't change.

[00:40:25] Speaker 09:
Can you talk about the decision about whom an agent represents in proceedings before the judges?

[00:40:35] Speaker 09:
Is there an established standard as to

[00:40:39] Speaker 09:
When someone comes forward, they make a claim and someone contests it.

[00:40:44] Speaker 09:
What the standard is for determining the validity of a representation claim, who bears the burden of proof, and how are we supposed to review a decision.

[00:40:56] Speaker 07:
The parties, the proponent, the person who claims to be the designated agent of a claimant, bears the burden to provide evidence that facially shows an agreement to act as the principal for another.

[00:41:10] Speaker 07:
That's the standard that the judges applied here.

[00:41:13] Speaker 07:
And the judges in this case appropriately concluded that things like un-executed agreements, partial email strings simply don't suffice to answer the question whether IPG or anyone else is properly in front of them.

[00:41:29] Speaker 07:
Whether, if the judges gave them money, they would have an obligation to pass it on to somebody else, specifically the copyright owners.

[00:41:36] Speaker 09:
Is there a standardized rule that they use for determining what you have to show?

[00:41:41] Speaker 09:
Because they seem to acknowledge you have oral agreements, you may not need written evidence at all.

[00:41:47] Speaker 09:
And I'm just trying to figure out, because it came up in both of the cases here, if there is sort of a regularized standard that's being applied, it didn't seem to me that there was.

[00:42:01] Speaker 07:
There is, and Your Honor, I apologize, I don't have the JAA citation at my fingertips, but the standard is evidence that is facially sufficient to show an unambiguous authorization by the copyright owner for another person or entity to act as their agent.

[00:42:15] Speaker 09:
Did you have that even from MPAA?

[00:42:17] Speaker 09:
You had something from a third party who said they were an agent of the copyright owner, but you didn't have something from the actual copyright owners in MPAA, yet the judges credited it.

[00:42:28] Speaker 07:
The judges had no reason to doubt, and IPG didn't dispute, that the middlemen with whom MPAA had signed agreements actually had authority to represent the underlying copyright owners.

[00:42:41] Speaker 09:
Again, the question that the judges are trying... IPG was very much contesting, I forget, 600 or something of the representations.

[00:42:51] Speaker 09:
And so if you don't need evidence from the actual copyright owner, I'm just trying to understand

[00:43:00] Speaker 09:
applied standard is that it could be applied here by the judges to know that they're doing it that way.

[00:43:06] Speaker 09:
They are making it up as they go along from case to case.

[00:43:09] Speaker 07:
In the absence of any reason to believe, and IPG offered none, that the middlemen with whom MPAA had a contract actually represented the copyright owners.

[00:43:20] Speaker 07:
It was perfectly within the judges' rights.

[00:43:22] Speaker 07:
to accept that.

[00:43:23] Speaker 07:
And I might add, I believe that the middlemen in this case also had certifications from each one of the individual copyright owners.

[00:43:33] Speaker 07:
Your Honor, I hope that my colleague from MPAA might be able to answer that question better than I can.

[00:43:39] Speaker 07:
But the point is that the judges didn't hold MPAA and IPG to a different standard.

[00:43:45] Speaker 07:
They asked in each case, essentially,

[00:43:49] Speaker 07:
If we give you a part of this copyright royalty pie, do you have any obligation to pass it along to somebody else?

[00:43:55] Speaker 07:
And if not, then what are you doing here?

[00:43:58] Speaker 09:
And so your view is that someone comes, because the regulations or practice requires someone to come in and just make a present representation as to their validity as an agent.

[00:44:08] Speaker 09:
And if someone contests it, the burden of proof is on the claimant and not on the person contesting representation.

[00:44:20] Speaker 09:
and articulating it, as opposed to other people showing that they didn't have it.

[00:44:24] Speaker 09:
I'm just trying to make sure I understand the rules of the game.

[00:44:26] Speaker 07:
The rules are that the burden is on the claimant to demonstrate that it's the designated agent of the owner or owners that it purports to represent, and that if somebody wants to challenge it, they have to provide a good reason to doubt that the evidence that the claimant has put forward is not sufficient to provide a facially valid showing of authority to represent the underlying copyright owner or owners.

[00:44:48] Speaker 07:
IPG here offered no reason to doubt that the middlemen actually had authority to represent the underlying copyright owners and the judges appropriately concluded that even if IPG's challenge had been timely, which it's important to emphasize that it was not, that IPG's claim lacked merit.

[00:45:09] Speaker 09:
In the settling devotional case where they barred the parties from doing amended written direct statements after their ruling, which said who was going to have what claims, sorted some of the validity of claims out, have they done that in the past, not allowed people to amend statements in response to their determination as to, right, here's the claims that each party has here?

[00:45:36] Speaker 07:
Your Honor, let me answer your question by walking through, and I think this would be helpful, the sequence of events here.

[00:45:41] Speaker 07:
All of the parties filed their written direct statements in May of 2013.

[00:45:45] Speaker 07:
IPG and MPAA, that prompted a discovery period.

[00:45:51] Speaker 07:
At the end of that discovery period, pursuant to the judge's regulations, a party has 15 days to file an amended written direct statement, which both MPAA and IPG did here.

[00:46:02] Speaker 07:
That was in August of 2013, and it was not until later that the judges said, look, we've done all we can do on this.

[00:46:12] Speaker 07:
You've had your opportunity to test the veracity of other parties' written direct statements.

[00:46:18] Speaker 07:
those who have wanted to have amended, and we're simply not going to accept any more submissions on this at this stage.

[00:46:24] Speaker 07:
I'm not aware of any instance that the judges have or haven't done this in the past, but it was perfectly appropriate under the circumstances, and the SDC cannot seriously argue that they were either surprised or that the judge's decision was unfair.

[00:46:42] Speaker 07:
I'm happy to take questions on any other part of the case.

[00:46:45] Speaker 09:
We ask that the court dismiss IPG's appeal regarding the FIFA matter.

[00:46:58] Speaker 07:
The party's burden, as we've just discussed, the claimant's burden is to show sufficient evidence to find a facially valid designation of authority.

[00:47:07] Speaker 07:
The judges have an independent ability, and they appropriately exercised it here, to make sure that no one is entering claims that they lack authority to assert.

[00:47:17] Speaker 07:
And so when IPG didn't make, or for those instances where IPG didn't make an adequate facial showing, the judges appropriately rejected the claims.

[00:47:25] Speaker 09:
Do you have a view on the sort of jurisdictional question of how interlocutory orders are meant to be reviewed or not by this Court?

[00:47:37] Speaker 07:
Your Honor, my view on the jurisdictional question is that your decision last year in the 2014 IPG case, the rationale settles the question here.

[00:47:45] Speaker 07:
And it's worth noting, IPG doesn't argue otherwise.

[00:47:49] Speaker 07:
The order regarding IPG's authority to represent FIFA is not a final determination under 803C.

[00:47:55] Speaker 07:
This Court recognized, in your opinion, Judge Millett, that although the judges issue different kinds of orders, it is only a final determination under 803C that is subject to direct review in this Court.

[00:48:06] Speaker 07:
The judge's order regarding IPG's representation of FIFA is not such an order.

[00:48:11] Speaker 07:
IPG agrees, and we ask that the court dismiss that part of the case.

[00:48:16] Speaker 04:
The NPAA strongly disagrees with you on that.

[00:48:20] Speaker 07:
I think it's the Joint Sports Claimants, Your Honor.

[00:48:24] Speaker 04:
Yes, the Joint Sports Claimants.

[00:48:26] Speaker 04:
But they're brief.

[00:48:27] Speaker 04:
They say that would wreak havoc, I think is the term that they use.

[00:48:32] Speaker 04:
How do you respond to that argument?

[00:48:34] Speaker 07:
Your Honor,

[00:48:36] Speaker 07:
I disagree, first of all, of course, that it would wreak havoc.

[00:48:41] Speaker 07:
not having direct review in this court would not leave a party without a remedy.

[00:48:46] Speaker 07:
A party who was dissatisfied with an order not subject to direct review in this court could do what IPG itself has done here.

[00:48:54] Speaker 07:
They could go to state court or to federal court in diversity jurisdiction, and if they think they were denied something by the judge's order and as a result they weren't paid a fee or somebody else... Does that make any sense though?

[00:49:05] Speaker 04:
I mean, that just sounds like a very roundabout way of doing something that would be very simple.

[00:49:11] Speaker 07:
The judge's jurisdiction, Your Honor, as this Court has recognized almost 30 years ago, does not extend to adjudicating contractual disputes.

[00:49:21] Speaker 07:
And in the case and the situation that's presented here,

[00:49:25] Speaker 07:
What IPG did, what it appropriately did, was sue FIFA in state court.

[00:49:30] Speaker 07:
This case was then removed to federal court and assert that FIFA had breached a contractual obligation to it.

[00:49:36] Speaker 07:
And as a result, it was denied a fee.

[00:49:39] Speaker 07:
That's not the sort of question that arises under the Copyright Act, as this court has recognized and as Judge Millett's decision last year recognized.

[00:49:47] Speaker 07:
And so far from wreaking havoc, it's perfectly appropriate for the judges to conclude that those decisions

[00:49:53] Speaker 07:
It's perfectly appropriate for this court to conclude that those decisions belong in a different forum.

[00:49:59] Speaker 09:
Last year's decision involved a challenge to a no-controversy determination and distribution that happened years before.

[00:50:09] Speaker 09:
Essentially, that could be reopened through a challenge in this court.

[00:50:12] Speaker 09:
What you're talking about here is a number of predicate decisions, all of which were steps

[00:50:21] Speaker 09:
leading down the path to the final determination.

[00:50:24] Speaker 09:
And in ordinary district court litigation, all interlocutory steps are wrapped up in the final determination.

[00:50:31] Speaker 09:
And here all of those intermediate steps were aspects and parts of the final determination in this case.

[00:50:37] Speaker 09:
So isn't this very different from last year's case?

[00:50:39] Speaker 07:
It's not, and let me explain why.

[00:50:41] Speaker 07:
It's critical to understand here that what the final determination addressed was the distribution in the syndicated and religious programming categories.

[00:50:50] Speaker 07:
The government doesn't contest this court's jurisdiction to address the judge's orders on the validity of claims in those two categories that matured into the final determination, but IPGs can

[00:51:06] Speaker 07:
claim about its representation of FIFA in the sports programming category, when that claim was addressed, that resolved the last remaining controversy in the sports programming, the last remaining issue in the sports programming category.

[00:51:19] Speaker 09:
All of the parties had settled.

[00:51:21] Speaker 09:
An ongoing disputed proceeding, which wasn't the situation in the prior case in IPG.

[00:51:28] Speaker 09:
There it had been a settlement.

[00:51:30] Speaker 09:
There was no distinction by the judges at all other than to execute a settlement.

[00:51:36] Speaker 09:
Here you have an ongoing dispute.

[00:51:38] Speaker 09:
This is one of the claims.

[00:51:41] Speaker 09:
The IPG obviously disagreed strongly with the determination that didn't represent FIFA, but the judges just said, we're going to go ahead and say we're done here and distribute the money.

[00:51:51] Speaker 09:
midstream, essentially mooting their ability to get review of our decision.

[00:51:56] Speaker 09:
That seems to be very, very different than the implementation of a settlement, an uncontested settlement by parties.

[00:52:04] Speaker 09:
This was very contested.

[00:52:05] Speaker 07:
Your Honor, I disagree and let me explain why.

[00:52:07] Speaker 07:
Recall that in the last IPG case, what was involved was a consolidated proceeding involving royalties for two years, the 1998 and the 1999 royalties.

[00:52:18] Speaker 07:
The 1999 royalties

[00:52:20] Speaker 07:
went on to a final determination under 803C.

[00:52:23] Speaker 07:
I understand that that was published in the Federal Register in the last few weeks.

[00:52:28] Speaker 07:
But what the judges said in that determination was, we're resolving here in a determination through a contested proceeding the distribution for the 99 royalties.

[00:52:37] Speaker 07:
But another part of this docket

[00:52:39] Speaker 07:
the 98 royalties has already been resolved.

[00:52:43] Speaker 07:
And this court said, Judge Mallette, your opinion for this court said in that case that the order that resolved the 98 distribution was not a final determination under 803C and thus it was not subject to direct review in this court.

[00:52:57] Speaker 07:
We're in the same position here and the same result obtains.

[00:53:05] Speaker 08:
Thank you.

[00:53:17] Speaker 00:
Good morning.

[00:53:17] Speaker 00:
May it please the Court, Charles Curtis on behalf of the Joint Sports Claimants.

[00:53:23] Speaker 00:
Judge Kavanaugh, you're right.

[00:53:24] Speaker 00:
We strongly disagree with the jurisdictional argument that has been made.

[00:53:30] Speaker 00:
And just to identify the parameters of that argument a bit more, because there's a difference between the government and IPG.

[00:53:38] Speaker 00:
The government argues that the March 21st claim validity order

[00:53:45] Speaker 00:
is unreviewable in this court to the extent that it involves the sports claims.

[00:53:52] Speaker 00:
Now the government concedes that it is reviewable, that that order is reviewable to the extent that it involves the program suppliers and the devotional claims.

[00:54:01] Speaker 00:
The only difference being that

[00:54:05] Speaker 00:
using your word, Judge Millett, on an interlocutory basis, the royalty judges decided everything with all of the disputed issues with respect to the sports claims.

[00:54:17] Speaker 00:
It strikes me as irrational to say that reviewability in this court turns on whether the judges were able to make, in essence, a summary judgment decision and resolve certain claims, or whether they had to leave claims open until the absolute final determination.

[00:54:38] Speaker 00:
That just makes no sense.

[00:54:40] Speaker 00:
And it certainly violates this court's longstanding emphasis that

[00:54:47] Speaker 00:
that judicial review of agency proceedings should be concentrated in one forum and not fragmented among many.

[00:54:59] Speaker 00:
So that's the March 21st order.

[00:55:04] Speaker 00:
IPG came in and responded that they agreed with the sports argument, but that indeed everything in the March 21st order should be unreviewable in this court.

[00:55:17] Speaker 00:
IPG also went on to say that in the May 17th program categories order, which dealt, among other things, with the Olympic trials program, said that that also is unreviewable in this court.

[00:55:34] Speaker 00:
Both the government and IPG obviously rely on this court's decision last year and IPG won.

[00:55:40] Speaker 00:
It strikes me that the decisions, the two orders at issue here are everything that the order in last year's decision was not.

[00:55:51] Speaker 00:
Last year's decision involved a settlement, a 10-year-old settlement to which IPG had been a party.

[00:55:59] Speaker 00:
IPG never reached any such settlement here.

[00:56:03] Speaker 00:
Last year's decisions did not involve contested 803B proceedings.

[00:56:09] Speaker 00:
This does.

[00:56:10] Speaker 00:
These orders were made in the course of the 803B proceedings.

[00:56:16] Speaker 00:
They were based on a written record, findings of fact,

[00:56:20] Speaker 00:
This was a contested determination.

[00:56:24] Speaker 00:
I also might add that these two orders, although they were not published in full in the Federal Register, were discussed.

[00:56:34] Speaker 00:
repeatedly in the final determination that was published in the Federal Register, and I refer the Court to Joint Appendix 5995, Notes 2 and 3, 5996, Note 5, and 5998.

[00:56:50] Speaker 00:
Now, I'm not suggesting that

[00:56:53] Speaker 00:
whether or not an interlocutory order is cited and discussed in the final determination is the touchstone of reviewability.

[00:57:04] Speaker 00:
Of course not.

[00:57:06] Speaker 00:
But in this case, those orders were discussed in the final determination.

[00:57:12] Speaker 00:
Moreover, we're talking about federal questions here.

[00:57:16] Speaker 00:
Ms.

[00:57:16] Speaker 00:
McNeil said that the FIFA issue

[00:57:20] Speaker 00:
before the court really is nothing more than a contractual kind of issue, like the issue involved in the California litigation.

[00:57:33] Speaker 00:
That's not true.

[00:57:34] Speaker 00:
The FIFA issue here is a federal question.

[00:57:38] Speaker 00:
The federal question is whether IPG was the designated agent

[00:57:45] Speaker 00:
of FIFA within the meaning of Section 111.

[00:57:50] Speaker 00:
And the judges held that as a matter of distribution, that IPG was not, because FIFA had come before the court, come before the judges and said,

[00:58:05] Speaker 00:
IPG is not our representative.

[00:58:08] Speaker 00:
Now that's a federal question, not a collateral contractual issue.

[00:58:14] Speaker 00:
Judge Millett, I'm sorry.

[00:58:16] Speaker 09:
I'm sorry.

[00:58:17] Speaker 09:
Do you think the judges have a discernible standard for representation decisions?

[00:58:25] Speaker 09:
That they consistently apply across cases?

[00:58:28] Speaker 09:
What do you have to show to show that you're the agent for somebody?

[00:58:33] Speaker 00:
I generally agree with Ms.

[00:58:35] Speaker 09:
McNeil, but whatever... Can you find there's something that the best articulation that they have outside this case of what that standard is?

[00:58:45] Speaker 09:
I didn't see any regulation on it, and I didn't see other decisions that seem to clear this sort of fogginess of they had paperwork we didn't like, and this MPA, I don't know if this is your...

[00:58:58] Speaker 09:
I think there are a number of factors that need to be considered.

[00:59:11] Speaker 00:
One of them is the track record

[00:59:14] Speaker 00:
of royalty distribution proceedings.

[00:59:17] Speaker 00:
I mean, in many cases, agents have appeared before the royalty judges for years and years and years without any dispute, any issue about the bona fides of their representation of the principle.

[00:59:35] Speaker 00:
That might be one case where the rules might be relaxed a bit, as it were.

[00:59:43] Speaker 00:
But as you noted, Judge, in this case, at least as far as my clients go, there is a bright line rule.

[00:59:52] Speaker 00:
And that is when the alleged principal, the alleged copyright owner says, this entity may not represent me, that's pretty clear.

[01:00:03] Speaker 09:
Whatever a- That didn't cover everything they kicked out here.

[01:00:06] Speaker 00:
Pardon me?

[01:00:06] Speaker 09:
That didn't cover everything that they kicked out here.

[01:00:08] Speaker 00:
I understand.

[01:00:09] Speaker 00:
I understand.

[01:00:10] Speaker 09:
That may be the easier case.

[01:00:12] Speaker 00:
I also wanted to mention, and Judge Millett, you got into this a bit.

[01:00:18] Speaker 00:
In last year's decision, the register of copyrights in making the final distribution had made a determination that all, I'm quoting, all controversies had been settled and no other controversies remain.

[01:00:35] Speaker 00:
That's not what the royalty judges did here.

[01:00:37] Speaker 00:
In fact, if you look at the actual distribution order, and that's at Joint Appendix 6958, the royalty judges acknowledged that IPG continued to dispute their determination.

[01:00:53] Speaker 00:
And that IPG, in fact, and this is discussed in the distribution order, IPG said, we disagree and we're going to appeal this.

[01:01:02] Speaker 00:
And since we're going to appeal,

[01:01:04] Speaker 00:
hold up on the distribution and the royalty judges responded that yes we understand you're going to appeal but we're going to distribute anyway subject to and this is in footnote two of that distribution order subject to the understanding that the joint sports claimants

[01:01:20] Speaker 00:
are going to have to repay the money, return the money, if, in fact, the determination is overturned on appeal.

[01:01:28] Speaker 00:
So it seems to me this is a very different kind of distribution, certainly not the kind of final, unqualified distribution that was at issue last year.

[01:01:40] Speaker 00:
And finally, I would just note, going back to the irrationality of this, again, it just makes no sense to me to suggest that

[01:01:49] Speaker 00:
a given order, like the March 21st order, parts of it may be appealed to this court, parts of it might go to the district court under an APA claim, parts of it might be unreviewable.

[01:02:03] Speaker 00:
Depending on whether or not the interlocutory decision resolved all the issues or left issues open for the final determination,

[01:02:14] Speaker 00:
And finally, I would just say, I think it's pretty clear that this Court does have jurisdiction over these orders under 803D.

[01:02:25] Speaker 00:
I think it's quite clear.

[01:02:27] Speaker 00:
If the judges think there's any ambiguity here, I would just refer to the media access policy case cited on page 19 of our brief, where this court said, when it is unclear whether review jurisdiction is in the district court or in the court of appeals, the ambiguity is resolved in favor of the latter.

[01:02:56] Speaker 00:
Review is here.

[01:02:59] Speaker 00:
If the judges don't have any other questions, thank you.

[01:03:02] Speaker 00:
Thank you.

[01:03:12] Speaker 10:
May it please the court, my name is Gregory O'Lanneran.

[01:03:16] Speaker 10:
I represent MPA, represented program suppliers.

[01:03:21] Speaker 10:
Your Honors, I intend to cover one principal point, and to the extent Your Honors have any questions for some of the points that have been covered earlier, I'm happy to answer those questions.

[01:03:33] Speaker 10:
Contrary to IPG's argument, the record is clear that MPA complied with the applicable discovery

[01:03:40] Speaker 10:
standards with respect to producing all of the documents that were required.

[01:03:47] Speaker 10:
Before I get into that main point, I should note that Dr. Gray's testimony regarding the allocated shares between IPG and MPAA was actually presented in an amended direct testimony

[01:04:02] Speaker 10:
IPG did not move to compel any discovery on that amended direct testimony.

[01:04:07] Speaker 10:
So it is our position that by failing to do so, they have to waive the right to challenge MPAA's production with respect to...

[01:04:20] Speaker 10:
That was a different type of motion to compel.

[01:04:22] Speaker 10:
There was actually the initial written... Have you already asked for this stuff and been told no?

[01:04:28] Speaker 09:
Are you saying that they should ask again after the amended statement?

[01:04:33] Speaker 10:
The initial motion to compel addressed the initial direct testimony.

[01:04:38] Speaker 10:
There was no motion to compel with regard to the amended written direct testimony.

[01:04:44] Speaker 09:
What would have changed?

[01:04:46] Speaker 10:
The difference between the two directives, in the initial testimony, MPA didn't have any discovery, didn't have what IPG was blaming, and so they couldn't really articulate their share between the parties.

[01:04:58] Speaker 10:
That was what led to the amended written direct testimony, and IPG did not move for any discovery on that.

[01:05:06] Speaker 10:
on the amended written direct assessment, which actually articulated the allocation of shares between the parties.

[01:05:12] Speaker 09:
Did you have an obligation, is this like, Mr. Court, an ongoing discovery, obligation to turn over new information as it comes forward with relevance and so on since the testimony?

[01:05:23] Speaker 09:
changed your statement change.

[01:05:25] Speaker 09:
Did you have a duty to come forward with more?

[01:05:27] Speaker 10:
No, we did not, because at that point we believed that we had actually fully complied with the discovered requirements.

[01:05:33] Speaker 10:
And let me actually begin.

[01:05:34] Speaker 09:
So they would have motioned by then after your amended direct statement had been opposed by you and properly denied?

[01:05:39] Speaker 09:
I'm sorry, I didn't know that.

[01:05:41] Speaker 09:
You seem to be saying that they should have filed another motion after your amended direct statement, but then now it sounds like you're saying, of course, if they had, we would have opposed it and it would have properly been denied.

[01:05:50] Speaker 10:
That's correct.

[01:05:51] Speaker 10:
If they had followed, we would have believed, even after the amended direct testimony, the document production that we did after that, we complied with the rule.

[01:06:03] Speaker 09:
Let me respond to their argument that in prior proceedings,

[01:06:07] Speaker 09:
y'all were stingy and they went to the judges and you were ordered and you turned over everything you should, including the materials they want here.

[01:06:13] Speaker 09:
And in the subsequent proceeding, 2004 to 2009, they had the same problem.

[01:06:20] Speaker 09:
And for some reason, there was just a different

[01:06:22] Speaker 09:
result here, which had different consequences for their ability to replicate your program.

[01:06:28] Speaker 09:
Your methodology, I'm sorry.

[01:06:29] Speaker 10:
Well, that issue was actually raised for the very first time in IPG's reply brief.

[01:06:34] Speaker 10:
They had some new information that's not part of this record from another proceeding where they believe that they've got additional information.

[01:06:42] Speaker 09:
Our response is... I was just asking, were you unusually stingy here?

[01:06:45] Speaker 09:
I'm sorry?

[01:06:47] Speaker 09:
Were you more stingy than you were allowed to be in other proceedings here?

[01:06:51] Speaker 09:
Were you more stingy here than

[01:06:55] Speaker 10:
Well, again, I don't know if we're more stingy here than we were.

[01:07:01] Speaker 10:
I can't talk.

[01:07:02] Speaker 10:
I can't represent to the court there.

[01:07:03] Speaker 10:
We actually comply with the discovery requirement.

[01:07:07] Speaker 10:
And the judges reviewed our position on that, and they ruled on it.

[01:07:10] Speaker 10:
Now, with respect to this new information that IPGs contend in that they found in another proceeding, first of all, this is clearly a representation by counsel in a brief.

[01:07:21] Speaker 10:
Second, it's representation by counsel

[01:07:24] Speaker 10:
about an ongoing proceeding.

[01:07:26] Speaker 10:
And so for those reasons alone, this is impermissible testimony.

[01:07:31] Speaker 10:
And to the extent that they claim that their share would have increased or whatever, we don't know.

[01:07:36] Speaker 10:
We have no way of testing that assertion to challenge in it or defend in it.

[01:07:42] Speaker 09:
What about this file they identified that they say was the keys to the kingdom for them, that they needed to have this, I forget, now these acts I can't, you don't have a website for it.

[01:07:51] Speaker 10:
Well, here's, if you read section 351 F of the judge's regulation, it actually talks mostly about input dates.

[01:08:03] Speaker 10:
And it talks about the input data that the expert witness is required to provide in order for another party, an opposing party, to actually test the assertions of that witness.

[01:08:14] Speaker 09:
Well, you need techniques of estimation and testing.

[01:08:17] Speaker 09:
Yes.

[01:08:17] Speaker 09:
Results of the study's actual estimates and tests.

[01:08:21] Speaker 09:
And so wouldn't that have captured this initial stage before you gave the final allocation and spread everything

[01:08:30] Speaker 09:
Did this file actually break down, explain, identify how you were going to do these things up between them?

[01:08:37] Speaker 10:
Correct.

[01:08:38] Speaker 10:
And Dr. Gray did provide that information.

[01:08:41] Speaker 10:
And specifically, Dr. Gray provided information about all of the data sets that he used.

[01:08:48] Speaker 10:
He provided information, step-by-step instructions on how to merge the data.

[01:08:53] Speaker 10:
He provided log files.

[01:08:55] Speaker 09:
You mentioned the rule as to what you had to disclose, and it does cover a lot more than just input data.

[01:09:01] Speaker 09:
So I guess what I'm asking you is, in the rule at 351.10E on expert witnesses, did the file that they were asking for

[01:09:13] Speaker 09:
fall within this room?

[01:09:15] Speaker 10:
If you're honest talking about the integrated, I think it's called the final integrated study, it is a file that IPG actually came up with.

[01:09:29] Speaker 10:
There is no such thing.

[01:09:31] Speaker 10:
And Dr. Grigg testified to that.

[01:09:33] Speaker 10:
And it really has to do with the way

[01:09:36] Speaker 10:
in which he conducted his study.

[01:09:38] Speaker 10:
And he provided all of the inputs that would have allowed IPGIS experts to replicate his study.

[01:09:45] Speaker 10:
IPGIS expert Dr. Robinson actually admitted in her testimony that she received all of the files.

[01:09:53] Speaker 10:
She also said she successfully merged two of the files but chose not to go any step further.

[01:10:00] Speaker 10:
So she had the files to replicate the study.

[01:10:03] Speaker 10:
Now, the final integrated study that IPG refers to is not a file that MPAA came up with.

[01:10:10] Speaker 10:
It is IPG's belief that such a file exists.

[01:10:14] Speaker 10:
But Dr. Gray was very clear about the process he undertook.

[01:10:19] Speaker 10:
He has somewhat of an automated process that he used to generate the allocation of shares.

[01:10:25] Speaker 10:
It was IPG's belief, not MPAA's, that a file should have existed that captured whatever this final integrated study would have been.

[01:10:35] Speaker 10:
But Dr. Gray said such a file did not exist.

[01:10:39] Speaker 10:
So it's almost impossible to defend not producing a file that you never had in the first place.

[01:10:49] Speaker 09:
to compel on the grounds that the document didn't exist or that it might have existed, but it wouldn't have fallen within the ordinary discovery obligation.

[01:10:57] Speaker 10:
I believe they ruled that.

[01:11:00] Speaker 10:
Well, with regard to... Just that file.

[01:11:06] Speaker 10:
You know, I don't recall specifically what the denial was.

[01:11:09] Speaker 10:
You didn't give a lot of reasons for it.

[01:11:12] Speaker 10:
Well, with regards to this, but I don't think it had to... I think they did say we did not have to produce it.

[01:11:20] Speaker 09:
We didn't even say why.

[01:11:23] Speaker 09:
Is that sufficient?

[01:11:24] Speaker 10:
Well, they believed we had to comply.

[01:11:26] Speaker 10:
We told... We made a case to the judges what we had produced.

[01:11:31] Speaker 10:
There was testimony about what we had produced, and the judges were satisfied with what we produced.

[01:11:40] Speaker 10:
Okay.

[01:11:42] Speaker 10:
I see that I've run out of time.

[01:11:43] Speaker 10:
I don't know if the judge has had any questions on some of the remaining issues.

[01:11:49] Speaker 08:
It doesn't appear so.

[01:11:50] Speaker 08:
Thank you.

[01:11:50] Speaker 10:
Thank you.

[01:11:55] Speaker 08:
All right.

[01:11:59] Speaker 08:
Did Mr. Boydson have any time left?

[01:12:03] Speaker 08:
All right, we'll give you two minutes if you need it.

[01:12:06] Speaker 03:
Thank you.

[01:12:07] Speaker 03:
I'll be very brief.

[01:12:08] Speaker 03:
With regard to the issue about the devotional category and the judges arriving at the decision they did, I want to point something out.

[01:12:16] Speaker 03:
When you have a piece of evidence, sometimes there's an objection.

[01:12:19] Speaker 03:
Sometimes the objection is it's not admissible.

[01:12:22] Speaker 03:
It's admissible, but it's of limited weight.

[01:12:24] Speaker 03:
By analogy, let's remember, that's what happened with the IPG methodology in the devotional category.

[01:12:30] Speaker 03:
The judges did not make the IPG methodology inadmissible.

[01:12:34] Speaker 03:
Yes, they had a lot of criticisms of it.

[01:12:36] Speaker 03:
I'd also point out they also recognized that it has some qualities, and that because of those qualities and their decisions, they brought up a good point here.

[01:12:43] Speaker 03:
They focused on something good there.

[01:12:46] Speaker 03:
So it's not like the judges had nothing of IPG's methodology.

[01:12:50] Speaker 03:
They just had criticisms of it.

[01:12:52] Speaker 03:
So it goes to what weight they were going to give that methodology.

[01:12:56] Speaker 03:
It wasn't a situation in which it was excluded.

[01:12:59] Speaker 03:
So when we look to the judge's decision, it's not a situation, the words thrown out were used, and that's what triggered this in my mind.

[01:13:06] Speaker 03:
That MPA methodology, or excuse me, IPG methodology, it was not thrown out.

[01:13:11] Speaker 03:
It was heavily criticized, but it was not thrown out.

[01:13:13] Speaker 03:
And it was in part, in limited part, embraced.

[01:13:16] Speaker 03:
So there was something there for the judges to grab onto.

[01:13:25] Speaker 03:
With regard to Judge Miller's questions about the standard on the validity of claims, I'm happy that was brought up because there is a standard.

[01:13:35] Speaker 03:
Unfortunately, it's a double or triple standard.

[01:13:38] Speaker 03:
On the one hand, the MPAA needs only say, well, we have all these middlemen in contracts with them.

[01:13:44] Speaker 03:
As far as the end users, nothing.

[01:13:46] Speaker 03:
And that's fine.

[01:13:47] Speaker 09:
Did you challenge the validity of those little people?

[01:13:50] Speaker 03:
Yes, we did.

[01:13:50] Speaker 03:
Yes, we did.

[01:13:51] Speaker 03:
That's exactly it.

[01:13:53] Speaker 03:
It's in our papers.

[01:13:54] Speaker 03:
We've been challenging it the whole time.

[01:13:55] Speaker 03:
We've been saying, look, you've got these 4,000-some-odd programs where there's no evidence at all that NPA has the right to represent or collect money on behalf of those programs.

[01:14:06] Speaker 03:
All they have is contracts with middlemen.

[01:14:08] Speaker 03:
And that was just dropped.

[01:14:11] Speaker 03:
The judges didn't make a date.

[01:14:13] Speaker 03:
They said, no, we think it's fine.

[01:14:14] Speaker 03:
They got these contracts with the middlemen.

[01:14:16] Speaker 03:
That's enough.

[01:14:17] Speaker 03:
On the other side of the ledger, for IPG, they practically require a notarized sworn statement under oath.

[01:14:23] Speaker 03:
They don't.

[01:14:24] Speaker 03:
But I mean, they put us through the wringer on this.

[01:14:27] Speaker 03:
And the MPA gets this pass.

[01:14:29] Speaker 03:
So it's a double standard.

[01:14:31] Speaker 03:
I mean, to the point that they even knocked out some claims that weren't even challenged of ours.

[01:14:37] Speaker 03:
So it brings up a good point.

[01:14:39] Speaker 03:
There's really not a consistent standard.

[01:14:42] Speaker 03:
That's why we think the decision in that part was arbitrary and capricious.

[01:14:47] Speaker 03:
With regard to the SDC's tardy submission to their methodology,

[01:14:53] Speaker 03:
It was said by counsel, this is the first time that's happened.

[01:14:56] Speaker 03:
It is, as far as I know, for the very good reason that no one else did it before.

[01:15:00] Speaker 03:
In prior proceedings, the MPAA and IPG submitted their methodologies with their written direct statements.

[01:15:06] Speaker 03:
And that was not, of course, what the SDC did.

[01:15:09] Speaker 03:
It broke from the rule as far as that goes, and that's why what happened happened.

[01:15:13] Speaker 03:
With regard to the Plenary Claims hearing, one other thing, and it's in our briefs,

[01:15:19] Speaker 03:
We really got, on average, 34 seconds acclaim.

[01:15:23] Speaker 03:
They were sitting there with a stopwatch.

[01:15:26] Speaker 03:
At one point, there was an objection to one of our exhibits that I fought to get in.

[01:15:30] Speaker 03:
And we had 10 minutes of argument on the objections, which were then overruled.

[01:15:34] Speaker 03:
So no wonder I ran out of time.

[01:15:36] Speaker 03:
That was arbitrary and capricious, I believe.

[01:15:38] Speaker 09:
What's your answer to their argument that that file that you wanted in discovery just didn't exist?

[01:15:43] Speaker 09:
What evidence did you put in before the judges that it actually existed as opposed to simply being some of those temporary files on a computer?

[01:15:50] Speaker 03:
Our expert witness said necessarily there must be a file that has the conclusions.

[01:15:54] Speaker 03:
There must necessarily have been a calculation at the end.

[01:15:57] Speaker 03:
that would have done this.

[01:15:58] Speaker 03:
Now, at the same time, when you're talking about something that you have not seen, unless you've got someone on the inside, on the opposing side, saying, oh no, it really exists, you can only go by a certain amount of hypothesis that it must exist given everything else we know.

[01:16:14] Speaker 03:
Which is why we're asking the judges, look, like you have before, just issue an order saying you've got to produce everything consistent with the regulation that you read a few minutes ago.

[01:16:23] Speaker 03:
That's all we wanted.

[01:16:24] Speaker 03:
Because who knows?

[01:16:25] Speaker 03:
There might have been some other files there, too, that we didn't know about or that we didn't hypothesize existed.

[01:16:31] Speaker 03:
That's what should have been done.

[01:16:33] Speaker 03:
That's what the judges should have ordered.

[01:16:35] Speaker 03:
And for gosh knows what reason, they just didn't.

[01:16:42] Speaker 08:
OK, thank you.

[01:16:45] Speaker 03:
Thank you.

[01:16:49] Speaker 08:
Mr. McLean also has no time.

[01:16:52] Speaker 08:
All right.

[01:16:54] Speaker 08:
We'll also give you two minutes if you need it.

[01:16:57] Speaker 02:
Thank you, Your Honor.

[01:16:59] Speaker 02:
First of all, I want to correct a mistake by the CRB's counsel.

[01:17:04] Speaker 02:
There was no agreement in the allocations for any year.

[01:17:08] Speaker 02:
In the year 2000, we requested an allocation to IPG.

[01:17:13] Speaker 02:
I'll say this to be simple in terms of allocation to IPG.

[01:17:16] Speaker 02:
We requested an allocation to IPG of 33.5%.

[01:17:20] Speaker 02:
The board's ruling was 37.14%, a difference of almost 4%, more than 10% of the allocation that IPG got in that year.

[01:17:30] Speaker 02:
Now, it is true, in the year 2000, that Dr. Brown, in his rebuttal testimony, which was admitted in evidence at appendix 3843 to 3846,

[01:17:45] Speaker 02:
testified to a zone of reasonableness in the year 2000.

[01:17:48] Speaker 02:
And IPG's requested methodology was within that zone of reasonableness.

[01:17:52] Speaker 02:
But it was below what we requested for within the zone of reasonableness.

[01:17:55] Speaker 04:
Well, I think that's what the government was explaining.

[01:17:57] Speaker 04:
It's certainly clear from the brief.

[01:18:00] Speaker 02:
Yeah.

[01:18:00] Speaker 02:
Yes, Your Honor.

[01:18:00] Speaker 02:
I just wanted to make sure it's clear.

[01:18:02] Speaker 02:
We never agreed to any of these.

[01:18:03] Speaker 04:
I understand that.

[01:18:04] Speaker 04:
But it was within that zone of reasonableness.

[01:18:06] Speaker 04:
That was the theory.

[01:18:07] Speaker 04:
And then you have your arguments as to why that didn't work for that year and especially why it didn't work for the other years.

[01:18:12] Speaker 04:
I understand that.

[01:18:12] Speaker 02:
Yes, Your Honor.

[01:18:13] Speaker 02:
And obviously, with respect to all of the other years, they lack even that degree of an argument.

[01:18:18] Speaker 02:
But they only get there by considering the rebuttal testimony of Dr. William Brown, where we establish our methodologies, which was admitted into evidence.

[01:18:27] Speaker 02:
The board doesn't provide any response why it failed to consider that evidence that was before it.

[01:18:33] Speaker 02:
And as this Court ruled,

[01:18:34] Speaker 02:
In question broadcasting network versus copyright royalty tribunal, it is certainly the tribunal's obligation to consider all legally cognizable evidence placed before it by the parties.

[01:18:44] Speaker 02:
But even if you ignore that evidence, it doesn't get around their problem from the intercollegiate case.

[01:18:51] Speaker 02:
Rational decision making requires more than an absence of contrary evidence.

[01:18:55] Speaker 02:
I also want to point out there was no surprise here.

[01:18:58] Speaker 02:
Dr. Brown testified in his written direct statement that we would rely on viewership as a measure of value.

[01:19:10] Speaker 09:
have to show you something, but we're not showing you something.

[01:19:13] Speaker 02:
Your Honor, this is actually consistent with this Court's decision in the NAB versus Cabrera-Rolote Tribunal 1982 decision in which the Board considered for the first time

[01:19:28] Speaker 02:
methodologies presented on rebuttal.

[01:19:30] Speaker 02:
And this court, in upholding that, pointed out many of the relevant criteria were obvious.

[01:19:36] Speaker 02:
Those criteria being harm to copyright owners, benefit to CSOs, marketplace value, quality, and time-related considerations.

[01:19:45] Speaker 02:
Not methodologies, but rather the criteria.

[01:19:47] Speaker 02:
We did present that criteria.

[01:19:49] Speaker 02:
Now, the board said, based on no evidence whatsoever, IPG was prejudiced.

[01:19:54] Speaker 02:
by not having our calculations until 21 days before the hearing.

[01:20:00] Speaker 02:
IPG's counsel just said they were able to replicate MPAA's methodology within just one week.

[01:20:07] Speaker 02:
And MTA's methodology was by far a more complex and sophisticated methodology than ours.

[01:20:12] Speaker 02:
There was no evidence to support the board's finding of prejudice here.

[01:20:16] Speaker 02:
And IPG never asked for more time to do anything.

[01:20:20] Speaker 02:
And finally, as we've, and for those reasons, Mr. Witt's testimony should have been admitted.

[01:20:28] Speaker 02:
But regardless of whether Mr. Witt's testimony should have been admitted or not, Dr. Brown's testimony was admitted and was ignored.

[01:20:35] Speaker 02:
And regardless of whether Dr. Brown's testimony could properly have been ignored, we say it could not.

[01:20:41] Speaker 02:
There was no substantial evidence or agreement to support the CRB's decision in the devotional category.

[01:20:50] Speaker 02:
I'd just like to – I see I'm out of time.

[01:20:54] Speaker 08:
Thank you.