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Government Conspiracy to Destroy the Separation of Powers, Form #05.023 (OFFSITE LINK)-Describes historical efforts by the government to break down the separation of powers and destroy our God-given rights.
"The people of the United States, by their Constitution, have affirmed a division of internal governmental powers between the federal government and the governments of the several states-committing to the first its powers by express grant and necessary implication; to the latter, or [301 U.S. 548, 611] to the people, by reservation, 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States.' The Constitution thus affirms the complete supremacy and independence of the state within the field of its powers. Carter v. Carter Coal Co., 298 U.S. 238, 295 , 56 S.Ct. 855, 865. The federal government has no more authority to invade that field than the state has to invade the exclusive field of national governmental powers; for, in the oft-repeated words of this court in Texas v. White, 7 Wall. 700, 725, 'the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.' The necessity of preserving each from every form of illegitimate intrusion or interference on the part of the other is so imperative as to require this court, when its judicial power is properly invoked, to view with a careful and discriminating eye any legislation challenged as constituting such an intrusion or interference. See South Carolina v. United States, 199 U.S. 437, 448 , 26 S.Ct. 110, 4 Ann.Cas. 737."
Separation of church (God) and state. The state and God (the church) are in competition with each other to protect the people, as we showed in the previous section. Guaranteed by the First Amendment to the Constitution.
Separation of money and state. Guaranteed by Article 1, Section 10, Clause 1 of the Constitution, which required that no State shall make anything but gold and silver money. See also section 2.8.9.2 later.
Separation of marriage and state. At the time, there were no marriage licenses and everyone got married in their church. Their marriage certificate was the family bible, because that is where they recorded the ceremony.
Separation of education and state. The Constitution did not authorize the federal government to get involved in education, and since everything not mentioned in the Constitution was reserved to the states under the Tenth Amendment, we also had separation of education and state.
Separation of media and state: The founders always believed that a free and independent media was a precursor to an accountable and moral government and they wrote the requirement for freedom of the press into the First Amendment to the U.S. Constitution.
Separation of the people and the government. The founders gave the people equal footing with the state governments by giving them the House of Representatives. The House of Representatives is equal in legislative power to the Senate, which represents the state governments.
State v. Federal separation. The states had complete sovereignty internal to their border over everything except taxes on foreign commerce, mail fraud, and counterfeiting. Slavery was later added to that by the Thirteenth Amendment. The federal government had jurisdiction over all external or foreign matters only. Guaranteed by Art. IV of the Constitution.
The founders implemented separation between the federal and state governments to put the states in competition with each other for citizens and commerce, so that when one state became too oppressive by having taxes that were too high or too many laws, people would move to a better state where they had more freedom and lower taxes. This would ensure that the states that were most oppressive would have the fewest citizens and the worst economy. They also put the federal government in charge of foreign commerce only, so that the only way it could increase its revenues was to promote, not discourage or restrict, commerce with foreign nations. If the taxes on foreign commerce were too high, people would simply buy more domestic goods and the federal government would shrink. It was naturally self-balancing.
The founders also put branches within each government in competition with each other: Executive, Legislative, and Judicial. They ensured that each branch had distinct functions that could not be delegated to another branch of government. Each branch would then jealously guard its power and jurisdiction to ensure that it was not invaded or undermined by the other branch. This ensured that there would always be a balance of powers so that the system was self-regulating and the balance of powers would be maintained.
"To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: "Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." Coleman v. Thompson, 501 U.S. 722, 759 (1991) (BLACKMUN, J., dissenting). "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." Gregory v. [505 U.S. 144, 182] Ashcroft, 501 U.S., at 458 . See The Federalist No. 51, p. 323. (C. Rossiter ed. 1961).
Where Congress exceeds its authority relative to the States, therefore, the departure from the constitutional plan cannot be ratified by the "consent" of state officials. An analogy to the separation of powers among the branches of the Federal Government clarifies this point. The Constitution's division of power among the three branches is violated where one branch invades the territory of another, whether or not the encroached-upon branch approves the encroachment. In Buckley v. Valeo, 424 U.S. 1, 118 -137 (1976), for instance, the Court held that Congress had infringed the President's appointment power, despite the fact that the President himself had manifested his consent to the statute that caused the infringement by signing it into law. See National League of Cities v. Usery, 426 U.S., at 842 , n. 12. In INS v. Chadha, 462 U.S. 919, 944 -959 (1983), we held that the legislative veto violated the constitutional requirement that legislation be presented to the President, despite Presidents' approval of hundreds of statutes containing a legislative veto provision. See id., at 944-945. The constitutional authority of Congress cannot be expanded by the "consent" of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States.
State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. Indeed, the facts of this case raise the possibility that powerful incentives might lead both federal and state officials to view departures from the federal structure to be in their personal interests. Most citizens recognize the need for radioactive waste disposal sites, but few want sites near their homes. As a result, while it would be well within the authority of either federal or state officials to choose where the disposal sites will be, it is likely to be in the political interest of each individual official to avoid being held accountable to the voters for the choice of location. If [505 U.S. 144, 183] a federal official is faced with the alternatives of choosing a location or directing the States to do it, the official may well prefer the latter, as a means of shifting responsibility for the eventual decision. If a state official is faced with the same set of alternatives - choosing a location or having Congress direct the choice of a location - the state official may also prefer the latter, as it may permit the avoidance of personal responsibility. The interests of public officials thus may not coincide with the Constitution's intergovernmental allocation of authority. Where state officials purport to submit to the direction of Congress in this manner, federalism is hardly being advanced. "
The founders put the states in charge of the federal government by filling the senate with delegates from each state and by giving each state full and complete and exclusive control over all taxation within its borders, with the exception of taxes on foreign commerce, which is commerce external to states of the Union and among foreign countries.
"In the states, there reposes the sovereignty to manage their own affairs except only as the requirements of the Constitution otherwise provide. Within these constitutional limits the power of the state over taxation is plenary."
"The difficulties arising out of our dual form of government and the opportunities for differing opinions concerning the relative rights of state and national governments are many; but for a very long time this court has steadfastly adhered to the doctrine that the taxing power of Congress does not extend to the states or their political subdivisions. The same basic reasoning which leads to that conclusion, we think, requires like limitation upon the power which springs from the bankruptcy clause. United States v. Butler, supra."
"The extent of our country was so great, and its former division into distinct States so established, that we thought it better to confederate [U.S. government] as to foreign affairs only. Every State retained its self-government in domestic matters, as better qualified to direct them to the good and satisfaction of their citizens, than a general government so distant from its remoter citizens and so little familiar with the local peculiarities of the different parts."
"I believe the States can best govern our home concerns, and the General Government our foreign ones."
"My general plan [for the federal government] would be, to make the States one as to everything connected with foreign nations, and several as to everything purely domestic."
"Distinct States, amalgamated into one as to their foreign concerns, but single and independent as to their internal administration, regularly organized with a legislature and governor resting on the choice of the people and enlightened by a free press, can never be so fascinated by the arts of one man as to submit voluntarily to his usurpation. Nor can they be constrained to it by any force he can possess. While that may paralyze the single State in which it happens to be encamped, [the] others, spread over a country of two thousand miles diameter, rise up on every side, ready organized for deliberation by a constitutional legislature and for action by their governor, constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms."
Slavery under the Thirteenth Amendment.
Counterfeiting under Article 1, Section 8, Clause 5 of the Constitution.
Mail under Article 1, Section 8, Clause 7 of the Constitution.
Assaults and infractions against its own officers under Article 1, Section 8, Clause 18 of the Constitution.
Treason under Article 3, Section 3, Clause 2 of the Constitution.
"Madison’s Notes on the Constitutional Convention [see Federalist Paper #45]reveal clearly that the framers of the Constitution believed for some time [and wrote this requirement into the Constitution] that the principal, if not sole, support of the new Federal Government would be derived from customs duties and taxes connected with shipping and importations. Internal taxation would not be resorted to except infrequently, and for special [emergency] reasons. The first resort to internal taxation, the enactment of internal revenue laws in 1791 and in the following 10 years, was occasioned by the exigencies of the public credit. These first laws were repealed in 1802. Internal revenue laws were reenacted for the period 1813-17, when the effects of the war of 1812 caused Congress to resort to internal taxation. From 1818 to 1861, however, the United States had no internal revenue laws and the Federal Government was supported by the revenue from import duties and the proceeds from the sale of public lands. In 1862 Congress once more levied internal revenue taxes. This time the establishment of an internal revenue system, not exclusively dependent upon the supplies of foreign commerce, was permanent."
Deliberately deceiving people about the intent and result of ratifying the Sixteenth Amendment. According to the U.S. Supreme Court, the Sixteenth Amendment “conferred no new power of taxation” upon the federal government, but simply reinforced the idea that federal income taxes are indirect excise taxes only on businesses. Yet, to this day, your dishonest Congressman and the IRS itself both insist that the Sixteenth Amendment is the basis for their authority to tax the labor of a natural person, in spite of the fact that these kind of taxes violate the Thirteenth Amendment and constitute slavery and involuntary servitude.
Eliminating separation of money and state by eliminating the gold standard and transitioning to a fiat paper currency. This was done in 1913 with the introduction of the Federal Reserve Act on Dec. 23, 1913, shortly after the ratification of the Sixteenth Amendment in February 1913.
Eliminating separation of marriage and state by introducing marriage licenses. This was done in a large scale starting in 1923, with the Uniform Marriage and Divorce Act of 1929. See section 4.14.6.7 later for further details.
5.1. Confusing the definitions of “state” and “State”.
Obfuscating the distinctions between “U.S. citizen” and “national” status. “U.S. citizens” were born in the federal United States while “nationals” were born in states of the Union. See our pamphlet "Why you are a 'national' or a 'state national' and not a 'U.S. citizen'" for details on this scam.
Judges violating the due process rights of the accused by making frequent use of false presumption against litigants regarding citizenship and “taxpayer” status without documenting in their rulings what presumptions they are making or having to defend with evidence why such presumptions are warranted. Remember that “presumption” is the opposite of due process and also happens to be a sin in the Bible. Refer to section 2.8.2 earlier for details.
Refusing to acknowledge or recognize the limits of federal jurisdiction within federal courtrooms. We have been informed of many individuals being brutalized and abused by itinerant federal judges whose jurisdiction was challenged.
Suppressing any evidence or debate in courtrooms on the nature of separation of powers.
Using the proceeds of extorted or illegally-collected federal income tax revenues to break down the separation of powers between states and the federal government. For instance, depriving states of federal revenues who do not do what the federal government wants them to do. This is called “privilege-induced slavery”. Section 6.1 of the Great IRS Hoax explains that this kind of artifice has been thoroughly exploited to create a de facto government that is completely at odds with the de jure separation of powers required by our Constitution.
Discrediting and slandering legal professionals who bring attention to the separation of powers between state and federal jurisdiction by calling them “frivolous” or “incompetent” and/or pulling their license to practice law. The framing of Congressman Traficant and Congressman George Hansen are examples of this kind of political persecution by abusing the legal system as a tool of persecution.
Paying people in the legal publishing business to obfuscate the definitions of words. We show later in section 6.8 of the Great IRS Hoax several instances of such corruption.
Making the laws found in the U.S. Code so confusing that the average American can’t rely on his own understanding of them to know what the law requires. Instead, he must compelled to rely on a high-paid expert, such as a judge or lawyer, both of whom have a conflict of interest in expanding their power, to say what the law really requires. This transforms our society from a “society of laws and not men” into a “society of men”.
Has the issue been committed expressly by the Constitution to a coordinate political branch of the government?
Are there judicially discoverable and manageable standards for deciding the case?
Can the case be decided without some initial policy determination of a kind clearly for nonjudicial discretion?
Can the court decide the case independently without expressing lack of respect due a coordinate branch of the government?
Is there an unusual need for unquestioning adherence to a political decision already made?
Is there a potentiality for embarrassment from multifarious decisions by different branches of the government on the same question?
Interfering with ones political choice of domicile. See section 5.4.5 later for details.
Interfering with one’s political choice of citizenship. See sections 4.11 through 4.11.13 later.
Interfering with the exercise of political rights or a political party. You as a private individual constitute an independent sovereignty and political party and a court may not interfere with your political choices. See section 4.2.4 of the Great IRS Hoax for a definition of political rights.
A court that interferes with or questions or undermines a persons political affiliations above is involving itself in political questions and the judge is overstepping his authority.
“Political questions. Questions of which courts will [and MUST] refuse to take cognizance, or to decide, on account of their purely political character, or because their determination would involve an encroachment upon the executive or legislative powers.
“Political questions doctrine” holds that certain issues should not be decided by courts because their resolution is committed to another branch of government and/or because those issues are not capable, for one reason or another, of judicial resolution. Islamic Republic of Iran v. Pahlavi, 116 Misc.2d 590, 455 N.Y.S.2d 987, 990.
A matter of dispute which can be handled more appropriately by another branch of the government is not a “justiciable” matter for the courts. However, a state apportionment statute is not such a political question as to render it nonjusticiable. Baker v. Carr, 369 U.S. 186, 208-210, 82 S.Ct. 691, 705-706, 7 L.Ed.2d 663.
"But, fortunately for our freedom from political excitements in judicial duties, this court [the U.S. Supreme Court] can never with propriety be called on officially to be the umpire in questions merely political. The adjustment of these questions belongs to the people and their political representatives, either in the State or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, or prejudice or compromise, often.
Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be that, in such an event, all political privileges and rights would, in a dispute among the people, depend on our decision finally. We would possess the power to decide against, as well as for, them, and, under a prejudiced or arbitrary judiciary, the public liberties and popular privileges might thus be much perverted, if not entirely prostrated. But, allowing the people to make constitutions and unmake them, allowing their representatives to make laws and unmake them, and without our interference as to their principles or policy in doing it, yet, when constitutions and laws are made and put in force by others, then the courts, as empowered by the State or the Union, commence their functions and may decide on the rights which conflicting parties can legally set up under them, rather than about their formation itself. Our power begins after theirs [the Sovereign People] ends. Constitutions and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them. We speak what is the law, jus dicere, we speak or construe what is the constitution, after both are made, but we make, or revise, or control neither. The disputed rights beneath constitutions already made are to be governed by precedents, by sound legal principles, by positive legislation e.g. "positive law"], clear contracts, moral duties, and fixed rules; they are per se questions of law, and are well suited to the education and habits of the bench. But the other disputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves and popular will and arising not in respect to private rights, not what is meum and tuum, but in relation to politics, they belong to politics, and they are settled by political tribunals, and are too dear to a people bred in the school of Sydney and Russel for them ever to intrust their final decision, when disputed, to a class of men who are so far removed from them as the judiciary, a class also who might decide them erroneously, as well as right, and if in the former way, the consequences might not be able to be averted except by a revolution, while a wrong decision by a political forum can often be peacefully corrected by new elections or instructions in a single month; and if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies when not selected by nor, frequently, amenable to them nor at liberty to follow such various considerations in their judgments as [48 U.S. 53] belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way -- slowly, but surely -- a new sovereign power in the republic, in most respects irresponsible and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. Again, instead of controlling the people in political affairs, the judiciary in our system was designed rather to control individuals, on the one hand, when encroaching, or to defend them, on the other, under the Constitution and the laws, when they are encroached upon. And if the judiciary at times seems to fill the important station of a check in the government, it is rather a check on the legislature, who may attempt to pass laws contrary to the Constitution, or on the executive, who may violate both the laws and Constitution, than on the people themselves in their primary capacity as makers and amenders of constitutions."
 See Federalist Paper #45 for confirmation of this fact.
 See See Stanton v. Baltic Mining, 240 U.S. 103 (1916), Peck v. Lowe, 247 U.S. 165 (1918), and many others.

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Dale Rice is of counsel in the firm’s San Francisco office. She practices in the firm’s intellectual property litigation group and also is a member of the e-discovery practice group. Her focus is on patent litigation in federal district courts and before the International Trade Commission, but she has also represented clients in trade secret, trademark, antitrust, false claims, class action and contract disputes. Ms. Rice is experienced with coordination and day-to-day management of MDL and multi-party litigation, ITC proceedings and other complex litigation, including discovery and e-discovery matters. The companies she has represented include Samsung, Sony, Fujitsu, Microsoft, SAP, Wells Fargo Bank, Northern Trust and Visa U.S.A.
In the Matter of Certain Light-Emitting Diodes and Products Containing Same (ITC Inv. Nos. 337-TA-785 and 337-TA-798). Represented Samsung LED Co., Ltd., Samsung Electronics Co., Ltd. and other Samsung entities in two investigations involving LED technologies. In the 785 investigation, OSRAM AG and related entities alleged infringement of OSRAM patents relating to certain LED packages, including polychromatic light LEDs. In the 798 investigation, Samsung LED alleged that OSRAM infringed a number of Samsung patents relating to LED chips and manufacturing processes for LED chips.
Huawei Technologies Co., Ltd. v. Motorola Inc. (N.D. Ill.). Represented Huawei Technologies in trade secret litigation against Motorola involving wireless base station technology; obtained a preliminary injunction preventing the transfer of Huawei’s confidential information in the context of a corporate acquisition.
In the Matter of Certain MLC Flash Memory Devices and Products Containing Same (ITC Inv. No. 337-TA-683). Represented Samsung Electronics and related entities in an investigation before the U.S. International Trade Commission instituted following a complaint filed by BTG alleging infringement of patents relating to flash memory.
In the Matter of Certain Electronic Devices Including Handheld Wireless Communication Devices (ITC Inv. No. 337-TA-673). Represented Samsung Electronics and related entities in an investigation before the U.S. International Trade Commission instituted following a complaint filed by Saxon Industries. The patents-in-suit involved interrupt control circuitry, keypad monitoring, and interprocessor communications.
In re Katz Interactive Call Processing Patent Litigation (MDLC.D. Cal., underlying cases filed in D. Del., C.D. Cal., E.D. Tex., S.D.N.Y., D.N.J., E.D. Pa., S.D. Ohio, S.D. Ind., E.D.N.C., N.D. Ga., D. Nev., W.D. Okla., E.D. Mo.). Represented patent holder Ronald A. Katz Technology Licensing in multidistrict patent infringement that includes nineteen separate lawsuits brought against almost 200 individual defendants involving interactive call processing, computer telephony and related services.
Richtenburg v. Wells Fargo Bank, N.A. (California Superior Court, San Francisco County). Represented Wells Fargo in putative class action challenging fees charged to trust accounts and investments in collective and mutual funds.
Sun Microsystems, Inc. v. Microsoft Corporation (MDL D. Maryland, underlying case filed in N.D. Cal.). Represented Microsoft in an antitrust lawsuit brought by Sun with wide-ranging claims relating to PC and server operating systems, office applications and several other leading Microsoft technologies.
AMC Technology v. SAP AG (E.D. Pennsylvania). Represented SAP in trade secret and copyright litigation relating to CRM software.
Fujitsu Ltd. v. Cirrus Logic (California Superior Court, Santa Clara County). Represented Fujitsu in a complex, multi-party contractual dispute relating to defective semiconductor chips sold to Fujitsu.
United States v. Visa U.S.A. (S.D.N.Y.). Represented Visa U.S.A. in antitrust litigation brought by the United States, tried to Judge Barbara Jones in the Southern District of New York. The government challenged Visa U.S.A.’s practice of allowing members also to issue MasterCard cards and its membership rule prohibiting members from issuing American Express or Discover cards. The Court ruled in Visa’s favor on the first claim and against it on the second.
Seaman v. Wells Fargo Bank (California Superior Court, San Francisco County) and Banks v. Northern Trust Bank (California Superior Court, Los Angeles County). In two separate class action lawsuits, defended corporate trustees against breach of fiduciary duty, fraud, unfair competition (California Business & Professions Code section 17200) and other claims relating to fees charged to trust accounts.
Syntex Corporation v. Hartford Insurance Company (California Superior Court, San Francisco County). Represented Syntex in an insurance coverage action arising from environmental and personal injury claims. The litigation included a three-month bench trial, a five-month jury trial and an appeal with the claims resolved very successfully for Syntex.
Atari Games Corporation v. Nintendo of America Inc. (N.D. Cal.). Represented Atari Games in litigation against Nintendo relating to home video games with antitrust, trademark, copyright and patent claims. Led to the first published appellate decision holding that a copyrighted computer program can be copied to analyze its functionality. After a jury trial on Nintendo’s patent, trademark and trade dress claims, the case was settled.
Serves on the Board of Directors for Legal Services for Prisoners with Children, an organization that offers advocacy and legal services to prisoners and their families.
Represented women prisoners in a class action seeking adequate health care services in California prisons.
Represented disabled students seeking improved access to special services and better opportunities for mainstreaming their education.

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Mark is a shareholder in the Peoria office of Heyl Royster. He has more than 20 years of courtroom experience as a litigator and has tried many cases to verdict. He has extensive experience in complex litigation, with an emphasis in professional liability, business and commercial litigation, and product liability. Mark is currently the chair of the firm's Legal Malpractice Defense Practice and a vice chair of the firm’s Professional Liability and Medical Malpractice Defense Practices.
Mark has earned Martindale-Hubbell’s highest AV Preeminent® rating for ethical standards and legal ability. He has been designated an Illinois "Super Lawyer" - one of the top 5% lawyers in the state based on a survey of lawyers, an independent research evaluation of candidates, and peer review by practice area. He has also been recognized as a "Leading Lawyer" in Illinois, which is also based on a peer review process conducted by the Law Bulletin Publishing Company and is a designation that is limited to the top 5% of lawyers in the state.
Throughout his career, Mark has been actively involved in professional organizations. He has served as chair of the IDC’s Spring Defense Tactics Seminar and Rookie Seminar and as an editor of the ISBA’s Trial Briefs newsletter. He has received recognition from the Illinois Association of Defense Trial Counsel and the Illinois State Bar Association for his service. He has also written articles and spoken on a wide variety of legal topics, including professional liability issues, evidentiary issues, damages, and litigation tactics.
Mark is a member of the International Association of Defense Counsel. Founded in 1920, the IADC is the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests. Mark is currently the chair of the IADC’s Medical Defense and Health Law Committee and a vice chair of the IADC's Business Litigation Committee.
Platinum Jet Center BMI, LLC v. Bloomington Normal Airport Authority Circuit Court of McLean County, Illinois - Breach of contract action brought by plaintiff FBO against defendant airport (our client) seeking $6 million in lost profits and other damages caused by delay in construction of a commercial FBO facility. Jury returned verdict of $8,500 against the defendant airport. No appeal was taken.
Rosewood Care Center, Inc. v. Caterpillar Inc. 226 Ill. 2d 559 (2007) - Explicit rejection by Illinois Supreme Court of "pre-existing debt rule" under the statute of frauds and adoption of the "main purpose" or "leading object" rule.
Maxwell v. White Consolidated Industries, Inc. Circuit Court of McLean County, Illinois - Multi-party product liability case alleging death of plaintiff's decedent as a result of long-term exposure to chromium, nickel, and other chemicals. Obtained summary judgment for third-party defendant manufacturer on the eve of trial.
BCC Cattle Company, LLC v. Ray U.S.D.C., Central District of Illinois and Circuit Court of Knox County, Illinois - Breach of contract actions to recover plaintiffs' investment in a black angus cattle-breeding operation with facilities located across the Midwestern and Western United States. Obtained judgments for plaintiffs in state and federal court of more than $6 million.
Peoria City/County Landfill v. Waste Management of Illinois - Represented municipal landfill in a contractual dispute with a national waste management company regarding most favored nation pricing, host fees, soil stockpiling, and a number of other issues. The case was settled favorably prior to mandatory arbitration.
Platinum Aviation, LLC v. Bloomington Normal Airport Authority Circuit Court of McLean County, Illinois - Breach of contract action relating to the right of an FBO to conduct business operations on certain areas of the airfield and the interaction of the contracts at issue with the defendant airport's FAA Sponsor Assurances and other FAA regulations. Obtained summary judgment for the defendant airport.
HU Venture Fund, L.L.C. v. Community Merchant Services, Inc. Circuit Court of McLean County, Illinois - Breach of contract action to recover a significant investment in the development of technology for point-of-sale advertising at ATMs. Following mediation, the case was settled for the total amount of our client's investment plus interest.
BP Pipelines (North America) Inc. v. Mackey’s Tiling and Excavation Circuit Court of Warren County, Illinois - Action to recover expenses related to the replacement of a damaged section of pipeline and environmental remediation costs caused by the rupture of an underground crude oil pipeline which supplied crude oil to a gasoline refinery in the Chicago area. Case was settled favorably for the plaintiff (our client) before trial.
Romack v. R. Gingerich Co. 314 Ill. App. 3d 1065 (3d Dist. 2000) - Determination of whether partial waiver of workers' compensation lien is good faith settlement under Illinois Contribution Act.
Named to the Illinois Super Lawyers list (2016-2019). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation.
Selected as a Leading Lawyer in Illinois in areas of Commercial Litigation; Medical Malpractice Defense Law; Products Liability Defense Law; and Professional Malpractice Defense Law: Including Legal/Technical/Financial. Only five percent of lawyers in the state are named as Leading Lawyers.
Illinois State Bar Association, Participant, 2004 Allerton House Conference on "The Quest for Justice: Cost, Efficiency, Fairness"
Illinois State Bar Association, Participant, 2000 Allerton House Conference on "The Future of the Legal Profession?: Multidisciplinary Practice"
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Copyright Royalty Judges; appointment and functions.
Proceedings of Copyright Royalty Judges.
General rule for voluntarily negotiated agreements.
This chapter consisted of sections 801 to 803, related to proceedings by copyright arbitration royalty panels, prior to being amended generally by Pub. L. 108–419.
2004—Pub. L. 108–419, §3(a), Nov. 30, 2004, 118 Stat. 2341, amended chapter heading and analysis generally, substituting chapter heading and items 801 to 805 for chapter heading "COPYRIGHT ARBITRATION ROYALTY PANELS", and items 801 "Copyright arbitration royalty panels: Establishment and purpose", 802 "Membership and proceedings of copyright arbitration royalty panels", and 803 "Institution and conclusion of proceedings".
1997—Pub. L. 105–80, §12(a)(18), Nov. 13, 1997, 111 Stat. 1535, substituted "Establishment" for "establishment" in item 801.
1993—Pub. L. 103–198, §2(f), Dec. 17, 1993, 107 Stat. 2308, amended table of sections generally, substituting chapter heading and items 801 to 803 for chapter heading "COPYRIGHT ROYALTY TRIBUNAL", item 801 "Copyright Royalty Tribunal: Establishment and purpose", item 802 "Membership of the Tribunal", item 804 "Institution and conclusion of proceedings", item 805 "Staff of the Tribunal", item 806 "Administrative support of the Tribunal", item 807 "Deduction of costs of proceedings", item 808 "Reports", item 809 "Effective date of final determinations", and item 810 "Judicial review".
Pub. L. 103–198, §2(c), Dec. 17, 1993, 107 Stat. 2307, struck out item 803 "Procedures of the Tribunal."
2018—Subsec. (b)(1). Pub. L. 115–264, §103(g)(2)(A), struck out "The rates applicable under sections 114(f)(1)(B), 115, and 116 shall be calculated to achieve the following objectives:" at end of introductory provisions and struck out subpars. (A) to (D) which set forth objectives to be achieved.
"(3) Pending proceedings.—Notwithstanding paragraph (1), any proceedings to establish or adjust rates and terms for the statutory licenses under section [former] 114(f)(2) or 112(e) of title 17, United States Code, for a statutory period commencing on or after January 1, 2005, shall be terminated upon the date of enactment of this Act and shall be null and void. The rates and terms in effect under section [former] 114(f)(2) or 112(e) of title 17, United States Code, on December 31, 2004, for new subscription services, eligible nonsubscription services, and services exempt under section 114(d)(1)(C)(iv) of such title, and the rates and terms published in the Federal Register under the authority of the Small Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107–321) (including the amendments made by that Act) for the years 2003 through 2004, as well as any notice and recordkeeping provisions adopted pursuant thereto, shall remain in effect until the later of the first applicable effective date for successor terms and rates specified in section 804(b) (2) or (3)(A) of title 17, United States Code, or such later date as the parties may agree or the Copyright Royalty Judges may establish. For the period commencing January 1, 2005, an eligible small webcaster or a noncommercial webcaster, as defined in the regulations published by the Register of Copyrights pursuant to the Small Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107–321) (including the amendments made by that Act) [amending section 114 of this title and enacting provisions set out as notes under sections 101 and 114 of this title], may elect to be subject to the rates and terms published in those regulations by complying with the procedures governing the election process set forth in those regulations not later than the first date on which the webcaster would be obligated to make a royalty payment for such period. Until successor terms and rates have been established for the period commencing January 1, 2006, licensees shall continue to make royalty payments at the rates and on the terms previously in effect, subject to retroactive adjustment when successor rates and terms for such services are established.
"(4) Interim proceedings.—Notwithstanding subsection (a), as soon as practicable after the date of enactment of this Act, the Copyright Royalty Judges or interim Copyright Royalty Judges shall publish the notice described in section 803(b)(1)(A) of title 17, United States Code, as amended by this Act, to initiate a proceeding to establish or adjust rates and terms for the statutory licenses under section [former] 114(f)(2) or 112(e) of title 17, United States Code, for new subscription services and eligible nonsubscription services for the period commencing January 1, 2006. The Copyright Royalty Judges or Interim Copyright Royalty Judges are authorized to cause that proceeding to take place as provided in subsection (b) of section 803 of that title within the time periods set forth in that subsection. Notwithstanding section 803(c)(1) of that title, the Copyright Royalty Judges shall not be required to issue their determination in that proceeding before the expiration of the statutory rates and terms in effect on December 31, 2004.
(1) In general.—Each Copyright Royalty Judge shall be an attorney who has at least 7 years of legal experience. The Chief Copyright Royalty Judge shall have at least 5 years of experience in adjudications, arbitrations, or court trials. Of the other 2 Copyright Royalty Judges, 1 shall have significant knowledge of copyright law, and the other shall have significant knowledge of economics. An individual may serve as a Copyright Royalty Judge only if the individual is free of any financial conflict of interest under subsection (h).
(2) Definition.—In this subsection, the term "adjudication" has the meaning given that term in section 551 of title 5, but does not include mediation.
(b) Staff.—The Chief Copyright Royalty Judge shall hire 3 full-time staff members to assist the Copyright Royalty Judges in performing their functions.
(c) Terms.—The individual first appointed as the Chief Copyright Royalty Judge shall be appointed to a term of 6 years, and of the remaining individuals first appointed as Copyright Royalty Judges, 1 shall be appointed to a term of 4 years, and the other shall be appointed to a term of 2 years. Thereafter, the terms of succeeding Copyright Royalty Judges shall each be 6 years. An individual serving as a Copyright Royalty Judge may be reappointed to subsequent terms. The term of a Copyright Royalty Judge shall begin when the term of the predecessor of that Copyright Royalty Judge ends. When the term of office of a Copyright Royalty Judge ends, the individual serving that term may continue to serve until a successor is selected.
(1) Vacancies.—If a vacancy should occur in the position of Copyright Royalty Judge, the Librarian of Congress shall act expeditiously to fill the vacancy, and may appoint an interim Copyright Royalty Judge to serve until another Copyright Royalty Judge is appointed under this section. An individual appointed to fill the vacancy occurring before the expiration of the term for which the predecessor of that individual was appointed shall be appointed for the remainder of that term.
(2) Incapacity.—In the case in which a Copyright Royalty Judge is temporarily unable to perform his or her duties, the Librarian of Congress may appoint an interim Copyright Royalty Judge to perform such duties during the period of such incapacity.
(1) Judges.—The Chief Copyright Royalty Judge shall receive compensation at the rate of basic pay payable for level AL–1 for administrative law judges pursuant to section 5372(b) of title 5, and each of the other two Copyright Royalty Judges shall receive compensation at the rate of basic pay payable for level AL–2 for administrative law judges pursuant to such section. The compensation of the Copyright Royalty Judges shall not be subject to any regulations adopted by the Office of Personnel Management pursuant to its authority under section 5376(b)(1) of title 5.
(3) Locality pay.—All rates of pay referred to under this subsection shall include locality pay.
(A) In general.—(i) Subject to subparagraph (B) and clause (ii) of this subparagraph, the Copyright Royalty Judges shall have full independence in making determinations concerning adjustments and determinations of copyright royalty rates and terms, the distribution of copyright royalties, the acceptance or rejection of royalty claims, rate adjustment petitions, and petitions to participate, and in issuing other rulings under this title, except that the Copyright Royalty Judges may consult with the Register of Copyrights on any matter other than a question of fact.
(B) Novel questions.—(i) In any case in which a novel material question of substantive law concerning an interpretation of those provisions of this title that are the subject of the proceeding is presented, the Copyright Royalty Judges shall request a decision of the Register of Copyrights, in writing, to resolve such novel question. Reasonable provision shall be made for comment on such request by the participants in the proceeding, in such a way as to minimize duplication and delay. The Register of Copyrights shall transmit his or her decision to the Copyright Royalty Judges within 30 days after the Register of Copyrights receives all of the briefs or comments of the participants. Such decision shall be in writing and included by the Copyright Royalty Judges in the record that accompanies their final determination. If such a decision is timely delivered to the Copyright Royalty Judges, the Copyright Royalty Judges shall apply the legal determinations embodied in the decision of the Register of Copyrights in resolving material questions of substantive law.
(C) Consultation.—Notwithstanding the provisions of subparagraph (A), the Copyright Royalty Judges shall consult with the Register of Copyrights with respect to any determination or ruling that would require that any act be performed by the Copyright Office, and any such determination or ruling shall not be binding upon the Register of Copyrights.
(D) Review of legal conclusions by the register of copyrights.—The Register of Copyrights may review for legal error the resolution by the Copyright Royalty Judges of a material question of substantive law under this title that underlies or is contained in a final determination of the Copyright Royalty Judges. If the Register of Copyrights concludes, after taking into consideration the views of the participants in the proceeding, that any resolution reached by the Copyright Royalty Judges was in material error, the Register of Copyrights shall issue a written decision correcting such legal error, which shall be made part of the record of the proceeding. The Register of Copyrights shall issue such written decision not later than 60 days after the date on which the final determination by the Copyright Royalty Judges is issued. Additionally, the Register of Copyrights shall cause to be published in the Federal Register such written decision, together with a specific identification of the legal conclusion of the Copyright Royalty Judges that is determined to be erroneous. As to conclusions of substantive law involving an interpretation of the statutory provisions of this title, the decision of the Register of Copyrights shall be binding as precedent upon the Copyright Royalty Judges in subsequent proceedings under this chapter. When a decision has been rendered pursuant to this subparagraph, the Register of Copyrights may, on the basis of and in accordance with such decision, intervene as of right in any appeal of a final determination of the Copyright Royalty Judges pursuant to section 803(d) in the United States Court of Appeals for the District of Columbia Circuit. If, prior to intervening in such an appeal, the Register of Copyrights gives notification to, and undertakes to consult with, the Attorney General with respect to such intervention, and the Attorney General fails, within a reasonable period after receiving such notification, to intervene in such appeal, the Register of Copyrights may intervene in such appeal in his or her own name by any attorney designated by the Register of Copyrights for such purpose. Intervention by the Register of Copyrights in his or her own name shall not preclude the Attorney General from intervening on behalf of the United States in such an appeal as may be otherwise provided or required by law.
(E) Effect on judicial review.—Nothing in this section shall be interpreted to alter the standard applied by a court in reviewing legal determinations involving an interpretation or construction of the provisions of this title or to affect the extent to which any construction or interpretation of the provisions of this title shall be accorded deference by a reviewing court.
(A) In general.—Notwithstanding any other provision of law or any regulation of the Library of Congress, and subject to subparagraph (B), the Copyright Royalty Judges shall not receive performance appraisals.
(B) Relating to sanction or removal.—To the extent that the Librarian of Congress adopts regulations under subsection (h) relating to the sanction or removal of a Copyright Royalty Judge and such regulations require documentation to establish the cause of such sanction or removal, the Copyright Royalty Judge may receive an appraisal related specifically to the cause of the sanction or removal.
(g) Inconsistent Duties Barred.—No Copyright Royalty Judge may undertake duties that conflict with his or her duties and responsibilities as a Copyright Royalty Judge.
(h) Standards of Conduct.—The Librarian of Congress shall adopt regulations regarding the standards of conduct, including financial conflict of interest and restrictions against ex parte communications, which shall govern the Copyright Royalty Judges and the proceedings under this chapter.
(i) Removal or Sanction.—The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), misconduct, neglect of duty, or any disqualifying physical or mental disability. Any such sanction or removal may be made only after notice and opportunity for a hearing, but the Librarian of Congress may suspend the Copyright Royalty Judge during the pendency of such hearing. The Librarian shall appoint an interim Copyright Royalty Judge during the period of any such suspension.
A prior section 802, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2596; Pub. L. 101–319, §2(a), July 3, 1990, 104 Stat. 290; Pub. L. 103–198, §2(b), Dec. 17, 1993, 107 Stat. 2305; Pub. L. 104–39, §5(d)(2)–(4), Nov. 1, 1995, 109 Stat. 349; Pub. L. 105–80, §8(b), Nov. 13, 1997, 111 Stat. 1533; Pub. L. 105–304, title IV, §405(d), (e)(2)–(4), Oct. 28, 1998, 112 Stat. 2902; Pub. L. 107–273, div. C, title III, §13301(c)(2), Nov. 2, 2002, 116 Stat. 1912, related to membership and proceedings of copyright arbitration royalty panels, prior to the general amendment of this chapter by Pub. L. 108–419.
2006—Subsec. (f)(1)(A)(i). Pub. L. 109–303, §3(3)(A), substituted "subparagraph (B) and clause (ii) of this subparagraph" for "clause (ii) of this subparagraph and subparagraph (B)".
(1) In general.—The Copyright Royalty Judges shall act in accordance with this title, and to the extent not inconsistent with this title, in accordance with subchapter II of chapter 5 of title 5, in carrying out the purposes set forth in section 801. The Copyright Royalty Judges shall act in accordance with regulations issued by the Copyright Royalty Judges and the Librarian of Congress, and on the basis of a written record, prior determinations and interpretations of the Copyright Royalty Tribunal, Librarian of Congress, the Register of Copyrights, copyright arbitration royalty panels (to the extent those determinations are not inconsistent with a decision of the Librarian of Congress or the Register of Copyrights), and the Copyright Royalty Judges (to the extent those determinations are not inconsistent with a decision of the Register of Copyrights that was timely delivered to the Copyright Royalty Judges pursuant to section 802(f)(1)(A) or (B), or with a decision of the Register of Copyrights pursuant to section 802(f)(1)(D)), under this chapter, and decisions of the court of appeals under this chapter before, on, or after the effective date of the Copyright Royalty and Distribution Reform Act of 2004.
(2) Judges acting as panel and individually.—The Copyright Royalty Judges shall preside over hearings in proceedings under this chapter en banc. The Chief Copyright Royalty Judge may designate a Copyright Royalty Judge to preside individually over such collateral and administrative proceedings, and over such proceedings under paragraphs (1) through (5) of subsection (b), as the Chief Judge considers appropriate.
(3) Determinations.—Final determinations of the Copyright Royalty Judges in proceedings under this chapter shall be made by majority vote. A Copyright Royalty Judge dissenting from the majority on any determination under this chapter may issue his or her dissenting opinion, which shall be included with the determination.
(B) Petitions to participate.—Each petition to participate in a proceeding shall describe the petitioner's interest in the subject matter of the proceeding. Parties with similar interests may file a single petition to participate.
(i) Rate adjustment proceeding.—Promptly after the date for filing of petitions to participate in a proceeding, the Copyright Royalty Judges shall make available to all participants in the proceeding a list of such participants and shall initiate a voluntary negotiation period among the participants.
(ii) Distribution proceeding.—Promptly after the date for filing of petitions to participate in a proceeding to determine the distribution of royalties, the Copyright Royalty Judges shall make available to all participants in the proceeding a list of such participants. The initiation of a voluntary negotiation period among the participants shall be set at a time determined by the Copyright Royalty Judges.
(B) Length of proceedings.—The voluntary negotiation period initiated under subparagraph (A) shall be 3 months.
(C) Determination of subsequent proceedings.—At the close of the voluntary negotiation proceedings, the Copyright Royalty Judges shall, if further proceedings under this chapter are necessary, determine whether and to what extent paragraphs (4) and (5) will apply to the parties.
(A) In general.—If, in a proceeding under this chapter to determine the distribution of royalties, the contested amount of a claim is $10,000 or less, the Copyright Royalty Judges shall decide the controversy on the basis of the filing of the written direct statement by the participant, the response by any opposing participant, and 1 additional response by each such party.
(B) Bad faith inflation of claim.—If the Copyright Royalty Judges determine that a participant asserts in bad faith an amount in controversy in excess of $10,000 for the purpose of avoiding a determination under the procedure set forth in subparagraph (A), the Copyright Royalty Judges shall impose a fine on that participant in an amount not to exceed the difference between the actual amount distributed and the amount asserted by the participant.
(A) In general.—The Copyright Royalty Judges may issue regulations to carry out their functions under this title. All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review pursuant to chapter 7 of title 5, except as set forth in subsection (d). Not later than 120 days after Copyright Royalty Judges or interim Copyright Royalty Judges, as the case may be, are first appointed after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, such judges shall issue regulations to govern proceedings under this chapter.
(B) Interim regulations.—Until regulations are adopted under subparagraph (A), the Copyright Royalty Judges shall apply the regulations in effect under this chapter on the day before the effective date of the Copyright Royalty and Distribution Reform Act of 2004, to the extent such regulations are not inconsistent with this chapter, except that functions carried out under such regulations by the Librarian of Congress, the Register of Copyrights, or copyright arbitration royalty panels that, as of such date of enactment, are to be carried out by the Copyright Royalty Judges under this chapter, shall be carried out by the Copyright Royalty Judges under such regulations.
(ix) In proceedings to determine royalty rates, the Copyright Royalty Judges may issue a subpoena commanding a participant or witness to appear and give testimony, or to produce and permit inspection of documents or tangible things, if the Copyright Royalty Judges' resolution of the proceeding would be substantially impaired by the absence of such testimony or production of documents or tangible things. Such subpoena shall specify with reasonable particularity the materials to be produced or the scope and nature of the required testimony. Nothing in this clause shall preclude the Copyright Royalty Judges from requesting the production by a nonparticipant of information or materials relevant to the resolution by the Copyright Royalty Judges of a material issue of fact.
(1) Timing.—The Copyright Royalty Judges shall issue their determination in a proceeding not later than 11 months after the conclusion of the 21-day settlement conference period under subsection (b)(6)(C)(x), but, in the case of a proceeding to determine successors to rates or terms that expire on a specified date, in no event later than 15 days before the expiration of the then current statutory rates and terms.
(A) In general.—The Copyright Royalty Judges may, in exceptional cases, upon motion of a participant in a proceeding under subsection (b)(2), order a rehearing, after the determination in the proceeding is issued under paragraph (1), on such matters as the Copyright Royalty Judges determine to be appropriate.
(B) Timing for filing motion.—Any motion for a rehearing under subparagraph (A) may only be filed within 15 days after the date on which the Copyright Royalty Judges deliver to the participants in the proceeding their initial determination.
(C) Participation by opposing party not required.—In any case in which a rehearing is ordered, any opposing party shall not be required to participate in the rehearing, except that nonparticipation may give rise to the limitations with respect to judicial review provided for in subsection (d)(1).
(D) No negative inference.—No negative inference shall be drawn from lack of participation in a rehearing.
(3) Contents of determination.—A determination of the Copyright Royalty Judges shall be supported by the written record and shall set forth the findings of fact relied on by the Copyright Royalty Judges. Among other terms adopted in a determination, the Copyright Royalty Judges may specify notice and recordkeeping requirements of users of the copyrights at issue that apply in lieu of those that would otherwise apply under regulations.
(4) Continuing jurisdiction.—The Copyright Royalty Judges may issue an amendment to a written determination to correct any technical or clerical errors in the determination or to modify the terms, but not the rates, of royalty payments in response to unforeseen circumstances that would frustrate the proper implementation of such determination. Such amendment shall be set forth in a written addendum to the determination that shall be distributed to the participants of the proceeding and shall be published in the Federal Register.
(5) Protective order.—The Copyright Royalty Judges may issue such orders as may be appropriate to protect confidential information, including orders excluding confidential information from the record of the determination that is published or made available to the public, except that any terms or rates of royalty payments or distributions may not be excluded.
(6) Publication of determination.—By no later than the end of the 60-day period provided in section 802(f)(1)(D), the Librarian of Congress shall cause the determination, and any corrections thereto, to be published in the Federal Register. The Librarian of Congress shall also publicize the determination and corrections in such other manner as the Librarian considers appropriate, including, but not limited to, publication on the Internet. The Librarian of Congress shall also make the determination, corrections, and the accompanying record available for public inspection and copying.
(7) Late payment.—A determination of the Copyright Royalty Judges may include terms with respect to late payment, but in no way shall such terms prevent the copyright holder from asserting other rights or remedies provided under this title.
(1) Appeal.—Any determination of the Copyright Royalty Judges under subsection (c) may, within 30 days after the publication of the determination in the Federal Register, be appealed, to the United States Court of Appeals for the District of Columbia Circuit, by any aggrieved participant in the proceeding under subsection (b)(2) who fully participated in the proceeding and who would be bound by the determination. Any participant that did not participate in a rehearing may not raise any issue that was the subject of that rehearing at any stage of judicial review of the hearing determination. If no appeal is brought within that 30-day period, the determination of the Copyright Royalty Judges shall be final, and the royalty fee or determination with respect to the distribution of fees, as the case may be, shall take effect as set forth in paragraph (2).
(A) Expiration on specified date.—When this title provides that the royalty rates and terms that were previously in effect are to expire on a specified date, any adjustment or determination by the Copyright Royalty Judges of successor rates and terms for an ensuing statutory license period shall be effective as of the day following the date of expiration of the rates and terms that were previously in effect, even if the determination of the Copyright Royalty Judges is rendered on a later date. A licensee shall be obligated to continue making payments under the rates and terms previously in effect until such time as rates and terms for the successor period are established. Whenever royalties pursuant to this section are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor thereto) shall, within 60 days after the final determination of the Copyright Royalty Judges establishing rates and terms for a successor period or the exhaustion of all rehearings or appeals of such determination, if any, return any excess amounts previously paid to the extent necessary to comply with the final determination of royalty rates. Any underpayment of royalties by a copyright user shall be paid to the entity designated by the Copyright Royalty Judges within the same period.
(B) Other cases.—In cases where rates and terms have not, prior to the inception of an activity, been established for that particular activity under the relevant license, such rates and terms shall be retroactive to the inception of activity under the relevant license covered by such rates and terms. In other cases where rates and terms do not expire on a specified date, successor rates and terms shall take effect on the first day of the second month that begins after the publication of the determination of the Copyright Royalty Judges in the Federal Register, except as otherwise provided in this title, or by the Copyright Royalty Judges, or as agreed by the participants in a proceeding that would be bound by the rates and terms. Except as otherwise provided in this title, the rates and terms, to the extent applicable, shall remain in effect until such successor rates and terms become effective.
(3) Jurisdiction of court.—Section 706 of title 5 shall apply with respect to review by the court of appeals under this subsection. If the court modifies or vacates a determination of the Copyright Royalty Judges, the court may enter its own determination with respect to the amount or distribution of royalty fees and costs, and order the repayment of any excess fees, the payment of any underpaid fees, and the payment of interest pertaining respectively thereto, in accordance with its final judgment. The court may also vacate the determination of the Copyright Royalty Judges and remand the case to the Copyright Royalty Judges for further proceedings in accordance with subsection (a).
(A) Deduction from filing fees.—The Librarian of Congress may, to the extent not otherwise provided under this title, deduct from the filing fees collected under subsection (b) for a particular proceeding under this chapter the reasonable costs incurred by the Librarian of Congress, the Copyright Office, and the Copyright Royalty Judges in conducting that proceeding, other than the salaries of the Copyright Royalty Judges and the 3 staff members appointed under section 802(b).
(B) Authorization of appropriations.—There are authorized to be appropriated such sums as may be necessary to pay the costs incurred under this chapter not covered by the filing fees collected under subsection (b). All funds made available pursuant to this subparagraph shall remain available until expended.
(2) Positions required for administration of compulsory licensing.—Section 307 of the Legislative Branch Appropriations Act, 1994, shall not apply to employee positions in the Library of Congress that are required to be filled in order to carry out section 111, 112, 114, 115, 116, 118, or 119 or chapter 10.
A prior section 803, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2597, §804; Pub. L. 100–568, §11(2), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 100–667, title II, §202(5), Nov. 16, 1988, 102 Stat. 3958; Pub. L. 101–318, §3(c), July 3, 1990, 104 Stat. 288; Pub. L. 102–563, §3(a)(2), Oct. 28, 1992, 106 Stat. 4248; renumbered §803 and amended Pub. L. 103–198, §2(d), Dec. 17, 1993, 107 Stat. 2307; Pub. L. 104–39, §5(d)(5)–(7), Nov. 1, 1995, 109 Stat. 349; Pub. L. 105–80, §12(a)(20), Nov. 13, 1997, 111 Stat. 1535; Pub. L. 105–304, title IV, §405(e)(5), (6), Oct. 28, 1998, 112 Stat. 2902, related to institution and conclusion of proceedings of copyright arbitration royalty panels, prior to the general amendment of this chapter by Pub. L. 108–419.
Another prior section 803, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2596, related to procedures of the Copyright Royalty Tribunal, prior to repeal by Pub. L. 103–198, §2(c), Dec. 17, 1993, 107 Stat. 2307.
2018—Subsec. (c)(2)(E)(i)(II). Pub. L. 115–264 struck out "or 114(f)(2)(C)" after "under section 114(f)(1)(C)" and substituted "114(f)(3)(B)" for "114(f)(4)(B)".
2010—Subsec. (b)(6)(A). Pub. L. 111–295 substituted "All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review pursuant to chapter 7 of title 5, except as set forth in subsection (d)." for "All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress."
2006—Subsec. (a)(1). Pub. L. 109–303, §3(5), substituted "The Copyright Royalty Judges shall act in accordance with this title, and to the extent not inconsistent with this title, in accordance with subchapter II of chapter 5 of title 5, in carrying out the purposes set forth in section 801. The Copyright" for "The Copyright" and inserted "copyright arbitration royalty panels (to the extent those determinations are not inconsistent with a decision of the Librarian of Congress or the Register of Copyrights)," after "Congress, the Register of Copyrights,".
2004—Subsec. (b)(1)(A)(i)(V). Pub. L. 108–447 inserted ", except that in the case of proceedings under section 111 that are scheduled to commence in 2005, such notice may not be published." before period at end.
(a) Filing of Petition.—With respect to proceedings referred to in paragraphs (1) and (2) of section 801(b) concerning the determination or adjustment of royalty rates as provided in sections 111, 112, 114, 115, 116, 118, 119, and 1004, during the calendar years specified in the schedule set forth in subsection (b), any owner or user of a copyrighted work whose royalty rates are specified by this title, or are established under this chapter before or after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, may file a petition with the Copyright Royalty Judges declaring that the petitioner requests a determination or adjustment of the rate. The Copyright Royalty Judges shall make a determination as to whether the petitioner has such a significant interest in the royalty rate in which a determination or adjustment is requested. If the Copyright Royalty Judges determine that the petitioner has such a significant interest, the Copyright Royalty Judges shall cause notice of this determination, with the reasons for such determination, to be published in the Federal Register, together with the notice of commencement of proceedings under this chapter. With respect to proceedings under paragraph (1) of section 801(b) concerning the determination or adjustment of royalty rates as provided in sections 112 and 114, during the calendar years specified in the schedule set forth in subsection (b), the Copyright Royalty Judges shall cause notice of commencement of proceedings under this chapter to be published in the Federal Register as provided in section 803(b)(1)(A).
(1) Section 111 proceedings.—(A) A petition described in subsection (a) to initiate proceedings under section 801(b)(2) concerning the adjustment of royalty rates under section 111 to which subparagraph (A) or (D) of section 801(b)(2) applies may be filed during the year 2015 and in each subsequent fifth calendar year.
(2) Certain section 112 proceedings.—Proceedings under this chapter shall be commenced in the year 2007 to determine reasonable terms and rates of royalty payments for the activities described in section 112(e)(1) relating to the limitation on exclusive rights specified by section 114(d)(1)(C)(iv), to become effective on January 1, 2009. Such proceedings shall be repeated in each subsequent fifth calendar year.
(A) For eligible nonsubscription services and new subscription services.—Proceedings under this chapter shall be commenced as soon as practicable after the date of enactment of the Copyright Royalty and Distribution Reform Act of 2004 to determine reasonable terms and rates of royalty payments under sections 114 and 112 for the activities of eligible nonsubscription transmission services and new subscription services, to be effective for the period beginning on January 1, 2006, and ending on December 31, 2010. Such proceedings shall next be commenced in January 2009 to determine reasonable terms and rates of royalty payments, to become effective on January 1, 2011. Thereafter, such proceedings shall be repeated in each subsequent fifth calendar year.
(B) For preexisting subscription and satellite digital audio radio services.—Proceedings under this chapter shall be commenced in January 2006 to determine reasonable terms and rates of royalty payments under sections 114 and 112 for the activities of preexisting subscription services, to be effective during the period beginning on January 1, 2008, and ending on December 31, 2012, and preexisting satellite digital audio radio services, to be effective during the period beginning on January 1, 2007, and ending on December 31, 2012. Such proceedings shall next be commenced in 2011 to determine reasonable terms and rates of royalty payments, to become effective on January 1, 2013. Thereafter, such proceedings shall be repeated in each subsequent fifth calendar year, except that—(i) 1 with respect to preexisting subscription services, the terms and rates finally determined for the rate period ending on December 31, 2022, shall remain in effect through December 31, 2027, and there shall be no proceeding to determine terms and rates for preexisting subscription services for the period beginning on January 1, 2023, and ending on December 31, 2027; and" " \1 (ii) with respect to pre-existing satellite digital audio radio services, the terms and rates set forth by the Copyright Royalty Judges on December 14, 2017, in their initial determination for the rate period ending on December 31, 2022, shall be in effect through December 31, 2027, without any change based on a rehearing under section 803(c)(2) and without the possibility of appeal under section 803(d), and there shall be no proceeding to determine terms and rates for preexisting satellite digital audio radio services for the period beginning on January 1, 2023, and ending on December 31, 2027.
(5) Section 116 proceedings.—(A) A petition described in subsection (a) to initiate proceedings under section 801(b) concerning the determination of royalty rates and terms as provided in section 116 may be filed at any time within 1 year after negotiated licenses authorized by section 116 are terminated or expire and are not replaced by subsequent agreements.
(6) Section 118 proceedings.—A petition described in subsection (a) to initiate proceedings under section 801(b)(1) concerning the determination of reasonable terms and rates of royalty payments as provided in section 118 may be filed in the year 2006 and in each subsequent fifth calendar year.
(7) Section 1004 proceedings.—A petition described in subsection (a) to initiate proceedings under section 801(b)(1) concerning the adjustment of reasonable royalty rates under section 1004 may be filed as provided in section 1004(a)(3).
(8) Proceedings concerning distribution of royalty fees.—With respect to proceedings under section 801(b)(3) concerning the distribution of royalty fees in certain circumstances under section 111, 119, or 1007, the Copyright Royalty Judges shall, upon a determination that a controversy exists concerning such distribution, cause to be published in the Federal Register notice of commencement of proceedings under this chapter.
Section 115(c), referred to in subsec. (b)(4), was amended generally by Pub. L. 115–264, title I, §102(a)(3), Oct. 11, 2018, 132 Stat. 3679, and, as so amended, no longer contains a par. (3).
2018—Subsec. (b)(3)(B). Pub. L. 115–264, §103(i), inserted ", except that—" and cls. (i) and (ii) after "fifth calendar year".
2010—Subsec. (b)(1)(A), (B). Pub. L. 111–175 substituted "2015" for "2005".
2006—Subsec. (b)(1)(B). Pub. L. 109–303, §3(12), substituted "801(b)(2)(B) or (C)" for "801(b)(3)(B) or (C)" and "change in" for "change is".
Prior sections 805 to 810 were repealed by Pub. L. 103–198, §2(e), Dec. 17, 1993, 107 Stat. 2308.
Section 805, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to staff of Copyright Royalty Tribunal.
Section 806, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to administrative support of Tribunal.
Section 807, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to deduction of costs of proceedings involving distribution of royalty fees.
Section 808, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to reporting requirements of the Tribunal.
Section 809, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to effective date of final determinations of Tribunal.
Section 810, Pub. L. 94–553, title I, §101, Oct. 19, 1976, 90 Stat. 2598, related to judicial review of final decisions of Tribunal.