Motion for Preliminary Injunction in Live365 v. CRB

IN THE UNITED STATES DISTRICT COURTDISTRICT OF COLUMBIA

LIVE365, INC.,Plaintiff,vs.COPYRIGHT ROYALTY BOARD;JAMES H. BILLINGTON, in his officialcapacity as Librarian of Congress; andJAMES SCOTT SLEDGE, STANLEY C.WISNIEWSKI, and WILLIAM J. ROBERTS, intheir official capacities as Judges of theCopyright Royalty Board,Defendants.))))))))))))))Case No. 1:09-cv-01662 (RBW)

PLAINTIFF LIVE365, INC.’S MOTION/APPLICATIONFOR PRELIMINARY INJUNCTION

Plaintiff Live365, Inc. (“Live365” or “Plaintiff”), by and through its undersigned counsel,respectfully moves this Court, pursuant to Federal Rule of Civil Procedure 65(a) and Local CivilRule 65.1(c), for a preliminary injunction against Defendants Copyright Royalty Board (“CRB”)and James Scott Sledge, Stanley C. Wisniewski, and William J. Roberts, in their official capa-cities as Judges of the Copyright Royalty Board (collectively the “Copyright Royalty Judges”).Specifically, Live365 seeks an order staying the pending CRB proceeding –

In the Matter of Digital Performance Right In Sound Recordings and Ephemeral Recordings

, Docket No. 2009-1(CRB Webcasting III) – until Live365’s Appointments Clause challenge to the CRB’s makeup(as set forth in the Complaint and in the accompanying Memorandum of Points and Authorities)can be resolved by this Court.

Plaintiff challenges the constitutionality of 2004 amendments to the U.S. Copyright Actthat created the CRB to set rates and terms for statutory compulsory licenses for certaincopyrighted works. The Copyright Royalty Judges who make up the CRB are appointed by the

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2Librarian of Congress in violation of the Appointments Clause. Such appointments are not madeby the Executive, notwithstanding the fact that Copyright Royalty Judges function in all respectsas Principal Officers who must be so appointed (or, even if not Principal Officers, they areInferior Officers who must be appointed by the head of an Executive Department, which theLibrarian is not). Therefore, all powers and authorities exercised by them are null and void, andit is imperative to have this matter, which the CRB cannot itself adjudicate, decided before theCRB conducts any further proceedings or issues rulings that may later have to be vacated.Issuance of a preliminary injunction pending the resolution of Live365’s claim is proper because:(1) Live365 has a substantial likelihood of success on the merits of its constitutional challenge;(2) Live365 will be irreparably harmed if the injunction is not granted; (3) the CRB will not beprejudiced by the injunction; and (4) the injunction would further the public interest.

See

,

e.g.

,

Ellipso, Inc. v. Mann

, 480 F.3d 1153, 1157 (D.C. Cir. 2007).Pursuant to Local Civil Rule 65.1(d), for the reasons set forth in the accompanyingMemorandum of Points and Authorities, and pursuant to Plaintiff’s Request For Expedited Relief filed concurrently herewith, Plaintiff respectfully requests a hearing on this motion at the earliestpossible date.Pursuant to Local Civil Rule 7(m), counsel for Plaintiff conferred with Defendants’known counsel, the Department of Justice, in an effort to determine whether Defendants opposethe relief sought herein. Defendants’ counsel indicated that such relief is opposed.Live365 respectfully requests that its motion for a preliminary injunction be granted andthat all procedural deadlines, required filings by the parties, and further actions by the CopyrightRoyalty Board in the “2009 WEB III CRB Proceeding” (

In the Matter of Digital Performance Right In Sound Recordings and Ephemeral Recordings

, Docket No. 2009-1 (CRB WebcastingIII)) be stayed, pending the resolution of Live365’s constitutional claims raised in its Complaint.

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3DATED: September 2, 2009

Of Counsel:

Kenneth D. FreundlichFREUNDLICH LAW9100 Wilshire Blvd. Suite 615 EastBeverly Hills, CA 90212Telephone: (310) 275-5350Respectfully submitted, /s/ Adam S. CaldwellAdam S. Caldwell – Bar No. 445786Ronald G. London – Bar No. 456284DAVIS WRIGHT TREMAINE, LLP1919 Pennsylvania Avenue, NW, Suite 200Washington, DC 20006Telephone: (202) 973-4200Facsimile: (202) 973-4499

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