has not withdrawn its consent as to all but the modification to Article XIII of the Consent Decree or its position of neutrality with respect to the modification to Article XIII of the Consent Decree set forth in the proposed order, which it may do at any time before the entry of an order granting the relief requested by the movant, by filing notice of the withdrawal of its consent and/or position of neutrality with the Court and serving a copy of said notice upon BMI. 2. In the event plaintiff withdraws its consent and/or position of neutrality, or if BMI withdraws its motion, or if the proposed order granting the relief proposed by the movant is not entered pursuant to this Stipulation, this Stipulation shall be of no effect whatever, the making of it shall be without prejudice to any party in this or any other proceedings, and it shall not thereafter be used in this or any other action, or for any other purpose. Defendant Broadcast Music, Inc. ("BMI") having moved this Court for an order modifying the Consent Decree entered herein against BMI on December 29, 1966, and notice of the motion having been published in two consecutive issues of the national edition of The Wall Street Journal, two consecutive issues of Broadcasting & Cable, and two consecutive issues of the weekly edition of Variety, and proof filed of such publication having been filed with the Court; and all interested persons having been given an opportunity to submit comments concerning the proposed modifications and plaintiff, the United States of America, having consented to all but the proposed modification of Article XIII thereof, as to which it is neutral, and the Court having considered all the papers that have been filed in connection with the motion, and the Court finding that it is in the public interest to grant the motion, it is ORDERED, ADJUDGED and DECREED that the 1966 Consent Decree be and hereby is modified as follows: I. Add the following new Article XIV: (A) Subject to all provisions of this Final Judgment, defendant shall, within ninety (90) days of its receipt of a written application from an applicant for a license for the right of public performance of any, some or all of the compositions in defendant's repertory, advise the applicant in writing of the fee which it deems reasonable for the license requested. If the parties are unable to agree upon a reasonable fee within sixty (60) days from the date when. defendant advises the applicant of the fee which it deems reasonable, the applicant may forthwith apply to this Court for the determination of reasonable fee and defendant shall, upon receipt of notice of the filing of such application, promptly give notice thereof to the Assistant Attorney General in charge of the Antitrust Division. If the parties are unable to agree upon a reasonable fee within ninety (90) days from the date when defendant advises the applicant of the fee which it deems reasonable and no such filing by applicant for the determination of a reasonable fee for the license requested is pending, then defendant may forthwith apply to this Court for the determination of a reasonable fee and defendant shall promptly give notice of its filing of such application to the Assistant Attorney General in charge of the Antitrust Division. In any such proceeding, defendant shall have the burden of proof to establish the reasonableness of the fee requested by it. Should defendant not establish that the fee requested by it is a reasonable one, then the Court shall determine a reasonable fee based upon all the evidence. Pending the completion of any such negotiations or proceedings, the applicant shall have the right to use any, some or all of the compositions in defendant's repertory to which its application pertains, without payment of any fee or other compensation, but subject to the provisions of Subsection (B) hereof, and to the final order or judgment entered by this Court in such proceeding; (B) When an applicant has the right to perform any compositions in defendant's repertory pending the completion of any negotiations or proceedings provided for in Subsection (A) hereof, either the applicant or II. defendant may apply to this Court to fix an interim fee pending final determination of what constitutes a reasonable fee. It is the purpose of this provision that an interim fee be determined promptly, and without prejudice as to the final determination of what constitutes a reasonable fee. It is further intended that interim fee proceedings be completed within 120 days of the date when application is made to fix an interim fee, subject to extension at the request of defendant or the applicant only in the interest of justice for good cause shown. If the Court fixes such interim fee, defendant shall then issue and the applicant shall accept a license providing for the payment of a fee at such interim rate from the date the applicant requested a license. If the applicant fails to accept such license or fails to pay the interim fee in accordance therewith, such failure shall be ground for the dismissal of its application. Where an interim license has been issued pursuant to this Subsection (B), the reasonable fee finally determined by this Court shall be retroactive to the date the applicant requested a license; (C) When a reasonable fee has been finally determined by this court, defendant shall be required to offer a license at a comparable fee to all other applicants similarly situated who shall thereafter request a license of defendant, but any license agreement which has been executed without any Court determination between defendant and another applicant similarly situated prior to such determination by the Court shall not be deemed to be in any way affected or altered by such determination for the term of such license agreement; (D) Nothing in this Article XIV shall prevent any applicant from attacking in the aforesaid proceedings or in any other controversy the validity of the copyright of any of the compositions in defendant's repertory nor shall this Judgment be construed as importing any validity or value to any of said copyrights. Add to Article II the following subsection: (B) "Defendant's repertory" means those compositions, the right of public performance of which defendant has or hereafter shall have the right to. license or sublicense. III. IV. V. Amend Article VII(C) to read as follows (adding the underscored section to the already existing language): Defendant shall include in all contracts which it tenders to writers, publishers and music users relating to the licensing of performance rights a clause requiring the parties to submit to arbitration in the City, County and State of New York under the then prevailing rules of the American Arbitration Association, all disputes of any kind, nature or description in connection with the terms and conditions of such contracts or arising out of the performance thereof or based upon an alleged breach thereof, except that in all contracts tendered by defendant to music users, the clause requiring the parties to submit to arbitration will exclude disputes that are cognizable by the Court pursuant to Article XIV hereof. Amend Article IX(A) to read as follows (adding the underscored section to the already existing language): Defendant shall not license the public performance of any musical composition except on a Add to Article XIII the following language at the end To best preserve the independent conduct of jurisdiction retained by this Court over this Final |