United States v. American Society of Composers, Auth. & Pub.

• Citation: 341 F.2d 1003
• Decision Date: 08 March 1965
• Docket Number: No. 115,Docket 28909.,115
• Parties: UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee. Metromedia, Inc., Petitioner-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

341 F.2d 1003 (1965)

UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee.

Metromedia, Inc., Petitioner-Appellant.

No. 115, Docket 28909.

United States Court of Appeals Second Circuit.

Argued November 30, 1964.

Decided March 8, 1965.

Lionel Kestenbaum, Dept. of Justice, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., and Arthur J. Murphy, Jr., Dept. of Justice, Washington, D. C., on the brief), for plaintiff.

Herman Finkelstein, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, Simon H. Rifkind, Jay H. Topkis, Allan Blumstein and Carl L. Zanger, New York City, on the brief), for defendant-appellee.

Robert A. Dreyer, of Seligson & Morris, New York City (Charles Seligson, George A. Katz, New York City, on the brief), for petitioner-appellant.

Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge.^*

J. JOSEPH SMITH, Circuit Judge:

Metromedia, Inc., owner and operator of a chain of radio and television stations, moved in the United States District Court for the Southern District of New York to punish the American Society of Composers, Authors and Publishers (ASCAP) for an alleged violation of the consent decree entered in United States v. American Society of Composers, Authors and Publishers, S.D.N.Y. Civ. No. 13-95, a government antitrust suit to which Metromedia was not a party. The District Court, Sylvester J. Ryan, Chief Judge, held that Metromedia did not have "the status or standing to move for punishment for contempt" and denied the motion. Metromedia now appeals. We hold that the appeal is properly before us, that Metromedia has no standing to bring the contempt action, and that even if standing existed, Metromedia's claims do not establish any violation of the terms of the decree, and we affirm the order denying the motion.

ASCAP is an association of composers, authors and publishers of musical compositions organized in 1914 for the purpose of assisting its members in policing and protecting their works against copyright infringements. In exchange for non-exclusive rights to its members' works, ASCAP licenses them for public performance, collects and distributes the royalties, and maintains a continuous surveillance over the myriad of music users for possible infringements. ASCAP has risen to a position of vital importance with respect to the thousands of such copyright proprietors who would otherwise be unable to check performances of their compositions; to those in the music industry it has come to represent a vast business enterprise controlling the licensing and distribution of a very large majority of the nation's copyrighted musical wares. See Schwartz v. Broadcast Music, Inc., 180 F.Supp. 322, 332 (S.D.N.Y.1959).

In 1941 the government recognized the need for federal regulation of ASCAP's widespread activities and instituted antitrust proceedings. ASCAP entered into a consent decree whereby ASCAP, among other things, was required to offer licenses under which the mode of payment was related to the amount of music used. The 1941 decree eventually proved to be not wholly effective and in 1950 was supplanted by an amended judgment; the latter enjoined ASCAP from entering into licensing agreements which discriminate between users similarly situated and provided that the type of license granted either accord the user the right to perform all ASCAP compositions or one or more specified works and that a special procedure be followed for the determination of licensing fees, allowing for judicial intervention at the end of sixty days if ASCAP and the prospective licensee are unable to agree upon a reasonable charge.¹ Additional modifications of the decree were made in 1960.

The present controversy arises out of Metromedia's application for a blanket license covering its ten radio stations, submitted to ASCAP in December 1963, and drafted in purported compliance with the terms of the 1950 supplemental judgment. Metromedia requested a license which would incorporate a markedly different method for computing royalties than was provided in previous ASCAP blanket licenses with local radio stations. Under the prior blanket agreements, the local station paid a sustaining fee based chiefly on a card rate and, as a commercial fee, 2.125% of its "net receipts from sponsors after deduction" of a sales commission, whereas, under Metromedia's scheme, royalties would be based on a percentage of gross receipts, and in the event that gross receipts in any license year exceeded gross receipts for the base year (1962), the percentage royalties payable on the excess would be less.² ASCAP refused to quote any fee on the requested basis and took the position that there was nothing in the amended judgment which required it to issue licenses in such a form. Thereafter, in March 1964, Metromedia, without making any further attempt to negotiate with ASCAP or to institute a rate proceeding under Section IX of the amended final judgment,³ approached the government and demanded that it institute contempt proceedings against ASCAP based on ASCAP's refusal to quote, which Metromedia claimed was in contravention of the provisions of the amended decree. The government replied that it did not propose to make any decision on the request until this court had rendered its opinion in United States v. ASCAP, Application of Shenandoah Valley Broadcasting, Inc. Metromedia then moved in the District Court to hold ASCAP in contempt of court "for its neglect and refusal to comply with and obey the Amended Final Judgment * * *, or in the alternative to direct the government herein to so move this court." The motion, opposed by both ASCAP and the government, was denied.

The denial of Metromedia's contempt motion is properly reviewable by this court; Section 2 of the Expediting Act, 15 U.S.C. § 29,⁴ under the circumstances presented here, does not require that appeal be made directly to the Supreme Court from the District Court order. The appellate procedure to be followed in this case appears to us to be governed by the Court's decision in Shenandoah Valley Broadcasting, Inc. v. ASCAP, 375 U.S. 39, 84 S.Ct. 8, 11 L.Ed. 2d 8, amended 375 U.S. 994, 84 S.Ct. 627, 11 L.Ed.2d 467 (1963), on remand 331 F.2d 117 (2 Cir.), cert. den. 377 U.S. 997, 84 S.Ct. 1917, 12 L.Ed.2d 1048 (1964), rather than Terminal R. R. Assoc. of St. Louis v. United States, 266 U.S. 17, 45 S.Ct. 5, 69 L.Ed. 150 (1924).⁵ While circumstances are similar in Terminal R. R. in that the petitioner there was attempting to enforce the provisions of an antitrust decree by instituting a contempt action (in which the government did not originally join) against one of the defendants, one crucial difference is that the petitioner, a co-defendant, was a party to the decree. Its status to initiate the contempt proceedings was not challenged as is Metromedia's here. Involved in the Shenandoah case was the same ASCAP consent decree which is the subject of our present inquiry. Shenandoah Valley Broadcasting, however, unlike Metromedia, was not seeking to hold ASCAP in contempt but instead was attempting judicially to force ASCAP into issuing the type of license that Shenandoah requested. The District Court found that the consent decree did not require ASCAP to issue a special license of that kind, and Shenandoah appealed directly to the Supreme Court under Section 2 of the Expediting Act. In explaining the dismissal of the appeal for want of jurisdiction, the Court held that the Expediting Act did not permit direct appeals from ancillary orders of this type and that such appeals are authorized only from final judgments where the United States is a complainant. "The controversy which is disposed of by the District Court's order is entirely between private parties and is outside the mainstream of the litigation in which the Government is directly concerned." 375 U.S. at 40, 84 S.Ct. at 9. Similarly, Metromedia's motion for contempt evolves from a private controversy between Metromedia and ASCAP over a matter that does not directly concern the United States — the determination of a licensing fee arrangement within the terms of the amended judgment. Cf. Olympic Refining Co. v. Carter, 332 F.2d 260, 263 (9 Cir. 1964).

Finding as we do that this appeal is properly before us, we hold that Metromedia lacks standing to move in this government antitrust action to punish the defendant ASCAP for contempt. Metromedia is not a party to the action and, indeed, could not have intervened as of right. See Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961).⁶

Metromedia relies on Rule 71 of the Federal Rules of Civil Procedure.⁷ Rule 71, however, expressly requires that the order sought to be enforced by the nonparty be made in favor of that person. Here, no order was made in Metromedia's favor. No monetary or other relief was specifically granted to Metromedia — it was not even named in the judgment — and it...