Music Choice v. Copyright Royalty Board and Librarian of Congress

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 2025 Decided August 18, 2026

No. 25-1039

M
USIC CHOICE,
P
ETITIONER

v.

COPYRIGHT ROYALTY BOARD AND LIBRARIAN OF CONGRESS,
R
ESPONDENTS

On Petition for Review of an
Order of the Copyright Royalty Board

Paul M. Fakler argued the cause for petitioner. With him
on the briefs were Sarah Landry and Eric A. White.
Amanda Mundell, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief were
Brett A. Shumate, Assistant Attorney General, and Daniel
Tenny, Attorney.
Matthew S. Hellman argued the cause and filed the brief
for amicus curiae SoundExchange, Inc. in support of
respondents.
Before: M
ILLETT, PAN, and GARCIA, Circuit Judges.

2
Opinion for the Court filed by Circuit Judge MILLETT.
M
ILLETT, Circuit Judge: Music Choice transmits
copyrighted sound recordings to businesses for use as
background music. The Copyright Royalty Board’s licensing
regulations require Music Choice to pay a percentage of its
revenues from those transmissions to the non-profit entity
SoundExchange, Inc., which then distributes the royalties to
copyright holders. In 2019, SoundExchange sued Music
Choice, alleging that Music Choice had underpaid its royalties
by misapplying the relevant Royalty Board regulation.
Relying on the doctrine of primary jurisdiction, the district
court referred Music Choice and SoundExchange to the
Royalty Board to seek its interpretation of that regulation. The
Royalty Board subsequently issued a “Ruling on Regulatory
Interpretation” that agreed with SoundExchange. Instead of
returning to district court, Music Choice petitioned this court
for review of the Royalty Board’s ruling.
By statute, this court can directly review a Royalty Board
ruling only if it is a “determination” under 17 U.S.C. § 803(c)
brought by a “participant in [a] proceeding” under 17 U.S.C.
§ 803(b)(2) who is “bound” by that determination. Id.
§ 803(d)(1). None of those conditions is satisfied here, so this
court lacks jurisdiction, and Music Choice must return to
district court if it wishes to contest the Royalty Board’s
decision. We accordingly dismiss Music Choice’s petition for
review.
I

A

Musicians, record labels, and their assignees own
copyrights in the sound recordings created when they produce

3
a song. 17 U.S.C. § 102(a)(7). As a technical matter, sound
recordings are “the fixation” of “musical, spoken, or other
sounds” in a medium, such as a CD or digital audio file. Id.
§ 101. The sound-recording copyright protects the audio
recording of a specific performance of a song—say, in a studio
session—as distinct from the musical composition itself. The
sound-recording copyright includes the exclusive rights to
“reproduce[,]” id. § 106(1), “distribute[,]” id. § 106(3), and
“perform” the sound recording “publicly by means of a digital
audio transmission[,]” id. § 106(6). See id. § 114(a).
Congress, though, has limited those exclusive rights
through a statutory licensing scheme.
“[P]reexisting subscription service[s]” (“Subscription
Services”) may lawfully broadcast a copyrighted sound
recording through “noninteractive audio-only subscription
digital audio transmissions[.]” 17 U.S.C. § 114(j)(11).
Readers might find such a subscription service as an optional
package in their cable or satellite television bundle, with
channels dedicated to broadcasting pre-selected songs of
different genres. Operating a Subscription Service requires
two licenses: (1) a license to perform sound recordings by
sending them out through digital audio transmissions, id.
§ 114(d)(2), (f); and (2) a license to make and store “ephemeral
recordings”—that is, the temporary copies of copyrighted
sound recordings that are needed to make the transmission, id.
§ 112(e).
Some of those transmissions—known as “business
establishment services” (“Business Services”)—are treated
differently. Business Services transmit music programming
“to a business establishment for use in the ordinary course of
its business[.]” 17 U.S.C. § 114(d)(1)(C)(iv). Commonly,
Business Services broadcast background music for restaurants,
grocery stores, and other brick-and-mortar retailers.

4
Congress carved Business Services transmissions out of
artists’ exclusive performance rights for sound recordings. So
Business Services—unlike Subscription Services—need not
acquire a transmission license. 17 U.S.C. § 114(d)(1)(C)(iv).
But Business Services still must acquire an ephemeral-
recording license. Id. § 112(e)(1).
Those licenses all come at a cost: royalty payments.
Congress assigned the task of regulating the rates and terms of
royalty payments for Subscription Services and Business
Services to the Copyright Royalty Judges. 17 U.S.C.
§§ 112(e)(3), 114(f)(1), 801(b)(1).
The Copyright Royalty Judges are three full-time
appointees of the Librarian of Congress who administer
statutory copyright licensing schemes. 17 U.S.C. § 801(a), (b).
The Judges and their staff serve within the Library of Congress.
Id. § 801(e). They work in tandem with the Register of
Copyrights, and they must consult with the Register on
questions of copyright law. Id. § 802(f)(1)(B)–(C).
Respondent the Copyright Royalty Board is “the institutional
entity” that comprises the Copyright Royalty Judges
collectively. 37 C.F.R. § 301.1.
B

This dispute centers on the Royalty Board’s regulation
setting the rates and terms of the ephemeral-recording license
for Business Services, 37 C.F.R. part 384.
1
That regulation

1
More precisely, the dispute concerns versions of Section 384
that governed from 2009 to 2018. The relevant provisions have since
been amended and reorganized. See Determination of Royalty Rates
and Terms for Making Ephemeral Copies of Sound Recordings for
Transmission to Business Establishments, 83 Fed. Reg. 60,362,
60,363 (Nov. 26, 2018); Determination of Royalty Rates and Terms
for Making Ephemeral Copies of Sound Recordings for

5
dictates that, “[f]or the making of any number of Ephemeral
Recordings in the operation of” a Business Service, a licensee
“shall pay a royalty equal to” a percentage of “such Licensee’s
‘Gross Proceeds’ derived from the use” of copyrighted sound
recordings. 37 C.F.R § 384.3(a)(1).
The regulation then defines “Gross Proceeds” to mean:
all fees and payments, including those made in
kind, received from any source before, during
or after the License Period that are derived from
the use of sound recordings subject to protection
under title 17, United States Code, during the
[ephemeral-recording] license period pursuant
to 17 U.S.C. 112(e) for the sole purpose of
facilitating a transmission to the public of a
performance of a sound recording under the
limitation on exclusive rights specified in 17
U.S.C. 114(d)(1)(C)(iv) [the Business Services
exemption from the performance right].

37 C.F.R. § 384.3(a)(2).
That is a mouthful. Bear with us.
The Librarian of Congress adopted that language on the
Register of Copyright’s recommendation when setting terms
for the first Business Services ephemeral-recording license in
2002. See Determination of Reasonable Rates and Terms for
the Digital Performance of Sound Recordings and Ephemeral
Recordings, 67 Fed. Reg. 45,240, 45,268 (July 8, 2002). The

Transmission to Business Establishments, 89 Fed. Reg. 267, 267
(Jan. 3, 2024). Because Section 384’s substance has not
meaningfully changed in the intervening years, we, like the parties,
cite the currently operative version of the regulation. See Royalty
Board Br. 10; Music Choice Reply Br. 10; SoundExchange Br. 6.

6
Librarian did so under a now-repealed statutory scheme that
predated the Royalty Board’s creation. See 17 U.S.C. § 802(f)
(2000). Since then, the Business Services royalty rate has been
determined through settlement agreements among the
interested parties that have incorporated the original definition
of gross proceeds with only minor, non-substantive changes.
2

Subject to exceptions not relevant here, the Royalty Board is
required to “adopt as a basis for statutory terms and rates” of
the ephemeral-recording license “an agreement concerning
such matters reached among” interested parties. 17 U.S.C.
§ 801(b)(7)(A).
II

A

Petitioner Music Choice operates both Subscription
Services and Business Services. Amicus SoundExchange, Inc.
is a non-profit entity tasked by the Royalty Board with
collecting royalty payments from licensees like Music Choice
and distributing those royalties to copyright holders. 37 C.F.R.
§§ 382.5(d)(1) (Subscription Services licenses), 384.4(b)(1)
(Business Services licenses).
In 2019, SoundExchange sued Music Choice in the United
States District Court for the District of Columbia, alleging that
Music Choice had systematically underpaid royalties owed for

2
See Determination of Rates and Terms for Business
Establishment Services, 73 Fed. Reg. 16,199, 16,199 (March 27,
2008); Determination of Rates and Terms for Business
Establishment Services, 78 Fed. Reg. 66,276, 66,277 (Nov. 5, 2014);
Determination of Royalty Rates and Terms for Making Ephemeral
Copies of Sound Recordings for Transmission to Business
Establishments, 83 Fed. Reg. at 60,363; Determination of Royalty
Rates and Terms for Making Ephemeral Copies of Sound Recordings
for Transmission to Business Establishments, 89 Fed. Reg. at 267.

7
its Business Services by underreporting its gross proceeds from
the transmission of sound recordings.
Music Choice denied any underpayment. Leaning on the
phrase “for the sole purpose” in the “gross proceeds”
definition, 37 C.F.R. § 384.3(a)(2), Music Choice maintains
that the gross proceeds on which it owes royalties include only
those revenues derived from music transmissions provided
solely to Business Services customers. In Music Choice’s
view, when it uses an ephemeral recording to transmit music as
part of both a Business Services transmission and a
Subscription Services transmission, any revenues attributable
to the delivery of that recording to its Business Services
customers do not count toward its gross proceeds.
SoundExchange, in contrast, understands the gross
proceeds definition to reach all revenues from Business
Services transmissions derived from ephemeral recordings,
regardless of whether those recordings also facilitated the
provision of Subscription Services or other transmissions.
SoundExchange argued to the district court that 17 U.S.C.
§ 803(c)(4) provides a procedure for the Royalty Board to
resolve the dispute over the best reading of the gross proceeds
definition. That provision—titled “Continuing [J]urisdiction”
—states that the Royalty Board “may issue an amendment to a
written determination to correct any technical or clerical errors
in the determination[.]” 17 U.S.C. § 803(c)(4). In 2015, the
Register of Copyrights opined that the Royalty Board’s “power
to correct any technical errors in determinations encompasses
the power to resolve ambiguity in the meaning of regulations
adopted pursuant to those determinations.” Scope of the
Copyright Royalty Judges’ Continuing Jurisdiction, 80 Fed.
Reg. 25,333, 25,335 (May 4, 2015) (“Continuing
Jurisdiction”) (formatting modified). In the Register’s view,
that kind of regulatory interpretation “is ‘technical’ in the sense

8
that it merely clarifies existing regulations to ensure they are
applied in the manner intended[.]” Id.
On that basis, SoundExchange asked the district court to
refer to the Royalty Board the question of the gross proceeds
regulation’s proper meaning, as a matter of “primary
jurisdiction.” SoundExchange, Inc. v. Music Choice, No. 19-
cv-999, 2021 WL 5998382, at *3 (D.D.C. Dec. 20, 2021)
(quotation marks omitted); see id. at *4–7. Primary jurisdiction
applies when a claim in litigation “contain[s] some issue within
the special competence of an administrative agency.” Reiter v.
Cooper, 507 U.S. 258, 268 (1993).
A primary-jurisdiction referral, in turn, “is sometimes
loosely described as a process whereby a court refers an issue
to an agency.” Reiter, 507 U.S. at 268 n.3. That misstates the
doctrine. Unless the agency’s organic statute “contains [a]
mechanism whereby a court can on its own authority demand
or request a determination” from it, the court’s ruling does not
actually transfer the disputed issue to the agency. Id. Instead,
the “procedure contemplated” is that the court authorizes the
parties to “apply to the [agency] for a ruling” through whatever
statutory procedures allow the agency to address the matter. Id.
(quoting Mitchell Coal & Coke Co. v. Pennsylvania R.R. Co.,
230 U.S. 247, 267 (1913)). Commonly, the court will retain
jurisdiction and stay affected aspects of the case “so as to give
the parties reasonable opportunity” to obtain the administrative
ruling before returning to the litigation. See Reiter, 507 U.S. at
268 n.3.
Music Choice objected to the referral on the ground that
Section 803(c)(4) does not grant the Board authority to resolve
ambiguities in its regulations. See SoundExchange, 2021 WL
5998382, at *5.

9
Relying on the Register’s opinion, the district court agreed
with SoundExchange that the Royalty “Board has continuing
jurisdiction to offer interpretive guidance in this case.” See
SoundExchange, 2021 WL 5998382, at *7. The court
accordingly stayed the pending litigation so the parties could
seek the Royalty Board’s input.
B

In February 2022, SoundExchange moved to reopen the
three dockets through which the Royalty Board had
promulgated the most recent versions of the Business Services
royalty regulations. See Determination of Rates and Terms for
Business Establishment Services, 73 Fed. Reg. 16,199 (March
27, 2008) (“Business Services I”); Determination of Rates and
Terms for Business Establishment Services, 78 Fed. Reg.
66,276 (Nov. 5, 2014) (“Business Services II”); Determination
of Royalty Rates and Terms for Making Ephemeral Copies of
Sound Recordings for Transmission to Business
Establishments, 83 Fed. Reg. 60,362 (Nov. 26, 2018). In
support of that motion, SoundExchange again relied on Section
803(c)(4) and the Register’s opinion about the Royalty Board’s
authority to offer interpretations of its regulations. See J.A. 109
(citing 17 U.S.C. § 803(c)(4); Continuing Jurisdiction, 80 Fed.
Reg. at 25,335).
Because SoundExchange’s claims in district court related
to royalties owed only under Business Services I and II, the
Royalty Board reopened only those two dockets “for the
limited purpose of addressing the meaning of ‘Gross Proceeds’
as defined in 37 C.F.R. 384.3(a).” J.A. 112. The Royalty
Board then ordered SoundExchange and Music Choice to brief
the issue. It did not solicit input from any other party to the
settlement agreements or other potentially interested persons.

10
Nearly three years later, in January 2025, the Royalty
Board published its “Ruling on Regulatory Interpretation” in
the Federal Register. Ruling on Regulatory Interpretation for
Business Establishment Services, 90 Fed. Reg. 1,884 (Jan. 10,
2025) (“Royalty Board Ruling”). Although the Royalty Board
did not expressly invoke Section 803(c)(4) as the authority for
its decision, it endorsed the district court’s finding that it had
“continuing jurisdiction[,]” id. at 1,885 n.3, by pointing to the
Register of Copyrights’ previous decision interpreting Section
803(c)(4), id. at 1,885 n.6 (citing Continuing Jurisdiction, 82
Fed. Reg. 25,333).
The Royalty Board then rejected Music Choice’s reading
of the gross proceeds definition, 37 C.F.R. § 384.3(a)(2). See
Royalty Board Ruling, 90 Fed. Reg. at 1,889. Surveying the
definition’s regulatory history, the Royalty Board concluded
that “for the sole purpose” was “intended” to modify only the
“scope of in-kind payments”—that is, payments in goods or
services—that would count toward a licensee’s gross proceeds.
Id. at 1,890 (emphasis added). That reading, the Royalty Board
reasoned, made the most sense of Section 384.3(a)(2)’s
otherwise “ambiguous” text. Id. at 1,889–1,890. While that
conclusion was “sufficient” to reject Music Choice’s position,
the Royalty Board further explained why its understanding of
the text vindicated the broader economic objectives of the
Business Services licensing scheme. Id. at 1,890–1,893.
As a result, under the Royalty Board’s reading of the gross
proceeds definition, Music Choice must count all of its
Business Services revenues toward its gross proceeds “except
that in-kind payments” may be excluded when they are
attributable to dual-purpose ephemeral recordings used for
both Business Services and Subscription Services. Royalty
Board Ruling, 90 Fed. Reg. at 1,893. Music Choice admits that
it “does not collect fees in kind.” Music Choice Opening Br.
37. So the Royalty Board’s ruling—if accepted—would leave

11
no apparent room for Music Choice’s textual defense under the
gross proceeds regulation to SoundExchange’s claims in
district court.
C

Music Choice petitioned this court for review and vacatur
of the Royalty Board’s ruling. See Music Choice Opening
Br. 1. The Royalty Board contends that we lack jurisdiction
over Music Choice’s petition and must dismiss it. See Royalty
Board Br. 3. Amicus SoundExchange argues that we should
exercise jurisdiction, deny the petition, and affirm the Royalty
Board. See SoundExchange Br. 6.
III

Music Choice invokes our exclusive jurisdiction under 17
U.S.C. § 803(d)(1). We have jurisdiction to determine our own
jurisdiction. United States v. Ruiz, 536 U.S. 622, 628 (2002).
We construe Section 803 de novo. Independent Producers
Group v. Library of Cong., 759 F.3d 100, 105 (D.C. Cir. 2014).
Section 803 broadly prescribes the terms of proceedings
before the Royalty Board. See 17 U.S.C. § 803.
Subsection (d)(1) provides for judicial review of those
proceedings. Id. § 803(d)(1). But it “does not authorize
judicial review of just any objection to any decision made by
the” Royalty Board. Independent Producers Group, 759 F.3d
at 105. Subsection (d)(1) sets three conditions on judicial
review: Petitions for review may be taken only (A) from a
“determination” of the Royalty Board “under subsection (c)”;
(B) by a “participant in the proceeding under
subsection (b)(2)”; (C) “who would be bound by the
determination.” 17 U.S.C. § 803(d)(1).

12
The Royalty Board’s ruling on regulatory interpretation
was not a determination under Section 803(c). Nor did it
follow from Music Choice’s participation in a proceeding
under Section 803(b)(2). So it cannot bind Music Choice (or
anyone else). We accordingly lack jurisdiction to review the
Royalty Board’s decision and dismiss Music Choice’s petition
for review.
A

This court has jurisdiction to review only a
“determination” by the Royalty Board issued “under
subsection (c)” of Section 803. 17 U.S.C. § 803(d)(1).
Section 803(c) authorizes the Royalty Board to make three
kinds of decisions. It can render a “determination in a
proceeding[.]” 17 U.S.C. § 803(c)(1). It can revise its “initial
determination” on “rehearing” and issue a “final
determination[.]” Id. § 803(c)(2). And it can “issue an
amendment to a written determination to correct any technical
or clerical errors[.]” Id. § 803(c)(4).
3

No one argues that the Royalty Board’s decision fell
within subsections (c)(1) or (c)(2). Music Choice contends
only that the Royalty Board’s ruling here constituted a
determination under subsection (c)(4) because it was an
exercise of the Royalty Board’s continuing jurisdiction to
amend a prior determination by correcting technical or clerical
errors.

3
Section 803(c)(4) separately authorizes the Royalty Board “to
modify the terms, but not the rates, of royalty payments in response
to unforeseen circumstances[.]” 17 U.S.C. § 803(c)(4). But no
one—not Music Choice, not the Royalty Board, and not the Register
of Copyrights—has claimed the Royalty Board could or did exercise
that authority here. So we do not address that distinct power.

13
Music Choice is wrong. The Royalty Board’s regulatory
interpretation is not a judicially reviewable determination
under Section 803(c)(4) for three reasons.
First, Section 803(c)(4) authorizes the Royalty Board to
“issue an amendment” to a prior determination. 17 U.S.C.
§ 803(c)(4). An amendment is a “formal revision or addition”
to a text, especially by “an alteration in wording.” Amendment,
B
LACK’S LAW DICTIONARY (8th ed. 2004). So, naturally read,
Section 803(c)(4) means the Royalty Board “can revise [a]
Determination[,]” Johnson v. Copyright Royalty Board, 969
F.3d 363, 390 (D.C. Cir. 2020), “by addition, deletion, or
correction[,]” Amendment, B
LACK’S LAW DICTIONARY (8th ed.
2004).
The Royalty Board’s ruling here did nothing of the sort. It
did not change the terms of the gross proceeds definition in any
way. Nor did it purport to. Indeed, the entire premise of the
Royalty Board’s ruling is that amending the definition is
unnecessary because the regulation already has a definitive
meaning that the Royalty Board’s interpretation merely
clarified. See Royalty Board Ruling, 90 Fed. Reg. at 1,888
(“Based on the entirety of th[e] record, the [Royalty Board’s]
analysis and findings clarify this apparent ambiguity.”).
Second, as relevant here, the Royalty Board may wield its
Section 803(c)(4) authority only “to correct any technical or
clerical errors” in a determination. 17 U.S.C. § 803(c)(4). The
Board’s ruling here is a square peg against that round hole.
To start, Music Choice’s argument relies on the Register
of Copyright’s assertedly “binding” opinion that the Royalty
Board’s power to correct technical or clerical errors
“encompasses the power to resolve ambiguity in the meaning”
of the gross proceeds definition. Music Choice Reply Br. 5
(quoting Continuing Jurisdiction, 80 Fed. Reg. at 25,335).

14
This court, though, does not defer to the Register’s
interpretation of the text of Section 803(c)(4). We must
independently decide the meaning of the statute. See Loper
Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). In
this case, the Register’s reading cannot be reconciled with the
plain text of Section 803(c)(4).
The best and most straightforward understanding of a
“technical or clerical error” is an insignificant misstep in
draftsmanship or the reproduction of text.
Starting with “clerical error,” that phrase is defined as an
“error resulting from a minor mistake or inadvertence, esp. in
writing or copying something on the record, and not from
judicial reasoning or determination.” Clerical Error, B
LACK’S
LAW DICTIONARY (8th ed. 2004); see also Clerical Error,
BLACK’S LAW DICTIONARY (10th ed. 2014) (amending to “esp.,
a drafter’s or typist’s technical error that can be rectified
without serious doubt about the correct reading”).
4

That meaning parallels what “clerical error” means in the
analogous context of judicial corrections. See FED. R. CRIM.
P. 36 (“[T]he court may at any time correct a clerical error * * *
or correct an error in the record arising from oversight or
omission.”); F
ED. R. CIV. P. 60(a) (“The court may correct a
clerical mistake or a mistake arising from oversight or omission
whenever one is found[.]”).
The judicial power to correct such errors is narrow. See
United States v. Penson, 526 F.3d 331, 335 (6th Cir. 2008) (An

4
See also Clerical Error, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (unabr. ed. 2002) (“an error made in
copying or writing”); Clerical Error, B
ALLENTINE’S LEGAL
DICTIONARY & THESAURUS (1995) (“A mistake in copying or
writing; an error in form rather than in substance.”).

15
error correctable under Rule 36 “must not be one of judgment
or even of misidentification, but merely of recitation, of the sort
that a clerk or amanuensis might commit, mechanical in
nature.”) (quotation marks omitted); 11 W
RIGHT & MILLER’S
FEDERAL PRACTICE & PROCEDURE § 2854 (3d ed. 2026)
(Rule 60(a) “deals solely with the correction of errors that
properly may be described as clerical[,]” while “[e]rrors of a
more substantial nature are to be corrected by a motion under
Rules 59(e) or 60(b).”).
The term “technical error” is less susceptible to ready
definition.
5
But where that phrase appears in the U.S. Code, it
also commonly refers to similarly minute errors of
transcription.
6
Indeed, Congress often pairs the terms
“technical” and “clerical” together, as it did in Section

5
Legal dictionaries recognize an archaic usage of “technical
error” to refer to what courts would now term “harmless error” in a
record on review. See Technical Error, B
LACK’S LAW DICTIONARY
(8th ed. 2004) (referencing “harmless error under ERROR (2)”);
Technical Error, B
ALLENTINE’S LEGAL DICTIONARY & THESAURUS
(1995) (“Error that is not material; error committed by the court in
the course of a trial, but which is without prejudice to the party who
complains of it; harmless error.”).
6
See, e.g., 19 U.S.C. §§ 3002(6) (defining “technical
rectifications” as “minor technical or clerical changes” to “spelling,
numbering, or punctuation;” “indentation;” “cross-references to
headings or subheadings or notes;” and “other clerical or
typographical errors”), 4033(o)(3)(B) (describing “modifications to
correct any typographical, clerical, or other nonsubstantive technical
error”); 28 U.S.C. § 2517 (1982 amendment note) (explaining that
Congress “correct[ed] a technical error” when it “struck out a
comma”); 42 U.S.C. §§ 247b (1985 amendment note) (same when
Congress struck out a cross-reference), 426 (1978 amendment note)
(same when Congress redesignated subheadings).

16
803(c)(4).
7
Because “a word is known by the company it
keeps[,]” Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995),
the phrase “technical or clerical errors” naturally refers to non-
substantive scrivener’s errors and related minutiae.
The Royalty Board’s decision here—which purported to
resolve a substantive ambiguity at the heart of Section
384.3(a)’s operation—cannot be reconciled with that plain
meaning. There is nothing technical or clerical about a hotly
contested ambiguity about the substantive reach of a regulatory
definition with “tens of millions of dollars” on the line. Oral
Arg. Tr. 52:16; see Johnson, 969 F.3d at 391 (rejecting the
Royalty Board’s invocation of Section 803(c)(4) to effect a
“substantive swap” in the meaning of a defined term).
The Register, whose reasoning Music Choice adopts,
thought otherwise. In the Register’s view, resolving an
ambiguity is a “correction,” and “[s]uch a correction is
‘technical’ in the sense that it merely clarifies existing
regulations to ensure they are applied in the manner intended
by the” Royalty Board. Continuing Jurisdiction, 80 Fed. Reg.
at 25,335. That is the sum of the Register’s textual analysis.
But it does not add up.
To begin, ambiguity in a regulatory term is not an “error”
at all. It simply is the byproduct of applying rules to particular
situations or of the ordinary elasticity of words. So resolving
that ambiguity is, at most, a disambiguation or application of
the ordinary meaning of text.

7
See, e.g., 19 U.S.C. § 2503(b)(1)(A) (“minor technical or
clerical changes which do not affect the substance or meaning of the
texts”); 26 U.S.C. § 4064(c)(3) (“technical or clerical amendment”);
42 U.S.C. § 4905(c)(3)(B) (“technical or clerical corrections”); 47
U.S.C. § 334(c) (“nonsubstantive technical or clerical revisions”).

17
Further, the Register’s reading did not just interpret the
statutory text; it rewrote it. The reading focused on whether
clarifying ambiguity is a technical or clerical task. But the test
under Section 803(c)(4) is not whether the correction itself is
technical (or clerical). It turns on whether what is being
corrected is a “technical or clerical error[.]” 17 U.S.C.
§ 803(c)(4) (emphasis added).
As a result of that textual reordering, the Register’s
interpretation reads Section 803(c)(4)’s limiting language right
out of the statute. If the only barometer for the technical or
clerical character of its action were the Royalty Board’s present
sense of its past intent, Section 803(c)(4) would impose no
enforceable limit at all.
Third, the form of the Royalty Board’s regulatory-
interpretation ruling falls outside Section 803(c)(4)’s ambit. A
Section 803(c)(4) “amendment shall be set forth in a written
addendum to the determination” that it amends. 17 U.S.C.
§ 803(c)(4).
That did not happen here. The Royalty Board’s ruling is
not called an addendum. See generally Royalty Board Ruling,
90 Fed. Reg. 1,884. It has not been appended to the Royalty
Board’s Business Services I or Business Services II
publications. See generally 73 Fed. Reg. 16,199; 78 Fed. Reg.
66,276. Nor does it appear in the Code of Federal Regulations
alongside the text it interprets. See generally 37 C.F.R.
part 384.
* * *
In short, nothing in Section 803(c)(4) authorizes the
Royalty Board to issue post hoc interpretive rulings on the
substantive meaning of its determinations. So the Royalty
Board’s ruling here was not a judicially reviewable

18
“determination” issued “under subsection (c)” of Section 803.
17 U.S.C. § 803(d)(1).
B

Next, recall that this court’s jurisdiction to review a
decision of the Royalty Board under Section 803(d)(1) is
further limited to petitions filed by a “participant in the
proceeding under subsection (b)(2) who fully participated in
the proceeding[.]” 17 U.S.C. § 803(d)(1). Music Choice does
not qualify.
Section 803(b)(2) provides that “a person may participate
in a proceeding * * * only if” they first file “a petition to
participate in accordance” with Section 803(b)(1). 17 U.S.C.
§ 803(b)(2), (b)(2)(A). Section 803(b)(1), in turn, requires that
petitions to participate “be filed no later than 30 days after
publication” in the Federal Register by the Royalty Board of a
“notice of commencement of a proceeding[.]” Id.
§ 803(b)(1)(A)(ii); see also id. § 803(b)(1)(A)(i).
The “proceeding[s]” to which Section 803(b)(2) refers are
the voluntary negotiation period, discovery procedures,
evidentiary hearings, and adversarial presentations described
elsewhere in Section 803(b). See 17 U.S.C. § 803(b)(3), (b)(5),
(b)(6)(C)(i)–(xi).
Here, the Royalty Board never published notice that it was
commencing a proceeding in service of its ruling on regulatory
interpretation in the Federal Register. Nor did Music Choice
file a petition to participate. Instead, the Royalty Board simply
granted SoundExchange’s motion to reopen the Business
Services I and II dockets.
To be sure, the Business Services I and II proceedings
began years ago with notices of commencement and petitions

19
to participate from Music Choice and many others. See 73 Fed.
Reg. at 16,199; 78 Fed. Reg. at 66,277. But Music Choice is
not seeking our review of those proceedings. See Music
Choice Opening Br. i–ii (listing only the Royalty Board’s
ruling on regulatory interpretation as the “ruling under
review”).
Instead, Music Choice contends that we have jurisdiction
to review the Royalty Board’s interpretive ruling as a distinct
and independent determination under Section 803(c)(4). Yet it
has nowhere explained how its participation in that proceeding
complied with the strictures of Section 803(b)(2). Nor could
it. Nothing in Section 803’s text contemplates proceedings for
interpretive rulings of years-old settlement agreements.
Music Choice argues that Section 803(d)(1)’s limit on who
can petition for review must reach back through Section
803(c)(4) to the underlying ratemaking proceeding lest parties
be deprived of judicial review of a Royalty Board regulatory
interpretation affecting their bottom lines.
But that is a result in search of a textual rationale. The
Register’s misreading of Section 803(c)(4) as allowing
substantive decisions under the guise of correcting technical
errors is the grand marshal in Music Choice’s parade of
horribles—not Section 803(d)(1)’s limit on who can petition
for review. If, as the text demands, Section 803(c)(4) confines
the Royalty Board to correcting only minor, non-substantive,
and non-controversial technical or clerical errors in a prior
determination, Congress’s limitation on judicial review of such
housekeeping matters makes sense.
8

8
This case does not require us to opine on the availability of
judicial review of an actual amendment to a prior determination
under Section 803(c)(4). We leave that distinct question for another
day. It suffices to hold here that the bespoke procedure the Royalty

20
Because Music Choice is not an “aggrieved participant in
[a] proceeding under subsection (b)(2)” that produced the
Royalty Board’s ruling on regulatory interpretation at issue, we
lack jurisdiction over this petition. 17 U.S.C. § 803(d)(1).
C

Finally, Music Choice cannot hurdle yet another bar to our
review. For while Music Choice assuredly is “aggrieved” by
the Royalty Board’s ruling on regulatory interpretation, it is in
no way “bound by” that ruling. 17 U.S.C. § 803(d)(1).
Section 803 strictly limits the Royalty Board’s power to
bind anyone. It can do so by “adopt[ing] as a basis for statutory
terms and rates” a settlement “agreement” reached among
participants in a ratemaking proceeding. 17 U.S.C.
§ 801(b)(7)(A); see id. § 803(b)(3). Or, if settlement
negotiations fail, it can do so by issuing a written
“determination in a proceeding” after a hearing and the creation
of a record. Id. § 803(c)(1); see id. § 803(b)(6).
The Royalty Board’s ruling here did neither, so it cannot
bind Music Choice. A contrary understanding would make no
sense. The Royalty Board’s ruling, after all, interpreted the text
of the gross proceeds definition. That text applies to all
industry participants governed by Business Services I and II
from 2009 to 2018—not just Music Choice and
SoundExchange. But none of those other participants took part
in the Royalty Board proceedings now before us. So either
only one party—Music Choice—is now bound by a reading of
gross proceeds that does not apply to anyone else. Or all the
other licensees are bound to a long-after-the-fact interpretation

Board employed in this case—one not contemplated at all by Section
803’s text—did not render Music Choice a participant in a
proceeding under Section 803(b)(2).

21
of their settlement agreements in Business Services I and II that
was announced in a proceeding that they were not invited to
participate in and had no opportunity to influence. Neither
option can be right.
That Business Services I and II both resulted from
settlement agreements only underscores the point. See 73 Fed.
Reg. at 16,199; 78 Fed. Reg. at 66,277. Congress designed the
Royalty Board to encourage settlement agreements and
minimize the need for governmental intervention. See
Procedural Regulations for the Copyright Royalty Board, 70
Fed. Reg. 30,901, 30,901 (May 31, 2005) (“Copyright Royalty
Judges will be appointed by the Librarian of Congress to
encourage settlements and, when necessary, resolve statutory
license disputes.”). Allowing the Royalty Board to pull the rug
out from under some or all participants’ understanding of their
settlement agreements years after their adoption with no
opportunity for judicial review would discourage, not promote,
settlements.
At best, the Royalty Board’s ruling could be characterized
as a form of guidance or interpretive rule. See Oral Arg. Tr.
78:1–4 (counsel for the Royalty Board suggesting that
comparison). But even on that view, Music Choice would not
be bound. As “a legal matter,” an agency’s guidance to third
parties “is meaningless.” National Mining Ass’n v. McCarthy,
758 F.3d 243, 252 (D.C. Cir. 2014). And interpretive rules “do
not have the force and effect of law.” Perez v. Mortgage
Bankers Ass’n, 575 U.S. 92, 103 (2015). Fundamentally, no
“binding of anyone occurs merely by the agency’s say-so.”
Kisor v. Wilkie, 139 S. Ct. 2400, 2420 (2019) (plurality
opinion).
Music Choice is, of course, obligated to follow the rates
and terms for the Business Services ephemeral-recording
license set forth in Business Services I, Business Services II,

22
and subsequent proceedings. But the Royalty Board’s ruling
on regulatory interpretation was not a binding determination
made as part of those proceedings. If Music Choice, or anyone
else bound to the terms of Business Services I or II or their
progeny, disputes their meaning, the natural place to turn is the
trial court, as SoundExchange recognized at the outset.
* * *
Because the Royalty Board’s ruling on regulatory
interpretation was not a determination under Section 803(c)(4),
and because Music Choice was not a participant in proceedings
under Section 803(b)(2) who would be bound by that ruling,
we lack jurisdiction over this petition. Music Choice and
SoundExchange are free to return to their still-pending
litigation in the district court to resolve what obligations 37
C.F.R. § 384.3(a)(2) imposes on the calculation of gross
proceeds. We leave to that court the task of assessing what
weight, if any, to assign to the Royalty Board’s non-binding
regulatory interpretation. See Kisor, 139 S. Ct. at 2414–2418
(majority opinion).
IV

For the foregoing reasons, we dismiss the petition for
review.

So ordered.