(2) is in the custody or control of the violator or has been impounded under subsection (f).

Section 1010.  Arbitration of certain disputes [6]

(a) Scope of Arbitration.  Before the date of first distribution in the United States of a digital audio recording device or a digital audio interface device, any party manufacturing, importing, or distributing such device, and any interested copyright party may mutually agree to binding arbitration for the purpose of determining whether such device is subject to section 1002, or the basis on which royalty payments for such device are to be made under section 1003.

(b) Initiation of Arbitration Proceedings.  Parties agreeing to such arbitration shall file a petition with the Librarian of Congress requesting the commencement of an arbitration proceeding.  The petition may include the names and qualifications of potential arbitrators.  Within 2 weeks after receiving such a petition, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of an arbitration proceeding.  Such notice shall include the names and qualifications of 3 arbitrators chosen by the Librarian of Congress from a list of available arbitrators obtained from the American Arbitration Association or such similar organization as the Librarian of Congress shall select, and from potential arbitrators listed in the parties’ petition.  The arbitrators selected under this subsection shall constitute an Arbitration Panel.

(c) Stay of Judicial Proceedings.  Any civil action brought under section 1009 against a party to arbitration under this section shall, on application of one of the parties to the arbitration, be stayed until completion of the arbitration proceeding.

(d) Arbitration Proceeding.  The Arbitration Panel shall conduct an arbitration proceeding with respect to the matter concerned, in accordance with such procedures as it may adopt.  The Panel shall act on the basis of a fully documented written record.  Any party to the arbitration may submit relevant information and proposals to the Panel.  The parties to the proceeding shall bear the entire cost thereof in such manner and proportion as the Panel shall direct.

(e) Report to the Librarian of Congress.  Not later than 60 days after publication of the notice under subsection (b) of the initiation of an arbitration proceeding, the Arbitration Panel shall report to the Librarian of Congress its determination concerning whether the device concerned is subject to section 1002, or the basis on which royalty payments for the device are to be made under section 1003.  Such report shall be accompanied by the written record, and shall set forth the facts that the Panel found relevant to its determination.