Is The Copyright Royalty Board Unconstitutional?

from the this-sounds-familiar... dept

Last month, we wrote about a Constitutional challenge to the patent appeals board. It was based on the theory that the Constitution clearly says that certain appointments can only be made by the President, the courts or the heads of a department. A legal change a few years back let the USPTO director appoint judges to the patent appeals board -- but the Patent Office director is not the head of a department. He reports to the Commerce Secretary who should be nominating the judges -- thus suggesting that all of the appointments over the last few years have been unconstitutional.

Of course, it didn't take long for folks to recognize that the same question may apply well beyond the patent appeals board. In fact, there's a court case challenging whether the current Copyright Royalty Board is constitutional as well. While the article doesn't go into details, it sounds like it's an identical issue. The CRB members are appointed by the Librarian of Congress rather than the President or the head of a department. This particular lawsuit has been filed by an organization that was hoping to compete with SoundExchange for collecting and distributing royalties. The CRB rejected the request. Given how many problems SoundExchange has had in carrying out its charter, it would seem like competition is a pretty good idea. However, rather than fighting that decision specifically, the company recognizes this same constitutional question. Funny how the boards involved in both copyrights and patents may be unconstitutional for the same basic reason.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Nate Nead, May 16th, 2008 @ 3:32pm

    Patent Insight

    Interesting insight. If we change one, we've got to change em all though. It would probably cost more money to change it from the way it is, not to mention the headache.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Rick, May 16th, 2008 @ 3:42pm

    Re: Patent Insight

    Regardless of the cost, following the constitution is far more important and worth any expense.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    MLS, May 16th, 2008 @ 5:11pm

    CRB

    What makes this issue an even bigger can of worms is that the Library of Congress, in which the Copyright Office resides, is an arm of Congress, and not the President.

    Silly me, but I am not at all sure this issue can even be resolved so long as the Copyright Office remains a part of the legislative branch.

     

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  4.  
    identicon
    Anonymous Coward, May 16th, 2008 @ 5:56pm

    Re: CRB

    "I am not at all sure this issue can even be resolved so long as the Copyright Office remains a part of the legislative branch."

    Perfect - just the way politicians like it.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, May 16th, 2008 @ 6:57pm

    Re: Re: Patent Insight

    Exactly, without the Constitution there IS no America. People talk about how American values have been corrupted, but that is ALL they do.

    What better place to start FIXING America than with the foundation? Anyone who would ignore the Constitution as an American Citizen is by definition a Traitor.

    For indeed what more harm can one do to his fellow Americans than destroy the very principals that created this nation.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, May 17th, 2008 @ 9:24am

    Re: Re: Re: Patent Insight

    What if the constitution is wrong?

    Oh sure, then you say, well what is to keep us from sliding into catastrophe, without the constitution as a bulwark?

    Well, what is keeping us from sliding into catastrophe anyway? The hard work and forbearance of many, many people, every day, and their love for this country.. not the constitution.

    But if it is reverenace for that old document that fuels your passion, then use it. Just know how it is being used.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    A. L. Flanagan, May 17th, 2008 @ 10:30am

    Re: constitution

    "What if the constitution is wrong?"

    Wow, you're absolutely right. Too bad there's no legal way to change the Constitution. What if you could make amendments, and have them ratified by the states? Wouldn't that be a great idea?

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Craig, May 17th, 2008 @ 7:34pm

    @A.L.Flanagan: I see what you did there. Very nice.

     

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  9.  
    identicon
    Joe Mullin, May 18th, 2008 @ 9:08pm

    May not be a big deal

    Interesting, and it does indeed look like this is a clear take-off on the argument that Translogic used at the patent board.

    Even though saying a board is "unconstitutional" makes it sounds like a really serious problem, a few industry lawyers I've talked to about this issue (in regards to the patent board) were skeptical that there will be the kind of catastrophic change that was suggested by the NYT headline. The fact is that if people were appointed incorrectly, that's a fixable problem -- you can just re-appoint them the right way. you don't have to change the constitution. After all, nobody is really suggesting these judges are unqualified.

    If the Secretary of Commerce made the appointments instead of the PTO director -- that is, the appointment was made "correctly"-- the secretary would likely just ask the PTO director for his recommendations of who the best patent judges would be, and follow it.

    Same thing is likely in the copyright context. The Librarian of Congress is the copyright board's boss, therefore, likely knows who the best Copyright Royalty Judges would be, moreso than a cabinet-level official.

    The appellant in the case of the patent board is trying to recoup a $86 million infringement verdict; I imagine the copyright board appellant has a significant interest at stake too.

     

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  10.  
    identicon
    brwyatt, May 18th, 2008 @ 11:27pm

    Ignoring the Constitution?

    If ignoring the Constitution makes you a traitor... whats that make the President?

    *cough*

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    Mike (profile), May 19th, 2008 @ 12:14am

    Re: May not be a big deal

    Even though saying a board is "unconstitutional" makes it sounds like a really serious problem, a few industry lawyers I've talked to about this issue (in regards to the patent board) were skeptical that there will be the kind of catastrophic change that was suggested by the NYT headline. The fact is that if people were appointed incorrectly, that's a fixable problem -- you can just re-appoint them the right way. you don't have to change the constitution. After all, nobody is really suggesting these judges are unqualified.

    Yup. That's what I wrote in my original post on the subject (about the patent board) and got slammed in the comments. :) Oh well.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Jul 15th, 2009 @ 5:07am

    Re: May not be a big deal

    It's funny because on the patent side, this being unconstitutional was pretty much a no brainer. Professor Patrick Duffy (@GWU) nailed this error down and I think it pissed a lot of people off because the error is so technical and unquestionably there. In fact, Congress admitted that it was a problem and tried to remedy it by immediately passing a bill that retroactively "fixed" the problem.

    ... and I talked to the guys who made the challenge over the CRB -- they simply read about the patent side and tried to go the same route. Of course, in the IP world, patent litigators are seen as the cream of the crop (and Duffy is one of the top patent scholars in the world), while copyright litigators are usually seen as not so much. That's why you get the same exact issue with 2 different results. There's been a lot of talk of bad lawyering on both the pro- and anti-copyright side (and possibly some malpractice suits may come out of it), but the attorneys for the webcasters and the ones for the recent Youtube ruling appear to be in the crosshairs.

    One perfect example is the ringtone royalty rate. The industry wanted one rate, DiMA wanted a lower one. The CRB awarded over 2x what the industry asked for (that's arbitrary and capricious). This issue should have been dominated but it clearly wasn't.

     

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  13.  
    icon
    Jason (profile), Sep 3rd, 2009 @ 10:23am

    Re: Re: Re: Patent Insight

    No silly, that doesn't make them a traitor. It makes them ignorant, like you.

     

    reply to this | link to this | view in thread ]


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