Appeals Court Hears Case Over Constitutionality Of Copyright Royalty Board

from the missing-the-point-a-bit dept

The Copyright Royalty Board is a horrific abomination of a judicial process — it’s basically a board of three totally out-of-touch judges who get to pick out of thin air what certain copyright royalties will be. They have a terrible track record, agreeing to set “webcasting” rates that would have effectively killed off most internet webcasting. Even more ridiculous is that they only realized they were writing a death sentence for webcasting after basically everyone involved in webcasting protested. Legal challenges to the rates haven’t gone well, though some are still ongoing, and many webcasters have cut separate deals to stay alive (barely) but without having to pay the CRB’s insane rates.

Some, however, have continued to fight certain aspects of the CRB rates… but many have also started to focus on legal challenges concerning the very constitutionality of the CRB itself. This is based on people remembering the Appointments Clause of the Constitution, that basically says judge appointments may only be made by the President, the courts or the heads of a department. That’s a problem. The CRB is appointed by the Librarian of Congress, who is not the head of a department (hell, isn’t even technically a part of the executive branch, since the Library of Congress is — you guessed it — a part of Congress).

Anyway, last week an appeals court listened to an appeal about this and related issues in a case brought by Intercollegiate Broadcasting Services (IBS), a group that represents the interests of various college radio stations. They have particular concerns about all of this, because many (if not all) college radio stations re-stream their broadcasts online, even though many of those streams probably violate the law (even if the original broadcasts are perfectly legal). This is due to the insanity of having different rules for internet streaming as compared to radio. IBS actually raised a whole bunch of constitutional questions about not just the CRB, but also the DMCA itself.

Unfortunately, the court is only focusing on the CRB constitutionality at this point. As I’ve noted with other similar cases, while it may feel good to challenge the constitutionality of the CRB based on the Appointments Clause, it seems like a distraction to me. At best, the courts will throw out the old rulings, and dismiss the judges… but that almost certainly will lead to the same, or a similar, panel of judges being immediately reappointed under the proper rules. And in the meantime, the more important detailed challenges to the actual webcasting rates or things like the constitutionality of the DMCA get left by the wayside….

The linked analysis of the appeals court hearing suggests that the court recognizes what is obvious to pretty much everyone: the CRB appointments are pretty clearly unconstitutional. This isn’t a complex part of the Constitution. It’s just that it’s been ignored for years. But the court is looking for ways to “minimize” the impact of such a ruling. So even if they find (correctly) that the appointments were unconstitutional, I wouldn’t expect much to change in the long run.

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Comments on “Appeals Court Hears Case Over Constitutionality Of Copyright Royalty Board”

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nevermore669 says:

Rocking the boat takes courage

But the court is looking for ways to “minimize” the impact of such a ruling.

There seems to be an unwritten rule in just about every organization, not to rock to boat, shake things up, challenge the current authority, try to change things too much. The larger the organization the more entrenched it is, and you can’t get much larger than the government.

My first thought about the CRB was that they must be on the take from the RIAA, but now I’m thinking perhaps they’re just too embedded in the current system, and they fear the consequences of watching it all fall apart on their watch. Perhaps they recognize the potential of the internet to disrupt the current system, unrecoverably and practically “overnight”, and they lack the courage to make the really right decisions, based on freedom and reform.

The thing about those who are the gatekeepers, between change on the outside and protecting the status quo on the inside, is that they too often tend to stand behind the gate, in the “safety” of the organization as it is, only looking outward to detect whatever threats might appear. A proper gatekeeper stands before the gate, looking outward for opportunities, new blood, new and exciting ideas, to enrich and bring growth, welcoming the creativity that prevents stagnation and the eventual death of the system they protect.

I’m afraid our court these days lacks vision and courage.

Anonymous Coward says:

Honest Appontments

The unconstitutionality will get fixed by appointing new judges correctly in accordance with the constitution. The real question is, will similar out-of-touch individuals get the new appointments. The copyright maximalists will be pushing hard to make sure that happens.

If only the president of the USA could be trusted to serve the people, instead of the big corporations. If only there was some way whereby the people could vote in someone trustworthy, instead of a traitor. Hang on, there is this thing called an “election” coming up. Hmm, getting a bit difficult now. Winning elections looks pretty hard. What to do?

TechnoMage (profile) says:

Rocking the boat takes courage

There seems to be an unwritten rule in just about every organization, not to rock to boat, shake things up, challenge the current authority, try to change things too much. The larger the organization the more entrenched it is, and you can’t get much larger than the government.

Umm… Yeah… Except that is exactly what our judicial branch is for. List of Judicial rulings that “rocked the boat” whether you agreed with them or not: Roe Vs Wade, Civil rights:Blacks, Women, LGBT, and many others.., Miranda Rights, Youngstown Steel vs Truman (Gov’t can’t seize an industry)… and the list goes on and on…

Perhaps you don’t personally know any judges, But I do, and on their behalf I’ll be upset for them. Not All (I’ll admit *cough*Thomas*cough*) but most judges in the US try to remove their personal feelings from rulings and decided cases based on the legality of them.

Take pride in your country (if you’re an American, if not I don’t care) an independent judicial branch is one of the keystones of our nation. Don’t just assume that it is going to behave the same way as the politicians. < /Ranting>

Also Minimizing the complete cluster-**** that would happen when an entire department of the government is declared to be appointed unconstitutionally isn’t necessarily a bad thing, they need figure out what to do, to minimize the impact on the populace from their decision.

nevermore669 says:

Rocking the boat takes courage

I appreciate your perspective and loyalty to the judiciary – but I’m really beginning to wonder if such loyalty isn’t misplaced these days. The ideal of a politically and financially impartial judiciary seems to me to be more and more one that has seen its day in the sun and is passing into the realm of fantasy.

I sincerely hope that you are right, and that most of our judges are thoughtful, honest, compassionate and impartial. I could think of nothing better for our country – but I’m having doubts.

Anonymous Coward says:

So given the example of this board, why is it that copylefties want to replace the free market supported by property rights (i.e. copyright, the limited exclusive right to allow copies, performance and distribution of works) with a compulsory license – which, as you so nicely put it, is essentially three judges (or anyone else) getting to pick prices “out of thin air”. Isn’t that the role of markets – matching supply and demand to set prices?

Anonymous Coward says:

The Appointments Clause has been cited in several recent cases involving appointments by persons other than the President of the head of a Federal Departments.

The Librarian of Congress not being the Head of a Federal Department, then unless the appointment has been made by the President the appointment is immediately constitutionally suspect.

About four years ago John Duffy, a law professor at George Washington University, raised this issue for what is beleived to be the first time with respect to Administrative Law Judges appointed to hear appeals within the USPTO. His position was ultimately accepted, and the judges were reappointed the correct was, i.e., by the Secretary of Commerce, the department within which the USPTO resides.

I have every reason to believe that the same process will follow here, i.e., the individuals on the CRB will be reappointed by the President in order to satisfy the constitutional mandate.

And, BTW, one of the first orders of business that the correctly appointed officers will do is declare that all prior decision making under the prior system will be deemed to be precedent governing future decision making by the CRB.

Jesse Townley (profile) says:

from the college radio standpoint...

I’ve been a volunteer & DJ @ KALX Berkeley for 20+ years. I can tell you first-hand that the insanity around this Board, the rates, and the DMCA in general has forced stations to either highly restrict programming based on what format it comes in or to probably break the law.

The higher costs for college and community stations to stay current with the DMCA reporting requirements also don’t help at all in times of collegiate budget cuts/colleges selling off their stations.

Why is this important? Because while a lot of people are plugged in 24/7, the radio is accessible from everywhere- smart phone, car, home- and community/college stations are open enough where young bands/unknown bands/artists/local activists/politicians can all easily access a broad audience.

So best of luck to this suit. I think the Librarian has been generally receptive to community station concerns, but it’s still a weird, obstructive construct that came about when, in 1998, it was obvious to Congress that if one broadcast on-line, one would be raking in mega-money (ha ha ha ha).

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