Copyright Royalty Board Found Unconstitutional; Appeals Court Magically Makes It Constitutional Again

from the say-what-now? dept

We’ve written a few times about constitutional challenges to the legitimacy of the Copyright Royalty Board. As we noted from the beginning, it’s pretty clear that, as a matter of fact, the CRB is unconstitutional in that it violates the Appointments Clause. That clause requires judicial appointments to be made only by the President, the courts or the heads of executive branch departments. However, the CRB is appointed by the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch, and the Librarian of Congress is a position at a much lower level than a “department head” required under the Appointments Clause. If all that seems pretty technical, you’re right — which is also why we thought that the court cases pursuing this line or reasoning were a waste of time. At best, we said, the courts would agree that the CRB was unconstitutional, and then just have a department head “re-appoint” the same judges.

Back in February, when the appeal to one of these cases was being heard — the one brought by Intercollegiate Broadcasting Services (IBS), who represents a bunch of college radio stations — we noted that from the questions raised it seemed clear that the appeals court agreed that, on a technicality, the CRB was unconstitutional, but its main interest was in figuring out how to “minimize” the impact of admitting that a ton of royalty rates have been set and enforced based on an unconstitutional process. And, indeed, that analysis turned out to be entirely accurate.

The ruling has come out and the DC circuit appeals court has agreed that the CRB is unconstitutional… but immediately “fixes” the problem with one change and one statement. The “statement” is that even though no one really considered the Librarian of Congress a “department head” as described in the Appointments Clause, the court now says that the position is, in fact, a Department head. And the one change is that by saying that the Librarian of Congress can not just appoint the judges, but also fire them… suddenly everything is good again:

But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause… To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd… by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains.

Because of this magical sleight of hand, the appeals court decides that it need not even consider the question of whether the crazy rates that the CRB has set up in the past (when it admits they were unconstitutional) should be reviewed. In other words, this one turned out more or less as expected: even if it was obvious to nearly everyone that the CRB is unconstitutional, a little employment jujitsu suddenly makes it constitutional again. There are all sorts of reasons to be annoyed at the CRB and the royalty setting process — but the arguments over constitutionality were a sideshow all along.

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Comments on “Copyright Royalty Board Found Unconstitutional; Appeals Court Magically Makes It Constitutional Again”

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23 Comments
Anonymous Coward says:

The fact that we even have a copyright royalty board shows how short sighted the RIAA/Hollywood and others effected by it are.

What if someone who doesn’t agree with their agenda and didn’t take their money gets the job, and sets rates lower then say minimum wage as a way to get back at those pro-copyright groups?

By making government set create these departments that are to basically lobby for pro-copyright industries they open the door that those very same jobs/positions will be inevitably turned against them one day, especially with growing backlash against them lately the last few years with stuff like SOPA and ACTA.

Sometimes you need to know when to take your winnings and run, and the pro-copyright crowd clearly doesn’t know when to do that.

Anonymous Coward says:

Re: Re: Re:

Compare the revenues of the industries propped up by copyrights and patents to the revenues of the industries hampered by patents. Then look at the growth rates of them.

Eventually, politicians will no longer be buyable by the copyright industries, no matter how much of their budgets they spend on campaign contributions.

Anonymous Coward says:

Because of this magical sleight of hand, the appeals court decides that it need not even consider the question of whether the crazy rates that the CRB has set up in the past (when it admits they were unconstitutional) should be reviewed. In other words, this one turned out more or less as expected: even if it was obvious to nearly everyone that the CRB is unconstitutional, a little employment jujitsu suddenly makes it constitutional again. There are all sorts of reasons to be annoyed at the CRB and the royalty setting process — but the arguments over constitutionality were a sideshow all along.

Poor Pirate Mike, always thinking judges dictate policy. By the way: Great constitutional analysis there, Slick. Very incisive. So nuanced.

Ben (profile) says:

But what of the Branch question?

That clause requires judicial appointments to be made only by the President, the courts or the heads of executive branch departments. However, the CRB is appointed by the Librarian of Congress, which you might notice is a part of the legislative branch, not the executive branch

So, they make the Librarian of Congress a “Department Head” and all is resolved? Except the Library of Congress (as the name implies) is still part of the Legislative branch, not the Executive, so it should be still unconstitutional.

Josh in CharlotteNC (profile) says:

Re: But what of the Branch question?

Yeah, I don’t like this precedent, either. There’s a checks and balances failure here. The President (executive branch) gets to appoint federal judges – but they still must be confirmed by the Senate (legislative branch). Even though the LOC is appointed/confirmed in the same manner, who can reign in the LOC? Can Congress refuse to confirm appointments to the CRB?

Niall (profile) says:

Re: Re:

Did you just utter the phrase “Tea Party” and “constitutional expert” in the same breath? “Constitutional redefiners” seems more accurate!

You haven’t proven any attack on the life of an embryo, its right to bear arms, or its right to own property yet. Now, if you could link this process to RomneyCare+ then you’d be onto a winner!

Thomas Darcy Welch (user link) says:

Aftermath

I sit and watch how the Copyright Act and legislation continue to be amended day in and day out.

It is a shame that the governments just can’t admit there wrongs, pay for there mistake, give the right holder of copyright a fair price for their fuxk-up and lets move on.

But no, they continue to piss around, passing one law after another, issuing tariffs after tariffs in hope to cloud the issue while the real author continues to suffer for not being recognized nor compensated for his original work

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