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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.

Filed Under: appointments clause, constitutionality, copyright, copyright royalty board, royalty rates, webcasting


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  1. identicon
    Anonymous Coward, 16 Feb 2012 @ 10:14am

    Re: Re: Rocking the boat takes courage

    but it does

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