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.


Reader Comments (rss)

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    identicon
    Anonymous Coward, Jul 6th, 2012 @ 11:21am

    So... how long until the Librarian of Congress fires a judge, and gets sued/fired/removed for abusing a power they have no legal right to as not being an department head, despite this court decision?

     

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    Anonymous Coward, Jul 6th, 2012 @ 11:27am

    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.

     

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      freeinternet777 (profile), Jul 6th, 2012 @ 12:02pm

      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.Re:

      Something is blinding the pro-copyright crowd.

       

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        TaCktiX (profile), Jul 6th, 2012 @ 1:00pm

        Re: 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.Re:

        Have you ever been in one of those blower-based flying money booths? Rather hard to see out when you've got all those benjamins obscuring your vision.

         

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          Niall (profile), Jul 9th, 2012 @ 5:45am

          Re: Re: 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.Re:

          All that free 'blow' :)

           

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        Anonymous Coward, Jul 6th, 2012 @ 2:10pm

        Re: 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.Re:

        greed

         

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      That One Guy (profile), Jul 6th, 2012 @ 8:42pm

      Re:

      Your erroneous assumption here is that they would ever let a non-bought and paid for individual hold that particular office.

       

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        Anonymous Coward, Jul 7th, 2012 @ 3:15am

        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.

         

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    DogBreath, Jul 6th, 2012 @ 11:58am

    They are just moving on to the next logical phase, the power to correct laws to make them fit the bill of constitutionality

    If the Supreme Court can do what it wants, why not every other court too?

    Some will welcome our new overlords, well others might have second thoughts after seeing it taken way too far.

     

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    Anonymous Coward, Jul 6th, 2012 @ 11:59am

    Doesnt surprise me at all. I used to respect the American way of life but thanks to the internet in the last 5 years and the actions of America i am pretty despondent lately.

     

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jul 6th, 2012 @ 12:04pm

    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.

     

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      Anonymous Coward, Jul 6th, 2012 @ 12:24pm

      Re:

      "Great constitutional analysis there, Slick. Very incisive. So nuanced."

      First accurate thing you've written in a decade, boy.

       

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    Ben (profile), Jul 6th, 2012 @ 12:22pm

    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.

     

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      Josh in CharlotteNC (profile), Jul 6th, 2012 @ 1:00pm

      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?

       

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    abc gum, Jul 6th, 2012 @ 6:39pm

    When are the tea party constitutional experts going to pounce on this?

     

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      Niall (profile), Jul 9th, 2012 @ 5:48am

      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!

       

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        Anonymous Coward, Jul 9th, 2012 @ 2:17pm

        Re: Re:

        Maybe he was using "tea party constitutional experts" as sarcasm.

         

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          Niall (profile), Jul 10th, 2012 @ 6:19am

          Re: Re: Re:

          Then he should flag it better, because I see far too many would-be constitutional 'experts' in the tea party, and I seem to know more about the Constitution than half of them, despite being foreign! :)

           

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    Dave Nelson (profile), Jul 6th, 2012 @ 7:09pm

    Hollyweird's at it Again

    In true Magic Castle fashion, the whole show is designed to divert your attention from the fact that the royalties in question are so far out of whack, and make you concentrate on irrelevant authority issues. Pure smoke and mirrors.

     

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    Thomas Darcy Welch, Dec 12th, 2013 @ 11:29am

    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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