The Coming Copyright Judge Crisis
New York University Law Review Online, Vol. 98, Forthcoming
24 Pages Posted: 30 Sep 2022
Date Written: September 12, 2022
Commentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc., has focused on the nexus of patent and administrative law. But this overlooks a seismic and as-yet unappreciated copyright implication of the decision: it renders the Copyright Royalty Board (CRB) unconstitutional. The CRB has suffered constitutional challenges since its 2004 inception, but these were seemingly solved in 2011 when the D.C. Circuit held that its composition did not offend the Appointments Clause as long as Copyright Royalty Judges were removable at will. But when the Court invalidated the selection process for Administrative Patent Judges on a similar theory in Arthrex, it rejected the D.C. Circuit’s remedy, making the CRB unconstitutional—again. This problem is not insoluble, though, and the best of the available options would be to make CRJs subject to Presidential appointment with Senate approval. This Essay highlights this novel insight about Arthrex, proposes legislative and judicial solutions, and illustrates the implications of the argument for copyright’s administrative law and Appointments Clause jurisprudence.
Keywords: copyright, patent, administrative law, Copyright Office, Copyright Royalty Board, Appointments Clause, Arthrex, Intercollegiate
Suggested Citation: Suggested Citation