The Coming Copyright Judge Crisis

New York University Law Review Online, Vol. 98, Forthcoming

24 Pages Posted: 30 Sep 2022

See all articles by Saurabh Vishnubhakat

Saurabh Vishnubhakat

Yeshiva University - Benjamin N. Cardozo School of Law; Duke University School of Law

Dave Fagundes

University of Houston Law Center

Date Written: September 12, 2022

Abstract

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

Vishnubhakat, Saurabh and Fagundes, Dave, The Coming Copyright Judge Crisis (September 12, 2022). New York University Law Review Online, Vol. 98, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4226252 or http://dx.doi.org/10.2139/ssrn.4226252

Saurabh Vishnubhakat (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States

HOME PAGE: http://cardozo.yu.edu/directory/saurabh-vishnubhakat

Duke University School of Law

Durham, NC

Dave Fagundes

University of Houston Law Center ( email )

4604 Calhoun Rd.
Houston, TX 77204
United States
713.743.1431 (Phone)
713.743.2238 (Fax)

HOME PAGE: http://www.law.uh.edu/faculty/main.asp?PID=5033

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