Author ORCID Identifier
Saurabh Vishnubhakat 0000-0002-1613-0999
David Fagundes 0000-0003-1795-7143
Document Type
Article
Publication Date
2023
Keywords
Copyright Claims Board, Appointments Clause, Inferior officers, Administrative tribunal, Copyright Royalty Judges
Abstract
Commentary about the Supreme Court’s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision’s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board (“CRB”) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB’s composition did not offend the Appointments Clause as long as Copyright Royalty Judges (“CRJs”) were removable at-will. But when the Court invalidated the selection process for administrative patent judges on a similar theory in Arthrex, it also rejected the D.C. Circuit’s remedy of requiring at-will removal, making the CRB unconstitutional—again. This problem is not insoluble, however, and the best available option would be to make CRJs subject to presidential appointment with Senate approval. This Essay highlights this novel insight regarding Arthrex, proposes legislative and judicial solutions to the problem of constitutionality, and reflects on the broader implications of these claims for copyright’s administrative law and Appointments Clause jurisprudence.
First Page
1
Publication Title
New York University Law Review Online
Recommended Citation
Saurabh Vishnubhakat & Dave Fagundes, The Coming Copyright Judge Crisis, 98 N.Y.U. L. Rev. Online 1 (2023).
Included in
Administrative Law Commons, Constitutional Law Commons, Intellectual Property Law Commons, Supreme Court of the United States Commons
Comments
Copyright © 2023 by Saurabh Vishnubhakat & Dave Fagundes.