The Coming Copyright Judge Crisis

Authors

Saurabh Vishnubhakat, Benjamin N. Cardozo School of LawFollow
Dave Fagundes, University of Houston Law Center

Publication Date

3-2023

Journal

New York University Law Review Online

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 atwill. 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.

Volume

98

First Page

1

Publisher

NYU School of Law

Keywords

copyright, patent, administrative law, Copyright Office, Copyright Royalty Board, Appointments Clause, Arthrex, Intercollegiate

Disciplines

Administrative Law | Intellectual Property Law | Judges | Law | Legislation

Recommended Citation

Saurabh Vishnubhakat & Dave Fagundes, The Coming Copyright Judge Crisis, 98 N.Y.U. L. Rev. Online 1 (2023).
https://larc.cardozo.yu.edu/faculty-articles/673