Tuesday, August 11, 2015
The D.C. Circuit ruled that the new Copyright Royalty Board, reconstituted after the court previously held that the old Board violated the Appointments Clause, did not itself violate the Appointments Clause after it came to the same decision as the old Board using the same record. The ruling upholds the new Board's decision to impose a $500 per station or per channel annual minimum fee for collegiate Internet radio stations.
The Copyright Royalty Board was originally composed of three Copyright Royalty Judges who were appointed by the Librarian of Congress and could only be removed for cause. The Board imposed the $500 fee on webcasters in 2011. Intercollegiate Broadcasting System, a nonprofit that represents college and high school radio stations, challenged the fee, arguing that the Board violated the Appointments Clause. The D.C. Circuit agreed, ruling that the judges had sufficient authority and independence to qualify as principal officers, thus requiring Presidential appointment and Senate confirmation. The court cured the defect by severing the statutory provision that barred the Librarian of Congress from removing the judges without cause.
The Librarian then replaced the Board with new members. The new Board decided to re-determine the copyright terms based on the existing record (the one that the parties established with the original Board) and to review the record de novo. The new Board issued the same $500 fee, and Intercollegiate again appealed.
This time Intercollegiate argued that the new Board was tainted by the old Board's decision, and thus the new Board also violated the Appointments Clause. The court flatly rejected this argument. Among other things, the court noted that the parties themselves set the record with the old Board, and the new Board re-decided the case on its own terms, without taint from the original Board.
The ruling is consistent with circuit law that a body reconstituted to comply with the Appointments Clause does violate the Appointments Clause simply because the original body did.