Archives for May 2013

Supreme Court Refuses to Hear Appeal on Constitutionality of Copyright Royalty Judges

Angry JudgeYesterday, the United States Supreme Court denied certiorari (i.e., refused to hear an appeal) on the D.C. Circuit’s decision holding that appointment of the original Copyright Royalty Judges violated the Appointments Clause of the Constitution, but then judicially re-writing the statute to “cure” the problem by making the Judges susceptible to termination at will by the Librarian of Congress.  That decision also led the D.C. Circuit to remand the Webcasting III rate determination back to the Copyright Royalty Judges, because unconstitutional appointment of the original Judges was void ab initio.  Now that cert has been denied, that remand can proceed.

Notably, all three of the original Judges who issued the Webcasting III determination are now retired.  The entire panel has turned over in the past year or so.  Only time will tell how the new Copyright Royalty Judges will  deal with the remand.

Fakler quoted in Andrew Sullivan’s The Dish

This is fun.  One of my quotes on the ways in which record companies abuse recording artists was picked up and highlighted in Andrew Sullivan’s The Dish.

Fakler Quoted in Buzzfeed Article on Record Company Hostage-Taking


I was quoted in a Buzzfeed article published yesterday.  The article deals with the problems that sometime occur when a record label loses interest in an artist and refuses to release his or her new recordings.

photo by: Douglas Heriot

Two New Copyright Royalty Judges Appointed

Judge using his gavelThe Librarian of Congress has announced his appointment of two new Copyright Royalty Judges to fill the vacancies created by the mid-term resignations of Judges Wisniewski and Roberts.  The Copyright Royalty Judges hear proceedings before the Copyright Royalty Board, and are responsible for setting rates and terms and also distributions of royalties for various statutory licenses in the Copyright Act.

Judge David R. Strickler replaces Judge Wisniewski as the Judge required to have experience in economics.  Judge Strickler received his M.A. in economics from Columbia University, was a law and economics fellow at the University of Miami School of Law, and is an adjunct professor of economics at Brookdale College in New Jersey.  He is also a commercial litigator, with a focus on valuation disputes related to securities and real estate.

Judge Jesse Feder replaces Judge Roberts as the Judge required to have copyright law experience.  Judge Feder has served since 2004 as director of International Trade and Intellectual Property for the Business Software Alliance.  Prior to that, Judge Feder held several positions at the United States Copyright Office.

Paul Fakler Quoted in National Law Journal on Proposed Overhaul of Copyright Act

Copyright SymbolThe National Law Journal ran an article today on recent proposals by Register Pallante and House Judiciary Chairman Goodlatte to begin the process for a general revision (i.e., ground-up re-write) of the Copyright Act.  The article contains a few of my thoughts on the topic.  I am certain to be writing in more detail as we move forward.  If the process is managed properly, a general revision could be a great benefit to all stakeholders (including the public).