Yesterday, 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.