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.

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.

Breaking Copyright Royalty Board News: Judge Roberts Resigns Suddenly

Judge using his gavelJudge Roberts tendered his resignation from the Copyright Royalty Board today.  He is presently serving his second term, which would not have expired until next year.  The resignation is effective May 4, 2013.

Here is Judge Roberts’s letter of resignation:

Fakler Speaking On Copyright Royalty Rate Litigation At NARM Conference

Copyright symbol largeI will be speaking on copyright royalty rate litigation at NARM’s Entertainment & Technology Law Conference this week, discussing the intricacies of litigating before the Copyright Royalty Board and the ASCAP and BMI rate courts.  For those interested in rate-setting litigation, it should be an excellent panel, with Jonathan Potter moderating.  Ken Steinthal and I will be speaking from the music service / licensee perspective, and Lucy Holmes Plovnick speaking from the copyright owner perspective.

There will also be other interesting panels, covering copyright, trademark/domain name and right of publicity issues of topical interest.  The conference will be held this Thursday, February 28, 2013, from 1:00 to 5:30 pm.  Here is a link for more information:


Sirius XM Files Antitrust Suit Against SoundExchange, Seeks Dissolution

Sirius XM has filed an antitrust suit against SoundExchange and the American Association of Independent Music, alleging that these entities have been colluding with the major and certain independent record labels to prevent Sirius XM from direct licensing the sound recording copyrights it needs to provide its various services. [Read more…]

photo by: pennstatelive