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98 N.Y.U. L. Rev. Online 1 (2023)

handle is hein.journals/nyulro98 and id is 1 raw text is: THE COMING COPYRIGHT JUDGE CRISIS SAURABH VISHNUBHAKATt & DAVE FAGUNDESI 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 at- will. 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. IN TR O D U C TIO N .......................................................................................... . 1 I. A BRIEF HISTORY OF COPYRIGHT ADJUDICATION......................... 5 II. FROM INTERCOLLEGIATE BROADCASTING TO ARTHREX .................... 10 A. Judge Kavanaugh and the Intercollegiate Broadcasting S a g a .................................................................................... . . 1 1 B. The CRB's Arthrex Problem .................................................14 III. CONSTITUTIONALIZING COPYRIGHT ROYALTY JUDGES .............. 17 A. Distinguishing CRJs from APJs ...........................................18 B. Making the CRB Constitutional (Again) .............................. 20 1. Leveling Up CRJ Selection Processes ............................ 20 2. Leveling Down CRB Authority ...................................... 23 C O N CLU SIO N ......................................................................................... . . 2 7 INTRODUCTION In June 2021, the Supreme Court decided United States v. Arthrex, Inc., T Professor of Law, Benjamin N. Cardozo School of Law; Fellow, Duke Law Center for Innovation Policy; former Advisor, United States Patent and Trademark Office. I Baker Botts LLP Professor of Law, Assistant Dean for Faculty Development, University of Houston Law Center. The arguments in this writing are the authors' and should not be attributed to the USPTO or to any other organization. Sincere thanks to Michael Herz, Rachel Landy, Ron Levin, Gary Lawson, Mike Meurer, Katy Miller, Michael Pollack, Alex Reinert, Leslie Salzman, Stewart Sterk, Jacob Victor, and Felix Wu for helpful comments and suggestions. Copyright © 2023 by Saurabh Vishnubhakat & Dave Fagundes.

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