Friday, July 10, 2009

Court Rejects Copyright Panel Complaint

*Updated* The U.S. Court of Appeals for the District of Columbia on Friday refused to rule on the constitutionality of a federal panel that sets copyright royalties. Licensing firm Royalty Logic claimed the Copyright Royalty Board is unconstitutional because the Librarian of Congress, who is not technically the head of a government department, appoints its judges. As such, the complaint argued the CRB should be forced to vacate its decision in a proceeding that set the fee structure for webcasters.

National Music Publishers' Association President David Israelite wrote to House Judiciary Chairman John Conyers and ranking member Lamar Smith recently urging them to consider introducing legislation that would make moot any constitutional challenges to the CRB. Israelite argued that Royalty Logic's lawsuit could have meant the unraveling of all the panel's decisions since its judges (pictured) were appointed in 2006. He said Friday's ruling was a "sigh of relief" for the music industry. David Oxenford, an attorney who represents small webcasters in CRB proceedings, said the decision "really just delays the consideration of the issue of the constitutionality of the CRB. Now that this issue is on the table, it is bound to be raised by other parties in other CRB proceedings."

As the CRB embarks on its consideration of webcasting rates for 2011-2015, "there is a cloud hanging over its existence -- one that may take another Court decision, or some corrective action by Congress, to remedy," he wrote on his blog. Royalty Logic's attorney Kenneth Freundlich said he was surprised at the court's failure to address what he called a "fundamental issue." At the hearing, the judges pondered whether there should be further briefings on the matter but never followed up. Instead they cited "'inadequate briefing' as a basis for ducking the issue," he said, noting the ruling cites two cases that support his arguments. "Let this decision be a warning to all concerned and a message to Congress to fix this mess," Freundlich said.