On Friday, the U.S. Court of Appeals for the District of Columbia Circuit found that the three-judge board of the Copyright Board violates the Appointments Clause of the Constitution. The Appointments Clause requires all officers who hold ‘significant authority’ to be appointed by the President with confirmation of the Senate. However, the court found that the three-judge panel of the Copyright Royalty Board, which lays down the rates that broadcasters have to pay for copyright licenses, was appointed by the Librarian of Congress, rather than by the President of U.S.
However, the court apparently found a way out of the constitutional convolution and held that granting the Librarian of Congress the authority to fire the judges would straighten out and fix the problem. Writing for the Court of Appeals, Judge Stephen Williams wrote that “With such removal power in the Librarian’s hands, we are confident that the Judges are ‘inferior’ rather than ‘principal’ officers, and that no constitutional problem remains.”
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