IRFA Analysis: Section 2

Here at The Trichordist, we’re taking a look at the Internet Radio “Fairness” Act all week. As a service to readers, we’re firing up the LegalTron 3000 to take a closer look at the bill, analyzing it section by section.

Both the House version, H.R. 6480, introduced by Rep. Jason Chaffetz (R-UT), and the Senate version, S.3609, introduced by Sen. Ron Wyden (D-OR), are identical, so the following applies to both. The bills contain eight sections, though the first merely sets forth the title of the Act and the last specifies the effective date and transitional rules, so we’ll focus only on sections two through seven.

The bill mainly amends the current Copyright Act, so we’ve done our best to show how these amendments look in context. The text of the affected statutes follows; strikethrough text indicates current language that has been removed or altered by the bill, underlined text indicates new or changed language added by the bill.

SEC. 2. APPOINTMENT OF COPYRIGHT ROYALTY JUDGES AND QUALIFICATIONS.

17 USC § 801 – Copyright Royalty Judges; appointment and functions

(a) Appointment.— The Librarian of Congress President of the United States, by and with the advice and consent of the Senate shall appoint 3 full-time Copyright Royalty Judges, and shall appoint 1 of the 3 as the Chief Copyright Royalty Judge. The Librarian shall make appointments to such positions after consultation with the Register of Copyrights.

17 USC § 802 – Copyright Royalty Judgeships; staff

(a) Qualifications of Copyright Royalty Judges.—

(1) In general.— Each Copyright Royalty Judge shall be an attorney who has at least 7 not fewer than 10 years of legal experience and has significant experience in adjudicating arbitrations or court trials. The Chief Copyright Royalty Judge shall have at least 5 years of experience in adjudications, arbitrations, or court trials. not fewer than 7 years of experience in adjudicating court trials in civil cases. Of the other 2 Copyright Royalty Judges, 1 shall have significant knowledge of copyright law, and the other shall have significant knowledge of economics. An individual may serve as a Copyright Royalty Judge only if the individual is free of any financial conflict of interest under subsection (h).

(d) Vacancies or Incapacity.—

(1) Vacancies.— If a vacancy should occur in the position of Copyright Royalty Judge, the Librarian of Congress shall act expeditiously to fill the vacancy, and may appoint an interim Copyright Royalty Judge to serve until another Copyright Royalty Judge is appointed under this section. President of the United States shall act expeditiously to fill the vacancy. An individual appointed to fill the vacancy occurring before the expiration of the term for which the predecessor of that individual was appointed shall be appointed for the remainder of that term.

(2) Incapacity.— In the case in which a Copyright Royalty Judge is temporarily unable to perform his or her duties, the Librarian of Congress President of the United States, by and with the advise and consent of the Senate, may appoint an interim Copyright Royalty Judge to perform such duties during the period of such incapacity.

The primary effect of this section is to shift appointment of Copyright Royalty Judges from the Librarian of Congress (who is the head of the department under which both the Copyright Royalty Board and Copyright Office reside) to the President.

This past summer, the DC Circuit Court held that as then drafted, the then-current method of appointing Copyright Royalty Judges was unconstitutional under the Appointments Clause. However, rather than striking down the law altogether, the court remedied the matter by the simple fix of removing limitations on the Librarian’s ability to remove Judges. So while this section of IRFA might appear to be in response to that decision, it isn’t at all necessary from a constitutional standpoint after the DC Circuit’s ruling.

What’s interesting is that, until 1993, Judges were appointed by the President, and it was generally considered a failure — in the words of one Senator, the Board “was a dumping ground for unqualified people to whom the President owed a small favor.” So why do we want to go back to that? One theory is that the bill’s writers simply don’t like the decisions the current Copyright Royalty Judges have made; by removing appointment from an expert agency to the Executive branch, with the advice and consent of the Senate, the bill opens the door to political games and partisanship.  Not to mention delays.

The section also adjusts the requirements for Judges, bumping up the minimum experience required, but also, oddly, removing the requirement that any of the Judges have experience in economics or even copyright law. Why you’d want a Copyright Royalty Judge without requiring a background in copyright is beyond us. But more to the point, is there any evidence that current Judges aren’t qualified to hold their positions, or that an extra three years experience is necessary? Or are these provisions just more cover for a collateral attack on the Board’s prior decisions?

The last section of the bill provides that the new Judges will be appointed immediately. Current Judges will continue to preside over proceedings where a hearing on the merits has concluded, or where it has commenced, except that proceedings under Sections 112 and 114 (proceedings that affect Pandora) will only continue with “consent of all participants.” So Pandora gets a fresh slate to have its own judges decide how little it should pay musicians under its own rules.

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