In part I of this series, I discussed the current backlog on registrations at the copyright office. Here, I discuss a more fundamental issue which questions the very validity of every copyright registration.
Questions about the validity of U.S. Copyright Registrations may require dismissal of every copyright suit!?
In most U.S. District Courts, copyright registration is a requirement before a plaintiff can file an infringement suit. Recently, however, some legal commentators have raised a terrifying spectre that could (arguably) result in the dismissal of every copyright infringement action filed.
Under the Constitution's “appointments clause”, only the President, Courts or a cabinet level department head can appoint the “inferior officers” of the goverment. Trouble is, the Register of Copyrights , such an officer, is appointed by the Librarian of Congress. (Not a cabinet-level appointee) (Cabinet level appointees are carefully vetted and ultimately confirmed by the Senate, etc.).
So, it seems, at least to some, that the appointments made by the Librarian of Congress are invalid because they violate the appointments clause of the constitution. This argument is currently before the courts in a major battle challenging the appointment of the Copyright Royalty Board (also by the Librarian of Congress)
If the Register of Copyrights holds the office in violation of the constitution, then all of her ministerial acts (such as registration of millions of copyrights each year), are invalid, and since valid registration is a jurisdictional requirement for the Courts to hear copyright cases, such cases must therefore be dismissed.
The Courts will soon rule on the Copyright Royalty Board case, which may provide more answers… or more questions.