Here's Sen's argument: in a 1991 decision called Freytag v. Commissioner of Internal Revenue, the Supreme Court held that:
a head of a department, for purposes of the Appointments Clause, must be the head of a “Cabinet-level department” that is “limited in number and easily identified.” The Constitution only vests the power to appoint inferior officers in the President, the Courts of Law, and the Heads of Departments. Thus any appointment that wasn’t made by the President, the Courts of Law, or a Cabinet-level like department head, transgresses the Constitution.How does this relate to copyright? Explains Sen:
Who are the not quite Cabinet-level department heads who still make appointments, transgressing the Supreme Court’s prevailing interpretation of the Appointments Clause? Well, one of them is the Librarian of Congress. Even the most fervent advocate, I think, would be hard-pressed to make the argument that the Library is a Cabinet-level department. The Library isn’t one of those departments like the State Department, the Department of the Interior, or the Commerce Department; the Librarian doesn’t go through an exhaustive confirmation process; he isn’t a political figure; he doesn’t change when administrations change; &c.
So, under current precedent the appointments made by the Librarian of Congress are invalid. If you’ve been following this blog, you may recognize this issue from the Appointments Clause challenge to the Copyright Royalty Board. But really, why stop there? Who else has the Librarian of Congress appointed in violation of the Appointments Clause?
The Register of Copyrights, together with the “subordinate officers and employees of the Copyright Office,” are all appointed by the Librarian of Congress. 17 U.S.C. § 701(a). You know, those people who are in charge of that whole registration thing, as well as a host of other amazing policy work I don’t want to make light of.
OK, so maybe the Register of Copyrights' appointment is flawed. So what? Well, it's the Register who issues copyright registrations. And -- in nearly every circuit -- a copyright registration (or a refusal) is a jurisdictional pre-requisite for filing an infringement action. See 17 U.S.C. § 411(a); In Re Literary Works in Electronic Database Litigation (2d Cir. 2007) (collecting cases at page 10). So if the Register's appointment doesn't really count, then the registrations she issues don't count, and the courts adjudicating ongoing copyright cases lack jurisdiction and must dismiss them all. Right?
Well, maybe. First of all, as Sen acknowledges, the Supreme Court has granted cert. in the Electronic Database case (now captioned Reed Elsevier, Inc. v. Muchnick) and may well resolve the question whether Section 411's registration requirement is indeed a matter of subject matter jurisdiction. (The Supreme Court has also granted cert. in another important appointments clause case involving Sarbanes-Oxley.)
But what about the rest of Sen's analysis? Is he right? Will every current copyright plaintiff be tossed out of court? If he's wrong, why?