Tuesday, September 29, 2009

Court denies preliminary injunction in constitutional challenge to Copyright Royalty Board

A federal judge in Washington has denied a motion by Internet radio aggregator Live365.com to preliminarily enjoin the operation of the Copyright Royalty Board on the grounds that its judges are appointed in violation of the US Constitution. In a brief order issued yesterday, Judge Reggie Walton stated that "the plaintiff has failed to demonstrate its entitlement to the extraordinary relief of a preliminary injunction." Walton said that he anticipates issuing a fuller ruling within 30 days.
Order denying preliminary injunction in Live365 v. CRB
Live365 filed suit August 31, seeking a declaration that the appointments process for the CRB judges is flawed because they are appointed by the Librarian of Congress. Live 365 argues that under the Constitution's Appointments Clause, the CRB judges are "principal officers" who may only be appointed by the president. The argument has been raised in other CRB proceedings, but courts have never reached the merits. In a case brought by SoundExchange, DC Circuit Judge Brett Kavanaugh did opine that the challenge to the CRB judges "raises a serious constitutional issue." A similar challenge to the appointment of members of the Public Company Accounting Oversight Board is pending before the Supreme Court, and a decision in that case, Free Enterprise Fund v. Public Company Accounting Oversight Board, could affect the outcome of the challenge to the CRB.

Here is Live365's motion for a PI, and the government's opposition.

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