Tussle Over Copyright Royalty Board Judges

WASHINGTON (CN) - Live365, an aggregator of digital radio stations that operates under compulsory licenses, claims the Librarian of Congress is not authorized to appoint the three judges of the Copyright Royalty Board, which sets rates and terms for statutory compulsory licenses for use of certain copyrighted works.

"(B)illions of dollars and the fates of entire industries can ride on ... decisions" by the Copyright Royalty Board, whose authority is comparable to that of the FCC, NLRB and SEC, according to the US Court of Appeals for the DC Circuit.

In its federal complaint Live365 cites the 10th Amendment, the "Appointments Clause," which states that the president "shall appoint ... all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers ... in the President alone, in the courts of law, or in the heads of departments."

Because the Library of Congress is part of the legislative branch, Live365 says, the Librarian is not the head of a department, and hence does not have authority to appoint "inferior officers." Nor does the Librarian have effective oversight over the CRB. If the judges act as principal rather than "inferior officers" of the United States, they must be appointed by the president.

In January the CRB announced commencement of the 2009 WEB III CRB Proceeding to set rates and terms to apply from Jan. 1, 2011 through Dec. 31, 2015. Live365 and numerous other parties filed partitions to participate. The deadline for filing written direct statements is Sept. 29, and the proceeding must be completed no later than Dec. 16, 2010.

Rather than spend millions of dollars to participate in a yearlong proceeding that may be deemed null and void, Live365 seeks a declaratory judgment and preliminary and permanent injunction.

Live365 sued the CRB, Librarian of Congress James H. Billington, and CRB Judges James Scott Sledge, Stanley C. Wisniewski and William J. Roberts. Live365's service is available at www.live365.com.

It is represented by Adam S. Caldwell with Davis Wright Tremaine.

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