So I promised myself I wouldn’t break out the copyright siren because it’s so, you know, annoying. But this story needs, no, scratch that, it deserves, the siren. Did you realize that under current precedent every pending copyright case lacks jurisdiction? Such is apparently the status of things.

Our story begins in the grand ole’ year of 1991. C+C Music Factory and Color Me Badd topped the charts, the Minnesota Twins were in the World Series, I had the biggest crush on Sarah from second period band, and the Supreme Court issued a feisty little decision in Freytag v. Commissioner of Internal Revenue. In the case, A five Justice majority 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.

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.

So no big deal, right? A valid copyright registration isn’t important? I mean, it has a pretty stamp and looks all official and stuff, but so what? IT’S ONLY A JURISDICTIONAL REQUIREMENT! To quote the Second Circuit from In Re: Literary Works in Electronic Database Litigation, now set for oral arguments at the Supreme Court:

[T]here is widespread agreement among the circuits that section 411(a) is jurisdictional. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 4 416 F.3d 1195, 1200 (10th Cir. 2005) (“Section 411(a) is the jurisdictional lynchpin to copyright 5 infringement actions[.]”); Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 6 365 (5th Cir. 2004) (noting that section 411(a) “supplement[s]” the “broad underlying” 7 jurisdictional grants in 28 U.S.C. §§ 1331, 1338 and acts as an additional “jurisdictional 8 prerequisite”); Xoom, Inc. v. Imageline, Inc., 323 F.3d 279, 283 (4th Cir. 2003) (“Copyright 9 registration is a jurisdictional prerequisite to bringing an action for infringement under the 10 Copyright Act.”); Murray Hill Publ’ns, Inc. v. ABC Commc’ns, Inc., 264 F.3d 622, 630 n.1 (6th 11 Cir. 2001) (noting that while copyright protection exists prior to registration, “[t]he registration 12 requirement under section 411[a] is a jurisdictional prerequisite to the right of the holder to 13 enforce the copyright in federal court”); Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 14 1281, 1285 (11th Cir. 2000) (“It is well settled in this Court that the registration requirement is a 15 jurisdictional prerequisite to an infringement suit.” (internal quotation marks omitted and 16 alterations incorporated)); Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1163 17 (1st Cir. 1994) (describing registration under section 411(a) as a “jurisdictional requirement”).

In the immortal words of Scooby Doo, “Ruh Roh Raggy!” So if the officers at the Copyright Office are unconstitutional appointments, and the registrations issued by the Copyright Office aren’t valid, and valid registrations are a jurisdictional requirement . . . no courts have jurisdiction to hear any copyright cases. (Except for the renegade Seventh Circuit which held that registration is a case processing rule, and not a requirement for jurisdiction. I know what you’re thinking: Judge Posner saves copyright in Illinois, isn’t. that. just. sooooooooo. typical. Though, the Circuit would still have to reject cases if it strictly follows the registration rules. Every pending copyright case lacks jurisdiction. And no one can bring a new case either. The end.

Have a happy Wednesday.