In two separate decisions in July, judges on the U.S. Court of Appeals for the D.C. Circuit noted that there are questions about the constitutionality of the Copyright Review Board, a three-member federal agency that sets copyright royalty rates whose members are selected by the Librarian of Congress and subject to removal only for cause. In SoundExchange v. Librarian of Congress, Judge Brett Kavanaugh wrote a separate concurring opinion raising questions about the Board's constitutionality, but noted the issue had not been raised by the parties. A few days later, in Intercollegiate Broadcast System, Inc. v. Copyright Review Board, the D.C. Circuit noted but passed on this issue again, as the issue had been raised too late.

It looks the D.C. Circuit will get another chance to consider the question. BLT reports that internet radio aggregator Live365 has filed suit directly challenging the CRB's constitutionality. Specifically, Live365 argues that under the Appointments clause Congress may not delegate authority to appoint the members of the CRB to the Librarian of Congress, a department in the legislative branch of government.

Will the third time be the charm? Perhaps, but the viability of Live365's suit likely depends upon how the Supreme Court resolves Free Eneterprise Fund v. Public Company Accounting Oversight Board, an appointments clause challenge to the constitutionality of the PCAOB. While the issues presented are not precisely the same, the two entities are likely to rise and fall together. If the current Supreme Court is willing to follow Justice Scalia's lead and embrace a relatively formalist view of the clause, both the CRB and PCOAB should go down. If, on the other hand, the Court adopts a more pragmatist posture, as the Court did in the independent counsel case, Morrison v. Olson, I would expect both to survive. Any predictions?