Constitutional Opportunism Continues with IRFA: Copyright Royalty Judges are Properly Appointed

Post hoc ergo propter hoc fallacy — the fallacy of false causation or correlation without causation – X happened then Y happened; therefore X caused Y.


Let’s be clear:  IRFA will go a long way to completely screwing up the compulsory music license for webcasting, one of the few systems that is working fairly well to both compensate artists online and help tech startups avoid high transaction costs to launch certain businesses.  Not to mention bringing the U.S. a little bit more in line with the rest of the world in compensating artists.

As one analyst puts it, “Pandora will continue to suffer losses unless it can improve its mobile monetization significantly or lower its royalty rates.”  So why innovate when you can jam the artists?  (See “Pandora’s Value Could Double If the Internet Radio Fairness Act Passes“.)

There is precious little evidence that Big Tech wants artists (or anyone else) to be fairly compensated, and certainly not at the expense of Big Tech insiders.  From ad supported piracy, to attacks on copyright at every turn (frequently funded by Big Tech or their shills), no artist should make the mistake of thinking that the consumer electronics industry or their front groups and bloggers are their friends.

So it should be no surprise that IRFA is just more of the same.

The Judges’ Fallacy

One of the more insidious elements in the Internet Radio Fairness Act is the Pandora court packing plan–getting rid of the Copyright Royalty Judges appointed by the Librarian of Congress who set the rates that Pandora doesn’t like.  Needless to say, these judges are people who Pandora, the NAB, MRI and DiMA don’t like and replacing them with more properly compliant judges who would be political appointees would no doubt be a delicious lobbying opportunity.  Getting rid of judges you don’t like and replacing them with judges you do like is called “court packing.”

This court packing scheme is just about every bad thing you can think of and really is anti-democratic.  If you let them get away with this, who knows where this kind of thing ends up.  Even if it doesn’t end up going anywhere, just this particular court packing scheme is bad enough to shoot down.

Here’s the argument:  The Unholy Alliance of Pandora, Clear Channel, Sirius XM, the National Association of Broadcasters, MRI, Google and DiMA have to destroy the Copyright Royalty Judges in order to save them because the Copyright Royalty Judges are unconstitutional appointments.

This is the false premise in the argument and therefore the conclusion is equally false.  Proponents of this fallacy (such as the sponsors of the IRFA bill) leave out the July 6, 2012 ruling of the United States Court of Appeals for the District of Columbia Circuit in Intercollegiate Broadcasting System Inc v. Copyright Royalty Board which held that while the initial appointment of the judges had its flaws, the D.C. Circuit was able to correct the legislation with a simple fix:

Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. Because of the Appointments Clause violation at the time of decision, we vacate and remand the determination challenged here; accordingly we need not reach Intercollegiate’s arguments regarding the merits of the rates and terms set in that determination. (emphasis mine)

So to say that the judges must be destroyed in order to save them is fallacious:  Whatever Constitutional problems existed before July 6, 2012 have been remedied by the D.C. Circuit.  So to start the argument by saying that the judges are an unconstitutional appointment that must be saved is itself patently false.  The DC Circuit fixed the problem in an elegant and much less disruptive fashion.

Whatever your view of the constitutionality of the judges, what the D.C. Circuit did not say, or even come close to saying, was that the only way to fix the problem was to disrupt the entire process and have the judges become political appointees–the solution of Big Tech’s lobbyists in the IRFA.

So you see the argument “Judges are unconstitutional, therefore must be radically altered to be constitutional” is simply false on its face because the first step in the argument is false (“Judges are unconstitutional,” leading to a false conclusion (“therefore must be radically altered to be constitutional”) because a court with proper authority has ruled.  (Like the Supreme Court ruled on the Affordable Care Act.)

Given that the D.C. Circuit ruling came down in July and Rep. Chaffetz introduced his bill in September, the staff work must have been going on well before the bill was introduced.  I can see a scenario where the staff planned on using unconstitutionality of the judges’ appointments as a rational for court packing only to find that argument was removed from them.  Apparently, they decided to leave in the language even though the reason for it evaporated.

Even commentators who support Pandora’s position on legislating profit through rate fixing disagree with changing the appointment of royalty judges.   UCLA tech professor John  Villasenor, for example, is a supporter of legislating higher profits for Pandora, but disagrees about gutting the judges:

[IRFA] isn’t perfect. For example, it contains a provision intended to increase the expertise of the judges appointed to the CRB [not quite right]. But as anyone who actually studies their rulings will quickly conclude, the CRB judges have consistently produced careful, considered, and meticulously explained decisions. The flaw in the system isn’t with the competence of the CRB judges….” (emphasis mine)

Constitutional Opportunism

We are increasingly seeing Big Tech use constitutional arguments to advance their economic agendas from protecting their “free speech” rights in illegal search results to court packing to another IRFA specialty, chilling freedom of association.  Writing in Paid Content, Jeff John Roberts (Is Google A Free Speech Opportunist?) observed:

Rumors are swirling that the federal government is about to sue Google over claims that the company rigs its search results. Google has responded by invoking its right to free speech — but not everyone is buying this.

Tim Wu, a prominent law professor at Columbia, is not convinced that Google is invoking its First Amendment rights in good faith. He suggests that Google and other big companies are cynically invoking constitutional freedoms as part of a corporate deregulation agenda.

We’re living in a golden age of First Amendment opportunism,” said Wu, speaking Friday at a Penn Law School conference titled “The Evolving Internet.” (emphasis mine)

Electronic Frontier Foundation types from Area 420 immediately raised a red herring (so to speak), claiming that the phrase “First Amendment opportunist” evokes Sen. McCarthy’s “Fifth Amendment Communist.”  This is what we would expect from organizations on the Google Shill List who, like Pavlov’s dog, will serve up red herrings right on cue at the sound of the bell.

Professor Wu has it just right, of course.  We saw the First Amendment wrapping coming years ago–in fact, Winning the Web actually laid out this battle plan in writing for all to see.

This constitutional opportunism gets more brazen with each passing day, and IRFA is no exception.  While trotting out Tim Westergren to furrow his Highly Influential Brow while spewing trickle down innovation malarkey to short change musicians, his Big Tech cohort is sharpening their knives to stab the Copyright Royalty Judges–and creators–in the back.

We’ve seen this movie before, it’s just The Man 2.0 doing business as usual.  And if they can use the Constitution to feather their own nest, then what do they care?