The Coming Copyright Judge Crisis

Commentary about the Supreme Court\u27s 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision\u27s seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ( CRB ) unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB\u27s composition did not offend the Appointments Clause as long as Copyright Royalty Judges ( CRJs ) were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a similar theory in Arthrex, it also rejected the D.C. Circuit\u27s remedy of requiring at-will removal, making the CRB unconstitutional-again. This problem is not insoluble, however, and the best available option would be to make CRJs subject to presidential appointment with Senate approval. This Essay highlights this novel insight regarding Arthrex, proposes legislative and judicial solutions to the problem of constitutionality, and reflects on the broader implications of these claims for copyright\u27s administrative law and Appointments Clause jurisprudence