The Case for the CCB: A Defense of the Constitutionality of the Copyright Claims Board

Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforce (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes. 
Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress cannot set up non-Article III courts to hear cases involving public rights. Critics renewed their concerns in the aftermath of the Supreme Court’s June 2021 decision in United States v. Arthrex, in which the Court found that the Patent Trial and Appeal Board administrative patent judges’ (“APJs”) wielded unreviewable authority that violated the appointments clause. Furthermore, a possible challenge to the constitutionality of the CCB could be forthcoming since the CCB is now operational. 
This Note analyzes the evolution of Appointments Clause and Article III jurisprudence and finds that the CCB is constitutionally constructed. While copyright is likely a private right, the CCB is still constitutionally permitted to hear these claims because the parties voluntarily consent to use the CCB. The voluntary nature of CCB proceedings plus the fact that these small cases are typically not heard by federal courts ease Article III and reviewability concerns. 
Part I provides background information to the passage of the CASE Act and explores arguments for the necessity of the CCB. Part II outlines the structure of the CCB. Parts III and IV respectively detail relevant Appointments Clause and Article III jurisprudence then apply it to the CCB. Parts V and VI discuss the possible arguments critics may lodge against the CCB in a constitutional challenge and how these invariably fall short. Finally, Part VII takes a practical look at how the Supreme Court as currently constructed might analyze the CCB’s constitutionality.


INTRODUCTION
Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement ("CASE") Act, thus creating the Copyright Claims Board ("CCB") to adjudicate small copyright disputes.
Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress cannot set up non-Article III courts to hear cases involving public rights. Critics renewed their concerns in the aftermath of the Supreme Court's June 2021 decision in United States v. Arthrex, in which the Court found that the Patent Trial and Appeal Board administrative patent judges ("APJs") wielded unreviewable authority that violated the appointments clause. Furthermore, a possible challenge to the constitutionality of the CCB could be forthcoming since the CCB is now operational.
This Note analyzes the evolution of Appointments Clause and Article III jurisprudence and finds that the CCB is constitutionally constructed. While copyright is likely a private right, the CCB is still constitutionally permitted to hear these claims because the parties voluntarily consent to use the CCB. The voluntary nature of CCB proceedings plus the fact that these small cases are typically not heard by federal courts ease Article III and reviewability concerns.
The United States Copyright Office ("USCO") acknowledged in 2013 that the current federal system poses formidable challenges for small copyright claimants seeking to enforce their exclusive rights. 7 Federal litigation remains prohibitively expensive for people with small infringement claims. The estimated median cost for a party to litigate a copyright infringement claim with less than $1 million at stake through appeal is $350,000. 8 Stories like Sedlik's and Preston's illustrate the notion that many copyright holders possess a right without a remedy against infringement of their work. Since copyright holders with small claims generally are unable to take action, users infringe with impunity.

B. LEGISLATIVE HISTORY AND PASSAGE OF THE CASE ACT
Creators like songwriters and authors have long bemoaned the prohibitive costs of copyright litigation and have urged Congress to address the erosion of rights protection. 9 The USCO took an initial look at the problem and outlined the structure for a copyright small claims board in a 2013 Report. 10 The CASE Act, the legislation creating the CCB, was first introduced by Rep. Hakeem Jeffries (D-NY) in 2017 after years of Congressional deliberation, Copyright Office research and expertise, stakeholder input, and advocacy from individual creators. 11 The CASE Act was eventually included in an omnibus COVID relief package signed into law on December 27, 2020. 12 While this part of the COVID relief package passed with minimal fanfare, the legislative history of the CASE Act involved some fireworks. 13 The CASE Act passed the House with overwhelming bipartisan support, a rarity in modern D.C., with a 410- 12. Claudia Rosenbaum, Congress Passes CASE Act as Part of COVID-19 Relief Bill, BILLBOARD (Dec. 12, 2020), https://www.billboard.com/pro/congress-case-copyright-reforms-covid-19-relief-bill [https:// perma.cc/F58S-YHZD] [https://web.archive.org/web/20220923142324/https://www.billboard.com/pro/ congress-case-copyright-reforms-covid-19-relief-bill]; see 17 U.S.C. § § 1501-1511.
6 vote. 14 However, in the lead up to the House vote, opposition groups lodged vociferous critiques. The Electronic Frontier Foundation ("EFF") took aim at the bill, stating that it would lead to "copyright trolls" and "chill protected expression." 15 Similarly, the American Civil Liberties Union ("ACLU") wrote a letter to the House urging members to vote against the bill because it would lead to people bringing bad faith claims, leaving unsophisticated internet users subject to large civil penalties. 16 Public Knowledge, a D.C.-based nonprofit, raised constitutional concerns in its opposition, stating that the bill would create an unaccountable court. 17 While these efforts were mostly unsuccessful, these groups and others remained opposed to the Copyright Small Claims Board. These concerns are possibly exacerbated by the unusual inclusion of a large intellectual property bill in an omnibus COVID relief package. 18 This suggests that the next time supporters of the CASE Act and groups like EFF battle over this bill, it will be in a court room. A dispute between the two sides could arise if a default judgment is entered against a respondent, and a respondent brings suit in a federal court challenging constitutionality of the CCB.

II. STRUCTURE OF THE CCB & OVERVIEW OF PROCEEDINGS
The CCB is composed of three Copyright Claims Officers: two with experience in the resolution of copyright infringement and the third with knowledge of copyright law and experience in alternative dispute resolution. 19 The Librarian of Congress appoints these officers for initial terms ranging from four to six years. 20 Proceedings before the CCB mirror federal district court in some ways but are simplified and streamlined to achieve its goal as a cheaper alternative to federal courts. In order to commence a proceeding before the CCB, a claimant must file a complaintlike document before the CCB that "includes a statement of material facts in support of the claim" and pay a filing fee. 21 After a claimant files a claim, a copyright claims attorney reviews the claim to ensure that it complies with applicable regulations. 22 If the reviewing attorney finds that the claim is not compliant, the claimant is given the opportunity to file an amended claim within thirty days of receiving the deficiency notice. 23 Once a claimant serves a potential respondent with notice and a claim, the respondent has sixty days to opt out of proceeding before the CCB. 24 If the respondent decides to opt-out, the case is dismissed without prejudice. 25 This opt-out component is key to making the tribunal truly voluntary, which supports the case for the CCB passing constitutional muster. 26 If a respondent decides not to opt out of proceedings, the respondent must file a response to the claim that can include "legal or equitable defense[s] under this title or otherwise available under law." 27 The respondent has limited ability to file counterclaims. 28 The CCB may dismiss a claim or counterclaim after finding it unsuitable on account of: (1) failure to join a necessary party, (2) the lack of "essential witness[es], evidence, or expert testimony," and (3) "the determination of a relevant issue of law or fact that could exceed either the number of proceedings the [CCB] could reasonably administer or the subject matter competence of the [CCB]." 29 Proceedings before the CCB are different from copyright litigation in federal courts. Discovery is "limited and mostly-paper based." 30 Evidence can be admitted "without application of formal rules of evidence." 31 Formal motion practice is not part of the proceedings "unless requested by the parties or the CCB." 32 Hearings can proceed virtually, and parties can appear without counsel. 33 Law students providing pro bono representation can also represent a party with appropriate supervision. 34 A majority of officers is required to issue a determination and a dissenting officer can append a statement to the determination. 35 CCB determinations must (1) be in writing along with an explanation "of the factual and legal basis of the determination," (2) "set forth any terms by which a respondent or counterclaim respondent has agreed to cease infringing activity," and (3) "include a clear statement of all damages and other relief awarded." 36 CCB determinations do not have precedential effect, even in future cases before the CCB itself. 37 A CCB determination does not preclude the parties from relitigating in federal court or before the CCB again. 38 Remedies are limited to actual damages, profits, and statutory damages. 39 For registered works, statutory damages are capped at $15,000 for each work infringed whereas the recovery for unregistered works is capped at $7,500, "or a total of $15,000 in any 1 proceeding." 40 Regardless of the amount of claims a party brings, the total monetary recovery in a single proceeding may not exceed $30,000. 41 This figure excludes attorneys' fees, which can be awarded upon a finding of bad faith and is capped at $5,000. 42 The CCB can also include "a requirement to cease conduct." 43 Opportunities for appeal from CCB decisions are specifically limited to maintain the CCB's purpose as a streamlined alternative to federal litigation. Parties can require reconsideration of a Board decision before the same Board "based on (a) a clear error of law or fact material to the outcome, or (b) a technical mistake." 44 If such a request is denied, parties can request the review of the final determination by the Register of Copyrights within thirty days of the denial. 45 Appeals to a federal district court are extremely narrow, allowed only where the Board "(a) issued a determination resulting from fraud, corruption, misrepresentation, or other misconduct, (b) exceeded its authority or failed to render a final judgment, or (c) issued a determination based on default or failure to prosecute due to excusable neglect."

A. A ROADMAP FROM THE CONSTITUTION TO PRESENT JURISPRUDENCE
The Appointments Clause of the Constitution empowers the President to appoint "Officers of the United States."47 Deciding who is an Officer of the United States is often the subject of litigation. Foundational Appointments Clause cases like Buckley v.
Valeo and Freytag v. Comm'r of Internal Revenue provide guidelines in distinguishing an "employee" from an "officer." 48 Slightly more complex is the principal/inferior officer line-drawing exercise, as the seminal case Morrison v. Olson illustrates. 49 Appointments Clause challenges remain a common avenue to overturn decisions. The D.C. Circuit case Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd. provides a notable look at an Appointments clause challenge in the copyright context. 50 And recently in Lucia v. SEC and United States v. Arthrex, the Court has demonstrated its willingness to examine potential Appointments Clause issues. 51 The Court takes a fact intensive look in Appointments Clause cases and examines the responsibilities and authority of the Agency employee or officer at question. Often, the Court, as in Lucia, looks to see if a particular employee or officer wields federal judge-like power. 52 Other times, as the Court did in Arthrex, it places great emphasis on the finality and reviewability of the decisions issued by an officer. 53 Thus, the Appointments Clause doctrine can be unruly and changeable, but in any Appointments Clause challenge, the Court looks to previous decisions and makes comparisons. The remainder of this section examines foundational cases and takes an in-depth look at the key features of the doctrine. Finally, the section concludes that CCB officers are likely inferior officers given where the caselaw currently stands.

B. EMPLOYEE V. OFFICER
The first task often performed in an Appointments Clause analysis is to distinguish between "officers" and "employees." Two foundational cases, Buckley and Freytag, guide the analysis, providing the courts with the "significant authority" standard. 54 First, the challenge in Buckley centered around the Federal Elections Commission ("FEC") as established by the Federal Election Campaign Act of 1971 and amended in  1974. 55 The Act provided the FEC's eight-member body with "extensive rule-making, enforcement, and adjudicatory powers." 56 The Supreme Court specifically noted that FEC's enforcement power was "both direct and wide ranging" including the possibility of "institut[ing] a civil action for (i) injunctive or other relief." 57 The Court found that the FEC commissioners were "at the very least . . . inferior officers" and held their appointments unconstitutional. 58 In perhaps the most notable line from the case, the Court wrote that "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States.'" 59 Freytag endorsed the "significant authority" test when the Supreme Court analyzed whether the Chief Judge of the U.S. Tax Court had the constitutional authority to appoint "special trial judges" to the court. 60 These special trial judges ("STJs") were "authorized to hear (1) certain prescribed proceedings, in which the STJs were allowed to resolve disputes, and (2) any other proceeding which the chief judge may designate, in which the STJs could prepare only proposed findings and a proposed opinion (referred to as a subsection (b)(4) proceeding)." 61 The Court reiterated the "significant authority" language from Buckley and held that the STJs wielded "significant discretion" and thus were inferior officers. 62

C. PRINCIPAL VS. INFERIOR OFFICERS: AN EXERCISE IN LINE-DRAWING
The next common step in an Appointments Clause challenge-distinguishing between principal and inferior officers-is more challenging and unruly than is delineating between an officer and employee. Usually, the principal/inferior officer analysis begins with Morrison v. Olson. 63 The Court in Morrison analyzed the status of an independent counsel appointed by the Attorney General to "investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws." 64 If the Attorney General ("AG") found reasonable grounds to continue an investigation of a government official, the AG was required to apply to the "Special Division" to appoint an independent counsel. 65 The Special Division was a newly created court that "appointed the counsel and defined the counsel's prosecutorial jurisdiction." 66 Once appointed, the independent counsel had a wide range of latitude, including "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." 67 Notably, the Act vested the AG with removal powers, albeit on a limited basis for "good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties" 68 The Court ultimately concluded that the independent counsel was an inferior officer based on several factors. 69 Perhaps most importantly, the Court stressed that the independent counsel was removable by a higher executive branch official, the AG. 70 The Court also noted that the independent counsel was empowered with "only certain, limited duties." 71 The Court described the independent counsel as possessing "limited jurisdiction and tenure." 72 Concluding, the Court wrote "these factors relating to the 'ideas of tenure, duration . . . and duties of the independent counsel . . . [are] sufficient to establish that [the independent counsel] is an 'inferior' officer in the constitutional sense." 73 The Morrison Court acknowledged that the line between inferior and principal officer is "far from clear." 74 Not surprisingly, the Court again engaged in another difficult line drawing exercise in Edmond v. United States. 75 In Edmond, the Court considered "whether the Secretary of Transportation can lawfully appoint civilian members of the Coast Guard Court of Criminal Appeals." 76 The ability of the Secretary of Transportation to appoint these civilian adjudicators hinged on whether these members of the court were principal or inferior officers. 77 The Court held that members of the Coast Guard Court of Criminal Appeals were inferior officers and attempted to provide a guideline for principal/inferior officer analysis. 78 This guidepost in Edmond was supervision. 79 The Court described inferior officers as those administrative officials who wield significant authority and "whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate." 80 The civilian court members checked enough boxes for the Edmond Court to be comfortable characterizing them as inferior officers. Although this case can be overlooked because of the recent Arthrex opinion, an in-depth analysis of this case may provide some insight into how the Court might analyze a possible Appointments Clause challenge to the CCB.
In Intercollegiate, the D.C. Circuit considered a challenge to the constitutionality of the Copyright Royalty Judges ("CRJ") of the Copyright Royalty Board. 84 The Copyright Royalty and Distribution Reform Act of 2004 established the Copyright Royalty Judges program in the Library of Congress. 85 The Librarian of Congress appoints three CRJs to serve staggered six-year terms. 86 The CRJs "oversee the copyright law's statutory licenses, which permit qualified parties to use multiple copyrighted works without obtaining separate licenses from each copyright owner." 87 The CRJs also "determine and adjust royalty rates and terms applicable to the statutory copyright licenses" and "oversee distribution of royalties deposited with the Copyright Office." 88 The CRJs possessed the authority to issue final rate determinations and possessed strong removal protections. 89 The CRJs were protected with good-cause-like removal protections. 90 The Librarian of Congress could remove CRJs only for (1) violations of standards of conduct like financial conflicts of interest, (2) misconduct, or (3) neglect of duty. 91 Furthermore, the Librarian of Congress could only indirectly supervise CRJs by approving various procedural regulations and "overseeing various logistical aspects of their duties." 92 Lastly, the Librarian possessed arms-length control over the CRJ by way of the Register of Copyrights, who possessed the ability to "to interpret the copyright The D.C. Circuit found the CRJs were principal officers and held that the structure of the CRB violated the Appointments Clause. 94 The D.C. Circuit emphasized the broad impact of CRB determinations and strong removal protections afforded to CRJs. The court noted that CRJ ratemaking decisions "have considerable consequences" and that "billions of dollars and the fates of entire industries can ride on the Copyright Royalty Board's decisions." 95 The Register of Copyrights' control over ratedeterminations was "quite faint." 96 Moreover, the removability protections of the CRJs, limited to misconduct or neglect of duty, were unlike the protections afforded to the civilian court members of Coast Guard Court of Criminal Appeals in Edmond.
The D.C. Circuit's remedy solely focused on CRJ's removability protections. The court noted that "[o]nce the limitations on the Librarian's removal authority are nullified, they would become validly appointed inferior officers." 97 The court also quickly addressed the constitutional status of the Librarian of Congress, holding that the "Librarian is a Head of Department who may permissibly appoint the Copyright Royalty Judges." 98

The Roberts Court's look at the Appointments Clause: Lucia and Arthrex
The Roberts Court, armed with some new tools on how to tackle Appointments Clause cases, made two notable recent decisions in Lucia v. SEC and United States v.
Arthrex. 99 In Lucia, the Court considered the constitutionality of the Administrative Law Judge ("ALJ") system for the United States Securities and Exchange Commission ("SEC"). 100 SEC staff members, not the Commissioners, select five ALJs. 101 The ALJs presiding over SEC enforcement actions have "extensive powers" comparable to "that of a federal district judge conducting a bench trial." 102 The Commission can review ALJ decisions "either upon request or sua sponte." 103 However, if the Commission elects not to review an ALJ decision, it issues an order deeming the ALJ decision "the action of the The Court concluded that the SEC ALJs were officers, not employees, and thus were not validly appointed. 105 The Court likened the SEC ALJs to the STJs at issue in Freytag and claimed that "Freytag says everything necessary to decide this case. 106 Like the STJs, the SEC ALJs wield "significant discretion" when carrying out "important functions" and have the ability to shape "fair and orderly adversarial hearings." 107 In addition to the federal judge-like powers the SEC ALJs wield, the Court noted that these ALJs receive a career appointment "to a position created by statute, down to its 'duties, salary, and means of appointment.'" 108 Justice Sotomayor dissented from the majority in Lucia, writing separately that the SEC ALJs were not officers primarily "because they lack[ed] final decision-making authority." 109 Sotomayor stressed the Commission's role throughout ALJ proceedings, specifically that the Commission "can review any initial decision" and can decide to "accept[] evidence itself or refer a matter to an ALJ." 110 Notably, both Justice Sotomayor's dissent and Justice Breyer's concurrence left some ambiguity about the court's decision on the constitutionality of the SEC ALJ's "for cause" removal protections. 111 The Court's most recent foray into the Appointments Clause came in United States v. were officers and unconstitutionally appointed, but disagreed with the appropriate remedy, bluntly stating that this remedy "satisfied no one." 118 In crafting a new remedy, the Court focused on the reviewability of APJ decisions. 119 Chief Justice Roberts, writing for the majority, held that the APJs wielded "unreviewable authority" during IPR review that "is incompatible with their appointment by the Secretary to an inferior office." 120 The Court emphasized that there lacked a clear "chain of command" and that the APJs possessed unchecked authority without "review by their nominal superior or any other principal officer in the Executive Branch." 121 The Court provided a new remedy, effectively turning the APJs into clear inferior officers. 122 The Court gave the USPTO Director the discretionary power to review PTAB decisions and "upon review, may issue decisions himself on behalf of the Board." 123 Notably, the majority did not delve into the Government's argument contending that "at-will removal by the Secretary [of Commerce] would cure the constitutional problem." 124 The majority simply noted that review by the USPTO Director "better reflects the structure of supervision within the PTO and the nature of APJs' duties." 125

E. COPYRIGHT CLAIMS OFFICERS ARE INFERIOR OFFICERS
The Copyright Claims Officers are likely officers, not employees, because they wield significant authority and exercise significant discretion. Like the STJs in Freytag, these officers can manage cases before them and set parameters for hearings. 126 Copyright Claims Officers "manage proceedings, make evidentiary determinations, oversee discovery, and conduct hearings." 127 Like the Copyright Royalty Board's rate making authority, the Copyright Claims Officers' ability to issue a final determination on whether a respondent infringed a claimant's right could impose significant financial penalties. 128 Copyright Claims Officers wield the ability to make final determinations like the SEC ALJs in Lucia. 129 These officers can also "make determinations on copyright infringement claims and award monetary damages . . . independently without consulting the Register of Copyrights on the facts of any case." 130 While Copyright Claims Officers decisions do not have precedential effect, there are limited opportunities to appeal CCB decisions. This increases the likelihood that determinations by the copyright claims officers will be final. Next, looking at whether the Copyright Claims Officers are principal or inferior officers is a closer call, but they are likely categorized as inferior officers. 131 First, the Librarian of Congress appears to have the ability to remove a copyright claims officer at will. 132 The CASE Act language mirrors "the rewrite of the removal language in 17 U.S.C. section 802(i) ordered by the D.C. Circuit in [Intercollegiate] to remedy the Appointments Clause problem." 133 Second, the Librarian of Congress can influence the Officers via the Register of Copyrights. 134 The Officers are "under the general direction of the Register of Copyrights." 135 The Register recommends copyright claims officers that the Librarian approves. 136 While the Officers may not consult with the Register on specific facts of a case, the officers can consult with the Register "on general issues of law." 137 The Officers are also subject to performance appraisals. 138 These provisions provide significant avenues for the Librarian to directly influence the Copyright Claims Officers, making them inferior officers.

A. A ROADMAP OF THE IMPORTANCE OF ARTICLE III IN THE PUBLIC RIGHTS DOCTRINE AND CONSENT TO NON-ARTICLE III COURTS
Article III of the Constitution establishes the judicial branch of the federal government and enables the Supreme Court and lower courts to hear cases and controversies." 139 As Professor Aistars notes, "despite this constitutional directive for 131. Professor Russell W. Jacobs similarly concludes that copyright claims officers would likely be found to be inferior officers. "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in separation of powers and a judiciary independent of political influence, over the last century and a half, innumerable institutions and agencies have been created by Congress to adjudicate a variety of disputes in special tribunals and agencies outside the federal court system." 140 This section examines the evolution of the public rights doctrine and distills from the caselaw a guide to determining whether a right is a private or public. The Court initially took a rigid approach when outlining the public rights doctrine, illustrated in Murray's Lessee v. Hoboken Land Improvement Co. 141 However, since Thomas v. Union Carbide Agric. Prods. Co., the Court has increasingly taken a pragmatic approach when deciding whether a right is public or private. 142 Regardless of how a right is defined, the Court has consistently authorized cases to proceed in non-Article III courts when the parties voluntarily waive their rights to be heard by an Article III court. 143 Finally, although the Court has never explicitly examined whether copyright is a private or public right, the section concludes that copyright is likely a private right because of its pre-statutory origins.

B. THE EVOLUTION OF THE PUBLIC RIGHTS DOCTRINE
The Court's first venture into the constitutionality of a non-Article III court came in Murray's Lessee v. Hoboken Land Improvement Co. 144 At issue in Murray's Lessee was a "summary procedure, without benefit of the courts, for the collection by the United States of moneys claimed to be due from one of its own customs collectors." 145 Importantly, the Murray's Lessee decision is credited with creating the "public rights doctrine," first described as matters "involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are office. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers and consuls;-to all cases of admiralty and maritime jurisdiction;-to controversies to which the United States shall be a party;-to controversies between two or more states;-between a state and citizens of another state;-between citizens of different states;-between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. " Benson, where the Court upheld the ability of Congress to establish "legislative" courts. 147 The Crowell Court defined public rights as matters "between the government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments." 148 The public rights doctrine has evolved in a confusing manner throughout modern jurisprudence and the Court often has a difficult time drawing the line between a public and a private right. After Crowell, the Court appeared to take a more pragmatic approach rather than undertake formal classification exercises, as illustrated in Thomas v. Union Carbide Agric. Prods. Co. 149 In Union Carbide, the Court upheld the constitutionality of a binding arbitration process that the EPA used to resolve disputes among participants in the Federal Insecticide, Fungicide, and Rodenticide Act's registration scheme. 150 Here, Justice O'Connor described the public rights doctrine as reflecting "a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that 'could be conclusively determined by the Executive and Legislative Branches,' the danger of encroaching on the judicial powers is reduced." 151 Two relatively recent cases illustrate a slightly different approach than the approach the Court took in Union Carbide, indicating a possible return to a Crowell-like formal approach. First, in 2011, the Court in Stern v. Marshall analyzed whether a Bankruptcy Court judge could enter final judgment on a tortious interference counterclaim. 152 Chief Justice Roberts, writing for the majority, wrote that "it is still the case that what makes a right 'public' rather than private is that the right is integrally related to particular Federal Government action." 153 Following this guidance, the majority held that the tortious interference counterclaim did not fall under the public rights exception and thus the Bankruptcy Court lacked the constitutional authority to enter a final judgment. 154 However, possibly offering an additional factor in the analysis, Chief Justice Roberts noted that this case did not present "a situation in which Congress devised an 'expert and inexpensive method for dealing with a class of questions of fact which are particularly suited to examination and determination by an administrative agency specially assigned to that task. ' Jumping ahead to 2018, in Oil States Energy Servs. v. Greene's Energy Grp., the Court addressed the public rights doctrine in an intellectual property context. 156 Specifically, the Court analyzed whether the USPTO's inter partes review before the PTAB violates Article III. 157 The Court noted that in determining "whether a proceeding involves an exercise of Article III judicial power" the Court distinguishes between public and private rights. 158 Justice Thomas, writing for the majority, stated that the Court "has not 'definitively explained' the distinction between public and private rights." 159 But, rather than adding to the "various formulations" of the doctrine, Justice Thomas reiterated the Crowell test emphasizing matters "arising between the government and others." 160 Under this rubric, the Court held that "[i]nter partes review falls squarely within the public-rights doctrine." 161 Justice Thomas and the majority explicitly stated that "the decision to grant a patent is a matter of public rights" and that inter partes review "involves the same basic matter as the grant of the patent." 162 Furthermore, the majority disagreed with Justice Gorsuch's dissent which found that Article III courts' traditional jurisdiction over patent validity foreclosed the possibility of other courts engaging in the same adjudication. 163

C. CONSENTING TO NON-ARTICLE III COURTS
The classification of a right as public or private does not end the constitutional analysis of whether a matter can proceed before a non-Article III court. In contexts like proceedings before magistrate judges or non-bankruptcy courts, courts often consider whether the parties voluntarily consented to a non-Article III tribunal. 164 The Supreme Court has demonstrated a willingness to allow cases to proceed before non-Article III courts, even when they would normally be heard by an Article III court, when the parties voluntarily waive their right to be heard before an Article III court. 165 In 2015, the Court in Wellness Int'l Network, Ltd. v. Sharif, held that "Article III is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge." 166 Justice Sotomayor, writing for the majority, relied heavily on  Commodity Futures Trading Comm'n v. Schor to support the conclusion that "the entitlement to an Article III adjudicator is 'a personal right' and thus ordinarily 'subject to waiver.'" 167 Notably in Sharif, the Court applied a pragmatic, Union-Carbide approach to address the Article III concerns. 168 Justice Sotomayor focused her analysis on the "practical effect" that allowing proceedings before this bankruptcy court "[would] have on the constitutionally assigned role of the federal judiciary" rather than reaching a decision based on "formalistic and unbending rules." 169 Justice Sotomayor clarified the jurisprudence regarding Article III, writing that "the cases in which this Court has found a violation of a litigant's right to an Article III decisionmaker have involved an objecting defendant forced to litigate involuntarily before a non-Article III court." 170 The majority in Sharif emphasized the structural purpose of Article III. 171 Justice Sotomayor summarized decades of Article III jurisprudence stemming from Schor and Peretz, writing that Article III "bar[s] congressional attempts to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating constitutional courts and thereby prevent[ing] the encroachment or aggrandizement of one branch at the expense of the other." 172 Furthermore, the majority wrote that "allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process." 173 Consent may also be implied, at least in the context of proceedings before a magistrate judge. 174 The 2003 case Roell v. Withrow involved a proceeding before a magistrate judge in which the respondent argued that he did not provide consent. 175 The majority here found that the Federal Magistrate Act of 1979 intended to permit implied consent from the parties. 176 In accepting implied consent, the court noted that this promoted "judicial efficiency" and "substantially honored" the Article III right. 177

D. COPYRIGHT AS A PRIVATE RIGHT
The evolution of the public rights doctrine necessitates a look at whether copyright is a public or private right. While the Court has never explicitly addressed this issue, Justice Thomas' opinion in Feltner v. Columbia Pictures Television provides some insight into how the Court might likely view copyright as a private right. 178 In Feltner, the Court held that the "Seventh Amendment grants a right to a jury trial when a copyright owner elects to recover statutory damages." 179 In reaching this holding, Justice Thomas discussed the pre-statutory origins of copyright. Justice Thomas wrote that "the common law and statutes in England and this country granted copyright owners causes of action for infringement." 180 Furthermore, Justice Thomas noted that "statutory copyright protections were enacted even before adoption of the Constitution." 181 The eventual passage of the Copyright Act of 1970 did not "change[] the practice of trying copyright actions for damages in courts of law before juries." 182 The historical recognition of copyright remedies supports the proposition that copyright is a private right.
Copyright does not necessarily implicate the government. Yes, the USCO plays a role in registration, and a work must either be registered or denied registration in order to bring an infringement claim. 183 However, copyright protection begins automatically as soon as an original work of authorship is fixed within a tangible medium of expression, and registration does not create entitlement. 184 Unlike the USPTO's granting of a patent, the USCO does not grant a copyright to a creator. The USCO's minimal involvement and pre-Constitution origins of copyright strongly indicate that copyright is a private right.

V. OPPOSITION GROUPS AND CHALLENGES
Groups that have opposed the CCB, like EFF, Public Knowledge, and the ACLU raise several constitutional concerns, perhaps most notably that: (1) Congress cannot assign some copyright disputes to an administrative tribunal, (2) CCB officers wield "nearly unreviewable authority" (like the concern raised about PTAB judges in Arthrex), (3) the CCB fails the public rights doctrine test, and (4) the CCB dilutes the fair use defense. 185 Critics point to Stern for the proposition that "Congress does not have power under Article I of the Constitution to establish tribunals to adjudicate certain types of claims because such claims can only be adjudicated by Article III courts." 186 Regardless of whether copyright is classified as a public or private right, these critics argue that CCB is unconstitutional because it would adjudicate "copyright infringement claims over which Article III courts have long had exclusive jurisdiction." 187 CCB detractors also allege that the CCB wields "nearly unreviewable authority." 188 This problem is exacerbated because of concerns that the USCO is captured and is biased towards copyright holders. 189 Regardless of the speculation of USCO bias towards copyright holders, critics are correct that there are limited opportunities to review CCB decisions. 190 The Court's emphasis on the lack of reviewability of APJ decisions in Arthrex signals that the Court may side with critics on this issue.
As discussed above, copyright is likely a private right. 191 Thus, critics allege that since Article I tribunals can only adjudicate public rights, the CCB "fails the public rights doctrine test." 192 Furthermore, even if the copyright is a public right, the lack of ability to appeal a CCB decision to an Article III court leads to the CCB failing the public rights doctrine requirements. 193 Lastly, and perhaps most importantly, is the concern that the CCB will dilute the fair use defense. 194 Fair use in copyright law is a complicated, mixed question of law and fact and is often the crux of a copyright litigation. 195 Public Knowledge and other critics rightly note that "fair use is not static; courts are constantly adapting the four factors to accommodate new uses, formats, technologies, and concerns." 196 Reviewing the four fair use factors often involves a complex deep dive into the underlying facts and extensive discovery in a case. 197 Critics argue that the CCB is not equipped to deal with Opposition groups raise other concerns that are unaddressed in this Note. These arguments include that the CCB violates the due process rights of litigants, possesses overly broad jurisdiction, has inadequate opt-out procedures that will lead to a "default judgment mill," and will create a new breed of "copyright trolls." See Aistars, supra note 140, for a response to most of these concerns.
186 complicated fair use cases and that "the CCB should dismiss cases that raise a fair use defense for lack of subject matter jurisdiction." 198 The possibility that CCB tribunal judges would create novel fair use interpretations poses strong constitutional concerns. A truncated fair use analysis also raises the concern that the CCB officers are diluting the fair use defense for parties before the tribunal.

VI. DEFENSE OF THE CONSTITUTIONALITY OF THE CCB
The opposition groups have valid concerns and given the strong opposition to the passage of the CASE Act, a legal challenge from these groups is likely. However, ultimately, the CCB as currently constructed is constitutionally valid and likely to withstand potential renewed attacks.
First and foremost, as proponents often note, the voluntary nature of the CCB alleviates Article III concerns. 199 Like the bankruptcy proceedings in Sharif, parties provide their consent to proceedings before the CCB because a claimant voluntarily selects the CCB and the respondent can opt-out and proceed in federal court. Should the Court follow a pragmatic approach like it did in Sharif, a party waiving the right to proceed in federal court and opting for the CCB does not pose any Article III issue. As the USCO noted in its 2013 report, the "Court has had the greatest difficulty with the broad mandate of the bankruptcy courts, including those courts' ability to decide state law claims that, even if related to a bankruptcy proceeding, are not essential to the process." 200 This concern was apparent in Sharif. But unlike bankruptcy courts, the CCB has a small mandate, adjudicating over small copyright claims that would not generally be pursued in federal courts. Thus, the voluntary nature of proceedings before the CCB should outweigh any Article III concerns.
Second, as discussed above in Part III Section E, Copyright Claims Officers are likely inferior officers. Since the Librarian of Congress can remove the Officers seemingly at will and can exercise significant authority over the Officers via the Register of Copyrights, this alleviates any possible appointments clause issue. 201 The Court's more recent look at the Copyright Office through the lens of an Appointments Clause challenge was Intercollegiate. This case is a plausible starting point for a challenge, and the Court will likely be able to distinguish the CRJs from the Copyright Claims Officers and observe that the CASE Act language mirrors the remedied CRJ language. 202 Third, although copyright is likely a private right, the Court has yet to expressly address this issue and it may treat copyright as a public right because of its historic kinship with patent law. Furthermore, the House of Representative suggested in its Report on the CASE Act that "at least for some purposes, the case law suggests that the grant of a copyright should be considered a public right." 203 The Court often draws parallels between patent and copyright law and did so recently in the 2020 case Allen v.
Cooper, where the Court held that the IP Clause (Article 1, Section 8, Clause 8) "could not provide the basis for an abrogation of sovereign immunity." 204 Justice Kagan, writing for the majority, heavily relied on precedent in a patent infringement case, Florida Prepaid Post Secondary Educ. Expense Bd. v. College Sav. Bank. In Florida Prepaid, the Court examined the Patent Remedy Act, which, like the Copyright Remedy Clarification Act of 1990 (CRCA) at issue in Allen, sought "to put 'states on the same footing as private parties." 205 The Court has treated copyright law and patent law as interchangeable in numerous areas. For example, in the seminal copyright case Sony Corp. of America v. Universal City Studios, the Court explicitly relied on the historic kinship between the two areas in developing contributory infringement in the copyright context. 206 In Sony, the Court "engrafted an express provision from the Patent Act of 1952 onto the Copyright Act of 1976." 207 The Sony court imported patent law's staple article of commerce doctrine "into the realm of copyright law." 208 Thus, should the Court directly address this issue, it will likely draw parallels to patent law and may ultimately decide that like patents, copyrights are public rights because of the common origin and similarities between the two areas. Therefore, this particular issue may weigh against a finding of constitutionality.
Finally, regarding the dilution of the fair use defense, CCB determinations lack precedential effect, thus minimizing this concern. In situations where there are circuit splits or conflicting judicial precedent, the CCB "shall follow the law of the Federal jurisdiction in which the action could have been brought if filed in a district court," or if the action could be brought in multiple jurisdictions, "the jurisdiction that the Copyright Claims Board determines has the most significant ties to the parties and conduct at issue." 209 This prevents CCB Officers from creating "new law" or altering substantive copyright law in any way. Lastly, in the unusual scenario where a respondent raises a novel fair use defense that the CCB cannot properly evaluate because the tribunal lacks proper evidence, the "the case could be dismissed without prejudice to be litigated in federal court." 210

VII. POSSIBLE APPROACHES THE SUPREME COURT MAY TAKE
Since there are similarities between the CCB and PTAB, the Court may invoke an Arthrex style remedy like making the Librarian of Congress, a presidentially nominated and Senate confirmed position, "the reviewer of the claims board decisions." 211 However, as discussed, there are fundamental differences between Copyright Claims Officers and the PTAB APJs that make reviewability less of a concern. 212 Furthermore, the Copyright Office is housed in the Legislative Branch, rather than the Executive Branch like the USPTO, thus making Arthrex less applicable. 213 The Court may also impose greater opportunities for appealing CCB decisions to federal courts if it sees an Article III challenge. However, adding greater opportunities for appeal would likely be a fatal blow to the CCB. 214 The purpose of the CCB is to provide copyright holders with a streamlined, cost-effective version to federal court litigation. Adding the possibility of an appeal to a federal court imposes additional expenses on litigants and adds further uncertainties for those seeking to enforce their copyright protections against alleged infringers.
The Court may also view the CCB as "an opt-in arbitration service" and see no constitutional issue. 215 Proceedings before the CCB share similarities with arbitration and other alternative dispute resolution forums. Like in arbitration models, participants can consent to participate in CCB and waive their rights to be heard in federal court and potentially by a jury. 216 The limited opportunities to appeal CCB decisions are similar to those afforded in Section 10 of the Federal Arbitration Act. 217 The Supreme Court has not stated that the Federal Arbitration Act "threatens the integrity of the judicial branch." 218 Furthermore, unlike some private arbitration venues, the CCB is "subject-matter limited to statutory copyright law, rather than the common law." 219 Thus, arguably the Court could see no problem with the CCB hearing limited small copyright claims and not even grant certiorari to a possible challenge to the CCB.

VIII. CONCLUSION
The launch of the Copyright Claims Board brings the possibility that opposition groups will renew their critiques of the CCB and at some point challenge the tribunal's constitutionality in federal court. 220 The growing use of Appointments Clause COLUMBIA JOURNAL OF LAW & THE ARTS [46:1 challenges by parties as a mechanism to review unfavorable decisions, as demonstrated by Arthrex and Lucia, show that one of the main critiques of the CCB will likely be that it wields unreviewable authority and its officers are improperly appointed. However, the CCB officers are likely inferior officers and the Librarian of Congress possess adequate removal and supervisory powers over the officers, distinguishing this situation from the challenges in Arthrex and Lucia.
A constitutional challenge to the CCB could force the Court to finally tackle the question of whether copyright is a public or private right. Justice Thomas' opinion in Feltner and the pre-statutory origins of copyright suggest that it is a private right. However, a finding of copyright as a public right would not be dispositive because the voluntary nature of the proceedings mitigates concerns with a non-Article III court adjudicating a public right. A claimant chooses the CCB over federal court and a respondent can decide to opt-out, thus providing clear and uncoerced consent to litigate the dispute before the CCB. Thus, this brings the CCB in line with modern Article III jurisprudence established in Sharif.
The CCB is a long-sought-after alternative dispute resolution forum for copyright holders with small claims seeking to enforce their rights against possible infringers. Commentators properly question how many people will actually participate in the CCB and whether it will meet its goal of providing a streamlined, cost-efficient alternative to federal court litigation. 221 Time will provide an answer to that, but for now, the passage of the CASE Act and the establishment of the CCB demonstrates a laudable step to finally providing creators with small copyright infringement claims a true remedy for their rights.