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

Abstract

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.

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.