We’ve been talking about the problems of the US government setting up a copyright trolling small claims court for over a decade now. But, Congress finally passed a law to create one (with no debate and no hearings) by sneaking it into a “must-pass” funding bill at the end of the year in 2020. It’s taken a year and a half but the Copyright Office is finally set to launch it sometime next week.

Of course there are two big questions associated with it: um, will anyone actually use it and… is it constitutional? Let’s deal with the bigger question first. In the run up to the law passing, lots of people highlighted the constitutional problems of the bill, mainly in whether or not Congress can create adjudicative bodies outside of the courts. There is a decent history of the courts saying no, and those actually got a boost recently from the 5th Circuit (which, yes, is all kinds of nutty most of the time) in the Jarkesy case which effectively argued that the SEC’s administrative law judges violate the Constitution, as taking away the right to a jury trial via an Article III court. Possibly the Copyright Claims Board (CCB) tries to get around that with its “opt-out” process, but given the way conservative judges seem not just eager, but willing to tear down the administrative state, I can see a pretty clear path to this Supreme Court invalidating the entire CCB.

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