The U.S. Court of Appeals in Washington D.C. declined to rule on a motion that questioned the constitutionality of the Copyright Royalty Board. The motion was filed late by Royalty Logic during an appeal hearing on CRB's royalty rate determination for internet radio.

In failing to make a decision on the motion, the Federal Appeals Court noted that the late motion was filed three months after Royalty Logic's opening brief.

Royalty Logic argued in its motion that the CRB Judges needed to be appointed by the president, or in a court of law or by a department head in the Federal Administration. The Appeals Court noted that the Libarian, who oversees The Library of Congress, is not the president or a court of law but it decided not to consider Royalty Logic's argument that the Librarion's position is also not a department head, and therefore unconstitutional.

In not making a ruling on the decision, the Appeals Court said, "We need not resolve the dispute. As appellees point out, Royalty Logic has forfeited its argument by failing to raise it in its opening brief."

In a statement on the latest turn of events, National Music Publishers Assn. president and CEO David Israelite said, "Today's decision is a sigh of relief for the music industry, preventing what would have certainly been chaos in an already tenuous marketplace. While we are hopeful Congress will address any long term concerns regarding the Copyright Royalty Board, songwriters and music publishers are pleased the Board's recent rate decisions will remain as law."

But Royalty Logic said the issue of whether the CRB is constitutionally acceptable will not go away.

"The DC Circuit ducked this critically important issue, on the basis of late and supposedly inadequate briefing, even though the Court permitted RLI to raise the issue, and all parties to the proceeding agreed that it had been briefed sufficiently, said Les Watkins, senior VP of business affairs and business development for Music Reports Inc., a sister company of Royalty Logic.

"Still, it is apparent, as Judge Kavanaugh stated in his concurring opinion to the XM/Sirius ruling by the DC Circuit, that the CRB is not constitutionally appointed. The Constitutional problem will not go away -- it will either be raised in a future CRB proceeding, or it will have to be addressed by Congress."

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