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In the United States, a claim to ownership of a copyright must be registered with the copyright office before a civil lawsuit can be filed against a violator. (However, the violation could happen before the registration.) By law, the Copyright Office is a department within the Library of Congress. That means it is within the legislative branch of the federal government. Since its function is executive rather than legislative, could that situation be considered unconstitutional?

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While the argument you make is straight forward, it is hard to imagine who would ever have standing to challenge the law. Who can legitimately argue that they are harmed in any way by having to register with an agency housed in the legislative branch rather than in the executive branch?

Also, there is a legitimate argument that the Library of Congress should be in the legislative branch as a research tool for Congress, and there is a legitimate argument that the Copyright office should be in the Library of Congress because that is how the Library of Congress gets its comprehensive collection of research resources, which Congress in turns uses to make policy.

The Executive branch does not have a monopoly on implementing U.S. laws and indeed, before the copyright registrar function was placed in the U.S. Congress, it was vested in the judicial branch with the clerks of the U.S. District courts, and not in the executive branch.

Furthermore, the agency's director is appointed by the Librarian of Congress, who in turn is appointed by the President with the consent of the Senate despite its location within Congress on the organizational chart of the U.S. Government, so it does not violate the Appointments Clause of Article II, Section 2, Clause 2 of the United States Constitution. In substance, the Copyright Registrar is in the direct chain of command from the President in terms of appointment authority, despite being located in the legislative branch for purposes of day to day management of the Library of Congress and budget categorization.

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    You say "that is how the Library of Congress gets its comprehensive collection". Are you referring here to the requirement that owners of copyrights in works distributed to the public deposit two copies with the Library of Congress? Couldn't that be done even if the Copyright Office were in one of the departments of the executive branch? – Michael Hardy Jun 6 '17 at 17:39
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    @MichaelHardy Yes. It could be done, but it is easier bureaucratically not to have to transfer public deposits from one branch to another of the government on a routine basis. It would make the accounting more difficult, among other things. It is hard to know what interest of any individual would be served by having it located elsewhere. – ohwilleke Jun 6 '17 at 17:43
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What do you mean by an "executive" function? If you simply mean doing things rather than creating laws, that can't be right. For example, the Congress and the judiciary both have police.

  • Universities employ police officers; private companies employ police officers. That doesn't mean those private companies are performing functions of government. Courts employ police in order that courts can perform their judicial function; Congress employs police in order that Congress can perform its legislative function; universities employ police in order that they can perform their function as institutions of learning. – Michael Hardy Jun 6 '17 at 17:32
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    Yup. Exactly my point. So can you say what you mean by "executive function"? – Elena Jun 6 '17 at 17:40
  • The copyright office does not simply assist Congress somehow in performing its legislative function. – Michael Hardy Jun 6 '17 at 20:06
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    Yes. I understand that and that is central to the point I'm making. And it doesn't help me understand what you mean by "executive" function. – Elena Jun 6 '17 at 20:45

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