The D.C. Circuit did not decide a nondelegation case last week. But while I have you, and the nondelegation doctrine and fee-setting are surely on your mind, I commend to your attention a recent article Professor Erika Lietzan: User Fee Programs. It surveys fee programs across the federal government and touches on the question whether they improperly delegate legislative power. A timely and insightful report!

The D.C. Circuit did address two very interesting issues last week: remand without vacatur, and the status of AI-generated works under the Copyright Act. (Judge Griffith will cover this week’s developments soon!)

In City of Port Isabel v. FERC, the Court had previously vacated two FERC reauthorizations (of an LNG terminal and pipeline). Brian Lipshutz covered that decision, and I’ll leave the merits to him. FERC petitioned for a panel rehearing, asking the panel to reconsider the “remedy” of vacatur. The D.C. Circuit considers two factors when deciding whether to vacate: 1) the seriousness of the order’s deficiencies; and (2) the disruptive consequences of vacatur. Here, the panel (Judge Garcia, writing for Chief Judge Srinivasan and Judge Childs) decided that “[t]he procedural steps the Commission skipped here were important, but they were not ‘fundamental.’” Therefore, the Court held that “the seriousness of the reauthorization orders’ deficiencies does not outweigh the disruptive effects of vacatur” and agreed to remand without vacatur.

In Thaler v. Perlmutter, the Court considered whether a “non-human machine” (an artificial intelligence*) could be an author according to the language of the Copyright Act of 1976. The Court decided that it could not.

Dr. Thaler made a generative AI which he named the “Creativity Machine.” This machine made a piece of art called “A Recent Entrance to Paradise.” Dr. Thaler applied for a copyright, listing the Creativity Machine as the author and himself as the owner. The Copyright Office denied his application per an interpretation of the Copyright Act that requires works to have a human author (“human-authorship requirement”). Dr. Thaler acknowledged that the work did not have a “traditional human author” but appealed to the Review Board and then to the district court, both of which ruled against him. Dr. Thaler tried to argue that the human-authorship requirement was unconstitutional and that the work could be considered “work-made-for-hire” under another section of the Copyright Act. He was denied on both grounds and appealed.

Interpreting the Copyright Act of 1976 de novo, the panel decided that the word “author” means “human.” Judge Millett (joined by Judges Wilkins and Rogers) began by noting that “[t]he Copyright Office consistently interpreted the word author to mean a human prior to the Copyright Act’s passage, and we infer that Congress adopted the agency’s longstanding interpretation of the word ‘author’ when it reenacted that term in the 1976 Copyright Act.”

Per the Court, treating a machine as an author would create a lot of oddities and complications under the Act: (1) The duration of the right is premised on the lifespan of an author, usually 70 years after the author’s death. Machine authors would complicate this picture in a way not anticipated by the statute. (2) The right passes to the author’s surviving spouse or heirs, which machines do not have. (3) Ownership is transferred by signature, which machines do not have. (4) The right is protected regardless of nationality or domicile, which machines do not have. (5) The Act references the authors’ intentions, which machines do not have.

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*This post was prepared with the assistance of a very natural intelligence: my research assistant, Savannah Shoffner. Thank you, Savannah!