The May Massacre: Firings, AI, And Constitutional Crisis At The Copyright Office

These are extraordinary times. And this is an extraordinary case.

In 2020, Shira Perlmutter was appointed Register of Copyrights by Dr. Carla D. Hayden, the Librarian of Congress. Five years later, within days of each other, these highly-qualified professionals were abruptly fired by the Trump administration. Perlmutter sued the government, arguing that only the Librarian of Congress had authority to terminate her, and that it was an unconstitutional violation of separation of powers for President Trump to attempt to do so. On an emergency motion for an injunction pending appeal, the D.C. Circuit sided last week with Perlmutter, barring the administration from interfering with her continuing service as Register.

To set the stage for the court's extraordinary opinion, we begin with four extraordinary days that occurred last May.

Part 1: The May Massacre and the Aftermath

• May 8, 2025: Dr. Hayden, the first woman and the first African American to hold the post of Librarian of Congress, was fired by President Trump. At the time, White House press secretary Karoline Leavitt explained to reporters that "there were quite concerning things that she had done at the Library of Congress in the pursuit of DEI and putting inappropriate books in the library for children." Never mind that the Library of Congress is a research library that does not admit children under 16 ... and that the Librarian of Congress doesn't choose which children's books are available at local libraries. Was it Dr. Hayden's commitment to providing more opportunities for people of color to add their histories to the library - in conflict with President Trump's war on wokeness - that got her sacked? Or maybe it was because, in 2022, she allowed Lizzo to play President James Madison's 200-year-old crystal flute onstage at a concert, which upset some conservatives? We may never know the full story.
• May 9, 2025: The Copyright Office issued a "prepublication version" of its report on generative AI training. The report concluded that some uses of copyrighted works to train LLMs were likely to qualify as fair use, but others would require licensing. This was the Copyright Office's third report on AI, and the only one released on a prepublication basis. Why the rush to publish? Were Perlmutter and her staff worried that the new Librarian of Congress appointed by Trump might demand changes to the report? Perhaps.
• May 10, 2025: Perlmutter received a curt, two-sentence email from the White House, informing her that she was "terminated effective immediately." She contends that her firing was a direct result of the administration's disagreement with the Copyright Office's AI report. That claim is hardly far-fetched: the administration has made it clear that "winning the AI race" was non-negotiable, and the report's suggestion that AI platforms may be guilty of infringement when they use copyrighted content for training arguably is at odds with that agenda. Maybe Rep. Joe Morelle (D-N.Y.) was not far off the mark when he colorfully quipped that Perlmutter had been axed for refusing "to rubber-stamp Elon Musk's efforts to mine troves of copyrighted works to train AI models"?
• May 12(?), 2025: Trump invoked the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345(a), to appoint Todd Blanche (Trump's former personal criminal defense lawyer who already was serving as the Acting Deputy Attorney General) as the Acting Library of Congress. Blanche then named Justice Department official Paul Perkins as Acting Register of Copyrights.

Where do things stand today? Perlmutter has continued to serve in her role as Register, despite the efforts to oust her.

Part 2: The Court's Opinion

To obtain either a preliminary injunction or an injunction pending appeal, the movant must demonstrate (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent injunctive relief, (3) that the balance of equities favors an injunction, and (4) that an injunction is in the public interest. When the federal government is the opposing party, the third and fourth prongs merge.

In denying Perlmutter's motion for a preliminary injunction, the district court had focused exclusively on the irreparable harm prong and didn't consider whether Perlmutter was likely to succeed on the merits. In a 2-1 decision, the majority of the D.C. Circuit panel ruled that the district court had abused its discretion by ignoring the "unusual" and "extraordinary" features of this case that required consideration of all the factors of the preliminary injunction analysis.

A. Likelihood of Success on the Merits.

Based on its interpretation of two laws - the sections of the Copyright Act governing the Register of Copyrights and the FVRA - the majority concluded that Perlmutter was likely to succeed demonstrating that her termination was unlawful.

• The court held that the Copyright Act is clear that the Librarian of Congress, not the President, is authorized to appoint the Register. (17 U.S.C. § 701(a).) Because the statute is silent regarding the question of removal, the Librarian (not the President) has the power to remove Perlmutter. The government did not dispute this.
• The court found that Perlmutter was likely to prove that Blanche had been unlawfully appointed as Acting Librarian under the FVRA and that, therefore, he lacked authority to ratify the President's termination of her. The FVRA gives the President authority to appoint another Senate-confirmed official as the acting principal officer of an "Executive agency," subject to certain limitations. Under the FVRA, "Executive agency" means (1) "an Executive department," (2) "a Government corporation," or (3) "an independent establishment." The court concluded that the "plain language" of the statute did not support that the Library of Congress - housed as it is in the legislative branch - is an "Executive agency."
• In a footnote, the court rebuffed the government's argument, grounded in a robust interpretation of the unitary executive theory, that the President is constitutionally authorized to fire the Librarian of Congress to "take Care that the Laws be faithfully executed." (U.S. Const. art. II, § 3.)

B. Irreparable Harm

In denying Perlmutter's motion for a preliminary injunction, the district court had focused exclusively on the irreparable harm prong and relied on recent orders issued by the Supreme Court (on the so-called shadow docket) which held that the President's desire to remove an officials who exercise executive power generally outweighs the officials' interests in performing their duties. (See Trump v. Wilcoxand Trump v. Boyle.) On appeal, the court acknowledged that the loss of government employment is "normally" not enough to demonstrate irreparable harm because the plaintiff typically can be made whole through back pay. Nevertheless, when the president fires a government employee, irreparable harm can be found if there are "unusual actions relating to the discharge itself" or other "genuinely extraordinary situations" (citing Sampson v. Murray). The court found that "unusual" and "extraordinary" features of this case warranted the equitable relief that Perlmutter sought. Specifically:

Unique Role of the Register: Perlmutter, as Register of Copyrights, leads and directs the Copyright Office at a critical juncture, influencing Congress on matters of national importance (including generative AI). "The uniqueness of her role and the opportunities it gives her transcend the loss of income or embarrassment involved in the typical employment action" (citations omitted and cleaned up). Moreover, "no amount of back pay will compensate her or Congress for her interim inability to support Congress's consideration of copyright law and policy during a critical time."

Violation of Separation of Powers: The President's alleged removal of Perlmutter, motivated by disagreement with her advice to Congress, and the subsequent appointment of an executive branch official to take her place, if proven, constitutes "a grave intrusion by the President into the constitutional powers of a coordinate branch of government." The court continued:

Simply put, in "a system of checked and balanced power, the Executive has no authority to punish a Legislative Branch official for the advice that she provides to Congress."

C. Balance of Equities and Public Interest

Finally, the court found that the equities and public interest weigh in favor of Perlmutter remaining in her job.

In cases involving the removal of government officials, the Supreme Court has found that the harm to the government of being forced to allow terminated employees to remain in their positions outweighs the harm to the employees in cases where the agencies in question "exercise considerable executive power," and that the removed executive branch officials sought to "continue exercising the executive power." However, the Register of Copyrights "primarily works for Congress" and "likely does not exercise considerable or substantial executive power." As a result:

In addition, because Perlmutter continues to serve as Register at the present time, "ruling in her favor would not disrupt the work of the U.S. Copyright Office. To the contrary, it is her removal that would be disruptive." Moreover, that there is "no public interest in implementing Perlmutter's likely illegal removal." On the contrary, "the public has a profound interest in the Register's continued work."

The Dissent (Judge Walker)

Judge Walker issued a short dissent. In his view, the Register of Copyrights executed various "executive" functions, such as administering the Copyright Act, issuing registrations, maintaining deposits, rulemaking, and oversight of Copyright Royalty Judges. He emphasized that SCOTUS, "recently, repeatedly, and unequivocally" has stayed lower-court injunctions that barred the President from removing officers exercising executive power. In his view, this precedent must be applied "even if 'Perlmutter alleges that the President of the United States unlawfully removed her in a manner that violates the separation of powers."

The D.C. Circuit's decision will not be the final word. The fate of the Register, the independence of the Copyright Office, and the boundaries of presidential power all hang in the balance. (See this post.) Extraordinary times, indeed.

Perlmutter v. Blanch,No.. 25-5285, _ F.4th_ (D.C. Cir. Sept. 10, 2025)

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