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Tuesday, March 24, 2009

''DOJ Sides With RIAA'' One Day Later

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On most days you can learn a lot browsing the Internet. Yesterday probably wasn't one of those days. Consider the following evidence, which I turned up while trying to find out about the latest wrinkle in Sony BMG Music Entertainment v. Tenenbaum, No. 03-11661 (D. Mass.) -- the Department of Justice's just-filed amicus submission in that case.

Slashdot: Obama DOJ Sides With RIAA

CNET: Obama administration sides with RIAA in P2P suit

Wired: Obama Sides With RIAA, Supports $150,000 Fine per Music Track

Industry Standard: Obama's "pro-copyright industry" Department of Justice sides with RIAA's $150,000 per song penalty

The Register: Obama Sides With RIAA in P2P Fight

Billboard: Department of Justice Backs RIAA in P2P Suit

This nugget sums it up well:

"The Obama administration has sided with the recording industry in a copyright lawsuit against an alleged peer-to-peer pirate, a move that echoes arguments previously made by the Bush administration."

So much siding. Not only is President Obama dictating how the Department of Justice argues its cases (via his Nixonian DOJ remote control device), but he is doing so in service of the recording industry (hiss!), just like the Bush administration (hiss! hiss!!) did before him. Obama's probably got a thespian or two in the DOJ as well. Philosophers call this the argumentum ad hominem, the fallacy of attacking the character/situation of the person advancing an argument instead of trying to disprove the soundness of the argument. The argumentum ad hominem is a fallacious argument so potent that it is the only one I actually remember from philosophy class.

Reading all of this strangely uniform reporting, you'd be forgiven for thinking that the Department of Justice had decided to support tough statutory damages for copyright infringement because it was infested with entertainment industry lawyers.

I don't think this view of the world aligns well with reality.

First, the law in question, the Digital Theft Deterrence and Copyright Damages Act of 1999, is the law of the land. The statute increased the amount of statutory damages a court can award in a copyright case: up to $150,000 per violation in cases of willful infringement. It passed both the Senate and the House with nary a dissenting vote, and it was signed into law on Dec. 9, 1999, by President Bill Clinton, Democrat, sax player and all-around decent guy. It is, as they say, a done deal. If you want to learn how copyright law gets written in the United States, read Prof. Jessica Litman's Digital Copyright. If you want to change how copyright law gets written in the United States, visit Change Congress. I don't think the Department of Justice is the bogeyman here.

Second, the actual -- and really interesting -- questions that the district court in Tenenbaum wanted the Department of Justice's views on involved the constitutionality of Congress' decision to authorize such large statutory damage awards in a civil proceeding. The defendant is contending that the statutory damage provisions are so oppressive and unrelated to the amount of actual harm that they violate due process as well as the Eighth Amendment's prohibition of excessive fines.

When the Department of Justice fields questions like this, it doesn't write on a clean slate. It doesn't check the results of the most recent election, it doesn't consult the views of high-ranking appointed officials, and it doesn't in any way embark on a quest for the "right" outcome. Rather, the traditional view within the Department of Justice is that it has an obligation to defend the constitutionality of all federal laws, except in the rarest of circumstances. Former Solicitor General Seth P. Waxman (1997-2001) described the approach of the Solicitor General's Office like this:

Vigorously defending congressional legislation serves the institutional interests and constitutional judgments of all three branches. It ensures that proper respect is given to Congress's policy choices. It preserves for the courts their historic function of judicial review. And it reflects an important premise in our constitutional system - that when Congress passes a law and the President signs it, their actions reflect a shared judgment about the constitutionality of the statute. In the mine run of cases, it is fair to presume that the Congress that passed the legislation and the President who signed it were of the view that the law conformed to the Constitution as construed by the Supreme Court. In such cases, Solicitors General defer to Congress and the President's articulation of the constitutional "interests of the United States," as reflected in the enactment. They do not attempt to reach our own best view of a statute's constitutionality; rather, they try to craft a defense of the law in a manner that can best explain the basis on which the political branches' presumed constitutional judgment must have been predicated.

I've taken Waxman's remarks from his article, "Defending Congress," published at 79 N.C.L. Rev. 1073 (May 2001). Unfortunately, the article is not available on the free Web. In a subsequent passage, one that has relevance for cyberlaw followers, Waxman illustrates how making a strong argument in support of congressional lawmaking can be an uphill climb:

Let me provide an example some people chuckle to recall. In 1996, Congress passed a law known as the Communications Decency Act. The law was enacted without hearings or committee consideration. It imposed criminal penalties on anyone who made available to minors on the Internet material that was "indecent" or "patently offensive." The Act was challenged before two three-judge district courts. All six judges found the law facially unconstitutional in every respect. The Justice Department's Civil Division recommended appeal to the Supreme Court, and my predecessor as Solicitor General agreed. Having argued the case, I can confirm that there is nothing quite like standing in front of the Supreme Court to defend the constitutionality of a law that not a single judge has ever found to be constitutional in any respect. The United States did lose (although we garnered two votes for two-thirds of the statute). But our adversarial system of constitutional adjudication was served. The United States' briefs served the valuable purpose of articulating for the Supreme Court the strongest possible rationale in support of constitutionality - a much stronger case than anything that had been articulated by or to Congress. Those arguments in turn prompted the parties challenging the statute to hone and improve their own positions. And when the Court concluded that the statute should be invalidated, it did so with assurance that it had considered the very best arguments that could be made in its defense.

Most constitutional lawyers feel the same way. The Department of Justice's obligation is to defend the Copyright Act as Congress wrote it, not to re-evaluate or critique it. I am pretty sure the DOJ's submission would have looked the same, even if the office was not brimming with RIAA attorneys. You can read the DOJ's brief for yourself and decide whether you buy it. Who knows? The DOJ's arguments in Sony BMG Music Entertainment v. Tenenbaum may turn out to be losing ones, just like they were in the case Waxman alluded to above, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
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