For the Record, We Have No Opinions Here

A few days ago a wrote a blog post complaining about how somebody somewhere had decided to make the U.S. Department of Justice's brief in the Tenenbaum case a litmus test on whether President Obama had the right views on copyright policy. Their argument went like this: Draconian statutory damages for copyright infringement are an injustice. President Obama couldn't possibly be in favor of injustice, could he?

And I just didn't see it that way. Statutory damages of $150,000 for willful copyright infringement may feel like an injustice to many people, especially when it comes to copying digital materials. Nevertheless, the Department of Justice -- under any administration -- has an obligation to intervene in cases raising important questions of federal law and to defend the government's interest if it can make a good legal argument for it. The DOJ does this in many cases each year. That was the point I wanted to make. I thought it was a shooting-fish-in-a-barrel effort, which I felt equipped to handle.

The post generated a lot of interest, a good thing, because this is usually a very low-traffic blog. Unfortunately, some of the interest was of the "bad" variety. Ben Sheffner wrote a supportive post at his Copyrights and Campaigns blog under the unfortunate headline "BNA debunks `RIAA' infiltration theory of DOJ's Tenenbaum intervention.

I wish Mr. Sheffner hadn't written that.

And this morning Ray Beckerman, an attorney involved in what seems like quite a few file-sharing cases against record company plaintiffs and author of the Recording Industry vs The People blog, wrote the following comment here:

Mr. O'Toole:

Thanks for your well written post.

As the Department of Justice concedes, an award of statutory damages would be subject to Due Process review for excessiveness.

So, since you quite rightly abhor "the fallacy of attacking the character/situation of the person advancing an argument instead of trying to disprove the soundness of the argument", please give us your position on:

  1. whether or not an award of from 2,100 to 425,000 times the lost profit would pass constitutional muster,
  2. whether it was necessary for the Government to take the position that it does, in order to defend the facial constitutionality of the statute, and if not, why, in your estimation, it did take that position,
  3. whether, in determining the "law of the land", precedence is given to the Constitution or to the Copyright Act, and
  4. which of the types of "argument" it was for the Justice Department to simply ignore the 6 authorities cited by the amicus curiae brief suggesting that the State Farm/Gore test would be applied to the due process assessment.

Best regards


That was unfortunate too, because I don't have a good response to Mr. Beckerman.

To Mr. Sheffner I say this:

BNA's bread and butter is objective, actionable information. We don't do advocacy journalism, and we don't do personality journalism. We try really hard to report the facts and then let our readers -- overwhelmingly attorneys, government officials, and business executives -- do the thinking for themselves. That's worked for a long time. Objectivity = Success. That's really ingrained around here.

But it doesn't work that way on the Web, does it? Everybody is vying for attention, and the way you get attention is to have a point of view, start a conversation, or engage in a conversation that is already going on. But this blog has a BNA logo on it, so I can only go so far. That seems fair. BNA is bigger than me. I shouldn't want to burden BNA with my opinions, however much I am personally fond of them.

BNA makes no money off the Techlaw blog. I do it in my spare time. Despite the hundreds of reporter/editors we have here, there is only one BNA-written blog. This one.

So I winced when I read the headline "BNA debunks." I like it when people agree with me. But we don't "debunk" at BNA. We report.

To Mr. Beckerman I say this:

I appreciate your advocacy and the energy you bring to your job. I also appreciate the generosity that is reflected in your blog. There is a lot of good information there, I read it often, I've learned from you. My father was a trial attorney for nearly 50 years. He identified with his clients in a visceral way, I think he felt it was important to believe his arguments were unassailable in order to do a good job, and he was just miserable on the eve of a trial. So I get where you are coming from.

My "position" on the legal issues you mention is that whatever outcome is reached in the Tenenbaum case, after everyone's argument has been thoroughly aired and considered, is the right outcome. Neither myself nor anyone else at BNA feels otherwise.

I'm going to pick up my ball now and walk to the next tee.