Copyright Law

Obama's Justice Department intervenes on side of RIAA in SONY BMG Music Entertainment v. Tenenbaum

By Ty Rogers and Ray Beckerman

In its first opportunity to demonstrate its position on the constitutionality of the Copyright Act's statutory damages provisions as applied to mp3 files having a market value of 99 cents or less, the Obama Justice Department -- staffed by RIAA lawyers in its 2nd and 3rd highest positions -- has filed a motion for intervention and brief in SONY BMG Music Entertainment v. Tenenbaum which attempts to support the RIAA's statutory damages theory.

The brief:

1. relied upon St. Louis, IS & M Ry Co v. Williams, 251 US 63 (1919) a 1919 United States Supreme Court decision which upheld, as against due process attack, a statute awarding statutory damages against a large railroad corporation which were 116 times the actual damages sustained, in cases involving the rail carrier's overcharging of its customers, on the ground that under the circumstances the award was not so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable;

2. relied upon the decision of the US Court of Appeals for the 6th Circuit in Zomba v. Panorama, 491 F.3d 574 (6th Cir. 2007), which held that until such time as the US Supreme Court applies the State Farm/Gore test, rather than the Williams test, to statutory damages, the less stringent Williams standard would be applied, and upheld a statutory damages award equal to 44 times the actual damages, in a case of wilful copyright infringement by a karaoke disc distributor, since 44 times actual damages was less onerous than the 116:1 multiple upheld by the Williams court;

3. conceded that statutory damages are subject to due process review for excessiveness, but argued that the less demanding Williams standard, rather than the higher State Farm/Gore standard, should be applied;

4. attempted to refute the arguments made by the defendant in his brief; and

5. ignored all of the authorities and all of the arguments cited by the Free Software Foundation in its amicus curiae brief.

Department of Justice Motion to Intervene
Department of Justice Memorandum of Law

[Ed. note. (1) Odd, don't you think, that the Government ignored the authorities cited in FSF's amicus curiae brief? Maybe they thought Judge Gertner wouldn't be able to find them, so they'd be better off not mentioning them. (2) Sad that the Obama administration, which purports to be for 'the little guy', supports statutory damages of from 2,100 to 425,000 the actual damages, imposed against 'the little guy', to be awarded to big corporations. (3) Fortunately the courts will probably not be as cooperative, since the Government's brief is noticeably weak and fails to stand up to scrutiny; if that's the best argument, and those are the best authorities, the RIAA's friends can come up with, they're dead in the water on the Due Process issue. -R.B.]

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

Full post as published by Recording Industry vs The People on March 22, 2009 (boomark / email).