In its brief, DOJ rejects all of the arguments raised by Tenenbaum, arguing instead that:
- The statutory damages provisions apply whether or not the infringer seeks commercial gain.
- Statutory damages are a civil, not criminal, remedy.
- The constitutional limits on punitive damages articulated in BMW v. Gore do not apply to statutory damages.
- The Eighth Amendment's ban on "excessive fines" does not apply to the Copyright Act's statutory damages provisions.
Copyrights are of great value, not just to their owners, but to the American public as well. Congress has recognized this value from the first days of the Republic. The federal copyright statute, enacted by the First Congress and subject to numerous revisions since that time, has consistently authorized the awarding of statutory damages to ensure significant monetary awards in copyright infringement lawsuits that will make copyright owners whole and deter further infringement. This historical approach is followed in the current version of the Copyright Act’s statutory damages provision; it provides compensation to copyright owners who have to invest resources into protecting property that is often unquantifiable in value and deters those infringing parties who think they will go undetected in committing this serious public wrong. For these reasons, the range of statutory damages authorized by 17 U.S.C. § 504(c) is not disproportionate to the offense or obviously unreasonable and does not violate notions of due process.So is the DOJ's brief a surprise? Hardly. Tenenbaum challenged the constitutionality of a federal statute. 28 U.S.C. § 2403 specifically permits such intervention in such instances. The Bush DOJ defended the constitutionality of the Copyright Act's statutory damages provisions as recently as late 2007. And administrations of both parties adhere to the view that they are obligated to defend the constitutionality of all federal statutes, except in the extremely rare instance where there is no reasonable basis to do so. Obama Solicitor General Elena Kagan -- who as the former Dean of Harvard Law School used to be Tenenbaum counsel Charles Nesson's boss -- strongly reaffirmed this view at her recent confirmation hearings. (Suggestions that the DOJ brief somehow reflects the presence in the Obama DOJ of attorneys who represented the labels in private practice are, I believe, unfounded. As noted, the Bush DOJ -- which, as far as I know, included no such label-friendly lawyers -- took the exact same position on the constitutionality of statutory damages.)
A couple other things to keep in mind: First, DOJ has not taken a position on who should win the labels' lawsuit against Tenenbaum. And it has not argued that Tenenbaum should have to pay statutory damages, of any amount. Rather, DOJ has merely argued that the Copyright Act's statutory damages provisions do not violate the Constitution. Second, it would be incorrect, I think, to interpret DOJ's brief as a statement of the Obama Administration's policy on copyright in general or statutory damages in particular. It would be entirely plausible for the Administration to take the stance that, for example, statutory damages are constitutional -- but, as a matter of policy, Congress should lower them as applied to p2p users like Tenenbaum. Whether the Administration does take such a policy position -- as some of Obama's early supporters on the copyleft surely hope -- remains to be seen.
(h/t Recording Industry vs. The People. Comments there should be fun on this one! See also Slashdot commenters' trenchant political analysis: "Perhaps this might be the thing to spark a true third-party movement in the USA?")