Thursday, March 26, 2009

Worst headline of the year award goes to...

p2pnet:  "DoJ interferes in new RIAA case."

It's "intervenes" -- not "interferes." 

And the rest of the article is no better. Such intervention is specifically authorized by 28 U.S.C. § 2403And it's totally normal and routine -- administrations of all stripes virtually always defend the constitutionality of federal statutes. And -- contra p2p net -- there is zero evidence that any DOJ attorney failed to follow all ethics rules regarding former clients. And...I will now stop beating my head against this dead horse.


  1. Beating your head against a dead horse is perfectly legal, although Post Mortem PETA may sweat you.

  2. P2Pnet has always been the worst kind of spun, yellow journalism. It's good for a laugh now and then, though.

  3. although p2pnet's use of interfere for intervene may catch on, you are right on this: there has been no change of position on copyright from bush to obama. the recent filing by the acting solicitor general is of a piece with what has come before. i had been hoping that elena kagan would be confirmed before the filing date, especially in light of her testimony in her confirmation hearing well-featured by you that she would defend the constitutionality of congressional statutes to the limits of reasonable argument for congressional authority regardless of her personal views about their wisdom. Logically that should lead her to urge avoidance of constitutional attack on the copyright law by strictly interpreting it to avoid such attack. This makes sense not only as a legal strategy for the solicitor general as an advocate committed to preserving and defending congressional constitutional authority; it makes sense as well because the Copyright Act of 1976 predates the internet age and is obviously ill-suited to it. it would also avoid the fantasy, i would think insulting to the congress, that the people's representatives actually authorized the recording industry to sue noncommercial music fans as it has done.

    i have congratulated Solicitor General Kagan on her confirmation and have urged her to appear herself to present the position of the United States of America at the argument of this matter in Judge Gertner's court.

    charlie nesson

  4. Prof. Nesson:

    I actually agree that Judge Gertner may be able to avoid, for now, a ruling on the constitutionality of 17 U.S.C. § 504(c), though for a different reason than you suggest. As DOJ's brief in the Tenenbaum case says, a ruling on this issue can be avoided unless and until a jury actually finds for the plaintiffs and awards statutory damages. (Ray Beckerman has also made this point.) See DOJ brief at 8-9:

    "This Court should only reach the merits of the constitutional questions that Defendant has raised if resolution of those questions is necessary at this time. See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the
    necessity of deciding them.”); Buchanan v. Maine, 469 F.3d 158, 172 (1st Cir. 2006). A decision on the merits of Defendant’s due process and Eighth Amendment claims may be premature because a jury has not found Defendant liable for copyright infringement or awarded statutory damages. See Ashby v. Farmers Ins. Co., 592 F. Supp. 2d 1307, 1316 (D. Or. 2008) (concluding due process challenge to the statutory damages provision of the Fair Credit Reporting Act was
    premature until the jury actually awarded statutory damages); Ramirez v. Midwest Airlines, Inc., 537 F. Supp. 2d 1161, 1170 (D. Kan. 2008) (observing due process challenge to the statutory damages provision of the Fair and Accurate Credit Transactions Act was premature “where there [was] not yet any damage award for the court to review”). If the Court can avoid a decision on these constitutional questions until such a decision becomes necessary following a trial of the
    case, the Court should do so."

  5. but waiting until judge and jury decide joel's ultimate fate ignores the coercive threat with which he has been and is still being threatened. it is the nature and magnitude of that threat in proportion to joel's (and millions of other's) alleged conduct that slams shut the courthouse door and makes settement on riaa's terms an offer that can't be refused for all but joelfightsback.

  6. Prof. Nesson:

    According to your team's web site, the 2 sides were at one point negotiating for a settlement of between $5,000 and $10,500 total (i.e., not per work) -- right around the *minimum* amount of statutory damages for 7 songs: While I expect that, given the legal fees they have since incurred, the labels' will now demand more, I do think it's important to note that nowhere have they indicated that they are actually seeking the max. of $150,000 per work, or anything remotely that high. Indeed, they did not do so in the Jammie Thomas case either (see argument about amount of damages at page of 605-06 of the transcript: The Thomas jury ended up awarding $9,250 per work -- significant, to be sure, but a far cry from the hypothetical maximum of $150,000 per work.

    While I have no inside knowledge of either side's current settlement positions, it does seem from the outside that a reasonable settlement -- at far less than $150,000 per work -- would best serve all parties (though, of course, settlement would deprive you of the ability to make the larger point about copyright that you urge).

  7. you have hit exactly on the point, which is the congressional delegation to industry of the discretion to set the level of settlement that cannot be refused - this denies due process to the victims on whom this discretionary power falls. our opponent is the human being opposite with the power to settle the claims made against us, matt oppenheim, he so introduces himself. behind him there are only incorporial legal entities.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.