Monday, August 17, 2009

A tale of two briefs: What do DoJ's comments on same-sex marriage tell us about the Obama Administration's policy views on copyright?

When the Department of Justice last week filed its brief in defense of the constitutionality of the $1.92 million Jammie Thomas-Rasset verdict, it included the following paean to copyright, and statutory damages:
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...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. Congress' expressed desire to increase deterrence, accompanied by Congressional findings, demonstrates that Congress gave due regard to the public harm, opportunities to commit multiple violations, and need to ensure compliance in establishing its statutory range. The Court should defer to Congress' reasoned judgment. The proper place for any policy debate of what should be the level of deterrence resides in the halls of Congress.
What are we to make of this passage? Was it an expression of the Obama Administration's firmly held views on copyright as a policy matter? Or just fluffy lawyer argument, the routine legal defense of a federal statute of the sort that all administrations engage in, a practice which current Solicitor General Elena Kagan has wholeheartedly endorsed?

I was leaning toward the latter explanation. But then today I read this brief from DoJ, defending the constitutionality of the Defense of Marriage Act. In its DOMA brief, DoJ goes out of its way to distance itself from the law, which bars federal recognition of same-sex marriage, and provides that states need not recognize same-sex marriages from other states:
With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here. [Footnote: This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.]
The difference between the copyright brief and the DOMA brief is striking. Is it fair to conclude that, where the Administration has a policy view on a statute it is defending, it will so state? And just as its views on DOMA as a policy matter are surely genuinely held, can't we conclude the same as to its statements on copyright? Does the absence from the Thomas-Rasset brief of a condemnation of the $1.92 million verdict on policy grounds signal approval, as a policy matter, of the size of the award? Or is it just that the issue of same-sex marriage is so politically sensitive (especially given the outcry from Obama allies over a previous DOMA brief) that the Administration felt compelled to highlight its distaste for the policy underlying the statute? Interesting questions, to which I don't have the answers.

Informed speculation about what this all means is welcomed in the comments.


  1. Something that I'm not entirely clear on that may also touch on why the difference - would finding that the statutory damages in the Jammie Thomas-Rasset case breached the constitution in ways similar to punitive damages cases not have a much more serious effect on the powers of Congress to set statutory damages in any laws?

  2. The original brief in the DOMA case had all the fluffy language going out of the way to defend the statute; then that was pulled back in light of political pressure. If the public domain had sufficient political muscle perhaps it could accomplish the same sort of thing in a copyright case. But, for better or worse, that is not jolly likely to happen on a variety of levels.

    On your second point, we recently defended the facial constitutionality of a statutory damage scheme in the Fair Credit Reporting Act:

  3. Paul Levy asked me to clarify that the "second point" referenced in his comment was in response to CS Clark's comment above (not to the main post).

  4. Elena Kagan said in a recent interview -- I can't quite remember the source -- that the policy of the DOJ would be to defend Congress as opposed to the Obama administration's agenda. With this being the stated policy of the Obama DOJ, I don't think we can claim that his administration supports a $1.92 million verdict just because they filed a brief in defense of the statute at issue.

    You are right to point out that these court filings are unique because Obama's administration explicitly included language stating that they do not support the DOMA as a matter of policy. But we should not take from this that the administration will *always* explicitly state their policy disagreements with a statute, nor should we assume that the lack of such a statement implies that the administration agrees with the statute. First, Obama explicitly campaigned on his desire to repeal the DOMA; this was a key aspect of his efforts to court the gay vote. He wanted to ensure that this brief wasn't perceived as going back on a campaign promise. Second, the administration has been filing briefs in defense of the DOMA going back as far as at least June. Only recently has the gay community really taken notice and started making noise about it. This turned up the political heat to include the language that you cite.

    Because Obama did not campaign on statutory damage reform for copyright and because the groups in favor of statutory damage reform aren't as politically mobile as the gay rights lobby, there was no need to include language regarding the administration's own policy on the issue.

    But wouldn't it be something if somebody managed to ask - at one of his press conferences - whether the president supports the verdict?

  5. Hey Ben. Nice post. My view is that the Obama administration is trying to have it both ways, at least insofar as same-sex marriage is concerned.


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