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.