Tuesday, February 17, 2009

DOJ asks for time to decide whether to intervene in defense of statutory damages

Attorney Ray Beckerman's Recording Industry vs. the People reports that the Justice Department has asked for additional time to consider whether to intervene in a case called SONY BMG Music Entertainment v. Cloud, to defend the constitutionality of 17 U.S.C. § 504(c) (providing for statutory damages in copyright cases).

Whether or not DOJ actually decides to intervene here, I'd be shocked if -- as Beckerman seems to urge -- the Obama Administration were to concede the unconstitutionality of the Copyright Act's statutory damages provision, either facially or as-applied. Barely a year ago, in Capitol v. Thomas, DOJ defended the constitutionality of statutory damages. I don't know enough about the Cloud case to determine whether there are factors that might cause DOJ to flip, but I seriously doubt it. Administrations of all political persuasions defend the constitutionality of all federal statutes, unless there is no plausible legal argument for doing so -- a principle President Obama's choice for Solicitor General recently embraced with enthusiasm. Even if one disagrees with the availability or amount of statutory damages, to assert that there is no plausible legal argument in their constitutional defense is frivolous.

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