tag:blogger.com,1999:blog-5383512304639632735.post717046317833136194..comments2024-01-23T07:34:52.253-08:00Comments on Copyrights & Campaigns: 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?Ben Sheffnerhttp://www.blogger.com/profile/06477793715765992689noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-5383512304639632735.post-69665857674477776232009-08-18T09:06:16.599-07:002009-08-18T09:06:16.599-07:00Hey Ben. Nice post. My view is that the Obama admi...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.David Kravetsnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-69076892230238657032009-08-18T08:31:48.300-07:002009-08-18T08:31:48.300-07:00Elena Kagan said in a recent interview -- I can...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.<br /><br /> 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. <br /><br />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.<br /><br />But wouldn't it be something if somebody managed to ask - at one of his press conferences - whether the president supports the verdict?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-55227015129402937372009-08-18T08:12:13.587-07:002009-08-18T08:12:13.587-07:00Paul Levy asked me to clarify that the "secon...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).Ben Sheffnerhttps://www.blogger.com/profile/06477793715765992689noreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-82235919988574758812009-08-18T07:59:22.968-07:002009-08-18T07:59:22.968-07:00The original brief in the DOMA case had all the fl...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.<br /><br />On your second point, we recently defended the facial constitutionality of a statutory damage scheme in the Fair Credit Reporting Act: http://pubcit.typepad.com/clpblog/2009/04/eleventh-circuit-upholds-fcras-statutory-damages-provision-against-constitutional-challenge.htmlPaul Alan Levyhttp://www.citizen.org/litigationnoreply@blogger.comtag:blogger.com,1999:blog-5383512304639632735.post-10614690877073243082009-08-18T02:07:14.937-07:002009-08-18T02:07:14.937-07:00Something that I'm not entirely clear on that ...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?CS Clarknoreply@blogger.com