Saturday, March 21, 2009

Is the Obama Department of Justice, packed with RIAA lawyers in high positions, going to intervene on the side of the RIAA?

Any day now we will be finding out whether the Obama Administration, which pledged to work for the people, and to keep officials from working on matters affecting the industries they represented in private life, will be intervening to help the RIAA defend its position that it's okay to assess statutory damages of from $750 to $150,000 for infringement of a single mp3 file.

This will be the litmus test of whether, as many fear, the Obama/Biden administration will be tools of the 'Big 4' Record Companies.

The Obama Department of Justice has former RIAA lawyers in its 2nd and 3rd highest positions. Under the rules, they, and any of their compatriots whom they may have brought with them, should be precluded from having anything to do with the Justice Department's decisions as to (a) whether or not to intervene and (b) if they do intervene, what position they will take.

In SONY BMG Music Entertainment v. Cloud in Pennsylvania, and SONY BMG Music Entertainment v. Tenenbaum in Massachusetts, we will probably find out any day now.

In Tenenbaum the Free Software Foundation filed its amicus curiae brief yesterday, reminding the Court of the authorities which say that statutory damages are subject to the same Due Process test as punitive damages.

[Ed. note. If the Justice Department lawyers have the temerity to say to the Court that statutory damages of from 2,100 to 425,000 times the actual damages sustained pass constitutional muster, we can pretty well count the Obama Justice Department out as anything other than a lackey for the RIAA in this struggle. -R.B.]

Commentary & discussion:

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Keywords: lawyer digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property portable music player

9 comments:

Anonymous said...

another interesting note:

$150k/song
$32.5k/per day maximum penalty of polluting under the clean air act

which is more harmful to society?

Ray Beckerman said...

Your analogy is flawed. One is a public fine payable to the people of the United States. The other is a private payment to a corporation.

Anonymous said...

i think that makes it even worse.

not ground-breaking news, but it demonstrates who Congress wants to protect. forget the people, we love business!

Anonymous said...

This man's observation is that if you're still waiting to apply a "litmus test" to President Barrack Obama's administration then you have been intentionally avoiding what is blatantly obvious all around you already and it's long past time to take off those rose-colored glasses.

{The Common Man Speaking}

Ray Beckerman said...

I have said that I am 'cautiously optimistic'. I meant it when I said 'cautious'. I have been aware of, and even reported on, the red flags.

Yes he appointed an RIAA lawyer to the number 2 spot. But he had a long relationship with that guy, and was a law school classmate. I am sure the appointment was not made because Perrelli was an RIAA lawyer. And Obama is the leader. And the RIAA lawyers are, under the law, not even permitted to be part of the decisionmaking process in regard to the RIAA cases.

In any event, it will all become academic, because we will know shortly.

Anonymous said...

Obama made $2.5M in book royalties last year.

http://www.iht.com/articles/ap/2009/03/19/america/Obama-Book.php

Do you think he's gonna kill the goose that lays golden eggs? Or even clip its wings?

If he's gonna let A.I.G. execs collect bonuses now, why would he rain on the RIAA?

Hopefully, he'll pleasantly surprise us on both counts.

But don't hold your breath.

Ray Beckerman said...

The comments here are getting weaker and weaker. Please keep the comments rational.

1. It makes no sense to accuse someone of wearing 'rose colored glasses' who has been writing blog posts about the Obama administration's RIAA lawyer appointments.

2. It makes no sense to suggest that because someone receives book royalties he supports distorting copyright law in order to assist owners of sound recording copyrights receive excessive statutory damages.

So people, please think before you write, or I'm just going to start rejecting comments because the author did not think before writing.

Anonymous said...

Ray, I don't think "The Common Man" was addressing you, but rather a more general "you" that includes everyone he describes.

I agree with him, to some degree. Obama has this sort of "do no wrong" feeling surrounding him that is proving to be entirely unwarranted. Whether this is due to "Rose colored glasses" or a desperate hope for change I don't know.

This whole RIAA debacle definitely shows that he is not always on the side of the people when it comes to corporations.

-Alex

Ray Beckerman said...

Well I was waiting to apply a litmus test, so the shoe fit, so I wore it.

But it would be unfair to accuse me, or anyone else, of wearing 'rose colored glasses' because -- although we are aware of ominous signs -- we hope for the best.

My feeling was that I was not going to condemn the man because he'd appointed lawyers who represented the RIAA; that if I was going to condemn him it would be for his ACTS.

Now he has acted, and I bitterly condemn his action.

The positives about the brief are
that (a) it asks Judge Gertner to defer ruling on the issue until the factual record is developed and a verdict handed down, and (b) it concedes that the excessiveness of a statutory damages award is subject to due process analysis.

Interestingly, the best authority it could come up with was a 1919 decision, in a very very different context and very very different type of statute, which upheld a ratio of 116:1.

Even applying that very high multiple to today's RIAA cases, the statutory damages award for downloading an mp3 file would be $40, which is a far cry from the $750 to $150,000 which the RIAA is trying to claim.

Of course one of the bizarre things about the brief is that it IGNORES Parker v Time Warner, Napster, UMG v Lindor, Atlantic v Brennan, the Texas Law Review article, and the Georgetown Law Review article. That is the kind of 'advocacy' we've come to expect from the RIAA lawyers (witness Lava v. Amurao where their reply briefs never even mentioned the recent line of authorities from the 7th Circuit which defendant had cited), but I am a bit surprised to see it coming from Government lawyers.