While this probably isn't a huge surprise, given the fact that the Justice Department is stocked
with former lawyers for the entertainment industry (and because it's filed similar briefs
before), but it's still worth noting that the Justice Department has filed a brief in the Jammie Thomas lawsuit, in support of the constitutionality of the $1.92 million fine
(and, no, none of the former RIAA lawyers are signatories to the brief, though you have to imagine their "expertise" was consulted). The reasoning is quite troubling and appears to include some serious revisionist history.
First, what's stunning is that the brief claims the awards are perfectly constitutional because it is not "so severe and oppressive as to be wholly disproportioned to the offense [or] obviously unreasonable." Really? It seems that an awful lot of people find the idea of being forced to hand over $80,000 per song without any evidence that it was ever actually shared by anyone is severe and oppressive to the point that it's disproportionate to the offense and quite obviously unreasonable. I mean, this is a woman who wanted to listen to her favorite bands
, and she now has to pay nearly $2 million. How can anyone claim that's not "severe and oppressive" in relation to the actual "harm" done?
Second, the brief claims that the damages should be much more than the $1.29 price per song found on iTunes, because it "ignores the potential multiplying effect of peer-to-peer file-sharing." Except, if that were the case, shouldn't the plaintiffs been required to show that these songs were actually shared
? And should Thomas also be liable for the actions of anyone else she shared the songs with? That seems to go quite beyond what the law states.
Third, and perhaps most troubling, is the Justice Department's sneaky little claim that the statutory rates are obviously fair for file sharing, because they were put in place in 1999, with the explicit statement from Congress that these numbers were there because of internet file sharing. That sounds good, but ignores the fact that this little change in the law was pushed almost entirely by entertainment industry lobbyists (the same folks who now run the Justice Department!) to protect their dying business model, rather than through any empirical evidence. The real
original purpose of statutory rates had nothing
to do with punishing personal, non-commercial use, but were very much about dealing with commercial harm.
It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges. Regulatory capture at its finest.