Obama Administration, Once Again, Says $222,000 For Sharing 24 Songs Is Perfectly Reasonable

by Mike Masnick

This shouldn't be seen as much of a surprise at all, given that the Obama administration previously supported the $1.5 million verdict against Jammie Thomas-Rasset for sharing a mere 24 songs. However, now that an appeals court has reverted back to the original $220,000 ruling (procedural reasons...), and Thomas-Rasset has filed to ask the Supreme Court to hear the case, the Obama administration is back again, saying that there is nothing wrong with $220,000 for 24 songs. The argument is basically what you'd expect. In short: Congress set the statutory rates, the record labels asked for statutory damages, and thus nothing in that range should be considered too high.

The administration does have a point that there is not a real controversy between different circuit courts on the issue at play here, and thus there may not be a need for the Supreme Court to get involved. After the appeals court ruling, we predicted that the Supreme Court would refuse to hear this case, and that still seems likely. That doesn't mean that there aren't problems with the government's analysis. Its focus on using a Supreme Court ruling from a century ago ("Williams") which covered an obscure issue not directly relevant, still seems problematic to me -- but not so problematic that the Supreme Court is likely to weigh in.

Statutory damages are a massive problem with copyright law today. They are way out of proportion with any actual harm, and thus do raise considerable questions, that might amount to interesting Constitutional challenges. That doesn't mean that this case was the right case (in fact, it has many problems). Even so, it's a bit disappointing to see the Obama administration weigh in at all on the issue, giving a de facto thumbs up to massive and ridiculous statutory damages. The basic conclusion of "Congress decides, and that's good enough" is a real problem:

That public interest cannot be realized if the inherent difficulty of proving actual damages leaves the copyright holder without an effective remedy for infringement or precludes an effective means of deterring further copyright violations. The statute reflects a legislative determination of the range of assessments necessary to vindicate those public interests, see 17 U.S.C. 504(c), and Congress’s judgment as to the appropriate amounts is entitled to deference.

If the administration was interested in true leadership in fixing the problems of the copyright system, it would not condone such clearly ridiculous awards. Doing so merely confirms that it remains focused on helping out its friends in legacy industries, rather than reflecting what is actually best for the public.

12 715 Thomas Rasset Opp2 (PDF)

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