US Dept. of Justice May Intervene To Help RIAA

NewYorkCountryLawyer writes "In a Corpus Christi, Texas, case, Atlantic v. Boggs, where the defendant interposed a counterclaim alleging that the RIAA's $750-per-song file damages theory is unconstitutional, and the RIAA moved to dismiss the counterclaim, the US Department of Justice has sought and obtained an extension of time in which to decide whether to intervene in the case on the side of the RIAA. What probably precipitated the issue is that the constitutional question was raised not just as a defense as it was in UMG v. Lindor, but as a counterclaim, thus prompting a dismissal motion by the RIAA."

Re:Burden in counterclaim?

[Anonymous Coward]

IANAL. However, I don't believe that this should be unexpected. The Department of Justice occasionally intervenes in cases when someone challenges a federal law in a civil lawsuit. Federal law in some cases requires a party to notify the Attorney General when they intend to challenge the constitutionality of a federal law. The defendant, having challenged the law, has a burden to show that the law is unconstitutional, and then the government has the burden to defend the law.

While on one hand this is a case where the government is defending a law that helps the RIAA, the intervention would have happened regardless of whether the record companies were involved because the government has a duty to defend its laws.

the DoJ is required to consider it

[conspirator57]

Just as the Plaintiff is required to notify the court and the DoJ

from the Plaintiff's answer and counterclaim:

"Rule 24(c) further provides that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to notify the Attorney General of the United Sates under 28 U.S.C. 2403. Defendant Boggs therefore is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c)."

Re:DoJ is helping out a huge corporation?!

[dgatwood]

Simple. It's the golden rule: he who has the gold makes the rules. Translated another way, those who pay the most in bribes^H^H^H^H^H^Hcampaign contributions and protection money^W^Wtaxes get the most protection.

*sigh*

This is so not news.

[Quadraginta]

If you read the motion in question, you'll see one thing this is not is Big Evil Government joining forces with Big Evil Recording Industry.

The background is that, as part of his defence (and a counterclaim), the defendant in the RIAA suit has said that (1) not only is he innocent, but (2) the act of Congress establishing the basis under which he was sued is unconstitutional. That's certainly going for the Moon.

In any case in which a Federal law might be declared unconstitutional, not surprisingly the Federal Gov't takes an interest, and might decide to defend the constitutionality of the law. Should they succeed, that does not mean the defendant loses, of course. It only means he can't get a bye, in the sense that the very law under which he was charged vanishes.

The only thing unique about this case is that the Federal Gov't asserts that it did not previously receive sufficient notice of the case to have time to decide, in the routine way, whether or not to defend the constitutionality of the law in question. So they filed a motion with the Court asking for 60 days to think it over. This motion was unopposed by the defendant, who apparently realizes (at least more so than certain credulous /. editors), that this is utterly routine and has about zero bearing on whether or not he'll win the case.

I mean, unless you're so naive as to think that the argument in Court will go like this:

RIAA (pointing skeletal finger): You broke the law, fiend!

Defendant: Did not. And besides, the law's unjust and should not exist.

Judge: Really? What makes you think so?

Defendant: Well, I...

Uncle Sam (interrupting): Hold on thar a gosh-darned minute! I say that law is fair!

Judge (bowing to Uncle Sam): Well, in THAT case, it must be. Defendent, you lose.

Defendant: Curses! If only Uncle Sam hadn't known about this trial...

RIAA (twirls mustache): Ha ha ha!

Re:the DoJ is required to consider it

[zarkill]

I think using the word "intervene" makes it sound like the DoJ is taking it upon themselves to step in, say "no, you can't countersue the RIAA", and that will be the end of the story.

If I'm understanding the scenario correctly, the counterclaim is saying to the RIAA "you have done something unconstitutional, and now I am going to seek damages from you because of it"; but the RIAA is replying "well, what we've done is federal law. If you say it's unconstitutional, we've got to get the Department of Justice involved".

Am I grossly misunderstanding this? It sounds more like the DoJ is "getting dragged into it" than "intervening" unless "intervene" is the proper legal term for this situation. I can see where there might be confusion caused by the use of that word.

Re:How is $750 per song unconstitutional?

[NewYorkCountryLawyer]

Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to.

Sorry, guy, but what "judges" are you talking about? The only judges I'm aware of who have ruled on the subject have said that the RIAA's $750-per-song file damages theory may well be unconstitutional [blogspot.com]. See also In re Napster Inc., 2005 WL 1287611 at *10-11, 77 U.S.P.Q. 2d 1833, 2005 Copr. L. Dec. P 29,020 (N.D. Cal. June 1, 2005). And legal scholars have said it is [ssrn.com] unconstitutional.

Re:the DoJ is required to consider it

[conspirator57]

Actually, the defendant is challenging the Constitutionality of the damages portion of the Copyright Act. Since this has broad and sweeping consequences, the result is an engraved invitation to the DoJ to attempt to preserve the status quo. This assumes that the status quo is generally desirable, and in many areas of law, it is.

Here is the paragraph above the one i initially posted wherein the defendant challenges the whole copyright damages provision:

"Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, Defendant Boggs is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c). Pursuant to Rule 24(c), "when the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28 U.S.C. 2403." Section 2403 of Title 28 requires that when the constitutionality of a federal statute "affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.""

Re:How is $750 per song unconstitutional?

[iluvcapra]

The federal government can't cruelly or unusually punish you, this doesn't apply to civil situations between individuals.

The language is:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Of course, the sentence is in the passive voice, so it relies on interpretation, but its in the middle of a bunch of laws that spell out limitations of federal power, so this is probably how it gets interpreted. Amendment VII, which guarantees just about every civil respondent a right to a trial by jury, might be more appropriate.

Re:While it may be going for the moon

[ajs]

I'm glad someone is finally pushing the issue of the excessive fines.

Me too.

Actually what I'd really like to see challenged is copyright lengths themselves. The Constitution has something to say on that as well ...

Sadly, that was already brought to the US Supreme Court, and it lost. The court found that a finite extension to copyright terms didn't actually make them "unlimited", even if they were so in practice. Ultimately, future Congresses would have to continue to decide to extend the period, or things would begin to expire, and that meant that, not only would the period always be "limited", but that it would also be re-negotiated by multiple sets of representatives of the people, each time allowing the people to have their say.

The problem with copyright is NOT the terms... the problem with copyright is the corruption of the Congress via bribery, which subverts the will of the people. If the corruption were removed, there would be no reasonable argument possible that any vote to extend copyright law to a larger, finite period was unconstitutional.

Sadly, the latter problem is much harder to fix.

Re:What happened

[OrangeTide]

Around late 1800's was when corporations became legal entities that were responsible to shareholders alone, instead of being responsible to the public at large. This was the slipper slope which we have been tumbling down for quite some time now.

You can blame the industrial revolution for the concentration of wealth and power in our democratic capitalistic society.

Re:Motion unapposed by the defendant

[Arccot]

"Why do you assume the justice dept will be on the RIAA side or even choose to intervene at all?" Because the site linked to says that the feds will intervene on the side of the RIAA. But really, was anyone expecting otherwise? There seems to be alot of people thinking this is a case of the big bad government teaming up with the big bad RIAA against the little guy. The defendant in this case is claiming a law is unconstitutional. How is the RIAA qualified to defend against such a claim? Does the law get thrown out if the RIAA fails to give a good arguement? That's not how it works, and that's not how it should work. It is the job of the DOJ to defend the law. They should get involved. If the RIAA questioned the constitutionality of a federal law, the DOJ would defend it. As such, the DOJ is not "on the side of the RIAA". They are defending a federal law, written and approved by Congress, and signed into law by the President.