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Justice Department Favors Recording Industry’s Position in Copyright Case

A defendant in a lawsuit who asks the federal government to intervene in his case might be careful what he wishes for.

The U.S. Department of Justice rejected over the weekend the argument that the recording industry’s litigation against alleged copyright infringers is unconstitutional. Charles R. Nesson, a professor at Harvard Law School defending Joel Tenenbaum, a student at Boston University being sued by Sony BMG Music Entertainment, had asked the Justice Department in February to prevent copyright holders from collecting statutory damages except from offenders seeking commercial gain.

The Justice Department fiercely denied that request, in a 31-page memo filed on Saturday.

“The remedy of statutory damages has been a cornerstone of our federal copyright law since 1790,” the agency said. Even copyright violations not motivated by profits limit the legal distribution of protected work, it said. “The public in turn suffers from lost jobs and wages, lost tax revenue, and higher prices for honest purchasers.”

Mr. Nesson has argued that the penalties Mr. Tenenbaum faces, if he loses the case, are grossly disproportionate: up to $150,000 for each of the seven songs he is accused of illegally downloading. The Free Software Foundation, in a legal brief on Mr. Tenenbaum’s behalf, cited several recent cases to support the position that the recording industry’s lost profits for each infringement — which it estimates at $0.35 — should not prompt damages of more than 425,000 times that amount.

Still, the Justice Department points out that damages are subject to review for “excessiveness,” says the blog Recording Industry vs. the People, whose author also wrote the Free Software Foundation brief. And the federal agency does not say that Mr. Tenenbaum should have to pay the damages the recording industry seeks, says the blog Copyrights & Campaigns, just that the law that defines them does not violate the Constitution. — Sara Lipka

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