The Department of Justice and the Free Software Foundation have both jumped into the file-sharing lawsuit against Boston University graduate student Joel Tenenbaum, whose case has already moved from funky to downright bizarre. The outside parties are most concerned about the issue of statutory damages; are fines from $750 to $150,000 per song even legal under the US Constitution, or are they so egregious as to be unconstitutional?

Such key questions underlie Tenenbaum's defense, which is headed by professor Charles Nesson of Harvard Law School (and worked on by his law students). Nesson's contention is that the statutory damage awards apply only to commercial infringers, not to students swapping songs from their dorm rooms; that the RIAA lawsuit campaign doesn't look like a civil matter, but a criminal matter, and thus private parties should not bring such kinds of litigation; and that the statutory amounts, if legal, are simply obscene.

The Justice Department disagrees. In its filing with the court, the DoJ takes aim at Nesson's major arguments. First, "the Court should reject Defendant's invitation to interpret the Copyright Act's statutory damages provision to apply only to infringers who seek commercial gain" because such an idea isn't supported by either the law itself or by "the history of the Copyright Act, which suggests Congress intended both civil and criminal remedies to be available for infringement even in the absence of commercial gain."

The DoJ filing even offers a justification for why this is the right way to think about apportioning fines. "The harms caused by copyright infringement are not negated merely because an infringer does not seek commercial gain," it says. "In the context of online media distribution systems, infringement without commercial gain limits a copyright owner’s ability to distribute legal copies of copyrighted works. The public in turn suffers from lost jobs and wages, lost tax revenue, and higher prices for honest purchasers of copyrighted works."

The filing also makes a strong case that statutory damages are certainly a "civil remedy" and that Congress has total freedom to create them; the mere existence of such rules "does not impermissibly infringe on constitutional powers delegated to the judicial or executive branches."

As for specific amounts that might be applicable at file-sharing trials, the DoJ has few opinions on the questions, but the government does believe that judicial discretion remains a fair way to handle such lawsuits.

The Free Software Foundation responds

The Free Software Foundation's main point—that the sheer size of the damage awards in such cases may make them unconstitutional—doesn't directly challenge much that the government says. Instead, it starts from the premise that the $750 floor for statutory damages is simply too high.

In copyright infringement cases, the plaintiff can sue for actual damages or statutory damages (which don't have to show any relation to actual losses suffered). In music industry litigation, the labels have always sought statutory damages and refrained from speculation about actual losses.

But the FSF thinks that the link between the two is important—indeed, crucial. The filing points to several court cases in which judges have said as much. One judge recently noted that statutory damages "cannot be divorced entirely from economic reality," for instance.

That's precisely what the FSF says has happened. "The RIAA's lost profits in the case of an mp3 file are approximately 35 cents. Statutory damages of $750 to $150,000 are obviously divorced from economic reality, and totally out of proportion to actual damages suffered," says the brief.

Labels have generally justified their approach on the grounds that they literally do not know how much harm was suffered. Yes, you could say that it might be 99 cents per song, but the whole point of file-sharing apps is to share files with others. It's possible that no one else downloaded from the particular machine in question, but it seems pretty likely that at least some people did, and some percentage of this group might also have purchased the song. The end result (in their view) is that widespread harm is being suffered, and it's tough to quantify just how much can be assigned to each person, but it's certainly not just a buck a song.

Interesting sidenote for RIAA litigation watchers: the FSF brief was actually submitted by a local lawyer with a Massachusetts law license... and by Ray Beckerman, the New York attorney who runs recordingindustryvspeople.blogspot.com. Beckerman is a longtime RIAA scourge (the group accused him of practicing "vexatious litigation" in late 2008) who has criticized both sides in the Tenenbaum case.

"To you law students and young lawyers out there; please don't think you can learn anything from this case," he said last week. "Just ignore everything you are seeing from both sides. I have seen more bizarre filings from both sides' lawyers than I would imagine possible."

Now, he's become a part of the circus, too.