• by Wendy Davis  @wendyndavis, March 27, 2009

Backing the record labels, President Barack Obama's administration has recently filed court papers in two file-sharing lawsuits arguing that damages of up to $150,000 per song are constitutional.

"Awarding statutory damages authorized by the Copyright Act in this case would not be so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable," the Department of Justice argued in a lawsuit against Pennsylvania resident Denise Cloud. That case is pending in U.S. District Court in the eastern district of Pennsylvania.

The Obama administration also argued that damages of up to $150,000 per infringement are reasonable because it's hard to calculate how much money is lost due to file-sharing. "It is impossible for a copyright owner to calculate actual damages when an online media distribution system is used to illegally distribute its copyrighted sound recordings because the number of subsequent acts of infringement by computer users who download illegal copies of the sound recordings from the original infringer is simply unknowable."

The Justice Department likewise intervened on behalf of the record industry in the pending case against Massachusetts grad student Joel Tenenbaum.

The Bush administration also supported the record industry's argument in favor of damages in the lawsuit against Minnesota resident Jammie Thomas. A jury found her liable for copyright infringement and ordered her to pay $220,000 for sharing 24 tracks. She argued that award was excessive, given that iTunes sells tracks for 99 cents each. U.S. District Court Judge Michael Davis declared a mistrial on other grounds, but he also said the damage award was "wholly disproportionate" to any harm suffered by the record labels in the case.

The Recording Industry Association of America said late last year that it intended to stop bringing new cases against suspected file-sharers, but that lawsuits already in the pipeline -- like the cases against Cloud and Tenenbaum -- would continue.