Example 3.7
Takeaway point 3.7: A Statement of Facts can include multiple types of legal authority.
As we wrap up our discussion about the art of using authorities in a Statement of Facts, it is worth emphasizing that you don’t need to choose whether to discuss statutes, cases, or legislative history in a Statement.
You can use all of these tools, as one of the country’s most respected advocates does in the following passage.A record company sued a student for copyright infringement after he illegally downloaded thirty songs from peer-to-peer downloading networks. The company won, and the court ordered the student to pay $67,500. He challenged the decision, alleging that the copyright law — by imposing massive “statutory damages” for civil offenses that caused little economic harm — violated his due process rights. Here, the record company uses its Statement to oppose his legal theory.
Source: Sony’s Opposition to a Petition for a Writ of Certiorari, seeking to uphold Tenenbaum v. Sony BMG Music Entertainment, 660 F.3d 487 (1st Cir. 2011).
The brief subtly adds a historical argument to its facts by using a 221-year-old statute to point out that federal law has allowed statutory damages for copyright violations since the nation’s founding.
Next, the brief uses a case to smuggle a policy argument into the facts.
The brief uses a third type of legal authority here: the current statute, which the brief cites to explain to readers how liability works in the U.S. copyright system.
Next, the brief looks at statutory history — the precursors to the current statute — to show that statutory damages have existed in their current form for decades and to tee up the next helpful legal fact, which is that Congress has increased damages in recent years, suggesting that the legislature wants to punish copyright violations harshly.
The Statement then discusses a case (to squelch a potentially harmful legal argument — a Supreme Court opinion that could be read to limit the availability of statutory damages). The brief defangs the case by framing it as merely requiring the jury (rather than a judge) to decide whether statutory damages should be awarded.
Having already discussed legal history, the current copyright statute, two cases, and the current law’s statutory history, the Statement now discusses legislative history to introduce the helpful point that Congress wanted to deter copyright infringement by increasing the statutory damages. Thus, the brief — in its facts — has used five different types of authorities to advance its position as well as a number of thinly veiled policy arguments. Your adversaries may use these techniques; you should, too.