The blogosphere was set abuzz recently by that announcement that one of the Recording Industry Association of America’s (RIAA) big guns, Donald Verrilli, has taken a high-ranking position in the Department of Justice. That alone was cause for much wringing of hands and gnashing of teeth, but the fervor was ratcheted up a notch when the DOJ subsequently moved for time to consider intervening in an Eastern District of Pennsylvania case where the constitutionality of RIAA's statutory damages theory is being challenged.
The In-famous El Guapo.
The appointment of Mr. Verilli came shortly after the nominations of three other prominent content-industry lawyers to DOJ posts. In early January, then-President-Elect Obama tapped Thomas Perrelli to be Associate Attorney General, the number-three position at DOJ, and David Ogden to be Deputy A.G., the Department’s second-in-command. Mr. Perrelli has argued numerous cases on behalf of the RIAA and worked to increase web radio royalties; Mr. Ogden is perhaps best known (at least to copyright-law students) for arguing successfully, in Eldred v. Ashcroft, that retroactive copyright term extensions are constitutional. In late January, Neil McBride, former general counsel and lead anti-piracy enforcer of the Business Software Alliance, was nominated for Associate Deputy Attorney General.
Mr. Verilli is probably best known, lately, for Viacom v. YouTube, which argues, inter alia, that YouTube doesn’t qualify for the safe-harbor protections of the DMCA, and the Cablevision case, in which he filed an amicus brief in support of the plaintiffs. Of course, he famously argued for the plaintiffs in MGM v. Grokster, convincing the Supreme Court that inducement of infringing acts was grounds for finding contributory infringement. Of most recent vintage and particular note is his involvement in Capitol Records v. Thomas, the only online file-sharing case to be litigated to a verdict. The judge in Thomas declared a mistrial after reconsidering and finding error with his jury instruction on the making-available question. A new trial is tentatively scheduled for March 9.
Interestingly, in late 2007, the DOJ intervened in the Thomas case in support of the RIAA, arguing that the copyright laws were enacted to protect copyright owners from the harms inflicted by the likes of Jammie Thomas and that a $220,000 price tag for uploading twenty-four songs was justified. Just as interesting, however, was that Judge Michael Davis, in finding error with his jury instruction, declaring a mistrial, and vacating the judgment, made an earnest and impassioned plea to Congress, which reads almost like a direct response to the DOJ’s brief. In effect he wrote that the RIAA is using The Copyright Act in a way Congress never intended; downloading music without paying for it is wrong, but individual offenders should not be punished as though they were true pirates who willfully infringe for commercial advantage. Judge Davis’ dictum is part of a growing chorus calling for clarity on the question of whether merely making copyrighted work available on a P2P network (as Jammie Thomas allegedly did) is actionable infringement of the distribution right. And if it is, does such conduct merit damages created to deter commercial-grade piracy?
Don’t worry, be happy.
Much of anxiety generated by these appointments stems from whether and to what extent these lawyers’ former positions as content-industry champions might inform their roles as government enforcers and policy advisors. Commentators like Julian Sanchez at Ars Technica and Gigi Sohn at Public Knowledge have sought to assuage concerns and put the appointments into perspective, mostly by pointing out the ethical constraints that apply to any lawyer who moves from private to public work—e.g., Mr. Verilli can’t counsel the Solicitor General about the Cablevision case. Nevertheless, a DOJ motion for more time to consider intervening in Sony BMG Music Entertainment v. Cloud has reignited concerns among those following the recording industry’s file-sharing litigation campaign, now in its sixth year.
Beyond the question of how much pro-industry advocacy carries over into policymaking, another worrisome question is whether these appointments signal a continuation of the trend in favor of publishers. Students and (one hopes) practitioners of copyright law try to be mindful of the troika of interests—those of the creators, the publishers, and the public—when sorting out questions like these. But the notion that government lawyers will balance the interests of everyone, not just their former (and presumably future) clients, is not very reassuring when held up to the last twenty years of IP-law history. The collective effects of the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act, as well as the plaintiff’s positions in the cases mentioned above, suggests that policy will continue to benefit corporate and copyright-holder interests over those of the public and arguably even the creators.
Always look for the silver lining.
Perhaps copyfighters and denizens of the copyleft movement should take some solace in the fact that Messrs. Verilli, Perrelli et al. weren’t installed as the IP Czar. Still, one can’t help but wonder, and worry about, what to expect on that front. During the Presidential campaign, then-candidate Senator Obama told CNET that, “As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators.” Read in light of those comments, the President’s appointments leave a lingering question: when it comes to restoring the balance in copyright law envisioned by Art. I, Sec. 8, Cl. 8 of the Constitution, is there still a reason to hope?
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