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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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February 6, 2009

RIAA Takes Over DOJ

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Posted by Alan Wexelblat

OK, enough with the funny stuff. The new Obama administration is shaping up to be a disaster for Copyfighters everywhere. In particular the new Department of Justice is stacked with lawyers who've been on the wrong side of copyright and intellectual property lawsuits for the last eight years.

First off, there's the #3 man at Justice, Thomas Perrelli, accurately described by CNET as "beloved by the RIAA". Not only has this guy been on the wrong side in the courtroom, he's fingered as instrumental in convincing the Copyright Board to strangle Web radio in its crib by imposing impossible fee structures.

BSA logo
Then there's Neil MacBride, who used to be the Business Software Alliance's general counsel. The BSA, to its credit, hasn't been suing teenagers. Generally their name is associated with large-scale raids on companies that are mass-producing illegal copies of software. Still, it's an industry flak group.

Then there's the #2 man, currently slated to be David Ogden. If that name only rings a faint bell it's because you have to cast your mind back to Eldred v Ashcroft, the argument on whether retroactive copyright term extensions were legal. Sitting over there on Ashcroft's side? That's Mr. Odgen. For extra-bonus ick points, Ogden also was involved in defending the heinous COPA legislation, fortunately now dead and buried (but not forgotten).

The capper on this line-up of suspicious characters is Donald Verrilli, now up for Associate Deputy Attorney General. This specimen of legal acumen is front and center in the Cartel's jihad, having appeared for Viacom when it sued YouTube, for the RIAA against Jammie Thomas, single mother. And if we peer back a little farther, we find Verrilli's dirty fingerprints on MGM v Grokster.

So what does all this portend? Well, if you ask Julian Sanchez over at he thinks it's a tempest in a teapot. He thinks they'll all behave and recuse themselves properly and just because a lawyer consistently goes to bat for a certain kind of client doesn't mean much about their professional views. Lawyers are paid guns, after all, and the Cartel's side has consistently paid well.

Declan McCullagh, over at CNET, is much less sanguine, pointing out that many of these cases are still ongoing (e.g. big lawsuits against YouTube) and further noting that Vice President Biden showed a great deal of hostility toward free use when he was in the Senate.

I'm on Declan's side. To the extent that someone has to set the tone of this administration in dealing with intellectual property matters, it's looking pretty grim.

Comments (23) + TrackBacks (0) | Category: Laws and Regulations


1. Copyrights & Campaigns on February 6, 2009 3:41 PM writes...

This issue is fun to write about (I've sure enjoyed it), but the mundane truth is that Perrelli, Verrilli, MacBride, and the others will be spending virtually none of their time or energy on IP issues in their new positions:

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2. Ray Beckerman on February 6, 2009 6:34 PM writes...

I agree with "Copyrights & Campaigns" (except for the part about it being fun to write about).

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3. Ray Beckerman on February 6, 2009 6:40 PM writes...

I don't agree with what you said about BSA by the way. My experience with them has been pursuit of small businesses for grossly excessive "settlements" over relatively minor infringements.

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4. Oldphart on February 7, 2009 3:59 AM writes...

What worries a good many people of the American public, given the history of those being placed in the DOJ positions, what assurances will we have that their lack of ethics won't carry over into the public realm they are now asked to serve in.

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5. Donald David on February 7, 2009 8:13 AM writes...

I don't think this is either fun or fair. I disagree with what the RIAA is doing, and wrote an article attacking the legal basis for their contacting schools in an attempt to force settlements from students. That said, we are lawyers. We represent clients, we make the best arguments we can to uphold their positions (within ethical standards) and, in fact, not only are we obliged to do so, the legal system only works if we do so. To tar these attorneys, who I do not know, for representing their clients' interests is not only unfair, it fails to distinguish between their new roles in government, where they are serving a new "client", and their old roles representing a different client.

Simply put, it is a meaningless discussion which is ultimately unfair.

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6. bobbo on February 7, 2009 11:03 AM writes...

Interesting ideas. So, if a person being appointed to a post was named Lucifer would the basic argument be "Well, he really isn't going to be dealing with issues related to the collection of souls for eternal damnation, so there is nothing to worry about." Oh yeah, that would help me sleep at night.

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7. jeremy Nicoll on February 8, 2009 1:05 PM writes...

Donald, I find your distinction quite Clintonian. If the legal profession is more about making good arguments rather than establishing the truth and making things fair than perhaps we would all be better off without the whole mess of you. It's high time that cheating, lying, and extortion are no longer synonymous with successful.

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8. Truth Seeker on February 8, 2009 1:36 PM writes...

The only person I knew who was a BSA board member also ran a company that essentially ran its internal operations on pirated software. He said he was on the BSA Board so he would know what they were doing....and of course stop OTHER people from pirating. I didn't work there long. I kept being told to do things that were illegal.

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9. DrWex on February 9, 2009 9:27 AM writes...

The comments to the effect that "they're just good lawyers doing their jobs" may be true, but it ignores the fact that someone in the government is going to be setting and enforcing intellectual property policy. When the DoJ is stacked solely with people who argue one side it seems highly likely that policy will be directed that way.

It's like looking at a Supreme Court nominee's background. Judges also are professional (and usually above reproach) in their interpretation of the law. But they bring a consistent viewpoint and past behavior is our only guide to likely future behavior. Therefore, I see no wrong in calling out these men for their past casework.

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10. GZiemann on February 9, 2009 3:25 PM writes...

The only past behavior that seems important is that the lawyers in question seem collectively incapable of winning a case. Maybe the idea is to relieve prison overcrowding.

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11. earthforce_1 on February 9, 2009 10:01 PM writes...

I see only one silver lining to this very black cloud:

If the BSA pit bulls are unleashed on small businesses it may be an incentive to help to push them towards FOSS and Linux.

The RIAA is doomed no matter how much they buy the US government. Even if they managed to completely shut down the internet, people would still file share over the sneakernet on USB sticks.

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12. angry hippie on February 10, 2009 3:38 PM writes...

Oh, does this mean my band might be able to earn a living from making records? Getting music for free is not a constitutional right. Up until ten years ago, you had to steal CDs from Tower Records. Up until ten years ago, bands could make a living without depending on mass bad tastemakers like American Idol. Because people bought records and CDs. The music is free culture has created a huge divide similar to the American economy at large: there are a few ultra wealthy artists making money largely on touring, and everyone else is struggling. The RIAA is lame, but not as lame as three generations of USC students who think music is free. It would be ironic if this was their wakeup call that St. Obama isn't on their side.

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13. nygrump on February 10, 2009 4:26 PM writes...

I find myself agreeing with angry hippy. the mindset that it is ok to immediately distribute a new album over the internet is appalling.

However, I have no problem with people sharing stuff that has already been sold to us 100 million times, like the Beatles catalog, or is out of print.

I really think what killed the music industry was their own actions of hyperefficiency, so that there is basically no way for a new band or new song to be played or heard in the USA unless there is payola involved - these corporations are even one by one picking off college radio.

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14. B on February 11, 2009 5:19 PM writes...

Jeremy: yes, the legal profession is about making the best argument for your client. the legal system as a whole is concerned with establishing truth and justice. the legal profession is only one part of the legal system as a whole, and its job is to put forth the best arguments on either side of a given issue. if you think there is a better way to resolve legal disputes, you may want to petition your elected officials to introduce an amendment to the constitution.

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15. DrWex on February 13, 2009 6:25 AM writes...

I think Angry Hippie has a somewhat rosy view of the past. Before CDs there were mix tapes, which were traded freely among friends. There were also used-record stores, whose sales returned nothing to the makers of the platters sold there. Digital may have made tape-trading faster, and may yet kill the second-hand market, but it's been well researched for at least the past 4 years and online distribution of free copies of music are not correlated with declines in CD sales. Check out the work of Michael Geist in particular. I haven't blogged his stuff much lately but it's in the Copyfight archives as well as online from Professor Geist himself.

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16. Pito on February 13, 2009 7:56 PM writes...

Donald David, you must be a lawyer, certainly are a moron.

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17. Truth's Razors on February 14, 2009 8:45 PM writes...

The good news is that none of this matters in the slightest because the revolution is here. There will be no Department of Justice in four years. At least not one with any legitimacy. You can't do what the government is doing financially and survive. You can't do what the linear economy does on a finite planet. You can't run on empty till infinity. We've hit peak everything and there's no turning back. There will be no music recording and no file sharing without electricity. Then the real good ole days will be upon us when angry hippies and others have to play their music the old fashioned way for a living. Imagine, a baby boomer whose generation conspired to eat the world out from under their children, talking about the good old days when music used to be owned by the same evil geniuses who own everything else; and bad-mouthing the generation from which his own generation has stolen everything. Forget your music, put your hands up, we're taking everything you thought was yours!

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18. Dick McQwik on February 15, 2009 9:04 PM writes...

How we gonna show our American friends how to steal tunes with this bunch guarding the hen house? Le'me count the ways entrepreneurial Communist Chinese have!

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19. Schuyler King on February 16, 2009 4:26 PM writes...

Look at the Guilty-On-Accusation law the RIAA and others pushed through the New Zealand Parliament:

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20. DrWex on February 18, 2009 11:01 AM writes...

Schuyler: good grief! They tried something similar in the US Congress some years ago and fortunately got nowhere.

In general I'd like to ask commenters to keep remarks civil here. We can disagree without name-calling, I think.

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21. bsod on March 16, 2009 7:24 AM writes...

are they waiting for someone to set an intellectual property tone? how about using the partiot act to arrest people who posted prereleased screeners.. the tones pretty clear to me

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22. choggie on March 29, 2009 11:43 AM writes...

Hmmm..Dig truth razor's sentiment here and prepare for the non-linear nature of the spiral tightening-Yes, angry hippies (and angry drunks like Metallica), will have to get out perform and negotiate the take with the house-People will continue their civil disobedience with regard to "sharing" music, and the courts can continue as they will, to piss, piss around the clock, on fundamental human nature: To entertain oneself regardless of means, according to desire and inclination-Obama and the RIAA??? Expect the worst from Charlatan Svengali, he's dark side politics at its slickest, no change or hope for anything but eventual police state.-Cheers

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23. Lynna Faulker on July 18, 2011 8:12 AM writes...

Throughout the grand pattern of things you actually receive a B- with regard to effort. Where you actually lost us was on your specifics. As it is said, the devil is in the details... And it couldn't be much more true at this point. Having said that, allow me tell you what exactly did do the job. The text can be pretty persuasive which is probably why I am taking the effort to comment. I do not make it a regular habit of doing that. Secondly, while I can certainly see the jumps in logic you make, I am not necessarily confident of how you seem to unite your points that make your conclusion. For right now I shall yield to your position however wish in the near future you actually link your dots much better.

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