More than a few bloggers and others are expressing concern and disappointment over a number of recent high-level appointments to the Justice Department's civil division; namely, Jenner and Block partners Tom Perrelli and Don Verrilli, and former Business Software Alliance General Counsel Neil MacBride. Perrelli and Verrilli represented the recording industry while at Jenner, the latter most famously in the MGM v. Grokster litigation. MacBride was responsible for anti-piracy enforcement at BSA, which has largely cast its lot with Hollywood and the recording industry in its quest for more draconian copyright enforcement. And it appears that Perrelli and MacBride will have influence on the DoJ's prosecution of copyright cases, while Verrilli will counsel the Solicitor General on what positions to take on a variety of cases, including, perhaps, whether the Supreme Court should grant certiorari in the Second Circuit Cablevision case. The federal appeals court in that case found that Cablevision did not infringe on the studio's copyrights by providing a “remote DVR” service, which is like a TiVo, but where the recordings reside on the cable system's servers. The high court has asked the SG to weigh in on whether they should hear the case (we think it should not). UPDATE: In keeping with his ethical obligations as a lawyer, Don Verrilli will not counsel the Solicitor General about the Cablevision case.
True, there is not a lawyer in the bunch who has made his or her name representing or working for industries or non-profits that are seeking more balanced copyright, and that is a cause for concern. But it is a bit unfair to lump the Jenner lawyers, who are simply representing big firm clients, with an advocate like MacBride, who comes straight from an industry trade group. Law firm lawyers are paid to take their clients' positions in court – it doesn't necessarily mean that they have drunk their Kool-Aid (on the other hand, they may not want to anger companies they may again want to represent after they leave government). Indeed, Jenner's representation of the RIAA is of recent vintage, and stems mostly from the good work they have done defending the First Amendment on behalf of content companies (including Reno v. ACLU, which struck down restrictions on Internet indecency.)
Regardless, the appointment of three prominent attorneys with strong ties to the content industry does highlight the need for more balance in the numerous Obama Administration positions yet to be filled. Most prominently, neither the IP Coordinator nor the U.S. Patent and Trademark Office Director have been named, nor have their deputies. Ditto for the Deputies and General Counsel of the United States Trade Representative. Even the Director of the National Telecommunications and Information Administration (an Assistant Secretary of Commerce) is important for copyright, as the NTIA has some say over the operation of the DMCA triennial review, and has often been the voice of innovation in debates over copyright in the Executive Branch.
There are many strong candidates for these positions who have a more nuanced view of copyrights, patents and trademarks and their impact on innovation. We urge the Obama administration to place these individuals in positions with authority over both domestic and International IP policy.