UPDATED: The Fifth Time is Not The Charm

Either Jenner and Block lawyers are looking for something to do in this economic downturn, or the RIAA has a direct pipeline to the Justice Department. Because the Legal Times blog is reporting that a third fourth Jenner partner (and fifth Jenner lawyer) who has represented the recording industry, Ian Gershengorn, is going to the Justice Department to be Deputy Assistant Attorney General in the Civil Division with oversight of the Federal Programs Branch. I do take some small comfort from the fact that that the Civil Division has no authority to work on intellectual property matters (although if you recall, it almost got that authority last Congress when the Pro-IP Act was passed).

If you recall, a few months back, I defended the appointments of former Jenner partners Tom Perrelli and Don Verrilli to Justice, saying that although they represented the industry, it didn’t necessarily mean that they had “drunk [the RIAA’s] Kool-aid.” It wasn’t long before I was wiping the egg off my face. First, at his Senate confirmation hearing, Perrelli appeared to advocate even stronger IP laws, saying that existing U.S. intellectual property laws “don’t seem to be addressing the problem” of global counterfeiting and copyright infringement. Then, before their desk chairs could get warm, the Justice Department filed a brief supporting the recording industry in the infamous Tenenbaum case. That is the case where Harvard Professor Charlie Nesson is defending a Boston University student against a file sharing lawsuit by the RIAA. Among other things, Tenebaum argues that the outrageous damages for copyright infringment should be declared unconstitutional.

So in honor of the third fifth RIAA lawyer in the Justice Department, I am going to ask the Obama administration to do three things: 1) ask all three five lawyers to publicly recuse themselves from any litigation or any other matter involving the RIAA, its member companies or any other of the firm’s former clients; 2) ensure that all future appointments to positions in the Justice Department and elsewhere in the government that have influence over copyright policy are filled with individuals who will uphold the balance between users’ rights and copyright holders’ rights inherent in the constitution; 3) create separate offices of innovation at the Justice Department and other agencies with authority over IP enforcement, including the U.S. Trade Representative, State Department and U.S. Patent and Trade Office. 19 public interest and industry organizations asked the President for the latter two items in a letter sent earlier this month.