A little perspective on Obama's Department of Justice appointments

I've had a lot of fun hyping the fact that President Obama's Department of Justice will include such a large contingent of attorneys who have litigated anti-piracy and other copyright cases for the entertainment industry. Much my delight flows from the irony that Prof. Larry Lessig, king of the copyleft and an articulate opponent of the entertainment industry's copyright policies, was an early and vocal supporter of candidate Obama; the Obama campaign even featured Lessig's words of praise when it announced its technology platform. And Lessig said he backed Obama over Hillary Clinton in the primary precisely because (among other reasons) he didn't like her views on copyright:

You can almost see the kind of tiny speak that was battered around inside [Clinton campaign] HQ. "Calling for free debates might be seen as opposing copyright." "It might weaken our support among IP lawyers and Hollywood." "What would Disney think?" Better to say nothing about the issue. Better to let it simply go away.

(I actually agree with Lessig on the debates issue he's referring to, but that's another story.) So I think there was at least some reason to believe that Obama would align himself with the copyleft once he entered office.

But with all that said, let's keep this all in perspective.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. Rather, they were selected because they are smart, effective, experienced attorneys with the right political ties. They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. On very rare occasion, DOJ will weigh in with an amicus brief or a recommendation on a cert petition on a copyright issue, but I'm confident that the appointees I've been discussing will spend a minuscule portion of their time on such issues (if at all), and will be mindful of the ethics rules that govern DOJ employees with regard to their previous work in private practice. Thus, CNET's concerns about conflict issues are probably overblown. A Washington attorney familiar with how the DOJ operates emailed C&C to elaborate:

Verilli is essentially going to be a high-ranking aide to the Deputy Attorney General. I expect that the DOJ can get along just fine without him on [pending copyright cases involving his former clients]. Although CNET thinks that these cases are the most important thing in the world, DOJ has other fish to fry -- like, say, Guantanamo. Copyright issues can and will be handled by career line attorneys; the Deputy Assistant Attorney General who runs the relevant section; and the Assistant Attorney General in charge of the Civil Division, among other people. If it's a really big deal, senior management will get involved as necessary. But the idea that the top leadership of the department is sitting around worrying about every little piece of litigation is just silly. And even sillier is the idea that the DAG's office, even if they were to get involved in this, would be unable to function without one person.

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. (See the US Attorneys' Manual for how DOJ thinks about criminal copyright infringement.) As the above emailer adds:

If the conflict concern is criminal enforcement, then these guys have even less to do with it. Perrelli oversees the civil components (which is where Hauck will be), and Verrilli is going to be handling civil issues for the DAG. That cuts out all of these folks other than Ogden and MacBride.

Don't get me wrong; I'm thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration's IP policies will differ from the Bush Administration's IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.