Friday, February 6, 2009

Portfolio on Obama DOJ picks and 'fundamental attribution error'

Julian Sanchez has a piece at Portfolio on the Obama DOJ picks, which largely tracks my thoughts on the relative insignificance of the IP backgrounds of appointees like Tom Perrelli, Don Verrilli, and Neil MacBride to what they will actually do at the Department. Writes Sanchez:

So how much cause for genuine concern [by copyleft activists] is there? Worries about Ogden and Kris, at the very least, border on the ludicrous. Though all of the appointees would be expected to recuse themselves from involvement in cases or decisions implicating former clients, Kris is an expert on surveillance and intelligence law who would rarely have occasion to influence IP issues in any event. Ogden, meanwhile, would simply have been tasked with defending the government's position in whatever cases he was assigned....

For the same reason—and because it's psychologically difficult to consistently defend the same position without at least somewhat internalizing it—concerns about Verrilli, MacBride, and Perrelli may be marginally more justifiable. Still, the obligation of recusal makes them unlikely to have a prominent role in such IP litigation as the Justice Department sees fit to intervene in. Moreover, the Justice Department already successfully fought off an attempt to deputize government lawyers as copyright cops. If there's a genuine worry about someone like Perrelli, it's not that he'd turn the power of the state on Kazaa users, but that he might not be inclined to complain as loudly the next time such a proposal is mooted.

I agree with that. Sanchez, however, loses me in the final paragraph of his piece:
[T]he angst over the recent picks seems, above all, like an instance of what social psychologists call the "fundamental attribution error": The tendency to weight intrinsic character or disposition too heavily, and social circumstances too lightly, when explaining observed behavior. We know, for instance, that when test subjects are asked to guess the opinion of an essay's author, they will assume that the author agrees with his essay even if they are told the author was instructed to defend that position. Perhaps these appointees took the cases they did because of a deep commitment to an expansive view of copyright. But isn't it more parsimonious to observe that the RIAA pays well?
Sanchez may be right that the appointees at issue didn't start out as anti-piracy crusaders or possessing "a deep commitment to an expansive view of copyright." But I've worked with probably well over 100 copyright litigators at law firms and in-house at entertainment companies, and I've never met a one who didn't believe that he or she was doing the right thing. Hard as it may be for those on the copyleft to accept, entertainment industry attorneys believe deeply in what they do.

And the notion that attorneys do anti-piracy work because it "pays well" will surely raise a chuckle at studios, networks, record labels, and their law firms. While I'm not saying it pays badly, let's just say that there are a lot more attorneys willing to do this kind of work at a discount than there are entertainment companies willing to pay a premium. Attorneys work on entertainment industry copyright cases for lots of reasons: it's interesting, fun, cutting-edge, high-profile, and because they believe fighting piracy is important from an economic, legal, cultural, artistic, and, yes, moral point of view. "Pays well" is way, way, way, down the list. If an attorney is simply after the most lucrative type of work, there are much, much better options.

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