Reading all of [the press coverage of the DOJ brief], you'd be forgiven for thinking that the Department of Justice had decided to support tough statutory damages for copyright infringement because it was infested with entertainment industry lawyers.
I don't think this view of the world aligns well with reality.
When the Department of Justice fields questions like this, it doesn't write on a clean slate. It doesn't check the results of the most recent election, it doesn't consult the views of high-ranking appointed officials, and it doesn't in any way embark on a quest for the "right" outcome. Rather, the traditional view within the Department of Justice is that it has an obligation to defend the constitutionality of all federal laws, except in the rarest of circumstances.***The Department of Justice's obligation is to defend the Copyright Act as Congress wrote it, not to re-evaluate or critique it. I am pretty sure the DOJ's submission would have looked the same, even if the office was not brimming with RIAA attorneys.
Tuesday, March 24, 2009
BNA debunks 'RIAA infiltration' theory of DOJ's Tenenbaum intervention
Great post by Thomas O'Toole at BNA's E-Commerce and Tech Law Blog thoroughly debunking the notion (see, e.g., here and here and here) that the Justice Department's intervention in defense of the constitutionality of statutory damages in the Joel Tenenbaum case was somehow the result of DOJ's infiltration by recording industry attorneys. Writes O'Toole:
Especially unfounded is the suggestion that there was any "conflict of interest" in DOJ's filing of this brief. First, no one has presented a shred of evidence that any of the high-ranking DOJ attorneys who formerly represented record labels in private practice (i.e., Tom Perrelli or Don Verrilli) played any role whatsoever in the decision to intervene. None. And to suggest -- based on nothing except contempt for the labels -- that they have violated any of DOJ's or the Obama Administrations ethical rules regarding former clients is just reckless. Second, it is absurd to suggest that DOJ itself has a "conflict of interest" when some of its attorneys (even those not working on a particular matter) once represented parties to a case in which DOJ is now a party (or intervenor). DOJ has thousands of attorneys, many of whom once worked in private practice, and represented companies in every industry under the sun. The Department obviously could not operate if the presence of such lawyers constituted a "conflict of interest." There are rules in place to address this issue, and, again, absolutely no evidence that they were violated in this instance.