Sunday, August 16, 2009

Techdirt, and the anatomy of a smear

Journalism -- whether the traditional kind or on the Web -- requires a commitment to getting the facts right: checking them, and double-checking them, and where necessary triple-checking them, before presenting them to the public. This is especially so when the reporting consists of accusations of wrongdoing. Friday's Techdirt post on the Department of Justice's brief in the Jammie Thomas-Rasset case falls far, far short of any standard of accuracy and fairness. It's false, and it's false in a way that impugns the ethics and integrity of several high-ranking government attorneys -- all without a shred of evidence.

Here's the background: Several attorneys who practiced in the Washington office of Jenner & Block have been appointed to prominent positions in the Obama Justice Department:
While at Jenner, these attorneys' clients included, among others, companies in the recording industry. As members of the bar, these attorneys are required, on pain of disciplinary action, to follow rules related to conflicts of interest. They must also follow the Obama Administration's own ethics policy, which was promulgated by executive order on January 21, 2009. That executive order provides that all appointees must undertake the following pledge upon entering government service:
I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.
This two-year recusal mandate is longer than the one-year period mandated in 5 CFR § 2635.502, which pre-dates the Obama Administration. (Techdirt previously misreported that the one-year period applies. Main Justice corrected the record, and I followed. Techdirt has never corrected its false report.)

Friday's Techdirt report on the government's Thomas-Rasset brief asserts that unnamed DoJ attorneys are violating their ethical obligations to avoid work that involves their former clients. Techdirt asserts that the brief, which defends the Thomas-Rasset verdict from constitutional attack, "isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry..." (emphasis added). Techdirt concedes that "none of the former RIAA lawyers are signatories to the brief," but says "you have to imagine their 'expertise' was consulted." Then, in the last paragraph, it says:
It's a neat, but immensely troubling, trick by the entertainment industry. Sneak through bizarre and totally unsupported legislation through a Congress that's never met a stronger copyright law it didn't love, using your high paid lobbyists. Then, get those same lobbyists appointed to the Justice Department to defend it against Constitutional challenges.
Again, implicit in these statements is the accusation that the "former RIAA lawyers" have violated the Obama Administration's executive order on ethics, the Code of Federal Regulations, and bar ethics rules. And what is Techdirt's evidence of such wrongdoing? There is none. Absolutely none. Zero. Instead, Techdirt asks that the reader "imagine their 'expertise' was consulted" (emphasis added).

Techdirt's assertion that the "entertainment industry"'s "high [sic] paid lobbyists" were the "same lobbyists" who allegedly caused the "Justice Department to defend [copyright law] against Constitutional challenges," is easily checked, and easily debunked. I ran each of the five Jenner attorneys listed above through the Senate-maintained Lobbying Disclosure Act Database. Of the five, the only one who the database lists as a registered lobbyist is Perrelli. And his lobbying, in the early 2000s, was on behalf of "American survivors of the August 7, 1998 bombings of U.S. Embassies in Kenya and Tanzania" -- obviously far afield from the "entertainment industry" or copyright. In other words, Techdirt's allegation that the "entertainment industry"'s "high [sic] paid lobbyists" are inhabiting the DoJ -- let alone had anything to do with the Thomas-Rasset brief -- appears to be totally unfounded. (The fact (acknowledged by Techdirt) that the Bush Administration took the exact same position on the statutory damages issue in the Thomas-Rasset case further undermines the theory that the attorneys listed above improperly influenced the decision to file this brief. I'm not aware of any attorneys in the the Bush DoJ who represented the recording industry.)

When DoJ defends the constitutionality of a federal statute, the division that handles the task is the Federal Programs Branch. That division is headed by Gershengorn, one of the former Jenner attorneys who represented music industry clients. The attorneys listed on the Thomas-Rasset brief include Civil Division chief Tony West (the Federal Programs Branch is part of the Civil Division), an AUSA named B. Todd Jones, John R. Griffiths, Assistant Branch Director, Civil Division, and Adam D. Kirschner, a trial attorney in the Federal Programs Branch. Note: Gershengorn's name is not listed. On Friday, I submitted an inquiry to the DoJ press office regarding recusals in this case, but have not yet received a response; I will post an update when and if I do. (West recused himself from the Cablevision case, in which DoJ opposed cert., because Morrison & Foerster, the law firm he recently left, filed an amicus brief on behalf of music publishers in that case. But there is no indication that West himself ever represented entertainment industry clients.)

If Techdirt actually had evidence that the former Jenner attorneys were violating their ethical obligations by manipulating Administration policy to favor their recent former clients, that would be a great story, and I'd be annoyed that I didn't break it myself. But Techdirt has no such evidence -- at least none that it deigned to include in its post. If you're going to accuse high-ranking Department of Justice attorneys of violating their ethical obligations, shouldn't you have more evidence than ... none? Or am I just clinging to an dying, archaic, outmoded business model?


  1. These are not my viewpoints (show me the evidence first), but to shortcut the inevitable flames in response...

    Their viewpoint is, I believe, that if these lawyers were "scummy enough" to work for the RIAA outside the government (marking them as bought-and-sold, in the eyes of TechDirt's readership) then they are "scummy enough" to do so inside the government.

    Aside from that, public/techy perception of RIAA lawyers is that of cash-driven amoral bullies, so it probably carries over in their minds as well.

  2. @OldSPook:

    I'll be curious to see whether the anti-RIAA crowd scours the resumes of DoJ attorneys to demand the recusal from copyright cases of anyone who once represented clients who are often on the opposite side from copyright owners (i.e., broadcasters or consumer electronics firms)? And what about Solicitor General Elena Kagan, who as Harvard Law School dean was Charlie Nesson's boss, signed off on the participation of law students in Joel Tenenbaum's defense, and was dean at Harvard when the Berkman Center was telling the RIAA to "take a hike": ?

  3. Ben,

    This was, of course, hardly surprising. In fact, it was totally predictable. If an attorney has worked as counsel within an entertainment company or has worked as outside counsel, then clearly that attorney is no longer able to differentiate between the interests of the entertainment companies and the public at large.

    Justice Sotomayor at one time in her career is purported to have represented clients in copyright matters. I presume that if for some reason any of the cases (JRT, JT, other) reach the SCOTUS via a cert petition, she will most definitely have to recuse herself lest techdirt label her as yet another example of the entertainment industry improperly insinuating itself into our government.

    Mike Slonecker

  4. TechDirt has never been the bastion of journalism, much less legal journalism, so to see yet another example of writing gone wrong isn't surprising. Most of these misconceptions come from a combination of similar accusations made by the vitriolic Ray Beckerman and the fact that the general public is woefully ignorant of the way that the legal system works and the role of the attorney within it.

    It is the duty of the attorneys within the Department of Justice to advocate on behalf of their client, in this case, the United States of America. Why anybody is surprised that they would take the position that a law promulgated by Congress is constitutional defies explanation. Even if the critics were to hand pick a DoJ attorney with a background completely antithetical to the recording industry's priorities, you'd still end up with a similar document espousing the same exact positions because, at the end of the day, it's that attorney has to do his or her job.

    I'm curious what position the anti-copyright zealots expected the government's attorneys to argue? Did they really expect a brief saying, "Nothwithstanding the 220 years of statutory damage law, and in complete derrogation of our duties to our client, we agree that this legislation, critical to furthering the purpose of copyright law, is unconstitutional on its face, and people who steal music should get off without a penalty." Seriously?

    And where is their outrage on every other legal issue where a government attorney could have a potential conflict in their past? Oh that's right, none of those issues affects their entitlement to the free work of others.

  5. Ben, this is beneath you.

    Your title is more accurate when someone realizes that it is you "smearing" me.

    My mention of the RIAA's ex-lawyers in the DOJ was an aside, and hardly the meat of the post. I was not questioning their ethics at all, and you are making a huge mountain out of a molehill. This is true of every one of your attack posts on me. Every single one takes my comments out of context, twists them into something ridiculous which was not implied or stated by me at all, and then you write up a huge post with "Techdirt" in the title, and some smear on me. Maybe you think it drives traffic? Maybe you think it gets you new gigs? Are you that hard up for cash?

    I do not understand why -- on about a once a month basis -- you suddenly decide it's time to smear Techdirt in this manner. You take a minor point, twist it out of context and attack me as being somehow unethical.

    Look at the posts on Techdirt where I mention you. I have been nothing but fair -- even when we disagree. Yet, like clockwork, there will be a post here smearing me.

    It's really beneath you.

  6. @Mike Masnick:

    I pointed out multiple factual errors in your post. Nothing in your comment here challenges a single thing I wrote.

    You did indeed "smear" the attorneys you wrote about. To say that you were "not questioning their ethics at all" is laughable. You falsely accused these attorneys of acts which, if true, could well constitute violations of ethical standards, an executive order, and federal law. But, as I demonstrated, the accusations in your post are blatantly false. You may consider that a "molehill," but I sure don't, and I doubt many attorneys would.

    I took nothing out of context; I linked to your post and quoted your words verbatim. And nothing in my post was an attack on you; it was a debunking of the false and reckless accusations in your post. The only one getting personal is you, in the ad hominem attacks on me, personally, in your comment here.

  7. Ben,

    I did not say, nor imply, that anything unethical happened. I said (correctly) that the RIAA lawyers did not take part in the brief, but that you would imagine (an opinion) that they would be asked about it. I didn't say that was unethical.

    Also, the RIAA is a *lobbying* organization. The point I was making was that they worked for this particular organization and now they work for the DOJ. That you would nitpick and assume I only meant specifically registered lobbyist individuals is an obvious attempt to smear me and my writing.

    This is the same thing that is true of every past post. Last time I picked apart one of your smear posts, you told me you were going to ban me from commenting.

    I really don't know what to say. It's obvious for whatever reason that you feel the need to take my comments and twist them. I don't know why but you do it over and over again. And, let's be honest, just because you say "Techdirt" instead of "Mike Masnick" doesn't change the intent or the insult implied in your post. I made no ad hominem attack on you. I just asked a few questions as to why you seem to do this on such a consistent basis.

  8. @Mike Masnick:

    You wrote in your post that the brief "isn't a huge surprise, given the fact that the Justice Department is stocked with former lawyers for the entertainment industry..." The clear implication of that statement is that these lawyers played some (apparently sub rosa) role in the brief. But you have no evidence of that -- none. Your implication was false, and it was a smear.

    You then wrote that the "same lobbyists" who advocated for a copyright law then defended that law when they were supposedly appointed to DoJ positions. But this is false. The people at issue were not lobbyists; they were litigators. You may consider this "nitpick[ing]." I sure don't. And the attorneys at issue did not "work for" the RIAA. They represented the RIAA (or its members) as outside counsel. And they had many other clients. Words matter, especially when you're accusing people (falsely) of acts that do indeed raise serious ethical and legal issues.

    And you seem incapable of recognizing the distinction between criticism of substance, and ad hominem attacks. Everything I wrote was about the blatant falsehoods in your post. You then make personal comments about me: you invent false motivations for writing my post, and question whether I am "hard up for cash." I won't dignify your loathsome remarks with a response.

  9. The point, which I thought was clear, and seems to have been clear to most people who read my post, is that if the DOJ is hiring all of these lawyers who formerly worked for the entertainment industry, it comes as no surprise that the administration tends to think rather positively of the industry's stance on these things. That was not an ethical attack at all. In fact, I would think you would agree.

    As for the rest, I'm not going to get into a name calling debate. Anyone is free to read my stuff and yours and come to their own conclusions about who is being honest, and who is smearing whom.

    Ben, I respect your insight into these issues -- even if I disagree probably 95% of the time on your conclusions. I have not hesitated to tell you when I agree as well. I simply do not understand your repeated desire to smear me by taking a minor aside, twisting it out of context, saying I said or "implied" something I did not, and making a huge post, clearly stating that *I* have done something unethical.

    I will no longer speculate as to why, since that seems to upset you so.

  10. @Mike Masnick:

    The clear implication of your post was that the DoJ attorneys who formerly represented music industry clients in private practice played some role in the Thomas-Rasset brief. That was false. And that false implication was followed with the false statement that "entertainment industry...lobbyists" had been appointed to DoJ and were involved in "defend[ing] it [copyright law that they had supposedly helped pass] against Constitutional challenges." I make no apologies for pointing out such falsehoods, which, if true, could well constitute ethical and legal violations. It was irresponsible, indeed a smear, to make such false allegations.

  11. We are lucky, that in the USA (for now), we have the freedom to speak. This includes the freedom to speculate about the influence between various organizations.

    Of course there are no ethics violations that can be proven. I will speculate (and I am thankful for my freedom to do so) that if there was collusion between parties, everyone has covered their tracks so it can never be proven. The DoJ is to smart to leave themselves open to ethics violations. Just because we cannot prove soemthing does not mean we cannot speculate. But leave it to a lawyer to see everything in black and white.

  12. "I didn't say that was unethical."

    Not explicitly perhaps, but the post was so rife with perjorative implications that you didn't have to.

    You insist that it wasn't your intent to allege professional misconduct. As a journalist, however, when you choose to go beyond the presentation of the facts and editorialize your content with mere speculation, you do so at your own risk. Here, you imply breaches of ethical rules (in no less than 5 separate statements) that cut to the very heart of professional conduct and decorum - rules that good attorneys take very seriously. Accordingly, with zero evidence to support your claims of bias, you can't credibly feign surprise and anger when somebody more informed on both the law and the rules calls you onto the carpet.

  13. That was not the implication at all. I know. I wrote the damn post. I know what I was writing. And I already explained what was clearly meant by the DOJ's hiring of lobbyists. I think it's fair to state that those who work for a lobbyist organization are fairly considered lobbyists. You disagree, fair enough, but to state that I am somehow telling a falsehood in what I IMPLIED in my post is wrong. I know what I was saying. You're inability to comprehend is not my problem.

    I don't know why you want to lie, other than you think it makes me look bad. The real irony: if you had actually done what you claimed is necessary (fact checked!) I would have told you exactly what I meant -- as I did here. Instead, you posted something without fact checking, and got the basics wrong, and now refuse to admit a mistake.

    Ben, give it up. Making up what I meant, when I have told you I meant something entirely different is really low. For whatever reason, you really dislike me, and feel the need to do these sorts of posts on a consistent basis. Only you can know why. I took a guess, and you obviously feel my guesses were off-base.

    But for some reason when you guess what I meant on something, it's "substantial criticism."

    Time to look in that mirror, Ben. Every single thing you have accused me of here I would argue apply much more to you. I will not respond to this thread again. You clearly have no interest in correcting your blatant false statements and smears of my work.

  14. @Mike Masnick:

    It's unbelievable. In your comment, you once again refer to "the DOJ's hiring of lobbyists." But as I demonstrated in my original post, none of the people at issue were lobbyists (with the minor exception of Perrelli, who lobbied on a completely unrelated issue).

    Then you say, "those who work for a lobbyist organization are fairly considered lobbyists." This is false twice over. First, it's false on its own terms. A trade association like the RIAA has lots of functions and lots of people working for it, only a small number of whom are lobbyists. They don't all become "lobbyists" because they happen to work in the same organization with some who are. And second, it's false because the attorneys at issue did not "work for" the RIAA. They worked as litigators at a private law firm (a huge law firm with thousands of different clients). Among these attorneys' many clients were the RIAA and companies in the recording industry. It's simply false to refer to these attorneys as "lobbyists." (Come to thing of it, by your definition, I am a "lobbyist" (as are scores of litigators I know because) I've worked on cases in conjunction with the MPAA. Ridiculous.) And it's especially egregious journalistically to falsely label someone a "lobbyist," since there are significant penalties for a lobbyist failing to register as a lobbyist.

    I'll ignore once again your ad hominem, and stick to the facts, and what is written. You have attacked me personally; I haven't said anything about you, and I don't plan to.

  15. Ben,

    In fairness to Mr. Masnick, I do try and cut him some slack because he is not an attorney and likely not familiar with the Rules of Professional Responsibility under which we as attorneys must operate. Of course, this lack of familiarity also carries over to his understanding of substantive law, the judicial process, and numerous other law-related areas. He holds an MBA, and not a JD, so perhaps it is understandable when he makes assertions or expresses opinions on legal matters that are plainly wrong.

    Where I do draw a line, however, is his unerring tendency to circle-the-wagons when his mistakes are pointed out. Rather than learning from his mistakes, he persists in challenging those who would seek to better inform him.

    His website, techdirt, is a source of very useful and timely information, but it does suffer from his seeming unwillingness to even consider the possiblity he may be mistaken whenever legal issues are central to one of his articles.

    There is no doubt that he is an intelligent and articulate individual, but one who has not as yet come to the realization that there really are two sides to every story and that most issues are not amenable to black and white distinctions. Hopefully this will change over time as he comes to realize, as I did long ago, that wisdom is attained once a person realizes just how little they actually know. I readily admit that the older I get the more apparent it becomes just how "stupid" I really am. I say this with some measure of pride because it encourages me to never try and rest on my laurels. Education is an ongoing process and one that I enthusiatically embrace.

    Mike Slonecker

  16. As someone whose own views more frequently come down on the TD side of things, rather than the C&C side (when Ben and Mike disagree, which is pretty often), I have to say in this case, I agree with Ben that the lead paragraph of Mike's TD post is both misleading and unhelpful. Yes, many new high-level appointees at DOJ are lawyers who have represented RIAA or other "content" industry groups in the past. (Ben's focus has been on Jenner & Block, but there's also Neil McBride, who used to work for the Business Software Alliance, IIRC.) And I agree with Mike that the previous associations of high-level DOJ attorneys with content-industry clients is reason to watch closely the policy choices those attorneys might make at DOJ on issues relating to IP. I'd say the same about, say, former counsel for defense contractors or agribusiness, or even former public defenders, who were appointed to high-level positions at DOJ -- be on the lookout for policy decisions that benefit that person's former clients.

    But just because a DOJ appointee is involved in a decision that happens to coincide with the position taken by a former client does not mean that the decision was a result of, or even influenced by, that former representation. Moreover, in this case, the DOJ appointees to which Mike is referring weren't on the brief, and there's no evidence to suggest their influence over DOJ's decision to defend the constitutionality of the statutory damage award.

    Mike's post is couched in language that avoids taking ownership of the assertions -- "this probably isn't a huge surprise," "you have to imagine their 'expertise' was consulted." -- but the 1st paragraph of Mike's post clearly suggests that there is some sort of improper influence. If Mike means to imply such improper influence, then he should say so. If not, he should tone down the suggestion. As the TD post is written, it sure soudns like a guilt-by-association smear.

    By the way, the most obvious "bias" at work in this case is DOJ's tendency toward defending the constitutionality of existing statutes. Although it's not an ironclad rule, where the constitutionality of a federal statute is challenged, DOJ's Fed Programs branch will generally defend it. It would be very big news if DOJ had opted not to defend the constitutionality of the statutory damages provision in Title 17. The fact that they did choose to defend it is a dog-bites-man story.

    In other words, Mike's right that "it's probably not surprising" that DOJ took this position, but the real reason we should be unsurpirsed is not "the fact that the DOJ is stocked with former lawyers for the entertainment industry," but because this is the default position DOJ takes in most matters.

  17. "one of the RIAA attorneys arguing against Thomas-Rasset during her trial, Donald Verrilli, has since been appointed by President Barack Obama to be associate deputy attorney general of the Justice Department, so Verrilli’s influence likely weighed heavy on the Department of Justice."

  18. @Anonymous 11:01:

    Rolling Stone's statement is pure speculation, and is really irresponsible. I'd be shocked if Verrilli played any role whatsoever in DoJ's Thomas-Rasset brief, since he himself was personally involved in representing the plaintiffs in that case: This is clearly a case where he would have to recuse himself.

  19. Good God... I have grown increasingly shocked at the vituperativeness of TechDirt and Masnick, but this is just too much. I look for reasoned debate and discussion on these issues. The solutions are very difficult -- if they weren't we'd all be singining Kumbaya by now.

    I don't always agree with Ben, but his insight and observations on these issues are second-to-none. Just as Bill Patry's insight and observations are important. I've had occasion to agree and disagree with points both have made in the past, but they are carrying on a civil and important discussion and I respect their thinking immensely (even when I disagree).

    Masnick, your posts have grown so tiresome and tabloid-like as to be the digital equivalent of The Star or The National Enquirer. Any doubt? Just compare the thoughtful, well-reasoned discussion going on here by folks on both sides of the debate with the Neanderthal "f*ck the RIAA" quality of discussion and comments on TechDirt.

    Now it's spilling over to this blog. Please Mike, take it elsewhere. You have your very own tech-tabloid where you can gnash your teeth, put on your tinfoil hat, look for black helicopters and commiserate with the like-minded digital bullies all you want, but we don't need (and we're not looking for) this type of juvenile drivel here:

    "I don't know why you want to lie..."

    "Time to look in the mirror..."

    "Maybe you think it drives traffic. Maybe you think it gets you new gigs. Are you that hard up for cash?"

    We're not on the playground in second grade anymore Mike. Act like a grownup for goodness sakes.

  20. "Rolling Stone's statement is pure speculation"


    "This is clearly a case where he would have to recuse himself."

    Also true, but is also speculation - that he didn't inappropriately influence others.

    Not all of us have us much faith in government officials.

  21. Anonymous 3:08 -

    "Also true, but is also speculation - that he didn't inappropriately influence others."

    Can you explain how there can even be inappropriate influence when it is the duty of the Justice attorney to whom this is assigned to argue in favor of the constitutionality of the statutory damage award?


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.