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:

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.
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.


  1. Somehow "DOJ sides with the 'Big Guys'" has more appeal to the masses that "DOJ submits a brief limited to the issue of the constitutionality of statutory damages".

    The former fans the flames of "rants", whereas the latter would be largely overlooked by most.

    Personally, I do believe that it may be appropriate to reconsider the statutory damages provisions to identify if under certain sets of circumstances they may lead to results that are manifestly unfair. However, I also believe that this responsibility is reposed in Congress, and not the judiciary.

    M. Slonecker

  2. Odd. For someone who refuses to allow "personal attacks" why do you keep personally attacking Techdirt? Very odd.

    Also, I have no "contempt for the labels." I love the labels and wish they'd figure out how to stop doing braindead things all the time, and got back to focusing on new business models that would make them a lot more money. If I had contempt for them, why would I keep trying to point them towards smarter business models?

    Just this morning I had a great conversation with a major label representative in response to the presentation I did this morning at a major RIAA-sponsored event. I've made it clear, I hope that the labels get their act together and stop having to worry about things like piracy.

    "Contempt" is an out and out misrepresentation of my position.

    I know... I know... you won't post this comment because it's an "attack", right?

  3. Saying that I made a "personal attack" on Techdirt is just incoherent. Techdirt is a web site, not a person. And I criticized the *substance* of your post -- the antithesis of a "personal attack."

    I don't claim to know whether you have love or contempt in your heart. But I do read your posts, and am struck by their frequent use of incredibly vitriolic, nasty, personal, insulting, and unprofessional name-calling. (The lack of such language in other Techdirt authors' posts is telling, and proves that it is entirely possible to disagree without being disagreeable.) Many of your posts virtually ooze contempt for copyright owners, including record labels. A few examples here:


    I'm sure you're perfectly capable of having civil conversations with others. And I suspect those conversations remain civil because you don't call your conversation partners and their ideas nasty names--at least to their face.

  4. Heh. Replacing my name with "Techdirt" doesn't make it any less of a personal attack. But, that is a neat lawyer's trick I'll have to remember.

    Your list of "vitriolic, nasty, personal, insulting, and unprofessional name-calling" are of course all listed without context (funny, that) and if you read each of them individually you can see exactly what I am referring to in each. The fact that you dislike the word choice is rather meaningless. Each one is supported by the details of the post.

    But, of course, that doesn't make for nearly as good a post as one that takes a bunch of words out of context in a weak and sad little attempt to make me look unprofessional. And you say that's not a personal attack? You wrote an entire post designed to question my integrity and professionalism.

    That's a hell of a lot more unprofessional than anything I've ever written.

  5. No "context"? Absurd. I provided links (one of the best ways of showing context in a blog) for every single one of the words I quoted, precisely so that everyone can see not just the words you use, but the entire context in which they appear. And the context is clear; as I said above: you use "incredibly vitriolic, nasty, personal, insulting, and unprofessional name-calling" to make your points. I urge all readers to follow the links; they can judge for themselves whether there's anything misleading or out of context about my post. In fact, I was careful to choose only examples when the words were actually yours (i.e., not quoting someone else or using the words ironically). I'm sure there are plenty of people who think such language is perfectly appropriate; I don't, and I make no apologies for pointing it out. (And the thing that actually led me to write the post at the time was what I found to be the hilarious disconnect between your criticism of the (mildly) "derogatory" term "patent trolls" and your liberal use of *extremely* derogatory language in other contexts.)

    And you remain either unable or unwilling to distinguish a personal attack from a criticism of your words and arguments. Every time I've ever referred to your blog, it was to comment on the words and arguments that appear there, not your character (a subject in which I have no interest).

  6. I am quite willing to distinguish a personal attack from a criticism of my words. It is you who seems unable to tell the difference. I criticized your words, and you refused to post the comment here, claiming it was a personal attack. Yet, when you do the same thing, and put together an entire post incorrectly trying to present my words (yes, entirely out of context) in order to make me look unprofessional, that's just "criticizing my words."

    And, no, you did not choose links carefully carefully, as you claimed. That appears to be a completely false statement on your part. First of all, not all of the words *are* mine (despite your claims). Go read some of them and you'll find other posters as well (despite your false claim that it was only me among Techdirt writers who use such language). Just looking quickly I find:


    Second, looking through those links, I find it hard to find any that actually criticize anyone or insult any person directly. All talk about specific actions (something you claimed was fair game...) or actions done by widespread groups of people -- never individuals.

    Third, in one case where it is directed at an individual, Doug Morris, it was QUOTING HIS OWN WORDS back at him. He specifically admitted to being clueless. Or in other cases, such as the one here:


    I was clearly paraphrasing the article I was linking to. I was not calling anyone names.

    Fourth, in many cases, the choice of words is accurate. Saying that one firm owes another money just because it's making money IS, in fact, economically clueless:


    That's not an insult. It's perfectly descriptive.

    And yet you then go and lie and claim that it's only me, that I insult people, and that I am unprofessional.

    All are untrue and you continuing to repeat such a lie is quite amazing.

    Every single link of yours I looked at (and I went through about half) does not at all fit into your categorization, and I find at this point, for you to claim otherwise, is simply you being either ignorant or deceitful. That's not "a personal attack" that's me criticizing your choice of words, which are false and designed solely to make me look unprofessional -- completely unlike my choice of words, all of which make perfect sense in context.

    Finally, linking to the words does not put them in context. You took a whole bunch of words out of context, knowing most people wouldn't link through to see them in full context, and used them to falsely portray my comments.

    To be honest, I can't think of anything more unprofessional.

    Let me summarize: I could not find a single link in the links you put forth that involved me naming an individual and insulting them. Yet, you have an entire post, clearly directed at me, personally, designed to make others believe that I have insulted people and acted unprofessionally on a regular basis.

    How is that not about 10x more "unprofessional" than what I wrote in any of the links on your post?

    At this point, I find it difficult to take anything you write seriously, knowing that in your portrayal of me, you have been false and deceitful and then continued to defend the false and deceitful comments designed to portray me in a false light. I would have thought better of you.

  7. The level of vitriol on display in your writing is astounding. In some alternate universe, saying of me, "you [are] being either ignorant or deceitful" and "you have been false and deceitful" is not a personal attack. But not this one. I have warned you before not to engage in personal attacks, but they only get more over-the-top. I never thought I'd seriously consider banning a commenter from this blog, but I'm getting awfully close. No more warnings.

    Nothing in all that you have written changes the fact that your posts (many of which I quoted) do indeed frequently use incredibly vitriolic, nasty, personal, insulting, and unprofessional name-calling. If it bothers you to have that pointed out, perhaps the best remedy is not to do it.

  8. The very point of my comment was that in NOT A SINGLE POST that you pointed out did I EVER use "vitriolic, nasty, personal, insulting or unprofessional name calling."

    I did not do it my comment either. I simply pointed out that you accused me of doing something I did not do.

    That is, to me, deceitful. I have pointed it out, and you are sticking by it.

    That, to me, is stunning. I have not attacked you personally. I have simply showed how you made a post that was directed at me, and presented my words in a false light.

    I find that to be unprofessional. I have not called you names. I have not used vitriol, nasty names or attacked you personally. I explained why your post was misleading, and when you continued to stand by it, suggested that, in my opinion, you were clearly being dishonest.

    The fact that you continue to stand by your false words astounds me. On top of that, the fact that you now threaten to ban me as a commenter not for any attack, but for exposing your post as being misleading is quite shocking to me.

    To be honest, I find it quite troubling.

  9. More than enough has been said on this topic. Readers are perfectly capable of going to the original post (http://copyrightsandcampaigns.blogspot.com/2009/03/on-techdirt-and-derogatory-language.html), following the links, and deciding on their own what they think of the language.

    And to be clear: disagreeing with me will not get you banned as a commenter. Being incivil will.

  10. Can you point out where I was uncivil?

    Can you explain how doing an entire post falsely making me out to be unprofessional, and then standing by it once I showed how you were posting it out of context *is* civil?

    I would appreciate an explanation, because, frankly, I find this whole discussion to be really stunning. I've never seen anyone falsely present my words in such a manner and then not only stick by it, but accuse me of being uncivil in defending myself.


  11. I did an entire post about your use of language that I consider uncivil. You then compounded it by saying of me (in these comments) "you [are] being either ignorant or deceitful" and "you have been false and deceitful." I realize that you don't consider anything you've written uncivil. We disagree on that, and I don't suspect either of us will convince the other. Readers can decide for themselves. Enough.

  12. If you say it's enough, then fine, but I still find this quite troubling.

    Nothing I said was uncivil. I demonstrated, clearly, how your post was simply, flat-out, wrong. You accused me of certain things, that are simply untrue, and easily shown as untrue.

    You insisted that the original post was correct, despite that, and continued to stand by it, despite the fact that when put in context, none of the things I said was in fact uncivil, but all were perfectly civil within the context of what was said.

    A single word is not "uncivil." In context, it might be. But you did not put it in context. You chose, instead, to pull all context away from it and present it as if I had used those words to insult individuals. In none of the cases was that true.

    That's deceitful. You presented something in one light that was not true. I pointed out that it was not true, and yet you continue to stand by the original post.

    It is not "uncivil" to claim you are being deceitful. You chose to keep up a post that was flat out wrong and to insist that it was fine. That IS deceitful. That's not uncivil. It's being honest.

    I still find it immensely troubling that you find being proven wrong to be "uncivil."

    I really am trying to understand your position on this, because from where I sit, it seems like you took my words entirely out of context, got called on it, and are then accusing me of being uncivil for proving you wrong.

    Perhaps (just perhaps) it would be in your best interest to reread the post that you wrote, look at some of the links, admit that perhaps you were hasty in using those posts to suggest I was "vitriolic, nasty, personal, insulting, and unprofessional name-calling."

    That would be a civil thing for you to do.

    To stand by that false and deceitful post is incredibly uncivil and quite troubling. I would expect better of you -- especially since you're the one insisting on a civil dialog. I'm confused how taking someone's words out of context, and then using those out of context words to slur someone and put them in a false light, and then stand by those slurs is civil.

  13. Yes -- I stand by my original post, 100%. It presented a sampling of your use of uncivil language: "clueless," "braindead," "stupid," "dumb," "moronic," etc. Nowhere did I "present it as if [you] had used those words to insult individuals." In many of the examples I cited, you used such words to refer to companies, or their actions or positions. I consider that uncivil, even if you don't refer to individuals. Obviously you have every right to criticize other people, companies, and their actions, but I consider the words that you chose to do so uncivil. You have every right to disagree with my opinions about your words (and indeed the right to use the words you chose), and have done so repeatedly. Again, the best way for others to judge is not to rely on this exchange here, but to go to my original post and judge for themselves.


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.