Main Justice confirms: DOJ recusal period is 2 years

Mary Jacoby at Main Justice provides a useful correction to misinformation being spread about the recusal obligations of Justice Department appointees who previously represented clients in private practice -- and especially clients in the music industry.

Techdirt had reported May 1 that recusal obligations last only 1 year, citing a letter from Lee Lofthus, an assistant attorney general and DOJ's designated ethics official. Lofthus' letter, in turn, cites 5 CFR § 2635.502 -- which pre-dates the Obama Administration.

But Lofthus' letter did not discuss the Obama Administration's own ethics policy, which was promulgated by executive order on January 21, 2009. That executive order (which Techdirt did not mention) 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.

(my emphasis). And Main Justice followed up to confirm that the recusal period for DOJ appointees is indeed 2 years:

Justice Department spokesman Matt Miller told Main Justice that the Loftus letter was boilerplate language that hadn’t been updated for the new policy. Miller assured us that the White House ethics policy supercedes traditional ethics guidelines in place at agencies. In short: The two-year ban applies to [associate attorney general Tom] Perrelli and other former intellectual property lawyers who recently joined the Obama DOJ, Miller said.

Miller also said Perrelli had not requested any exemptions from the ban.

It's worth repeating that it is extremely common for DOJ appointees to have previously represented clients from a variety of industries, and there is absolutely no evidence that Perrelli or other Obama DOJ appointees who previously represented record labels and the RIAA are doing anything other than following the relevant ethics rules to the letter.

Copyleft's plea to Obama falls on deaf ears as another Jenner music litigator heads to DOJ; Gershengorn will head Federal Programs Branch

Well, it looks like the copyleft's recent letter to President Obama lamenting that "several of your appointees to positions that oversee the formulation and implementation of IP policy have, immediately prior to their appointments, represented the concentrated copyright industries" went into a big, giant black hole.

The Blog of Legal Times is reporting that Jenner & Block litigation partner Ian Gershengorn -- who has represented the recording industry and other major copyright owners in high-profile cases -- is heading to the Department of Justice, where he will become deputy assistant attorney general in the Justice Department's Civil Division. Gershengorn represented the record company plaintiffs in the Grokster case, and more recently recently helped author an amicus brief on behalf of the RIAA and others in the Second Circuit in the Cablevision case.

According to BLT, Gershengorn will oversee the Civil Division's Federal Programs Branch, which is responsible for defending federal statutes against constitutional attack. Lawyers in the Federal Programs Branch represent the government in the Tenenbaum and Cloud cases, where DOJ has intervened to defend the constitutionality of the Copyright Act's statutory damages provisions.

Gershengorn joins a host of other Jenner lawyers who have joined DOJ in recent months, including Tom Perrelli, Don Verrilli, Brian Hauck, and Ginger Anders. Luckily, the fort remains in very able hands.

Perrelli speaks on IP!

Tom Perrelli, President Obama's choice to be Associate Attorney General and a long-time music industry litigator, is currently undergoing his grilling by the Senate Judiciary Committee. And the Senators are asking him about IP! SCOTUSblog is liveblogging, which has its limitations, but it's all we've got for now (unless you can watch C-SPAN3). So here it is:

11:41

Graham is now addressing Perrelli about intellectual property

11:41

America's manufacturing and innovation is routinely stolen by places like China or other places--do we have sufficient laws to protect America's work?

11:42

Perrelli has heard from Senators about the need to create an IP task force to focus on these issues

11:42

Judiciary Committee created a broader IP position throughout the administration

11:42

Graham says that both are excellent choices and will do well for the country

11:42

Sen. Whitehouse is now speaking on IP

11:43

Whitehouse says he couldn't agree more about protecting American manufacturing and innovation with an IP czar and task force

12:00

[Wyden] asking a question about prosecuting illegal music sharing

12:00

Would this be a priority?

12:01

Perrelli: With respect to enforcement of criminal copyright laws, not necessarily under his purview. But career prosecutors at criminal division have not concluded that this is an appropriate use of resources and he agrees with this

UPDATE: National Journal's Tech Daily Dose reports that Perrelli called for tougher IP enforcement:

Entertainment industry attorney Tom Perrelli, who is President Barack Obama's pick for associate attorney general, told the Senate Judiciary Committee during his confirmation hearing Tuesday that existing U.S. intellectual property laws "don't seem to be addressing the problem" of global counterfeiting and piracy and said he hopes the department will bring a renewed focus to the issue. Perrelli was most recently managing partner of Jenner & Block's Washington, D.C. office and co-chaired the firm's entertainment and new media practice. In that capacity, he represented record labels and movie studios in a variety of copyright court battles.

"This committee was the source of a bill that created a broader IP position through the administration," Perrelli pointed out. That legislation sponsored by Senate Judiciary Chairman Patrick Leahy and ranking member Arlen Specter became law in October. The measure toughened civil and criminal IP laws and provided new prosecutorial resources. It also created an IP enforcement coordinator within the White House -- a vacant position that Sen. Sheldon Whitehouse, D-R.I., urged the administration to fill.

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.

Three more Jenner copyright litigators to DOJ; who will be left to litigate for the labels?

Wow -- a whole troika of top entertainment industry copyright litigators from Jenner & Block is headed to the Obama Justice Department.

Don Verrilli -- who most famously argued and won (9-0) the Grokster case for the music and movie industry plaintiffs -- will be Associate Deputy Attorney General, the Blog of Legal Times reports. Last August, Verrilli -- Co-Chair of Jenner's Appellate and Supreme Court Practice -- argued on behalf of the record label plaintiffs to a Federal District Court in Minnesota that the $222,000 verdict against accused p2p infringer Jammie Thomas should be upheld. The court, however, rejected Verrilli's arguments, ruling that Eighth Circuit precedent barred the "making available" theory on which it had instructed the jury.

Also headed to DOJ is Jenner partner Brian Hauck, who will be Counsel to the Associate Attorney General. Hauck worked alongside Verrilli on the Grokster appeal. And Jenner associate Ginger Anders will be an assistant to the Solicitor General. Anders has also represented entertainment companies and other major copyright owners in copyright litigation; she worked on an amicus brief in the Cablevision case for a coalition that included the RIAA.

So let's recount: the Obama DOJ will include, in addition to Perrelli, Hauck, and Anders:

• Tom Perrelli, a top music-industry litigator, also from Jenner
  
• David Ogden, whose previous Justice Department experience included defending the constitutionality of the Sonny Bono Copyright Term Extension Act
• David Kris, a high-ranking Time-Warner attorney
• Neil MacBride, a top Business Software Alliance anti-piracy attorney
  

Long ago, I asked when Obama's appointment of copyright-friendly attorneys to his administration would make the copyleft's collective head explode. The time may be drawing near...

Zut alors! 'Obama nomme des lobbyistes du droit d'auteur à des postes clés'

Quelqu'un en France lit Copyrights & Campaigns:

Le "Changement" promis par Barack Obama ne devrait pas avoir lieu sur le droit d'auteur. Le Président des Etats-Unis a nommé des anciens représentants de la RIAA et de la BSA à des postes importants du Département de la justice.

Lorsque Barack Obama a annoncé qu'il choisissait Joe Biden comme collistier pour sa candidature, nous avions prévenu que le nouveau vice-président des Etats-Unis était l'un des sénateurs les plus proches de la RIAA, le lobby du disque. Pendant toute sa campagne, Obama s'est montré très ouvert sur les questions technologiques et s'est attiré la sympathie des internautes, avec un soutien affiché des licences Creative Commons, de la neutralité du net ou des logiciels libres. Il a obtenu le soutien de personnalités reconnues dans le monde technologique, comme le professeur Lawrence Lessig ou le directeur de Google, Eric Schmidt. Mais les lobbys du droit d'auteur n'ont pas disparu pour autant de Washington, loin s'en faut.

Bonjour, mes amis...

DOJ appointments irk Obama supporters; Techdirt joints ranks of disappointed copyleftists

The copyleft continues to open its eyes to the drubbing it's taken in the Obama Administration's appointments process, what with the Department of Justice about to play home to a raft of new copyright-friendly attorneys. This time it's group blog Techdirt playing the role of the spurned (ex?) lover:

Among the tech community, there was some belief that the Obama administration understood some of the key issues, such as the damage done by draconian copyright laws -- and they had shown that with the way they went about running their campaign. However, there's an increasing realization that the techies on the campaign are entirely separate from the policy people now involved in the administration. First there was the appointment of one of the RIAA's top lawyers as associate attorney general, and now comes news that Neil MacBride, the BSA's antipiracy enforcer, has also been appointed to a high level role in the Justice Department.

Techdirt finds it "worrisome" that MacBride once had the temerity to "insist[] that piracy represents a real loss, not a business model issue, and even suggest[] that it's all a generational thing." The horror! And it concludes with the following lament:

That two such individuals [MacBride and Tom Perrelli] are now in high level positions in the Justice Department does not bode well at all for the idea that we may have more reasonable copyright policy and enforcement coming out of the Justice Department any time soon.

Well, there is a world of difference between Techdirt's and C&C's view of what constitutes "reasonable copyright policy." But Techdirt is no doubt correct that Obama's appointments "do[] not bode well" for the copyleft. That's change I can believe in!

(Headline updated.)

CNET agrees with C&C: Obama pokes copyleft in the eye

You read about it first here at C&C, but now CNET makes it official: President Obama's packing of the Department of Justice (and the Vice-Presidency!) with anti-piracy attorneys and their champions is a big blow to his (former?) allies on the copyleft. Writes CNET's Declan MacCullagh:

[T]he elevation of RIAA and BSA lawyers must feel like a poke in the eye to the copyleft and progressive crowd, who spent over a year showering Obama with praise. Public Knowledge called Obama's election an "important" victory, while Free Press lauded it as "a sea change in leadership that allows us to go from playing defense to offense." Stanford professor Larry Lessig--probably the best known "free culture" proponent--went so far as to plead for all of his friends to "do something this time" by voting for Obama over his Republican rival.

MacCullagh also provides a few additional nuggets about the Business Software Alliance, whose vice president of antipiracy and general counsel, Neil MacBride, will be Obama's associate deputy attorney general, and whose duties will include (among many other things) advising on IP policy:

BSA has opposed changes to the Digital Millennium Copyright Act's anti-circumvention section, once saying that legislation to allow backup copies of DVDs or video games would provide a "safe harbor for pirates who could easily claim that the 'intent' of their actions were legal." Early in the campaign, Obama told CNET News that he would support such a law, but hedged it by saying his support was "in concept" only. (He also claimed at the time to oppose retroactive immunity for telcos that illegally opened their networks to the National Security Agency, and we know how that turned out.)

All eyes now turn to Obama's selection of the first White House IP Czar. This is no time to go wobbly.

More MacBride: BSA anti-piracy attorney will have DOJ IP duties

National Journal's Tech Daily Dose has more on the appointment of Business Software Alliance anti-piracy attorney Neil Mac Bride as Associate Deputy Attorney General and his new responsibilities:

In his new position, MacBride -- who has been BSA's vice president of anti-piracy and general counsel -- will serve on the senior leadership team of Attorney General-designee Eric Holder and will help manage the agency's 115,000 employees and $22 billion budget.

MacBride will also manage the criminal components of the Justice Department, including the 93 United States Attorneys Offices, the Criminal Division, FBI, Drug Enforcement Administration, and Bureau of Alcohol Tobacco and Firearms and other entities. MacBride will advise the attorney general on criminal justice, law enforcement, and intellectual property issues and oversee the policy and legislative offices in DOJ. Members of BSA include Adobe, Apple, Cisco Systems, Dell, HP, IBM, Intel, Microsoft, and Quest. According to the Center for Responsive Politics, he has lobbied for BSA in the past.

(my emphasis). So there will be a high-ranking Justice Department official advising the AG on IP issues who has deep experience as an anti-piracy attorney. And keep in mind that, in addition to MacBride, Justice will include:

• Tom Perrelli, a top music-industry litigator
• David Ogden, whose previous Justice Department experience included defending the constitutionality of the Sonny Bono Copyright Term Extension Act
• David Kris, a high-ranking Time-Warner attorney

Is this the most pro-copyright/anti-piracy DOJ in history? Have I died and gone to heaven?

(Note: the Dose says MacBride will be "Associate Deputy Attorney General"; Above the Law counters with "Assistant Deputy Attorney General." C&C has no clue which job is cooler, but promises to clear up the raging controversy before it threatens to end our new Era of Good Feelings. UPDATE: A reader who knows whereof he speaks points C&C to the Plum Book, which indicates that the position is, as the Dose reported, "Associate Deputy Attorney General.")

More Big Content migration to Obama Administration

I'm a bit late to this, but I just noticed that David Kris, whom President-elect Obama is expected to name to head the Department of Justice's National Security Division, is currently chief ethics and compliance officer at Time Warner -- one of the biggest copyright owners in the world. While Kris' Time Warner line on his resume is certainly impressive, it's unlikely that it's what earned him the DOJ slot; rather, he served early in the Bush Administration as Associate Deputy Attorney General, where, reports the Blog of Legal Times, Kris was "sharply critical of the Bush administration’s key legal justifications for the National Security Agency's domestic spying program." GW Law Professor Orin Kerr calls Kris "one of the world's foremost subject-matter experts in national security law."

Kris joins other copyright-friendly appointees in the Obama Administration, including Tom Perrelli, David Ogden, and the likely new White House IP Czar -- not to mention the Vice-President. Alas, Kris' Time Warner colleague Richard Parsons has denied a rumor that he will replace Bill Richardson as Obama's choice for Secretary of Commerce. Apparently having a pro-copyright Republican helming Commerce was too much to ask.

Should we be "surprised" if Obama doesn't throw bones to the copyleft? Yes!

Instapundit says it's "no big surprise" that Obama would choose a music-industry-friendly litigator like Tom Perrelli for a high Justice Department post, because, after all, he already chose an industry-friendly Vice President, and the entertainment industry supports Democrats financially.

But Instapundit's post assumes that Perrelli's work for the RIAA actually played some role in his nomination. Yet I've seen nothing to indicate that, and I highly doubt it's true. Rather, Perrelli was chosen because he's a smart litigator who already knows his way around the Justice Department; as his bio indicates, during the Clinton Administration he served as "Deputy Assistant Attorney General, supervising the Federal Programs Branch of the Civil Division, which represents virtually every federal agency in complex civil litigation." So he's eminently qualified to be Associate Attorney General. And I'm sure it didn't hurt that Obama and Perrelli were both in the class of 1991 at Harvard Law School, where Perrelli was Managing Editor and Obama President of the Harvard Law Review. These guys go way back.

But even accepting Instapundit's premise that Perrelli's appointment is somehow a reflection of Obama's true views on IP issues, actually, I do think we have some reason to be surprised. There were, in fact, early indications that Obama was a friend to the copyleft. Just take a look at copyleftist-in-chief Larry Lessig's blog post explaining his support for Obama. Lessig rejected Hillary Clinton 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.) And Lessig praised Obama for supporting

the issues closest to me. As the technology document released today reveals, to anyone who reads it closely, Obama has committed himself to important and importantly balanced positions.

Of course, the "issue closest" to Lessig (until his recent switch in focus) has been the fight against what he views as over-strong and over-long copyright. And the Obama campaign even featured Lessig's words of praise when it announced its technology platform.

So, contra Instapundit, I actually do think it's fair to be a bit "surprised" if Obama doesn't throw a bone or two to his supporters on the copyleft. But the real test is yet to come.

More Reax to Perrelli Appointment: Aux Barricades, Slashdotters!

Denizens of Slashdot's copylefty comment boards are reacting to Obama's appointment of music industry litigator Tom Perrelli as Associate Attorney General. And they are not pleased with The One for tapping someone Slashdot terms "The Recording Industry of America's favorite courtroom lawyer." A collection of some of my favorite Slashdotter comments:

• Congratulations on electing a politician. Please enjoy the next 8 years of corporate whoring.
• Obama wants to change the system. But in order to do that, he needs insiders, clinton retreads, lobbyists, and big corporate stooges that know how to get shit done. Once he's surrounded by them, he'll be able to change the system.
• Now I'm laughing at all the drones here that fell for the Messiah's clever PR campaign.
• It could be, that like most lawyers, he doesn't actually believe in the RIAA cause and just wants their money. Murderers and rapists need lawyers that just have to be advocates in court and not true believers in their client's innocence. That being said, when you set your expectations higher than the gutter (especially in politics) there is a chance you'll be disappointed.
• Meet the new boss. Same as the old boss.
• Between that and this pick [time.com], will all the Slashdot Obama koolaid drinkers who thought he was supposedly pro-tech please stand up and be heard now!
• If Chimpy McBushitler had done this, it'd be business as usual on /. But now that his O'ness has done it, I'm looking forward to a really entertaining read.
• I can't wait to watch all the hardcore supporters roll back expectations, deny all the claims they made about change, and finally blame the system itself for any failures on the chosen ones part.
• And the rest of us who maybe had a little hope for change are just going to be disappointed with more "new boss".
• I'm laughing to myself, because anyone who thought there was going to be serious change in DC was only deluding themselves. Now the truth is becoming apparent, Obama is no different then any other politician except he has a greater personal charisma.
• His picks for the Justice Department are pretty fucking scary. He picks a pro-gun control/pro-war on drugs person to lead it and a former RIAA lawyer for #3? Unless John Ashcroft is #2 I don't really see how this could be any worse.

And my personal favorite:

• Why that @#$%^ #$%^&*^&*() &*()_+ @#$%@@@!!!!! son of a #$%^&*^ ^&&^*()( ^& ^&* () *&!!!

CNET: Obama picks RIAA's favorite lawyer for a top Justice post

CNET's Declan McCullagh has a good article fleshing out Obama Associate Attorney General nominee Tom Perrelli's experience litigating on behalf of music industry clients -- which continues to annoy the copyleft, leaving one of its leading practitioners muttering to himself in Yiddish.

McCullagh also points out that Obama's choice for Deputy Attorney General, WilmerHale partner David Ogden, "successfully defended the Sonny Bono Copyright Term Extension Act before the U.S. Supreme Court" while he served in the Clinton Administration's DOJ as Assistant Attorney General in charge of the Civil Division.

The copyleft gave its love to Obama; will it ever be requited?

(Updated.)

Copyleft Not Thrilled About Obama's Choice for Associate Attorney General

Well, that didn't take long. Prominent liberal political blogger Matt Yglesias, who periodically attacks copyright owners for asserting their rights, seems annoyed (or is it just chagrined?) at today's nomination of Tom Perrelli as the Department of Justice's new Associate Attorney General. Perelli's crime? Representing copyright owners in their anti-piracy efforts as a partner at Jenner & Block:

Mr. Perrelli regularly represents the recording industry in cutting-edge intellectual property, technology, and anti-piracy litigation. He has represented the recording industry in a host of cases arising under the Digital Millennium Copyright Act (DMCA), as well as in copyright infringement and digital piracy litigation. He has also represented the record industry and recording artists in a series of copyright royalty proceedings before the Copyright Royalty Board.

From what I can tell, the Associate Attorney General is primarily responsible for a variety of divisions involving civil litigation, none of which seem to involve IP issues (except perhaps Antitrust). He doesn't oversee the Criminal Division, which prosecutes IP crimes. So I doubt the copyleft has much to worry about from Perrelli's appointment. But it's still nice that someone who at least understands the importance of the fight against piracy will be near the top of the DOJ. I can't wait for the outrage that will be vented when Obama gets around to choosing his White House IP Czar.

Yglesias also uses his post as occasion to make a typical copyleft rant against the music industry:

the recording industry has decided to adopt an overwhelmingly litigation-based approach to coping with technological change, rather than trying to be innovative in terms of their products or business practices

Of course he cites no evidence for this, and it's laughably false. Sure the music industry litigates -- that's what any industry would do when people steal their products. But to claim that it has an "overwhelmingly litigation-based approach to coping with technological change" is to ignore the myriad new ways that music can be accessed now, that didn't exist 10 years ago, from iTunes to YouTube to Amazon.com to MySpace Music to Napster (the legal version), to scores of others. Unfortunately I don't have actual numbers to back me up, but I'd be willing to bet that the amount of financial resources the major labels have devoted to developing new digital markets over the past decade -- through technological development, marketing, forming business relationships, etc. -- has exceeded the amount spent on litigation by several orders of magnitude. I'd even be willing to bet that the recording industry employs vastly more deal-making lawyers than litigators. For Yglesias to say that "the recording industry has decided to adopt an overwhelmingly litigation-based approach to coping with technological change" is simply to ignore the evidence that contradicts his oft-stated anti-industry bias.