Tag Archives: DOJ

The DOJ and current copyright conflicts of interest

The Dept. of Justice is threatening to weigh in on one of the numerous cases relating to the Constitutionality of statutory damages in copyright law. In case anyone hasn’t heard this, the Obama Administration has larded the DOJ with numerous copyright litigators and lobbyists.

I just sent the following letter to whitehouse.gov:

I’m writing in regard to the Department of Justice’s stated intent to intervene in the case, Sony BMG Entertainment Media v. Cloud. This case is one of several seeking Constitutional review of the egregious statutory damages available to copyright plaintiffs, which can be up to $150,000 for a single instance of copyright infringement, regardless of any actual damages.

I strongly urge the Department of Justice NOT to intervene in this and similar matters, based on clear conflicts of interest of top decision-makers at the Department of Justice.

The Administration has appointed numerous officials at the DOJ who have been formerly active in the issue precisely at stake — copyright enforcement and damages. Unfortunately, however, the appointments have not been representative of all sides of this issue, and have resulted in an imbalance in the nominees for decision-making positions at the DOJ. Neil MacBride, Thomas Perrelli, and Donald Verrilli, in particular, have all represented the trade associations for the copyright industry.

Thomas Perrelli, Managing Partner at Jenner & Block, has been nominated for Associate Attorney General of the United States. At Jenner & Block, he has represented the Recording Industry Association of America (RIAA) and Sony BMG — the very client at issue in this litigation.

Donald Verrilli, another partner at Jenner and Block, is President Obama’s nominee for Associate Deputy Attorney General, and has stated that he is likely to have a civil portfolio. Mr. Verrilli directly represented the recording industry in the “Jammie Thomas” case, the infamous case that resulted in an almost quarter-million dollar judgment against a single mother for making 24 songs available on a P2P network. Moreover, he was the lead attorney for the RIAA, personally delivering oral argument at the hearing in which the Court threw out the verdict.

Clearly, all former Jenner & Block attorneys now at the Department should recuse themselves from the decision-making process, as should any other attorneys who directly represented clients on matters adverse to either of the parties in this important Constitutional case.

Unfortunately, however, because the Department of Justice has so many appointments representing one side of copyright-related matters, any intervention by the Department on behalf of Sony BMG in this case carries not just the appearance, but the actual risk, of violation of President Obama’s conflicts of interest policy. An ethical firewall will not suffice to remedy the conflict of interest when multiple top decision-makers are similarly conflicted.

Therefore, I strongly discourage intervention by the Dept. of Justice in this case and urge President Obama to consider balance in copyright and information policy in his future nominations. I also inquire specifically as to whether Mr. Perrelli and Mr. Verrilli have committed to recusing themselves in this and related matters, and what steps they plan to take to create an ethical firewall between themselves and the relevant decision-making processes.

Best regards,

etc.

Thanks to Jonathan Band for flagging the issue on a list, Mike Masnick at techdirt for the brief summary & relevant links, and Kevin Donovan at freeculture for his submission (which I took as my starting point).

another exercise by the military-industrial-entertainment complex

The entertainment industry has succeeded — at least theoretically — in passing off more of their enforcement costs to the federal government — i.e., the taxpayers. Nice use of government dollars at a time of financial crisis, Congress! Bush signed the “Prioritizing Resources and Organization for Intellectual Property Act” (“PROIPA” ?) which, besides shelling out a lot of money to make the Dept. of Justice hunt down copyright infringement, also creates the office of the Copyright Czar.

Will the Copyright Czar be as effective as the Drug Czars? One can only hope.

Variety 10/13

* PS — double points if you can identify the source of the phrase “military-entertainment-industrial complex”, without Googling it. Hint: It’s from a pop culture source in 1996.

irrational economics @ the DOJ

The OECD is releasing a study confirming that entertainment & IP industries puff up their “lost to piracy” figures — by a lot. Actual losses are under $200 billion worldwide per year. The industry estimates at $600 to $1000 billion or more per year.

… And is there any evidence-based lawmaking afoot? No, there is not. Apparently the DOJ is even more of an evidence-free and knowledge-free zone than we knew. Gonzalez is pressing Congress to pass the “Intellectual Property Protection Act of 2007”. (Perhaps if he focused more on his pressing scandals and less on unnecessary bills he would “misspeak” less often.)

The IPPA recycles a lot of bad proposals from last year’s similar bill, which generally step up the pace of criminalizing copyright infringement, permit more wiretaps (don’t they have enough?), etc. There is a crime of life imprisonment for using pirated software if you recklessly cause or attempt to cause death. The DOJ gave an example of a hospital using pirated software instead of paying for it. … And this would lead to death, how? Never mind. Moving on … More wiretaps, more computer seizures, criminalize “attempts” to infringe, bigger penalties for circumventing TPMs, require Homeland Security to call the RIAA whenever Customs sees bootleg CDs. Bigger penalties of money and jailtime. The War on Drugs is leading by a nose, but the War on IP Piracy is gaining rapidly in the Race of Follies.

The bill was amusingly described by Declan McCullough as “the most dramatic rewrite of copyright law since a 2005 measure dealing with pre-release piracy”. I think that our diminished standards of drama and frequency suggest just how often we’re having to fend off ridiculous bills being pushed by the industry and/or some discredited government hack.

Last year’s version was so soundly decried that it didn’t go anywhere, and we can hope we’re as lucky this year.