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.
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).