[Infowarrior] - Obama picks RIAA's favorite lawyer for a top Justice post

[Richard Forno]

  January 6, 2009 2:55 PM PST
Obama picks RIAA's favorite lawyer for a top Justice post
Posted by Declan McCullagh

http://news.cnet.com/8301-13578_3-10133425-38.html

As a presidential candidate, Barack Obama won applause from legal  
adversaries of the recording industry. Stanford law professor Larry  
Lessig, the doyen of the "free culture" movement, endorsed the  
Illinois senator, as did Google CEO Eric Schmidt and even the Pirate  
Party.

That was then. As president-elect, one of Obama's first tech-related  
decisions has been to select the Recording Industry Association of  
America's favorite lawyer to be the third in command at the Justice  
Department. And Obama's pick as deputy attorney general, the second  
most senior position, is the lawyer who oversaw the defense of the  
Copyright Term Extension Act--the same law that Lessig and his allies  
unsuccessfully sued to overturn.

Obama made both announcements on Monday, saying that his picks "bring  
the integrity, depth of experience and tenacity that the Department of  
Justice demands in these uncertain times." The soon-to-be-appointees:  
Tom Perrelli for associate attorney general and David Ogden for deputy  
attorney general.

Campaign rhetoric aside, this should be no surprise. Obama's selection  
of Joe Biden as vice president showed that the presidential hopeful  
was comfortable with someone with firmly pro-RIAA views. Biden urged  
the criminal prosecutions of copyright-infringing peer-to-peer users  
and tried to create a new federal felony involving playing  
unauthorized music.

Perrelli is currently a partner in the Washington offices of Jenner  
and Block, where he represented the RIAA in a a slew of cases,  
including a high-profile bid to unmask file sharers without the  
requirement of a judge reviewing the evidence first. Verizon initially  
lost to the RIAA, but eventually prevailed in 2003 when a federal  
appeals court ruled the record labels' strategy under the Digital  
Millennium Copyright Act was unlawful.

Perrelli has represented the RIAA in other lawsuits against individual  
file sharers. One filed in Michigan accuses a university student of  
distributing "hundreds of sound recordings over his system without the  
authorization of the copyright owners." A lawsuit against a Princeton  
University student makes similar arguments; Perrelli and his  
colleagues also tried to force Charter Communications to give up the  
names of 93 file-trading subscribers.

A 2004 summary of a Boston lawsuit written by Harvard's Berkman  
Center--which opposed the RIAA in this and a current case--quotes  
Perrelli as telling a federal judge that it would be easy to determine  
who was using a wireless network to share music. "It is correct that  
the actual downloader may be someone else in the household," he said,  
but any errors can be determined easily after a "modest amount of  
discovery."

An article on his law firm's Web site says that Perrelli represented  
SoundExchange before the Copyright Royalty Board--and obtained a 250  
percent increase in the royalty rate for music played over the  
Internet by companies like AOL and Yahoo. Perrelli previously worked  
in the Clinton Justice Department.

An article in Legal Times titled "Building an Entertainment Beast in  
D.C." says that in 2002, Perrelli used Jenner's reputation as an  
appellate law firm to "get a meeting with officials at the RIAA, at a  
time when Internet file-sharing entities like Napster were threatening  
the music business." A year later, in 2003, the law firm recruited  
Steven Fabrizio, previously the RIAA's senior vice president for  
business and legal affairs, and business began booming (the RIAA also  
used the Jenner law firm to write a friend-of-the-court brief in the  
copyright extension lawsuit).

If confirmed by the Senate, which is unlikely to pose much of a  
hurdle, Perrelli would oversee the department's civil division, the  
antitrust division, and the civil rights division.

Obama's choice for deputy attorney general--the second-in-command at  
Justice--is David Ogden, who's currently a partner at the WilmerHale  
law firm.

As assistant attorney general for the civil division, Ogden was  
responsible for organizing the defense of the Child Online Protection  
Act, or COPA, an antiporn law that has been challenged by the ACLU in  
court for more than a decade with no resolution. His department also  
successfully defended the Sonny Bono Copyright Term Extension Act  
before the U.S. Supreme Court.

Ogden's biography at Wilmer Hale says only that he represents the  
"media and Internet industries, as well as major trade and  
professional associations," without listing details. The Justice  
Department, barring exceptional cases, has a duty to defend laws  
enacted by Congress.

Perrelli, on the other hand, went out of his way to recruit the RIAA  
as a very lucrative client: his law firm bills some partners' time at  
a princely $1,000 an hour.

During his confirmation hearing, it will be instructive to see if  
senators ask whether his zealous anti-file sharing advocacy can make  
him an objective civil servant--especially when these same politicians  
want the Justice Department to sue peer-to-peer pirates at taxpayer's  
expense. (Then again, if that proposal becomes law, Perrelli's surely  
the right man for the job.)

It will also be instructive to see if this week's news prompts some of  
the RIAA's longtime adversaries to moderate their enthusiasm for  
Obama's technology policies.
Declan McCullagh, CNET News' chief political correspondent, chronicles  
the intersection of politics and technology. He has covered politics,  
technology, and Washington, D.C., for more than a decade, which has  
turned him into an iconoclast and a skeptic of anyone who says, "We  
oughta have a new federal law against this." E-mail Declan.