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

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Wed Jan 7 12:27:10 EST 2009


>From Cnet news:
http://tinyurl.com/7zedgc

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

Posted by Declan McCullagh

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.



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