Obama DOJ pick: RIAA lawyer who killed Grokster

President Obama is continuing to fill the senior ranks of the U.S. Department of Justice with the copyright industry's favorite lawyers.

Donald Verrilli announced Wednesday that he had been named associate deputy attorney general. Verrilli is the lawyer who pulled the plug on Grokster, sued Google on behalf of Viacom, and represented the Recording Industry Association of America against a Minnesota woman named Jammie Thomas who's accused of illicit file sharing.

This follows a string of other pro-copyright industry picks that Obama has made. Last month, there was Obama's selection last month of a top RIAA lawyer--currently squaring off in court with Harvard University's Berkman Center--to be third-in-command at the Justice Department.

Vice President Joe Biden has long been an ally of the recording industry, urging the criminal prosecutions of copyright-infringing peer-to-peer users and trying to create a new federal felony involving playing unauthorized music. And another senior Justice Department post has gone to the top antipiracy enforcer for the Business Software Alliance, a strong supporter of the Digital Millennium Copyright Act's anti-circumvention rules.

Obama's latest choice, Verrilli, is a senior litigator in the Washington, D.C. offices of the Jenner & Block law firm.

In technology circles, he's probably best known for arguing the Minnesota case called Capitol v. Thomas. In that case, the RIAA convinced the judge to accept jury instructions saying that the "making copyrighted sound recordings available for electronic distribution on a peer-to-peer network" violated the law, even if none had actually been transferred.

Verrilli won the first round, with a federal jury saying in October 2007 that Thomas had to pay $220,000. But then the judge threw out the verdict, concluding the jury instructions he approved were misleading; the RIAA is hoping to hold on to the initial verdict and is currently appealing.

One reason why this case is especially relevant to Verrilli's new job is that the Justice Department intervened in the Thomas case on behalf of the RIAA.

That has already caused some tech lobbyists to wonder privately about whether or not Verrilli will recuse himself from matters that affect their former clients. Another example of a relevant case involves the Supreme Court asking the Justice Department for input on a case involving Cablevision--another lawsuit that Verrilli was part of on behalf of copyright holders. (Disclosure: the film studios and television networks that brought the suit against Cablevision include Time Warner, News Corp., Walt Disney, and CBS, which owns CBS Interactive, publisher of CNET News.)

A Jenner & Block press release says that Verrilli "led the Jenner & Block team that is pursuing a $1 billion copyright case on behalf of Viacom Inc. against Google and YouTube, alleging massive violations of Viacom's copyrighted motion pictures and television shows." Last year, Viacom CEO Philippe Dauman even called YouTube a "rogue company."

The lawsuit filed in New York in March 2007 accuses YouTube of "massive intentional copyright infringement" and seeks more than $1 billion in damages. Other plaintiffs include Country Music Television, Paramount Pictures Corporation, Black Entertainment Television (all of which are Viacom affiliates).

From a legal perspective, Verrilli's zealous defense of large copyright holders reached its apogee in the Grokster case.

MGM had sued Grokster, saying that it effectively induced its users to commit copyright infringement. When the Supreme Court heard arguments on March 29, 2005 in the most important copyright case that decade, MGM chose Verrilli to represent its side.

"The recording industry has lost 25 percent of its revenue since the onslaught of these services," Verrilli told the justices. "And that's particularly critical, because, remember, this is really... a venture-capital business. Most of the records we put out don't make money. A few make a lot of money. Well, what do you think's getting traded on Grokster and StreamCast and the rest of them? It's the few that make all the money."

It worked, or at least worked pretty well. The Supreme Court ruled that operators of peer-to-peer networks could be held liable for copyright infringement, and Grokster quickly settled with Hollywood studios and the record labels.

During the campaign, when CNET News asked Obama for his views on copyright, he replied: "As policymakers, we are in a constant process of examining our laws to ensure that the protections we place on intellectual property are sufficient to encourage invention without hindering innovation that builds on previous work or unfairly limiting consumers from using the goods they purchase in a way that is fair to creators."

That was, unfortunately, rather vague. Now it's a bit more clear where he stands.