Joe Biden's Problem with Music
A different perspective on the RIAA’s takeover of the Department of Justice
If there's something to be said about Vice Presidents, it's that they can wield unlikely power. They may be just background figures at times, men who are simply one heartbeat away from becoming President themselves. But if the last roughly 60 years are any indication, Vice Presidents have increasingly garnered more power: Richard Nixon's brilliant foreign advisory skills in the early Cold War; Lyndon B. Johnson's control of the Senate; and, most recently, Dick Cheney's masterful undermining of the Constitution and implementation of torture into military doctrine. Even if they do not eventually become President, Vice Presidents certainly leave an indelible legacy to their administrations.
It has been just under 100 days since Joseph Robinette Biden Jr. was inaugurated as Vice President, and yet he already seems to be making his mark as Vice President, if only on a subject nobody in the Beltway is paying attention to: intellectual property. There is much evidence to suggest that he has become the music industry's point man in the continued war on copyright, leaving their ultimate victory all but certain.
During his tenure as Senator of Delaware from 1973 to 2009, Joe Biden's record on intellectual property was minimally documented. He voted for the unanimously passed Copyright Act of 1976, which extended copyright protection to 75 years, while other major copyright laws passed during Biden's tenure -- such as the DMCA of 1997 -- were passed without a vote by the Senate. While this says very little of Biden's position on copyright, the acts that haven't passed say more. According to Congressional records, since 2002 (when he took over the powerful Senate Foreign Relations Committee) Senator Biden had sponsored five pro-copyright bills and co-sponsored three. Among these bills includes the Family Entertainment and Copyright Act of 2004, of which the similar yet brutal 2005 edition became law. Another was the Perform Act of 2006, which intended to restrict the recording and playing back songs off satellite and internet radio (this died in committee).
While the content industry as a whole was neutral during the 2008 election (with the RIAA supporting John McCain and the MPAA supporting Barack Obama in terms of donations), the industry nonetheless rallied their support to Biden (and, to a less extent, Obama) upon his election. In fact, it was through sources at the RIAA that Tiny Mix Tapes was first made aware of Joe Biden's position on copyright. On the other hand, President Obama, during his brief tenure as Senator of Illinois, had neither sponsored nor co-sponsored any form of copyright legislation. Furthermore, he had made no statements on copyright during his tenure as Senator and his presidential campaign.
In the short time between election and inauguration, the incoming administration's position on copyright, examined at the time in the TMT article “The War on Copyright” (TMT Article), was not clear. The only early signs of a pro-copyright, anti-piracy stance were through an MPAA wishlist posted on the Change.gov website. Since then, the appointments being made at the Department of Justice have painted a striking picture of what is to be expected by Americans in terms of intellectual property. In order, here are the appointments made by the White House of note:
- Thomas Perrelli, nominated as Associate Attorney General on January 5, confirmed March 12. Perrelli's position is second-in-command in the DoJ, behind Attorney General Eric Holder. He was one of the leading RIAA lawyers on file-sharing DMCA cases. In one case, he argued for the release of ISP customer information without a subpoena.
- Donald Verrilli, nominated as Associated Deputy Attorney General on Feburary 4. Verrilli's position is third-in-command in the DoJ, behind Perrelli. He was the chief RIAA attorney in Jammie Thomas case of last year, which was won by the RIAA before being declared a mistrial.
- Brian Hauck, appointed as Counsel to the AAG in February 4. Hauck's position is to serve as Perrelli's lawyer. He represented the RIAA in the historic Supreme Court case MGM Studios v. Grokster in 2005, won by the industry. He also donated a combined $1500 to the Obama campaign in 2007 and 2008.
- Ginger Anders, appointed as Assistant to Solicitor General Elena Kagan in March. The Solicitor General represents the government in Supreme Court cases. Anders was one of the litigators in last year's Cablevision case, which the content industry intended to block the cable company from allowing it to store customers' recorded programs on its servers.
- Ian Gershengorn, appointed Deputy Assistant Attorney of the Civil Division of the DoJ on April 13. Gershengorn's position entails overseeing the Federal Programs Branch, which recently announced support for $150,000 monetary damages for pirated files during a copyright case. He also represented the RIAA in the MGM Studios v. Grokster case.
These five lawyers are of particular note for two reasons: They all represented the RIAA in the past decade, and they all come from the same legal firm, Jenner and Block. Granted, said firm is a large, national firm, with a staff of over 500, and has an upstanding reputation (Justice Stevens of the Supreme Court was a former partner). But to have five lawyers from the same firm who had the same client is a much larger problem. Many of these positions hold the day-to-day operations, and thus the real power, of the DoJ. The fact that these lawyers are in key positions not only allows the RIAA to have a major advantage in copyright cases through federal, but could also shift the DoJ's focus away from matters of national security and interest towards something that is comparatively minor on the national agenda: internet piracy. Matters are only made worse by the fact that Perrelli was once Verrilli's boss at Jenner and Block. The conflict of interest cannot be overstated here.
The result? A massive shift in intellectual property law has begun. Already, the government has, as mentioned before, weighed in on a piracy case. The Joel Tenenbaum case, already garnering controversy due to demands of broadcasting the trial live on the internet, now has fines of up to $150,000 per stolen music track at stake due to this intervention. More importantly, in March, the administration denied a petition for information on the ever-secretive Anti-Counterfeiting Trade Agreement, on the grounds that it was “properly classified in the interest of national security.” While the government has since relented on the latter and has finally released a summary of the agreement on April 7, this is not to say that they have softened their suddenly hardened stance on copyright. The content industry's recent victory over the legendary Pirate Bay BitTorrent tracker will not be the final victory they're looking for. But it is certainly the beginning of this war. With the United States government backing them, the war becomes theirs to win.
The question, when all of this happens, is: How is this happening, and more importantly, who is responsible? Many internet activist organizations, led by the Electronic Frontier Foundation, have called on President Obama to end the packing of Department of Justice with RIAA lawyers. But the President's role is questionable, and may even be diminished to a simple follow-through. As noted, Obama was legislatively mute on copyright as a Senator. Furthermore, despite having the general support of Hollywood, the only record executive known to have publicly supported Obama during the campaign was David Geffen, and his reasons for support had very little to do with copyright. Furthermore, the RIAA supported Senator John McCain in the election. The argument for Obama being wholly responsible and supportive for these appointments lies on a shaky foundation.
While there are other advisors who play prominent roles, the one name that makes sense in these major appointments and shift in policy is Vice President Biden. He sponsored and co-sponsored major pro-copyright legislation, some of which eventually became law. But there are other, quasi-legislative matters that can be noted: Not unlike what is happening now in the DoJ, Senator Biden signed a letter urging the department to prosecute file-sharers, then considered a civil matter, in 2002. On the five-year anniversary of the passing of the DMCA, Biden was one of only four senators invited to an anniversary party hosted by the late MPAA head and copyright champion Jack Valenti.
Biden also has a limited understanding of technology. He refused to answer technology-based questions in the early goings of the campaign. Past legislation included anti-encryption laws that were defeated in the 1990s. But more recently, he made a significant gaffe at the beginning of his term during an interview on CBS's Early Show: Not only did he inadequately explain the purpose of the website for the recovery stimulus bill, but he could not explain how to do anything on the website itself, at one point calling it a “website number.” The only other display of ignorance of the internet that could match that statement was Alaskan Senator Ted Stevens's “series of tubes” rant in June 2006.
With such a pro-copyright and anti-technology position, it's hard to argue the role of Vice President Biden in the appointment of these lawyers as anything but integral. If he did not appoint the lawyers himself, it is likely that he had the majority of influence in the appointment process. This process is likely to continue, with intellectual property not only being a low priority in the Beltway, but a situation that heavily favors the music industry. It is quite ironic that, despite his reliance on Hollywood, Obama was endorsed by many supporters of more tech-friendly copyright policy, including Google, Stanford law professor Lawrence Lessig, the EFF, and even the American wing of Sweden's Pirate Party. They hoped that his somewhat neutral stance on copyright would ease to a more reasonable copyright policy. Apparently, they had forgotten about Joe Biden and how Vice Presidents can wield unlikely power.