Skip to main content
SearchLoginLogin or Signup

President Obama nominates the “Grokster killer” as U.S. Solicitor General

Published onFeb 27, 2011
President Obama nominates the “Grokster killer” as U.S. Solicitor General

In a move that is sure to disappoint the many advocates for copyright reform, President Obama nominated deputy White House counsel Don Verrilli as U.S. Solicitor General.  The position had been held by Neal Kaytal, who was named the acting Solicitor General after Mr. Obama nominated Elena Kagan to the Supreme Court.

Mr. Verrilli’s role as Solicitor General is important for a number of reasons.  First, he will now be the government’s lawyer.  That means, for the foreseeable future, whenever the “US” is a party before the Supreme Court, he will be representing it.  One need only look back a few years to see how often these cases, in which the US is a party, have a profound impact on the legal world. 

Further, as Solicitor General, Mr. Verrilli will exert significant influence over the Supreme Court’s decision on whether or not to grant certiorari and hear appeals.  Though the Solicitor General has no authority to compel the Supreme Court to hear a case, the Court follows the recommendation of the Solicitor General nearly 80% of the time.  Accordingly, since the Court barely hears one percent of the cases appealed to it, Mr. Verrilli’s recommendations will carry with them considerable weight.

In spite of what will likely be staunch opposition from the reform-minded members of the copyright community (an admittedly small group when compared to the population), Mr. Verrilli’s confirmation should not pose the Obama Administration any trouble.   He is likely to receive broad bipartisan support from democrats (obviously) and Republicans.  Even former President George W. Bush confidant Miquel Estrada and “conservative legal legend” Ted Olson are both reported to like him.

What does his confirmation mean to the copyright community? Mr. Verrilli has a strong background practicing in copyright law. In fact, he was even built a reputation on the title of “the guy who killed Grokster,” when he represented a group of nearly 30 entertainment companies that sued the file-sharing company, Grokster.  In that case, Mr. Verrilli successfully argued that the file-sharing companies should be held liable for pirated music, not the users.  He won a $50 million settlement for his clients that effectively “killed” Grokster (and later the more well-known Kazaa).

He has also won notoriety for his work in other high profile copyrights cases, seemingly always on the side of industry.  For example, Mr. Verrilli represented the Recording Industry Association of America (RIAA) in Capitol v. Thomas.  That case received attention because Mr. Verrilli convinced the judge that Ms. Thomas owed $220,000 to the RIAA for sharing less than 25 songs over Kazaa (the case is currently being appealed).

Additionally, before coming to work for the President, Mr. Verrilli directed Viacom’s suit against Google.  This case is still proceeding, but Viacom alleged “massive intentional copyright infringement” by YouTube on behalf of the several entertainment companies owned by Viacom (CBS, MTV, and Comedy Central).

The response from some in the copyrights community has been… tepid, to say the least.  Lawrence Lessig, former Stanford and current Harvard Law professor and inventor of Creative Commons, was told that Mr. Verrilli was being considered as the new Solicitor General and had this to say: “Wow.  That’s awful.  Certainly another slap in the face of the Netroots community.”

One thing that is important to remember, however, before judging Mr. Verrilli too harshly, is Rule 1.2(b) of the Model Rules of Professional Responsibility.  “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”  So, just because Mr. Verrilli has taken these positions and always seems to land on one side of the copyrights policy spectrum, according to the rules, that does not imply that he agrees with those positions.

*Rob Abb is a second-year law student at Wake Forest University School of Law and is President of the International Law Society.  He holds a Bachelor of Arts and Science in Political Science and Asian Studies from the University of Michigan.  Upon graduation in 2012, Mr. Abb plans to practice international law.

 

**Image Source

Comments
0
comment
No comments here
Why not start the discussion?