Blog Post

Will New Solicitor General Take Harder Line On Copyright?

To fill the key legal post of Solicitor General, the Obama administration has turned to a lawyer with deep entertainment-industry roots who has taken on some of the industry’s toughest copyright battles. The nominee, Donald Verrilli, is best known for having buried the Grokster file-sharing service at the Supreme Court. Verrilli is one of several lawyers with recording-industry backgrounds who were brought into senior positions in the Department of Justice under Obama.

The Grokster win is without a doubt one of the most significant entertainment-industry legal victories in the internet age. It created a new copyright doctrine of “inducement” that has allowed other peer-to-peer services, such as Limewire, to be shut down under the theory that even though the services didn’t handle copyrighted material themselves they went too far in encouraging users to illegally share.

Verrilli, who was an intellectual-property litigator at the law firm of Jenner & Block before joining the Justice Department in 2009, also had a key role working for Viacom (NYSE: VIA) in its copyright battle against YouTube (NSDQ: GOOG). Verilli was on the losing side of that case, but Viacom is appealing their loss.

And Verrilli was involved in a third headline-grabbing copyright case. According to Wired, he was the point man in recording-industry arguments defending the first big fine against file-sharer Jammie Thomas-a fine of $222,000 that was later thrown out by the judge. During that trial, Verrilli argued that simply making copyrighted material available over networks can amount to infringement-a theory that’s still somewhat controversial in copyright law.

That could all suggest that, given Verrilli’s worldview, the government is more likely to take a hard-line position on copyright issues that come before the Supreme Court.

The Solicitor General is the main lawyer representing the U.S. Government before the Supreme Court, but also represents the President directly. The Solicitor General’s brief on a Supreme Court appeal can make or break one’s chance of making it to the high court; the Supreme Court only takes around 1 percent of the cases that it is asked to take, but the court follows the recommendation of the Solicitor General about 80 percent of the time; a recent study showed the Supreme Court is 37 times more likely to take a case after asking for the SG’s views on it.

If confirmed, Verrilli would take the place of former Solicitor General Elena Kagan, who is now the newest Supreme Court Justice.