PERRELLI'S PERVERSE INCENTIVES.

I speculated earlier that, based on his legal practice in New Media, Tom Perrelli, Barack Obama's nominee for the post of Associate Attorney General, would have influence on the administration's intellectual property and net neutrality policies, which promise to be an interesting point of contention in the coming year. Now we may want to hope he'll be less influential: Matt has done the requisite googling and discovered that Perrelli, who will be third-in-line at the DOJ, has built his practice around litigation defending corporations under provisions of the restrictive Digital Millennial Copyright Act. Dude killed Napster!  This shouldn't actually surprise anyone with a knowledge of the perverse incentives of high-level legal work, where the best attorneys are encouraged to craft a practice by figuring out the best way to wring money out of huge corporations. Consider this excerpt from an interview with Perrelli:

How did you build your practice?
One thing I did was pick about five areas I’d become an expert on in government, such health care/HCFA, copyright, and some esoteric regulatory regimes. Another thing I did was identify issues that are novel and go to companies that might be affected. I would say: Let me do some work for you, for little or nothing. If they liked what they saw, they’d talk to us further. There are many good approaches, but I like that one because it feels more merit-based, and it appeals to the student in me, learning new issues.

What’s an example?
Napster. I thought, this digital copyright stuff is going to be a big problem for media companies. I looked at litigation in which they were involved, and did a critique of whether they were well served or how else they might have argued their case.

Did it yield results?
Yes, we now have a thriving entertainment and new media practice, clients like Universal Music, Warner Music, the Viacom YouTube case. Steve Fabrizio and I co-chair the practice.

It's possible that Perrelli thinks, as far as public policy goes, that we really ought to do what we can to free up intellectual property and prevent monopolization, etc. But no one is going to pay him millions of dollars a year to argue that -- ever wonder why Tim Wu doesn't work at a Top 100 law firm? -- and so Perrelli holds the opposite point of view in his private legal work. On the other hand, during the Clinton administration, he supervised important litigation against Big Tobacco, so he's also not exactly a corporate stooge in general. But the dynamics of American law practice require attorneys who want to make money and generally be successful to court a very specific audience.

Will Perrelli's experience translate into worse intellectual property policy from the Obama administration? Hard to say, but for the time being all we have to go on are Obama's statements in favor of net neutrality during the campaign. The other factor is that Perrelli wasn't picked for this job because he is a good intellectual property lawyer -- he was likely picked because he worked at DOJ before and has been friends with Obama since their law school days together.

-- Tim Fernholz