President Barack Obama is poised to nominate Don Verrilli, a deputy White House counsel and former top copyright lawyer, to replace now-Supreme Court Justice Elena Kagan as Solicitor General, the government’s top lawyer. The Atlantic‘s Marc Ambinder first reported that Verrilli was the likely pick way back in May 2010, but on Monday, the New York Times‘ Charlie Savage confirmed the long-expected move is imminent. As Savage notes, Verrilli has a great reputation, significant bipartisan support (conservative legal legend Ted Olsen and former George W. Bush appeals court nominee Miguel Estrada both like him), and sterling legal credentials. Even in today’s closely divided Senate, Verrilli is very likely to be confirmed. But as I reported last year, Verrilli’s history may draw some criticism from copyright reform activists, whom he repeatedly whooped in court for more than a decade:
Verrilli, who’s now serving as an associate White House counsel, is best known for convincing the Supreme Court that file-sharing networks could be sued for copyright infringement—a win that earned him the ire of copyright reform supporters and a reputation as the “guy who killed Grokster,” a file-sharing service.
Verrilli represented a group of 28 entertainment companies that sued Grokster and another file-sharing company, Streamcast, in 2003. The plaintiffs argued that the companies should be penalized for the large amounts of copyrighted music and movies that were downloaded by their users. Critics of the Grokster decision argue the company itself wasn’t [violating copyright law], although some of its users were. Grokster’s defenders added that not all of the sharing was illegal. The Supreme Court sided with Verrilli’s clients—the eventual settlement cost Grokster $50 million and effectively shuttered the site.
More recently, Verrilli has worked on a case with even higher stakes. Until he joined the Obama administration, Verrilli led a team of lawyers that had sued Google for $1 billion on behalf of Viacom, the entertainment company that owns CBS, MTV, and Comedy Central. The suit alleges “massive intentional copyright infringement” by YouTube, Google’s internet video site.
Copyright reform activists and file sharers don’t have much pull on Capitol Hill, and even Verrilli’s opponents seem to like him, so it’s unlikely that his past will derail his nomination. But the very fact that Verrilli’s promotion already seems like a done deal is a powerful illustration of what matters in Washington, and what doesn’t.