[This post first appeared on Artist Rights Watch]
By Chris Castle
If you’re not a lawyer, you may not be that familiar with law clerks. The title sounds very…well, clerical. But make no mistake, they are very powerful people who are largely unknown to clients but who are in the room with their judges, often every step of the way. As Wikipedia tells us:
A law clerk or a judicial clerk is an individual—generally an attorney—who provides direct assistance and counsel to a judge in making legal determinations and in writing opinions by researching issues before the court. Judicial clerks often play significant roles in the formation of case law through their influence upon judges’ decisions.
Yet, we know virtually nothing about them from the outside. If your case is heard, wouldn’t you want to know about everyone who was influencing the outcome of your case?
There are ethical rules that cover judicial clerks, such as Maintaining the Public Trust: Ethics For Federal Judicial Law Clerks issued by the Judicial Conference Committee on Codes of Conduct which admonishes clerks that the rules apply to them, too:
During your clerkship, you will provide valuable assistance as your judge resolves disputes that are of great importance to the parties, and often to the public. The parties and the public accept judges’ rulings because they trust the system to be fair and impartial. Maintaining this trust is crucial to the continued success of our courts. That’s why, although you have many responsibilities that demand your attention, you must never lose sight of your ethical obligations.
While that all sounds good, how would anyone ever know exactly what the story is with the clerks who are writing opinions with their judge or justice that directly affect the outcome of your case. As the ethical rules clearly state:
Although many of your obligations are the same as those of other federal judicial employees, certain restrictions are more stringent because of your special position in relation to the judge. Some obligations continue after your service to the court concludes.
But again–how would you ever know? If you go to the bible of the revolving door, Open Secrets, you’ll notice someone is missing…the entire judicial branch of our government.
Let’s take the easy one: Conflicts of interest. When does a law clerk have a conflict of interest? The rulebook tells us:
Canon 3F(1) of the Code of Conduct advises judicial employees, including law clerks, to avoid conflicts of interest. Conflicts arise when you—or your spouse or other close relative—might be so personally or financially affected by a matter that a reasonable person would question your impartiality.
Note the disjunct: “personally or financially affected.” Either can give rise to a conflict or a question as to the clerk’s impartiality.
Conflicts come in several flavors, but two biggies are actual conflicts and potential conflicts, very routine inquiries in any conflict check. The ethical rules for clerks give examples of each: For example, an actual conflict is “The firm where you plan to work after your clerkship serves as counsel in a matter before your judge”. “Firm” in this case presumably applies to the situation where a company where the clerk plans to work appears before the judge.
A potential conflict includes “An attorney you met and talked with at a social function appears to argue a motion before your judge.” It’s not a far reach to think that the example would include a former professor, amicus, or author of an amicus brief filed or to be filed in a case before your judge.
But the point is, how would the litigants ever know any of these situations were an issue. Who keeps track of who knows whom among the clerks cloistered away in the ivory tower?
Let’s take a concrete example from the Above the Law Supreme Court Watch blog which handicaps U.S. Supreme Court clerk hires:
Joshua Revesz (Yale 2017/Garland) will be clerking for Justice Kagan in OT 2020. If his distinctive surname rings a bell, perhaps you’ve heard of his famous father: Professor Richard “Ricky” Revesz, former Dean of NYU Law School, and a former Supreme Court clerk (OT 1984/Marshall).
Readers of ARW may also recognize the name from a different place: The deep and abiding controversy over the American Law Institute’s failing Restatement of Copyright project. Professor Revesz joined the ALI in 2014 right after the noted Lowery insulter, Spotify lawyer, Lessig mentee and all round anti-copyright advocate Christopher Jon Sprigman joined the NYU faculty in 2013, presumably under then-Dean Richard Revesz.
Somehow–we don’t know exactly how–of all the lawyers in all the world, how ALI Director Revesz chose Professor Sprigman to run the Restatement of Copyright project, an undertaking that by all reports is devoted to weakening copyright and expanding loopholes for Big Tech. How do we know this? Because Sprigman pitched Revesz on the idea very soon after Revesz took over at ALI.
And the rest is history with everyone from authors to the Congress criticizing the very idea of a Restatement of Copyright; indeed, Professor Peter Menell of the UC Berkeley law school and Professor Shyamkrishna Balganesh of Columbia law school wrote an extensive critique that “explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading and seemingly biased results that risks undermining the legitimacy of the eventual product.” (“The Curious Case of the Restatement of Copyright“). In other words–it’s bad.
It will come as no surprise that I would go further–I think that is exactly the purpose of the Restatement (and Professor Samuelson’s Copyright Principles Project it descends from).
Hold on, you say–what does this have to do with Clerk Revesz and his judge, Supreme Court Justice Elena Kagan, the former Dean of Harvard Law School (whose remarks at the 10 year anniversary celebration of the Berkman Center are illuminating (home to both Lessig and poker aficionado and alleged counsel to copyright infringer Mr. Tennenbaum, Charles Nesson)). Maybe nothing.
But isn’t it the kind of thing you might want to know about someone who was in close contact with someone who was deciding the outcome of your case? Or was in close contact with other clerks who were deciding the outcome of your case? How would you ever know what contacts the clerks had with anyone who might be influencing their case or who had donated money to an institution that benefited the family member of someone who had influence over your case? Either directly, over cocktail party conversation or the dinner table? I am not implying any skulduggery here, it could all have been very innocent or appear so as conflicts often do.
Did it happen? We don’t know, because when we go to Open Secrets there’s no judicial branch disclosure. Now certainly judges have to file public financial disclosures. (That’s how we knew about Judge Ware’s employment by Santa Clara Law School when he presided over the Google Buzz cy pres and ordered $500,000 be given to that university–“now-retired federal district judge James Ware rewrote the settlement to direct $500,000 to Santa Clara Law School, where he taught. The money went to fund a center for ethics.”)
While their judges are obligated to public financial disclosures, clerks do not have such obligations to litigants, much less to the public. Disposition of conflicts disclosed by clerks seem to be handled in chambers without consulting the litigants.
Given the number of clerks in chambers across the country, the possibility for conflicts are significant. When a lawyer has a conflict of interest that is waivable, she must give the client the option to waive the conflict with informed consent. But if the conflict is not waivable or the client refuses to waive, the lawyer must decline the representation.
Is there a corollary for law clerks? There definitely are rules and there definitely are processes. But are the litigants ever asked if they consent to a conflicted clerk working on their case?
I’ve never heard of it. Maybe there should be such a process.
Guest post by Chris Castle
The Uniform Commercial Code defines “good faith” as “honesty in fact and the observance of reasonable commercial standards of fair dealing.”
Spotify was sued by Eight Mile Style and Martin Affiliated, two publishers that control rights in some of the early Eminem repertoire, including Lose Yourself. Remember that earlier this year, Spotify announced with great fanfare that Lose Yourself was streamed over 1 billion times on the platform. That’s just one measurement of Eminem’s dominance on Spotify. Turns out that Spotify had failed to license a good chunk of Eminem’s catalog.
The publishers eventually joined the Harry Fox Agency to the lawsuit as participating in the situation, adding claims of vicarious and contributory copyright infringement against the long-time publishing administrator to the industry. In fact, the Harry Fox Agency gave some people the impression that when it came to Section 115 of the Copyright Act, HFA thought they were the government. What ever is this venerable organization doing getting sued for copyright infringement instead of leading the charge against the infringer?
At one point a few years ago, quite a few years ago now, HFA decided to jump up on top of the wall. They started working for tech companies like Spotify and also administering publishing rights. That’s right–both sides. What could possibly go wrong?
Let me illustrate with an anecdote (one that does not involve HFA, or MRI for that matter). A highly ethical licensing administrator interviewed for a job handling music licensing for a big tech company. After several rounds of interviews, the administrator was told they weren’t getting the job. Asking for a reason, the tech company told the administrator that the company thought the administrator were likely going to flag and at least try to fix any problems they found in the tech company’s reporting. The administrator didn’t find this remarkable as this was the honest thing to do. The company said, we don’t want honesty when it’s not in our favor. The company hired someone else because they did not want “honesty in fact”.
There are serious allegations against the Harry Fox Agency in the Eight Mile Case. Remember, this is a defense motion to dismiss, so the plaintiff largely gets the benefit of the doubt in their favor. You may ask yourself what possible motivation could Spotify have for engaging in such risky behavior. In her order denying in part and granting in part HFA’s motion to dismiss, Judge Trauger puts her finger right on the most plausible explanation:
[I]t is undisputed that [Eminem, aka Marshall] Mathers is an artist who has enjoyed extraordinary commercial success and has built a large, dedicated fanbase, such that his omission from a major streaming platform might discourage some meaningful number of potential users from subscribing.
In other words, they did it for the subscribers, they did it for the growth and they did it for the money.
While Eight Mile alleged both vicarious and contributory infringement, Judge Trauger dismissed the claim for vicarious infringement on technical grounds (with leave to amend). Not so with the claim for contributory infringement, however:
HFA objects that it was under no obligation to police Spotify’s in-house decisions regarding infringement. Whether that is true or not, the plaintiffs have not merely alleged that HFA failed to affirmatively police Spotify’s conduct; they have alleged both that HFA knew and, through the ordinary fulfillment of its duties, should have known that the infringement was occurring and that HFA was helping to conceal it.…There is little doubt, moreover, that those allegations of knowledge were pleaded sufficiently. Even when a claim is governed by the heightened pleading requirements of Rule 9(b), “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b). The Supreme Court, moreover, has recognized a party’s “aiming to satisfy a known source of demand for copyright infringement” as evidence of an improper purpose in the contributory infringement analysis. Grokster, 545 U.S. at 939. That circumstantial evidence is only heightened when the defendant, knowing of the capacity for infringement, fails to take steps to avoid it. See id. (citing Groskter’s lack of “attempt[s] to develop filtering tools or other mechanisms to diminish the infringing activity using their software”).
The plaintiffs have plausibly alleged that HFA became aware of Spotify’s licensing predicament and offered services that directly filled its need to maintain an illusion of lawfulness while continuing to infringe.
If these allegations turn out to be proven true, songwriters (and the Copyright Office for that matter) may well ask themselves if there are implications for HFA’s continued role as a vendor for The MLC, if not why they were selected in the first place.
“These people, when they start out — whether it’s Facebook, Snapchat, TikTok, whatever — they resist paying for music until you go beat the f— out of them. And then of course, none of them pay fair market value and they get away with it. Your company’s worth $30 billion and you can’t spend 20 grand for a song that becomes a phenomenon on your channel? Even when they pay, artists don’t get enough. Writers don’t get enough
Thank God for Irving Azoff! (Although how about $1 trillion?) In a must-read profile interview with the LA Times, The Great One lays down the only strategy that works with Big Tech–not unity dinners, not lobbyist sell-outs, not sucking up to monopolists like Daniel Ek. And you know why he’s right? Because they do it to us and weakness in the face of bullies is not an option.
Yes, Dr. Azoff has identified the Tech Gene that turns entrepreneurship into a kleptocracy faster than you can say disrupt. But what should we expect in the coming years given the Tech Gene pandemic? The Big Tech kleptocracy goes way beyond stealing from creators.
Moonalice band member and venture capital investor Roger McNamee recently wrote a good description of policy expectations in Wired:
One of the policy areas that demands a new approach is technology. New technologies like facial recognition and artificial intelligence have been plagued by racial and gender bias, with particular harm in areas like law enforcement, job hiring, and mortgage applications. Internet platforms like Facebook, YouTube, Instagram, and Twitter have amplified hate speech, disinformation, and conspiracy theories, undermining our politics, our pandemic response, and the safety of our citizens. More than 1,000 marketers have joined the #StopHateForProfit campaign, agreeing to pause their advertising on Facebook for a month or more to protest the amplification of hate. In addition, many companies in Silicon Valley have been accused of racial and gender bias relative to employees, most recently Facebook, where an employee and two applicants filed a complaint of alleged racial bias. For all its past contributions to our nation, Silicon Valley now has issues with culture, business models, and business practices that require government intervention.
Imagine my disappointment last week when The New York Times reported that President Obama had suggested that you work with two members of the Silicon Valley establishment, former Google CEO Eric Schmidt and LinkedIn founder Reid Hoffman. I know both men well. They are brilliant and very successful. Their money and expertise may be valuable to your campaign, but I hope you will not turn to them for policy guidance. They were architects of the culture and values that produced the problems I described above.
I hope you will take to heart the words of Albert Einstein, who said, “We cannot solve our problems with the same thinking we used when we created them.” This is particularly true in tech.
And the New York times story said:
Mr. Biden’s campaign and transition team include advisers with ties to tech companies and other industries that worry liberals. Avril Haines, a former Obama national security and intelligenceofficial who is helping to lead Mr. Biden’s transition team, was a consultant for the data-mining company Palantir and WestExec Advisors, a firm that represented a major tech company it hasn’t identified.
A WestExec co-founder and Obama State Department official, Antony J. Blinken, is running the Biden campaign’s foreign policy operation. WestExec has worked with the philanthropy started by Eric Schmidt, the former Google chairman, and with Google’s in-house incubation unit, Jigsaw. But Mr. Blinken and Ms. Haines did not participate in that work, according to the Biden campaign, which said both advisers stepped away from WestExec this month.
Cynthia C. Hogan, a former White House lawyer for Mr. Biden who is helping to lead his vice-presidential selection process, was a lobbyist and government affairs executive at Apple. She tendered her resignation from the company in April, according to the Biden campaign.
If you’ve never heard about these advisory network, don’t be surprised. As the Times tells us:
A list of rules provided to members of the policy groups, a copy of which was obtained by The Times, instructs participants not to disclose their participation “on social media such as Facebook or LinkedIn or in your professional bio.” It also warns them not to discuss or distribute names of other committee members, contents of committee conversations, emails from the committee or to talk to the news media.
“Simply put, do not talk to the press,” the document reads, emphasizing “do not talk to the press” in boldface.
And what is Eric Schmidt doing? According to Recode:
Yes, to paraphrase former government official Susan Crawford, it looks like “Uncle Sugar” Eric is trying to “geek around the nation state.” Why? It’s very odd but it’s exactly the kind of thing that Roger McNamee warned of. As Recode tells us, it could be a COVID play to allow Uncle Sugar to travel to raves in Europe more easily (as Cyprus citizenship gets him an EU passport), but:
[I]t is still uncommon to see Americans apply to the Cyprus program, according to published data and citizenship advisers who work with the country. The program is far more popular with oligarchs from the former Soviet Union and the Middle East, and it has become mired in so many scandals that the Cypriot government announced last month that it was to be shut down.
But not for Uncle Sugar. So there goes the confirmation hearing. Why did Uncle leave Google again? We never got an answer to that or why his NY pad is soundproofed–from the inside.
Yes, they’re psycho kleptocrats just like Irving says, and it looks like they’re back. But thankfully we have Irving Azoff and we’re not waiting for the cavalry to save us–which they never have.