Civil Division chief Tony West has recused himself from Justice Department decisions in an important copyright case that pits Hollywood studios against the Cablevision cable company. The news came at the bottom of a 22-page amicus brief filed last month by Solicitor General Elena Kagan that opposes Supreme Court review of a 2nd Circuit ruling that Cablevision’s “network DVR” service didn’t infringe the studios’ copyrights. The case is Cable News Network, Inc., et al v. CSC Holdings Inc. et al. View the government’s brief here.
The Los Angeles Times called Kagan’s position “a departure from the previous administration’s expansive view of copyrights” and said it was cheered in many quarters of the tech community. Read the LAT’s analysis here. But the newspaper also noted that Kagan was careful to emphasize the narrowness of the 2nd Circuit’s ruling.
At the bottom of the government brief is an asterisks that says, “The Assistant Attorney General is recused in this case.” Justice Department spokesman Charles Miller confirmed that West is the official who recused himself. West is a former partner at Morrison & Foerster, which represented The National Music Publishers’ Association. The music publishing group filed an amicus brief in support of review, Miller said. He added that West wasn’t involved in the litigation.
Advocates of digital sharing have been watching the DOJ with unease since the appointment of several former lawyers for clients who advocate strong intellectual property law enforcement, including Associate Attorney General Tom Perrelli.