Advocates for intellectual property reform are sounding skittish about the emerging upper echelon of Barack Obama's Justice Department, which is shaping up as a who's-who of star litigators for the music, movie, and software industries. The most recent addition to a long roster, prospective Associate Deputy Attorney General Donald Verrilli, is a veteran of several of the highest-profile IP cases seen in recent years, on the side of stronger and more aggressive copyright protection in each case.

Verrili represented Viacom in its billion-dollar suit against YouTube, which sought to compel the video streaming site to more aggressively police user-submitted content for copyright infringement, articulating a legal theory that YouTube's lawyers say would vitiate service providers' "safe harbor" immunity against liability for user conduct. He filed an amicus brief on behalf of copyright owners in the Cablevision remote DVR case, arguing that the cable company's recording and streaming service was less a long-distance TiVo than a high-end Pirate Bay.

When the Recording Industry Association of America sought to block a retrial in the Jammie Thomas file-sharing case—preventing any reconsideration of the theory that "making available" a file is tantamount to infringing distribution—they called Verrilli. And in the landmark Grokster case, which held the makers of the peer-to-peer client responsible for facilitating infringement, Verrilli's name crops up again.

Verrilli caps a string of picks that have made free culture types squirm; his colleague at Jenner & Block, Thomas Perrelli, has been tapped for the number-three spot at Justice. Beloved by the RIAA, Perrelli too has argued on the industry's behalf in several cases against accused file-sharers. He also helped persuade the Copyright Royalty Board to jack up the rates paid by webcasters—and collected by the RIAA on behalf of members and nonmembers alike.

In line for the position of associate deputy attorney general is Neil MacBride, a former lawyer to Vice President Joe Biden last seen acting as general counsel for the Business Software Alliance. And the country's number-two lawyer will be David Ogden, who was part of the government team defending retroactive copyright extension in Eldred v. Ashcroft and orchestrated the defense of the now-defunct Child Online Protection Act. Some lists of "industry" lawyers bound for justice have have included David Kris, who recently spent several years at Time Warner and will soon head the DoJ's National Security Division.

Is there really cause for concern?

So how much cause for genuine concern is there? Worries about Ogden and Kris, at the very least, border on the ludicrous. Though all of the appointees would be expected to recuse themselves from involvement in cases or decisions implicating former clients, Kris is an expert on surveillance and intelligence law who would rarely have occasion to influence IP issues in any event. Ogden, meanwhile, would simply have been tasked with defending the government's position in whatever cases he was assigned. Tellingly, he has also been attacked by the socially conservative group Fidelis for his work on behalf of gay rights and free speech. To be sure, his defense of Playboy and Penthouse, like his defense of COPA, should be viewed above all as an attorney's faithful representation of his client's interests, but the former, at least, were cases voluntarily undertaken in private practice.

For the same reason—and because it's psychologically difficult to consistently defend the same position without at least somewhat internalizing it—concerns about Verrilli, MacBride, and Perrelli may be marginally more justifiable. Still, the obligation of recusal makes them unlikely to have a prominent role in such IP litigation as the Justice Department sees fit to intervene in. Moreover, the Justice Department already successfully fought off an attempt to deputize government lawyers as copyright cops. If there's a genuine worry about someone like Perrelli, it's not that he'd turn the power of the state on Kazaa users, but that he might not be inclined to complain as loudly the next time such a proposal is mooted.

That said, the angst over the recent picks seems, above all, like an instance of what social psychologists call the "fundamental attribution error": The tendency to weight intrinsic character or disposition too heavily, and social circumstances too lightly, when explaining observed behavior. We know, for instance, that when test subjects are asked to guess the opinion of an essay's author, they will assume that the author agrees with his essay even if they are told the author was instructed to defend that position. Perhaps these appointees took the cases they did because of a deep commitment to an expansive view of copyright. But isn't it more parsimonious to observe that the RIAA pays well?

Update: Gigi Sohn of Public Knowledge basically agrees with the notion that one shouldn't read too much into arguments lawyers make in defense of their clients, but also suggests that future appointments strive for "balance":