Attorney Russ Frackman discusses fighting pirates, preserving copyrights, and
keeping customers happy.
Harry McCracken, PCWorld.com
Friday, January 17, 2003
He's been called the man who killed Napster. He's currently representing the
major movie studios in their case against 321 Studios for its DVD X Copy
DVD-copying utility. But attorney Russ Frackman of Los Angeles-based firm
Mitchell Silberberg & Knupp was taking sides in intellectual property
controversies long before digital copying came along.
In fact, when he began practicing law in the early 1970s, his targets included
people who duplicated 8-track tapes in their garages and pirated vinyl albums.
Today, Frackman is an articulate spokesperson for a group that doesn't get much
good press: the movie and music moguls who aim to stop unauthorized copying of
entertainment content using PCs and other technology. A speaker at the Consumer
Electronics Show's Digital Hollywood conference, Frackman also took time to
chat with PC World about his courtroom skirmishes, fair use, and the face-off
between Hollywood and Silicon Valley.
Threat or Opportunity?
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Frackman, who cheerfully says he's a lawyer, not a technology guru, joined the
battle when the Recording Industry Association of America sued file-sharing
pioneer Napster in 1999.
"Napster went from an idea Shawn Fanning had as a college kid to operation in a
few months," Frackman recalls. "A few months later, we filed our lawsuit. Our
client was amazed by the fact that [Napster] had 200,000 users--and that was
only the start. But of course, they were giving away product."
Napster positioned itself as "the guys who would drag the music industry
kicking and screaming into the 20th century," Frackman says. "But nothing could
be further from the truth."
Why didn't the industry have its own fully realized digital distribution
strategy in place to compete with Napster? Frackman points to a multitude of
obstacles, including digital rights management and copy protection issues, the
need to figure out which artists and copyright holders get paid for digital
copies, and the sheer difficulty of converting "100 years of product to this
new platform."
"Most of my clients are smart enough to realize that technology provides
opportunities," he says. "Record companies are grappling with it. But they're
trying to do it. It takes effort, education, and--once in a while--a lawsuit."
Napster's Legacy
The successful lawsuit eventually led to Napster shutting down. Just as
importantly, Frackman believes, it sparked "a public debate about peer to peer
and whether copyright protection is in effect on the Internet." The conclusion?
"Yes it is, and the courts have the right to enforce it."
Frackman has gone on to represent record companies in suits against
Napster-like services including Aimster, Madster, Morpheus, Grokster, and
Kazaa. The Internet's nebulous, global nature makes shutting down some of the
second-generation services tougher, he concedes: "Kazaa is operated by an
Australian company, Sharman Networks, with servers in Europe, to permit U.S.
copyrights to be violated by U.S. users, and it makes money from U.S. ads. And
Sharman is incorporated in an obscure country called Vanuatu. The Internet is a
wonderful tool that sort of lets Sharman do this by remote control."
As a result, "there will always be some Internet piracy...but you have to
minimize it. We're trying to put speed bumps in the road." And the legal
precedent set by the Napster case applies to all the son-of-Napster services,
Frackman says.
Fair Play, Fair Use
Frackman's role in the Napster case won him celebrity in the digital world--and
enmity from some rabid file-sharing fans.
"My toughest audience was my son's high school class," he recalls. When he
spoke there, "a kid showed up and looked down, and with this sad face said,
'The death of Napster is the end of the world.'"
Since then, Frackman says, more music-loving young people have come around to
the viewpoint that it's both illegal and wrong to download copyrighted music
without paying its owner.
But debate continues about what PC users can and can't do with digital media,
prompting ongoing courtroom battles and proposed new laws. With new
technologies like copy-protected PCs in the offing, even folks who happily pay
for movies and music have voiced concerns that they could end up unable to rip
songs to a PC or transfer them to an MP3 player.
Some people maintain such activities fall under the copyright law's fair use
clause, but Frackman believes that isn't true: "Fair use has become a real
buzzword, but it's a phrase that's often misused. [It] grew up to permit people
to do things like criticism or scholarship.a?| In my view, it was never
intended to permit copying of copyrighted material for purposes of just making
a copy or moving it to a hard drive."
"The bargain is, I'm buying this CD--I'm not buying the intellectual property.
There's never been a court decision on it, but I believe the law is clear."
Still, Frackman says that even if some forms of shuttling content around aren't
protected by law, perhaps music and movie companies should allow them. "The
content owner needs to realize demand, but that's a marketplace bargain. It
can, and probably should, accommodate that market."
Some have defended 321 Studios' DVD X Copy as protected under fair use, since
the program can be used to back up a DVD that's been legally acquired. However,
Frackman says it's clear that "you cannot manufacture or traffic in devices
designed to unlock or circumvent copy protection. Nobody lets you break the
lock on Tower Records to steal a CD."
However, Frackman stresses that it's 321 Studios that's under legal attack, not
everyone who uses its product.
Hollywood Versus Silicon Valley
The copyright controversies have also led to conflict between Hollywood-based
copyright owners and Silicon Valley's countless technology companies that
produce hardware and software that can be used for digital copying and
manipulation.
As the two sides meet in arenas such as CES's Digital Hollywood event, Frackman
says, he's noticed that early tension is fading. "Each is more aware of the
other side's positions and interests...and both sides are saying that the
consumer rules."
Earlier this week, in fact, representatives of two technology industry
associations and the RIAA announced they could concur on several main points
involving piracy and would work together on a solution.
Frackman predicts that content owners and technology companies will collaborate
more in the months and years to come to make the most of digital media's
potential. And despite his profession, he hopes that entertainment's future
isn't determined by courtroom decisions.
"Litigation," he says, "is the last resort. The first resort is to sit down and
talk."
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