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 US about his courtroom skirmishes, fair use, and the face-off between Hollywood and Silicon Valley.
Threat or Opportunity?
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 Inc. 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."
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. 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."