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Lawyer Limelight: Russell Frackman

By John Ryan

When the National Law Journal released an editorial feature called The Decade's Most Influential Lawyers earlier this year, it came as no surprise that Russell Frackman was among the three IP lawyers chosen for the distinguished list. The Mitchell Silberberg & Knupp partner may be best known for A&M Records v. Napster (and later Metro-Goldwyn-Mayer Studios, et al. v. Grokster), in which he successfully argued for clients in the recording and entertainment industry that peer-to-peer file sharing sites should be held liable for copyright infringement.

But the landmark Napster case is just one of many highly influential copyright and trademark cases handled by Frackman over his 40 years in practice. And for Frackman, who also made our 2010 Lawdragon 500 guide, the fight goes on as the online distribution of content creates endless opportunities for copyright infringement.

Lawdragon: How would you describe your practice these days?

Russell Frackman: I am still doing work on online infringement, mostly in the recording business, just like I’ve been doing since Napster, with much of it now involving user generated content (UGC) sites. But a lot of the issues remain the same or are very similar. It’s just a continuing battle, I suppose, that goes back to the beginning of my practice 40 years ago when we were dealing with pirated 8-track tapes that people sold out of the backs of their cars.

I think what’s happening now with the Internet is sort of symptomatic of what I’ve seen throughout my career – that technology moves so much more quickly than the law can keep up. Right now we are dealing with technology that has the greatest opportunity to be used for good as well as for infringing activities, and copyright law just hasn’t kept pace. UGC and peer-to-peer sites were not in existence when the Digital Millennium Copyright Act (DMCA) was passed.

LD: What are the issues we are seeing now in disputes between content owners and distributors?

RF: What we’ve seen in recent cases – and I have one or two cases pending that deal with these issues – is that courts are grappling with how to apply the DMCA and in what ways the protections of the law apply to these new technologies. Those issues are winding their way through the courts and have not yet been decided by courts of appeals. That’s going to be a major battleground over the next several years.

Things are a lot different than when I litigated Napster, both in terms of what the technology can do and what can be done to prevent infringement. As we well know, the capability to spread material, both good and bad, is infinitely larger now than with any technology that has ever existed.

LD: Much discussion followed YouTube’s recent victory over Viacom in New York federal court, where the judge ruled that YouTube’s services were protected by the DMCA’s safe harbor provisions because the site took down infringing material when notified by Viacom. What do you make of that decision?

RF: It places the entire burden on the copyright holder to police an incalculable number of websites to determine whether there is infringement going on, and to give notice and then to wait for the material to be taken down. As soon as it is taken down, however, it can be put back up again. Frequently a website will just take down the one URL that is noticed. The same record and same song can be other places on the same website and won’t be taken down, or it might reappear the next day. If it’s a peer-to-peer site with downloadable material, the song may have been downloaded and spread virally around the Internet, and is incapable of being recalled.

In many respects, when we’re talking about infringing websites, they’re just saying “It’s not my job, it’s your job to give me notice then I will take it down.” But it does not ensure that the material doesn’t go back up again.

LD: Is there a solution to this that can keep both sides happy?

RF: Well, I’m just a poor trial lawyer, not a business person. But when we started with Napster, the company took the position that there was no technology that permitted them to distinguish between copyrighted material and music that may not be copyrighted. Ultimately, the court said that the company had to figure out a way to do that.

My understanding is that at least the technology has advanced significantly so that there is a way to determine what is protected and what is not subject to filter and blocking. It is certainly possible for each website to deal with their own premises, to use current technology to try to filter out infringing material before it is distributed. My belief is that the DMCA intended the copyright holders not to bear the only burden of policing infringing activity, and that it is intended to be a cooperative effort.

LD: What do you see as the legacy of Napster?

RF: To put it in perspective, piracy in one way, shape or form has always existed. I suspect that soon after the printing press developed, people were using it to print books without consent of the owners. And soon after Edison invented the phonograph, people were making pirated or counterfeit copies of music. Looking at Napster, I think that – whatever level of piracy is going on now – things would have been many magnitudes worse if we had lost or not litigated the case. It would have been a de facto license for internet service providers to use copyrighted materials in many different ways without prospective liability.

LD: It seems many people of a younger generation believe that it’s their right to have free access to copyrighted materials they can find online. Is this a losing battle?

RF: I’m not sure I agree 100 percent with the premise. The evidence is anecdotal. One of the clear legacies of Napster was that it was widely publicized and made clear to almost anybody engaging in that kind of conduct that it was copyright infringement. One could have argued that before Napster it was uncertain. I think after and in cases that followed it was difficult if not impossible for someone to say, “I didn’t know that it was copyright infringement.” Will some people continue to do it? Absolutely, and they do. But I think a good number of people choose to comply with the law, whether they would be caught or not caught doing it.

I suppose it’s the same reason that people in LA don’t jaywalk or cross against the light even when there is no policeman present. I think the vast majority of people want to act in a way that is legally and morally correct.

And now there is one significant business difference that followed the days of Napster, and that is the ability at a fairly small price to legitimately download music or stream music over the Internet. Given the popularity of these services, I think a significant number of people are making the decision not to infringe.

LD: What would you tell people who make the opposite decision?

RF: What I would tell those who do is, number one, it’s unlawful, and number two, you’re depriving not only record companies but also artists, songwriters, studio people – people who depend for their livelihood on the legitimate sales of copyrighted materials. You’re depriving them of something that they earned. In addition, you are ultimately depriving yourself and the rest of the public of the creative fruits of these people. The copyright law provides an incentive for creators to create new material that the public has access to. It may not be a very self-evident concept but it certainly was one of the major reasons for the copyright law in the first place.

LD: How did you get into this area of law?

RF: I had no interest or even knowledge of this area of law when I first started to practice. I had never taken a copyright course in law school. I started at my law firm, the one I’m still at, just about exactly 40 years ago. In those days, one of the partners who became my mentor, Howard Smith, was dealing at the early stages of piracy involving 8-track tapes. With the advent of 8-track tapes and tape recorders there was a great increase in the ability to cheaply make copies of music. Before then, if you wanted to pirate music you had to copy a vinyl record, which was very expensive and not easy to do. Piracy was just getting to be a much larger problem.

Howard Smith started to work on this issue in the late 1960s, a couple of years before I joined the firm. We had a number of record company and publishing clients before the RIAA (Recording Industry Association of America). Over the years we also started to do work for the RIAA and it carried through from 8-track tapes to cassette tapes and for a brief time to digital audio tapes, or DAT, then to CDs and eventually to the Internet. It was a natural progression as the ability to make exact copies cheaply and to distribute them has increased.

LD: What do you like about practicing in this area?

RF: Well, it’s not only high profile but also a crucial area of the law. It’s cutting edge and extremely important not only to my clients, and to internet service providers and websites, but also to virtually everybody because most people either download or listen to music or buy music over the Internet. For all of those reasons, the work that I do can be both frustrating and satisfying, and also intellectually challenging.

LD: How did you feel about being included in the National Law Journal’s list of the most influential lawyers of the decade?

RF: It was a terrific experience and a great honor. My kids and my mother were really impressed. And that’s not to be flip about it, because it was nice to be recognized for the decade of work and not just for one case. Most of the work is done over the course of years in the backroom out of the spotlight. If you’re fortunate like I was to be in the right place at the right time, you get to use all of that history and experience in ways that can help shape the law.

It’s also a broader recognition beyond that of just myself. None of the cases that I’ve litigated has been done in vacuum. With Napster, for example, we had eight to 10 lawyers involved. It was a broader recognition of the work our firm.

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