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Napster killer takes on DVD copying

When Hollywood goes into court to argue that DVD-copying software is illegal, it will stand with a lawyer who's quietly had as much influence on the Net as any well-known code-slinger.

When Hollywood studios go into court Thursday to argue that DVD-copying software is illegal, they'll stand alongside a lawyer who has quietly had as much influence on the Net as any well-known code-slinger.

Movie studio attorney Russ Frackman is the same lawyer who has represented the recording industry against Napster and a host of other file-swapping services. Over the course of four years, he and his legal team have made a deep mark on Net culture and history, stopping in their tracks some of the all-time fastest-growing and most-popular online services.

Most of the headlines--and most file swappers' feelings of animosity--have been reserved for more vocal public figures such as the Recording Industry Association of America's chief executive, Hilary Rosen. But it has been the 56-year-old Frackman, in the file-swapping cases and in Thursday's DVD copying case, who has led the nuts-and-bolts legal drive against the popular services, telling a courtroom story of Internet piracy in a way that has consistently led judges to rule in copyright owners' favor.

"He has such an ability to communicate the basic story of a case without getting lost in the legal technicalities," says RIAA President Cary Sherman, who has worked closely with Frackman for years. "He can function at the legal technicality level. But he doesn't lose sight of the forest for the trees in the courtroom."

Frackman and the attorneys at the entertainment trade associations have helped crystallize a view of copyright law over the past few years that remains highly controversial, and that many tech companies say harms innovation. They've successfully sued key software companies whose products helped people make copies of songs online--rather than the people who are actually making the copies.

For the most part, the strategy has worked. Napster and Aimster have disappeared. Other file-swapping services have fallen since then amid similar legal threats. Now DVD software company 321 Studios is fighting for its own survival, in a case that could constrain or expand the use of one of the fastest-growing home technologies in history.

The 321 case takes Frackman into different legal territory than the file-swapping suits, relying on provisions of a controversial 1998 copyright law that prohibit the sale and distribution of tools that can circumvent anticopying technology.

Read more about copyright
That law, the Digital Millennium Copyright Act, has been demonized by some within the software developer community as antitechnology, since it effectively bans certain kinds of work with software code, rather than simply create penalties for people who put code to illegal uses. According to some critics of the law, such policies could chill research into security software and make common developer techniques such as reverse engineering off-limits, hurting innovation and protecting companies from legitimate competition in unexpected ways.

"The DMCA essentially threatens to eliminate fair use in the digital age," said Fred von Lohmann, an attorney with the Electronic Frontier Foundation who has worked on cases against Frackman and his clients. "The 321 case underscores that. This law is just as likely to be used for anticompetitive and anti-innovation purposes as against digital piracy."

An accidental antipirate
For all his long experience in antipiracy and copyright law--and he may be one of the longest-practicing litigators in this arena--Frackman came to the field accidentally.

He was raised in Brooklyn as a "Flatbush New York Yankee fan" with a mother who dreamed of sending him to accounting school, he says. He went to high school and college in Chicago, and then went back to Columbia Law School in New York, graduating in 1970. While there, he never took a class in copyright law, he says.

Immediately after graduating, Frackman took a job with Los Angeles-based Mitchell Silberberg & Knupp, a firm with a long history of alliances with big copyright owners. One of the founding partners had been close friends with several Hollywood studio heads, and the firm still had much of their business when Frackman arrived.

With no clear idea of what he wanted to do, Frackman told the firm's partners to put him wherever they needed help. He served six months as an associate doing probate work. The next six months put him under the wing of an attorney named Howard Smith, who was then one of the leading lawyers doing antipiracy work for entertainment companies. He and Smith hit it off, and Frackman has worked on the issue ever since.

"For the first year, I would drive down Wilshire Boulevard and find myself saying 'what the hell are you doing here'," he remembers. "But I picked a law firm that was a good match, and which had an interesting practice. I fell into working with an extraordinary lawyer, who taught me a lot about the practice of law and the practice of life, and everything worked."

The industry's antipiracy fights were very different in those days. The relevant laws had been passed in 1909 and would be updated in 1976 and then again several times in the 1990s to catch up to digital trends. Those early laws still contained large swaths aimed at blocking illegal copying of player-piano rolls.

The "pirates" in those days were less ambiguous than they would become in the days of the Internet. Bootleggers created factories that pumped out illegal copies of vinyl, 8-tracks or cassette tapes, some of which were sold to record stores.

Frackman tells of one case early in his career, during which his firm sent him to Las Vegas to seize infringing material created by an illegal manufacturing operation there. The young attorney accompanied federal marshals so he could identify the pirated cassettes for them. As Frackman tells it, they entered a room to find that a man was sitting behind a desk, waiting for them. The officer stopped suddenly before moving slowly toward the man.

"I didn't know what was going on," the attorney remembers. The marshal opened a desk drawer, taking out a huge pistol. Frackman flinched when he realized he had been completely unaware of the potential danger.

"That was the last seizure I went on," Frackman says.

Most cases were less eventful, however. He and Smith tried key antipiracy cases against record stores, manufacturers and distributors.

Smith passed away in 1981, and Frackman became the firm's leading expert on the issue, working closely with individual labels, artists and, ultimately, the RIAA.

The evolution of the law over those years wound up affecting his personal life as well as his professional. He met his wife, Myrna Morganstern, at a 1976 seminar on changes to the copyright statutes, he says. She's still an attorney, but no longer practices copyright law.

A key case came in 1996, when he represented a record company against a swap meet where vendors were selling illegal copies of recordings. On appeal, that case, called Fonvisa v. Cherry Auction, helped established the doctrine of "contributory infringement," in which a party that knowingly assists another to infringe copyrights is also liable for damages. That ruling would prove critical in Frackman's later cases against Napster and its successors.

The Net years
In November 1999, RIAA attorney Steve Fabrizio called Frackman. "Russ," he said. "Have you ever heard of something called Napster?"

Frackman hadn't. He didn't even have access to e-mail on the computer in his office at the time. He flew to Washington, D.C., and at the RIAA headquarters there, watched staffers demonstrate how the file-swapping service worked. Incredibly, the new service already had 200,000 users, they said.

The L.A. attorney had little sense for what was happening under the hood. He had to have RIAA staffers and an outside tech expert give him a quick course in how the Internet worked, he said. But he was pretty sure Napster wasn't legal.

"My original thought looking at it as a traditional copyright lawyer, not technology lawyer, was that this has to be infringement," Frackman remembered. "It was so relatively easy that even I could do it, and therefore dangerous."

The next few years set Internet history. Napster ultimately hired hotshot attorney David Boies to represent it. With little copyright experience, he mounted an ambitious defense to Frackman and his team, but to no avail. San Francisco federal judge Marilyn Hall Patel was bitterly critical of both sides, giving Frackman as well as other attorneys some hard rhetorical lumps in court. Ultimately, though, she ruled in favor of the record industry.

An appeals court agreed that Napster was contributing to copyright infringement in much the same way as the Cherry Auction swap meet Frackman had litigated against, and the ambitious start-up ultimately shut down. Its echoes remain strong, in the form of later file-swap services and continuing lawsuits against its financial backers, but the company itself is gone.

Frackman went on to head several other key Net lawsuits. He led the suit against Aimster, a service similar to Napster. All of these were slam dunks, with judges ruling across the board that the new file-swapping Net services were liable for copyright infringement.

That's earned Frackman and his clients deep enmity among file-swapping and some technology-related entrepreneurial circles.

"I think that they are just part of a culture, particularly in the record business, that is focused on the legal thuggery school of business development," said one person associated with a company on the losing end of Frackman's arguments, who asked not to be named.

Frackman has also taken the lead against Grokster, Streamcast Networks' Morpheus, and Sharman Networks' Kazaa. It was in the Grokster case that he suffered his first serious setback, when a federal judge ruled last month that Grokster and Morpheus were legal tools, analogous to a photocopying machine or a VCR.

Frackman was in San Francisco, prepping for a court date, when news of the decision came. He was surprised--but a setback was inevitable, he says. He still believes he and the record industry will win an appeal against Grokster and its peers.

"One of the attributes of a good trial lawyer is being sure of yourself, and being sure that you're right. I'm no different," he says. "But as a very young lawyer, I learned never to be afraid of a lawyer that tells you he never loses. That just means he doesn't litigate very often."

Frackman is very confident of success in the 321 case. The law is clear, he argues, set by the precedent in the Motion Picture Association of America's fight against Eric Corley and 2600 magazine's distribution of the DeCSS code, which helped people copy DVDs. In that case, federal judges prohibited 2600 from posting or linking to the code because it could be used to crack copy protections in DVDs.

Despite his reputation as an agile litigator, Frackman isn't arrogant in the courtroom. Instead, he adopts a folksy, understated attitude, turning contemptuous rhetoric toward the companies he sees as copyright infringers, but showing deference to judges. He sounds at times as if he is literally pleading with the court, instead of making demands.

Colleagues say he has played a strong role in shaping the legal arguments made by the record labels and movie studios over the past years of Internet and antipiracy litigation, serving as a diplomat in often-contentious industry strategy sessions.

"Russ is a good listener," said David Kendall, a lawyer with Williams & Connolly, who's sat in on some combative negotiating sessions among competing interests in the copyright fight while representing AOL Time Warner. "He's not so ego-invested that he can't listen and change his mind. He stands his ground and can concede when necessary, and that gives you credibility."

Even those on the losing end of his arguments say they respect his apparent commitment to the entertainment industry's cause. "If he's not an absolute true believer in the position, he does a really good job of conveying that he is," said one lawyer who opposed Frackman in a high-profile digital copyright case. "To him it's very black and white. There are good guys and there are bad guys, and he's representing the good guys."

A tin-eared music fan
In a way, Frackman is an unlikely standard-bearer for the entertainment industry, especially the record labels. He has a self-admitted tin ear and has never played an instrument in his life. He doesn't count himself an avid music fan, although works by the Beatles, the Beach Boys and the Rolling Stones sit on his shelves.

His 20-year-old son, who is already in college, and his soon-to-depart 18-year-old daughter are in the prime demographic for use of the file-swapping services he's spent so much time fighting against. The first time they watched him at work was in San Francisco, arguing in front of the appeals court there against Napster, he says. He's talked with them about the legality and morality of downloading, but doesn't keep strict watch over their behavior, he says.

"When your kids are out of the house, you have to hope whatever effect on them you're going to have has already transpired," Frackman says. "They certainly know about the cases and about law. But in this area, as in lots of areas, I do not keep day-to-day tabs on them."

Frackman knows that many members of his children's generation, as well as many online activists, see him as working against services they love. In the early days of Napster, he was worried that even judges might fall into that category. The past two years have helped vindicate his initial sense that uploading and downloading music online was little different, at least from a legal point of view, than the Las Vegas cassette-tape pirates he litigated against in the 1970s, he says.

In the end, of course, his job is not about popularity. It's about winning--and with the one large exception of the Grokster case last month, he's done that to a degree that has substantially helped shape the future of the Internet.

"As a trial lawyer you are one day a goat and another day a hero," Frackman says. "You just have to hope that when the lawsuit is over, you're on the hero side."