Fordham International Intellectual Property Conference, Plenary Session: General Counsel Roundtable - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham International Intellectual Property Conference, Plenary Session: General Counsel Roundtable

Fordham International Intellectual Property Conference, Plenary Session: General Counsel Roundtable

Fordham International Intellectual Property Conference
“Plenary Session: General Counsel Roundtable”

[Panelists:  Paul Cappuccio (Time Warner), Richard Cotton (NBC Universal), Michael Fricklas (Viacom), Lawrence Jacobs (News Corp.), Louise Pentland (Nokia)]

– Not a verbatim transcription —

[Hansen] Is the IP system fit for the 21st century digital environment?

[Pentland] Overall, the IP system works pretty well — it will take up into the 21st century. There are some areas to focus on: private copies, FRAND.

[Cotton] An enormous enforcement problem — a flood of pirated content. the challenge is to move up the public policy priority, and technology companies, to be part of the solution. The implementation of filtering technology with video sharing sites shows that there can be progress — look at — this can significantly reduce the problem.

[Jacobs] One of the major problems is the perception — we must convince people that “theft is theft”. Not doing a good enough job yet.

[Fricklas] It is more apparent that there is a core battle with the businesses built on exploiting copyrighted content. It is clear that it should be at the forefront of the public policy.

[Cappuccio] In Grokster we saw the law working itself out. Now with YouTube, people realize that you have to take steps, be responsible. Now enforcement technology making steps to catching up with infringement technology. Must find a way to make the stuff available to consumers legitimately — through subscription or otherwise.

[Hansen] What about the economic crisis, with governments now thinking consumers need to actually be buying things — IP should be something governments need to focus on? Thoughts?

[Fricklas] The plight of the newspapers, which matters to a lot of legislators, highlights the IP problem. It seems in every area, there is more concern where before there was less.

[Hansen] Are newspapers not viable because they don’t fit with the new model? Can they do anything to fit?

[Cotton] We saw the AP come out and say they don’t see themselves as viable if they continue to go forward this way.

[Fricklas] A lot of the language used consists of “trying to protect a business model” — IP encourages investment. It actually encourages destruction of the old business models! What we are hearing is that if you invest in collection of news, you can’t control it — this is destroying the creation of news. It should be protection of ability to profit, encouraging them to build organizations that collect the news!

[Pentland] It has to be a balance. Be careful of double-dipping. Don’t want consumer to pay twice. But, we must be thinking of how different models can allow compensation model to take effect.

[Cappuccio] The newspapers is a good analog to other industries. Protecting social good. without IP, what are you left with? Unorganized, unprofessional, inaccurate Blogs! It is more and more difficult to rely on what you are reading online, because we have been loose on protecting content owners.

[Jacobs] Hoping ad revenue would increase … now advertising is not as efficient. Annoyed that people say “Once you give it away for free, you can’t get it back”. This is not true.

[Question] What is it about the lack of IP protection is destroying the newspaper industry? Isn’t it advertising’s fault?

[Jacobs] Demise of newspapers is reflective of the fact — economic pressure, organized labor — the incentive to invest is diminished. It is important not to undermine the incentive by widespread counterfeiting and piracy. This is really about driving home that protection is the vibrancy, in terms of jobs, and social goods.

[Hansen] Technology which threatens the core business, the courts creates new law — ex. Brandeis and the multiple performance doctrine; then people did pay after that. It is not that once it is free, can never come back, but it does take some effort.

[Jacobs] For some newspapers, as revenue decreased, the quality decreases, then readers fall off … but News Corp is continuing to invest in journalists, looking ahead to the economic recovery — thinking that there is room for newspapers.

[Hansen] Is the ideological divide driving us apart? It is almost like Google is an alien that does what it wants — a lot of it good; some it doesn’t care …

[Fricklas] Some of the issues, the copyleft side actually agrees with the content industry. EFF agreed with certain things that should be fair use, some things shouldn’t. there are leitimate issues made my these copyleft groups. But they have to understand that these markets are important for artists to be able to exploit their work. Must understand the users must be responsible. that IP protection is in everyone’s interest.

[Pentland] Balance between market forces and stakeholders. Support copyright holders being compensated, but it must not be double-dipping!

[Cotton] Criticism of the fair use argument — when argument used as a tool in the “no action” option. The copyright owners should be involved in the debate. Problem is when we just butt heads, when argument raised that you can’t do anything about wholesale piracy.

[Hansen] We had intended to have the General Counsels of Google and Apple, but unfortunately they couldn’t come. We did try to balance this panel …

[Question] Are we going to see a reduction of funding in anti-piracy with the advance of technological means?

[Cotton] We will see, in the US, an increase of funding of the FBI and state and local enforcement units. We are working on increasing funding in our border patrol and customs.

[Question] David Sweeny, Video Game Association:
The term “perception” used — people want to use the internet in many ways. In recent weeks there seems to be a change in attitude in Europe lawmaking — the three-strikes proposal has been struck down. How does panel feel about the “perception” issue.
[Hansen] There doesn’t seem to be a groundswell of public opinion that we need to do something about protection ,how do you address it?
[Cappuccio] Make sure you are on the right side of the perception phrasing — if it turns out that people see IP as restricting innovation, than it is bad — we need to stress that people can get what they want when they want it, TV on demand — Not between stealing and not stealing // The choice between stealing it, and getting it legitimately.

[Cotton] Look at “Lazy Sunday” on YouTube in 2006, that was the start. Now look at The Sara Palin impersonation from last year’s election — millions watched, but they were on legitimate sites like Hulu. This shows that people are willing to get it legitimately if it is easy enough.
Kids draw the conclusion that if it is so easy, it can’t be wrong. If the technology says that it will be hard to get to the illegitimate sites, then the population will move.

[Question] the challenge is not just for companies who may be on this panel … It is case of consumers who don’t realize they are infringing. Wrong to not recognize thet the internet took years to build, so when we put rules in, we should recognize that it was sharing that built the Internet …

[Fricklas] Not suggesting that .. only that at some level transactions in IP protected material can be done in a way that is more secure; through ISPs or other ways. Transactions that don’t compete with “free” also need to take place in a secure fashion on the Internet. Free from viruses, hackers, theft etc. Taking network to the next level.

[Jacobs] We are not winning the perception war. The theft of Wolverine model. Downloaded over a million times! that is a million people who think this is OK! We need to change the public opinion.

[Question] Ebay decision was the worst in history?
[Pentland] It was a decision that was needed …

[Question] The quote from [WSJ editor Robert Thomson] about Google being “parasites or tech tapeworms in the intestines of the internet”— Google news is an aggregator. The newspapers are not forced to put their papers online. How does Google aggregating the stories hurt? How is it copyright infringement?

[Hansen] Exactly the same thing was said for radio! But the S.Ct. (Brandeis) created the multiple performance doctrine! The idea that you should be thankful for it, or else we will destroy your business, is not a policy that courts or congress will accept.

[Question] We have here Viacom, News Corp. telling us we have a perception problem … [*laughter*]
Is it a perception problem or a technology problem?

[Cotton] The reality is that even though we are big corporations, there are employees. It extends to other industries. at least 12% of the GDP is the creative industries. this is where the traction comes from. It is right that the message from big corp. gets drowned …

Jason Lunardi