Viacom’s General Counsel Michael Fricklas Gives Lecture to Yale Law Class on DRM

Michael Fricklas, Viacom’s General Counsel, gave a lecture to a Yale Law class in which he confessed that suing people for copyright infringement felt “like terrorism.” He says that this was bad strategy on the entertainment industry’s part, as was “bad” DRM.

That’s the good part — an admission that suing customers is bad news. But lest you think that Fricklas has learned anything from this experience, consider the rest of his talk.

First, like a lot of people who got bitten on the ass by the magic DRM beans he bought a decade ago, he’s unable to resolve his cognitive dissonance around DRM. The problem isn’t DRM, he reasons, the problem is that he used the wrong DRM. He argues that there are “business models” that are enabled by DRM, and you just need to get it right.

I hear this all the time. It’s truly the mark of a magic-bean-buyer: someone who has failed to absorb the first principle of DRM, namely, “DRM is technically impossible.” There is no way that you can send someone a scrambled message, and the key to descramble the message, and then build a business on the foundational principle that no one will descramble the message except on the terms that you set.

And what’s more, the effort to preserve DRM involves laws that prohibit telling people about flaws in DRM (which doesn’t mean that the flaws won’t be discovered and shared and used to undermine DRM, of course — just because you cover your eyes, it doesn’t follow that the danger goes away). It involves laws that prohibit making products compatible with DRM without permission from the DRM maker, even if you’re doing something otherwise legal (so your customers can’t buy someone else’s music player, which means that you’re locked into that vendor who can dictate terms to you forever).

This often gets lost in the DRM discussion: we get bogged down in what the DRM “allows” and “prohibits” and forget that DRM doesn’t actually stop pirates from doing anydamnthing they want to do. And since most infringing users will “crack” the DRM by finding a copy that someone else took the DRM off of and uploaded, it doesn’t deter “casual” pirates either.

But if you’ve been buying magic beans for ten years, it’s hard to stop believing in magic beans — certainly harder than believing that you’ve just been buying the wrong beans.

And Fricklas’s wrongness doesn’t end there. He also believes in a “three strikes” approach to copyright enforcement, because it is “more proportional to the harm.” That is to say, he thinks that cutting an entire household off from the Internet (which supplies livelihood, civic engagement, publication, communications, education, and family) because one member stands accused (without conviction) of copyright infringement is less bad than merely bullying the family’s teenager out of ten or fifteen thousand dollars.

This really is the most telling part of the whole speech: to believe that issuing the digital death penalty for entire families’ information lives will somehow be less of a PR disaster than suing kids. It is the mark of a man who is so monumentally out of touch with reality that it’s easy to understand how he rose to a level of prominence and power in an industry that made history by suing 30,000 of its customers.

[thanks to james cridland and cory doctorow via cc]

Donald Trump Files Lawsuit Against Law Firm Over Legal Fees

Donald Trump is in the news once again. This time he is suing Manhattan law firm Morrison Cohen LLP and his lawyer who represented him in a malpractice suit, saying that the law firm has treated him like a “cash cow” by overcharging him and performing unnecessary work in order to bill more hours and therefore handing him what he feels is a huge legal bill. Mr. Trump is claiming he has enough experience in dealing with lawyers and feels that he knows when he’s been overcharged on legal fees. This time he feels that the legal fees quoted are not fair and a malpractice suit is in order. Trump, who has said that he has already paid Morrison Cohen $1 million in legal fees, is asking for $3 million in damages in his malpractice suit.

“I have dealt with a lot of lawyers and paid a lot of legal fees,” says Mr. Trump. “I have a Ph.D. in legal fees. I know when fees are fair and when they are not.”

Overview of the Legal Battle

Morrison Cohen’s David Scharf was hired by Trump last year to represent him in a suit against a golf course contractor, who Trump felt overcharged him for the service. They won the case and Justice Kenneth M. Rudolph who handled the case, awarded Trump almost $2 million in damages for the earth-moving contract and about $40,000 for the infrastructure. In addition, $1.3 million was also awarded for attorney’s fees. Despite the success of the malpractice suit, Trump feels that Morrison Cohen should have advised him not to pursue the infrastructure claims since it would certainly incur more cost and would outweigh any recovery. He said that most of their conversations were centered on legal fees and very little was discussed about the merit of the case.

“Ninety percent of the conversations I had with David Scharf were about legal fees, not the case,” said Trump. “We won the case because I’m a great witness.”

On the other hand, David Scharf maintains that the infrastructure issue was an integral part of the success of the case, and that it was necessary because the defendant has raised the issue. Scharf said that Trump was using his popularity as a negotiating tactic to get a discount because of the successful outcome of the case. Scharf also believes that his firm fairly billed Mr. Trump for the services rendered. They have counterclaimed for $470,000 in legal fees that they say remains unpaid.

This isn’t the first time Donald Trump has faced off against Morrison Cohen. Robert S. Cohen, the firm’s co-founder, represented Ivana Trump when she divorced from Mr. Trump in 1991.

“I beat him too,” said Mr. Trump, referring to attorney Robert S. Cohen’s attempt to bypass the Trump’s prenuptial agreement.

Donald Trump is represented in his malpractice suit by Alfred Donnellan of Delbello Donnellan Weingarten & Wiederkehr in White Plains, N.Y.

How E-Discovery Can Make or Break Your Case in Court

From May It Please the Court:

Let’s say you own a radio station in Florida, and let’s call it WTKE, for example. Back in 2003, you sign an agreement to sell your radio station to a company we’ll call Quantum Communications. As part of that agreement, you promise not to continue to shop your radio station for sale. You agree to sell your radio station to Quantum for $3,000,000.

It takes awhile for the sale to go through, but while it is in process, Quantum gets wind that you may be trying to sell your radio station to someone else, let’s say a company called Cumulus Media, so they sue you. Quantum also alleges that you’re doing everything possible to stymie the sale of your radio station. You deny everything.

Once the lawsuit starts, Quantum’s lawyers request copies of your computer’s hard drive, and all the emails that are on it. They apparently get nowhere. Undeterred, Quantum’s lawyers subpoena the hard drive of the president of Cumulus, which contain a series of emails between you and Cumulus’s president.

On that hard drive, Quantum finds a series of email that appear to show you were trying to sell your radio station to Cumulus for $3,750,000.

Oops.

Quantum gets this E-discovery evidence in front of the judge, who orders you to sell your radio station to Quantum for the originally agreed-upon purchase price of $3M, and issues a scathing ruling about your denial of violating the agreement and misleading the court.

Guess who’s going to get to pay Quantum’s attorneys fees?

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