Russell Frackman Q&A: 'Without the Napster suit, iTunes would never have existed'

By Eriq Gardner

This week we're commemorating the 10-year anniversary of the record industry's lawsuit against Napster. Earlier we took a poll on whether the recording industry made a mistake by setting off a legal war with the pioneering file-sharing service. And today we're chatting with Russell Frackman, the industry's lead lawyer in the case, looking at the impact of the litigation.

THR, Esq: A majority of our readers seem to think that Napster litigation was a mistake. With all that's happened since, do you believe that filing the lawsuit was the best course?

Frackman: I start from the proposition that, frankly, this is not a fair question. Our clients didn't set out to sue Napster out of existence. Our consistent position was that copyright holders aren't against technology, only the way it's illegitimately used. We said we believed in a legitimate Napster and it never happened. The game plan wasn't to sue it out of existence; just to sue to make it legal.

THR, Esq: There's been an escalation in copyright battles against technology providers since the Napster case. Some lawyers we've spoken to wonder whether the industry could have gone further to work with Napster and avoided many of the later problems.

Frackman: There's always been a thought by some that the record industry has been dragged kicking and screaming into the 21st century. The reason why Napster took months instead of years to build its service is simply because they took the content and gave it away. The industry had lots of considerations like contractual issues with artists, issues with music publishers, issues with brick-and-mortar customers—who were significant at that time—issues with compensation, protection, and more. The other thing is that without the Napster suit, iTunes would never have existed. There would have been no incentive for people to pay money for music.

THR, Esq: So there weren't any discussions to figure out a way beyond litigation to clear the mess?

Frackman: This is just hearsay on my part, because I wasn't involved in this, but I do believe there were discussions before the lawsuit was filed in an attempt to resolve difficulties with Napster. I have speculation on why that didn't succeed, but I can't go into it.

THR, Esq: Considering the cases that followed, from Grokster to Cablevision to YouTube, has your perspective on the way that the Napster case was handled changed at all?

Frackman: I do believe that it was litigated in the best and most efficient way possible and attained the best result short of final determination. I think it's possible that the defendant may have explored a different approach. But I also think the case set an important precedent and got courts thinking about good and bad conduct.

THR, Esq: What copyright case or issue do you have your eye on now?

Frackman: I'm very curious to see if Universal appeals the Veoh decision. I think the district court got that wrong, and I think that sooner or later, the questions explored in that case (over DMCA "safe harbors" for copyright liability) will be addressed by the appeals circuit. There's a lot of ground left to cover in the relationship of copyright holders and technology companies.

Frackman is a partner at LA's Mitchell Silberberg & Knupp.