Copyrights And Consumers On Trial: Takeaways From The Entertainment And Technology Law Conference

Locating lawyers in New York City's midtown district isn't a big challenge. Finding a group of legal eagles focused on the latest developments for music and related fields, however, takes a little more doing.

For those who knew where to look, the Entertainment & Technology Law Conference held yesterday in Manhattan revealed just such a gathering. Presented by NARM (National Association of Recording Merchandisers) and digitalmusic.org, the half-day seminar at the law offices of Greenberg Traurig updated attendees on pressing issues at the intersection of entertainment, technology, and law.

The conference started with the panel "Comparing International Anti-Piracy Strategies" moderated by Jonathan Askin, Associate Professor of Clinical Law, Brooklyn Law School. Things got interesting in a hurry with Michael Smith, Professor of Information Technology and Marketing, Carnegie Mellon University, as he countered a number of myths about how consumers respond to digital content. For example, "You can never compete with free" (yes you can: competing with free is a special case of price competition).

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Michael N. Schlesinger, counsel, Mitchell Silberberg & Knupp, spoke about looking for win-win situations on the Internet. He broke down the "policy" strategy on anti-piracy, and clarified the rewards if and when governments get ahead of IP pirates: creators are rewarded, local economies are developed, tax revenue can be generated, and cultural diversity will be promoted.

And apparently, making policy work really will matter: according to studies cited by Schlesinger, in 2010 copyright industries accounted for an eye-opening $931.8 billion, or 6.36% of the US GDP, while employing nearly 5.1 million workers with highly respectable estimated average annual wages of $78,128. And with $134 billion estimated foreign sales and exports, US copyright industries ranked above other major sectors including aircraft, autos, agriculture, food, and pharma.

The second panel, "Continuing Digital Evolution of the First Sale Doctrine," reminded that intellectual property once existed primarily in physical form. Cloud computing and digital lockers make the legal issues surrounding copyright ownership in the digital world hazy.

The test case discussed by the three-lawyer panel moderated by Jeff Liebenson, principal, Liebenson Law: ReDigi.com, which gives individuals who purchase digital content the ability to resell that content -- specifically used MP3 music files -- for about 20 cents below standard iTunes prices.

Not to neglect the visual side of things, the third panel -- moderated by Jon Potter of RPB Strategies -- addressed "Digital Television Innovation, Competition and Copyright" and the myriad issues growing around that sector. Services like Aereo allow users to watch free over-the-air broadcast signals via IP-enabled devices, and are attempting to secure a legal foothold in the US -- much to the ire of many broadcasters and cable carriers.

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As happened previously in the day's conference, the connections of these technologies to cloud computing arose: Whether or not content is a copy or original, and where it is actually being stored and played out from, are all arguments impacting courts' perspective -- as well as the business plans of newcomers to the digital TV space.

On the final panel of the day, a scary little creature reared its head -- the question of what constituted a copyright troll drove "Copyright Trolls or Creative Lawyering? Are Mass Copyright Infringement Suits Ethical? Can They Be Effective Deterrents, or a Successful Business Model?"

Jennifer Pariser, SVP, litigation, RIAA, described these litigious entities as "an enterprise whose business model is primarily generating profit from the prosecution of a copyright infringement lawsuit. That's distinguished from a business whose primary business model is the exploitation of their copyrights."

In regards to the much publicized (and oft-maligned) suits that the RIAA brought against alleged P2P music-sharers, Pariser noted, "We never stepped over the line into a malicious or fraudulent lawsuit. The RIAA acted with a genuine belief that they would see the case through to the end." Interestingly, as she acknowledged, the RIAA's costly go-all-the-way caseload of P2P-sharing induced suits lost them money. But making money wasn't the point, according to Pariser -- education was.

When the conference came to a close, one thing was clear: There are optimistic outcomes to solving legal puzzles, which are constantly evolving in step with 21st Century entertainment. Michael Schlesinger summed it up best at the conclusion of his "Comparing International Anti-Piracy Strategies" panel.

"Copyright and IP is not a finite pie," he noted. "A world with IP creates opportunities for people to monetize their situations, and actually work in this business."