Tue Jul 31 11:08:35 PDT 2007
By Greg Sandoval
Ira Rothken is technology's answer to the radical lawyer, Silicon Valley's version of Johnnie Cochran or William Kunstler.
Tech start-ups sued by media conglomerates for copyright infringement typically call on Rothken, a medical researcher turned lawyer. He's made a name for himself by bucking entertainment empires and by backing long-shot copyright cases, such as those involving RecordTV, ReplayTV and MP3Board.com. His efforts have won him praise from the Electronic Frontier Foundation (EFF), the advocacy group that has become synonymous with user rights on the Web.
"Ira has a strong intuition for the little guy," said Fred von Lohmann, an EFF senior staff attorney. "He enjoys these uphill fights. I often refer people to him."
The 44-year-old Rothken is defending another back-against-the-wall company in a case that could set an important legal precedent. Last year, the Motion Picture Association of America (MPAA), the trade group that represents the top film studios, filed a copyright suit against TorrentSpy, a search engine often used by file sharers to locate pirated films. In May, a federal magistrate judge ordered the company to turn over user information stored in its servers' random access memory (RAM).
The courts have never before ruled that RAM, a computer's temporary memory, is a tangible document that must be produced and turned over to litigants in civil cases, according to legal experts. Rothken has filed an appeal, and on August 13 will try to persuade a U.S. District Court judge in Los Angeles to reverse the decision.
At stake is nothing less than Internet anonymity, say some legal experts. If companies can be compelled to turn over RAM any time they face a civil suit, then no U.S. Web site can ever again promise not to share user data, according to Rothken.
Rothken's chances of prevailing are about the same as they usually are in these cases. The odds favor the copyright owners, said Rothken. "Copyright law in this country is Draconian and dramatically skewed on the owner's side," he said.
Until recently, few lawyers would take these cases, said von Lohmann.
First, there's not much money in them. Start-ups typically don't have a lot to spend on legal fees. Then, there is the problem with understanding and then explaining often complicated technical issues to a judge. Finally, there are the opponents--usually crack entertainment lawyers working for the music or movie industries who are famous for going for the jugular.
Representatives from the MPAA and the Recording Industry Association of America (RIAA) declined to comment for this story.
Going up against big guns
For insight into how tough it is to oppose the entertainment sector, consider the conclusions of some long-shot copyright cases Rothken worked on: RecordTV and ReplayTV ran out of funds before their cases were heard, and MP3Board.com settled.
There's no telling whether the start-ups would have survived had their cases gone to trial, but Rothken argues that shouldering legal fees and bad press didn't help.
Applying financial pressure is only part of Hollywood's strategy, Rothken said. Another tactic is to sue founders as well as their companies. In 2000, the RIAA filed a copyright suit against MP3Board.com, a music-file search engine, as well as the company's founders.
Instead of risking their own income, the operators of MP3Board.com settled the case and decided to stop linking to MP3 files, Rothken said.
"I can't say what the MPAA's strategy is," said Gary Fung, founder of IsoHunt, a TorrentSpy rival and Rothken client who also is being sued by the MPAA for copyright infringement. "But they do know they have more time and money than we do."
Rothken isn't intimidated. According to von Lohmann, Rothken is sought after because he is affordable, creative and tough.
After the MPAA sued TorrentSpy, Rothken filed a countersuit and accused the MPAA of corporate espionage. He alleged in the filing that the MPAA hired a hacker to steal confidential information to help its case against TorrentSpy. That suit is still pending. In 2003, when the RIAA announced it was offering amnesty to file sharers, Rothken dubbed the offer "shamnesty" and sued for deceptive trade practices.
The RIAA ended up settling the case, winding down the program, and paying Rothken's attorney fees.
His aggressiveness is partly what attracts guys like Fung and TorrentSpy's founder, Justin Bunnell.
"I think a lot of entertainment litigators aren't used to going up against smart and committed opponents," said von Lohmann, who defended Streamcast Networks after it was sued for copyright infringement in 2001. "Many of them represent big movie studios and when they lean on small companies, they are used to getting them to roll over. That's just not the kind of guy Ira is."
But Rothken denies that he's out to torch copyright law. While he makes headlines for opposing copyright owners, Rothken is himself a stakeholder in the copyright system. A lucrative part of his Novato, Calif.-based law practice is negotiating licensing deals for video game companies.
"I'm in no way on a crusade against copyright law," Rothken said. "I would never say that we should do away with copyright protection. Strong copyright laws are essential for a vibrant and creative economy. That said, I'm hoping that there will be an evolution for U.S. intellectual property law."
It's not unusual for a copyright attorney to represent owners as well as those accused of infringing. But the dual roles have sometimes placed Rothken in peculiar situations.
Some might even wonder if Rothken's video game clients object to his representing accused copyright violators.
"I certainly didn't until I saw one of my games on one of these sites," said a laughing Dan Connors, CEO of Telltale Games, creator of Sam & Max and other video games. "It wasn't too bad because Ira made them take it down."
Rothken, who negotiates publishing and licensing deals for Telltale, acknowledges there's far more money in representing copyright holders. Nonetheless, he's been writing code since he was a kid and believes in innovation. Another motivation is the late Jack Valenti.
It was Valenti, the silver-haired former MPAA director, who testified before a congressional committee in 1982 and compared the VCR to the Boston strangler.
"Hollywood has made billions from video recorders and the home rental business," Rothken said. "They wouldn't have seen any of that money had they succeeded in killing that technology."
He argues that while the services he represents may be favored by pirates, the technologies also have legitimate uses.
"I'm all for copyright protection but I take issue with copyright extremism," said Rothken. "Hollywood says that these sites can be used for infringing purposes and therefore should be snuffed. We say 'Wait a second, this site can be used for noninfringing uses as well.' What we're after is a better balance."