Viacom's top lawyer thinks lawsuits were "terrorism" – but he's learned nothing from the experience


Photo: Mag3737

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.

Viacom's top lawyer: suing P2P users "felt like terrorism"

(Thanks, Marilyn!)