January 04, 2014 7:00am PT by Eriq Gardner
Top MPAA Lawyer on Google's Failures, Suing Kim Dotcom and Obama After SOPA (Q&A)
This story first appeared in the Jan. 10 issue of The Hollywood Reporter magazine.
The past year was a big one for Steven Fabrizio in his long-running fight against piracy. As outside counsel to the MPAA, the attorney won two of Hollywood's most watched lawsuits, persuading courts to punish IsoHunt, a leading torrent indexer, and Hotfile, one of the world's biggest so-called cyberlockers, for trafficking in copyrighted movies and television shows. The twin cases were collectively settled for $190 million and set a strong precedent for future antipiracy efforts. But he's not finished.
In November, Fabrizio, 50, moved in-house as the top lawyer at the MPAA, which means he now oversees all legal, content protection and rights management programs, sets the industry's antipiracy agenda and leads a 20-attorney group that spent $10.3 million in legal fees in 2012. This is the second time the Long Island, N.Y., native and Georgetown law grad has worked inside a top entertainment trade group. Fabrizio headed litigation at the Recording Industry Association of America when it beat Napster in court (after which the travel-happy attorney took 14 months off with wife Sara, with whom he now has a young son and daughter, to fly around the world).
Having barely moved into his new office in Washington, Fabrizio gave his first interview to THR in early December, revealing how the MPAA will work with the Obama administration after it turned its back on the Stop Online Piracy Act, why he'll be watching to see whether the Supreme Court reviews the legality of Barry Diller's digital TV service Aereo and the future of Megaupload's Kim Dotcom, who still could be extradited to the U.S. for allegedly causing $500 million in damages to the industry.
The MPAA has spent tens of millions of dollars fighting piracy. Has it been worth it?
I believe it has. I think if you were to look at the state of piracy today compared to what the state of piracy would have been [had Hollywood not] been diligent in protecting rights, I think you would see a very different scenario.
What would have been different?
On the Internet, everything starts out as a little bit of the Wild West, where people do what they do because the technology allows them to do it. And the legitimate sites that have come online and made enormous advancements in the way consumers can enjoy content -- all of those services, their ability to get a foothold and make commercial businesses lawfully and legitimately would have been stymied at a much greater level had the copyright industries not engaged in the efforts they did.
What are the biggest problem areas in piracy today?
One of our greatest problem areas is the whole BitTorrent ecosystem. Obviously the IsoHunt case [which shut down a site that facilitated the trading of Hollywood movies and TV] was one of a series of important actions to help create the rules of the road there. The cyberlocker system -- and Hotfile is an example of this -- is another area. These are not storage vehicles [for movies and television] at all, they are distribution hubs, and to call them cyberlockers is a misnomer. They are better referred to as distribution hubs because they exist for the sole purpose of helping third parties gain access to the content. And you see a lot of streaming sites that are offering not downloads of the content but are offering viewings of the content, often organized in very sophisticated-looking sites where people can go and click a couple buttons and they're watching a movie in the same formula as video-on-demand.
Do you have a particular philosophy about the appropriate time when it makes sense to bring a lawsuit?
In fact, I do. (Laughs.) When I was an outside litigator, the choice of when to bring those lawsuits was not mine. When we look at whether to bring litigations, there are going to be certain times that compel immediate action because the failure to act can be dire. In many ways, though, it is and should be the tool of last resort. There are going to be litigations because it's necessary but what we are focused on very strongly right now is working with the other players in this space to come up with voluntary solutions.
The SOPA debate and failure to get Congress engaged on the issue was embarrassing for the MPAA. Has Obama done enough on the piracy front?
I think our partnership with the government can always improve, and the Obama administration and all governments around the world can always do more to help. When you think about how much the entertainment community and the motion picture industry in particular adds to the economy, how many jobs we create, how we help the American export economy, it doesn’t take much to realize that it is clearly in our national self interest to do as much as we can to protect intellectual property.
What are areas where there can be improvement?
I don't want to get too far into specifics. These are ongoing relationships. The government can work with us to create a better environment for worldwide copyright protection. Our government can help us in dealing with other countries to make sure that the legal environment for the protection of copyright and intellectual property is as strong as it can be and at a level that's necessary for commercial activity to thrive. And the government can always help more with actual enforcement of the law through enforcement proceedings from the criminal side.
Do you think new legislation is necessary on the copyright front?
At this point, our industry is not seeking any legislation, and we don't see any legislation on the horizon. Again, at this point, we're really more focused on getting some of the stake holders involved in this economy to adopt meaningful and voluntary reforms.
So you don't think there is going to be any revival of SOPA?
No, I don't.
What about Google, has it done enough to fight piracy?
In short, no. They haven't done enough. When we speak about our efforts to try and work with the people who are in the Internet economy, Google is obviously a major player. They are a major player in almost everything they do. Over the years, they have claimed to have changed the way they do business to some degree to try and address intellectual property violations, but it's clear that there is a lot more they could do and it's also clear that given that their business benefits tremendously by providing the search engine access to this content, they have a great responsibility to do more. So hopefully, one of the things that I will have an opportunity to do is talk to them and hopefully help them see that their interest is more closely aligned with ours in creating a safe environment for intellectual property.
Fabrizio was given a commemorative gold record for his work with the RIAA pursuing peer-to-peer file-sharing site Kazaa. As lead counsel for the MPAA in a fight against BitTorrent indexer IsoHunt, Fabrizio emerged victorious in May. He framed a copy of the 9th Circuit Court of Appeals opinion, which led to a $110 million settlement.
Are you satisfied with the way the government's case against Kim Dotcom is going? Is he becoming a piracy martyr?
I've been in this game for close to 15 years dealing with the Kim Dotcoms of the world, by whatever name they call themselves. And they all position themselves as a champion of something because it doesn't sell papers for them to position themselves for what they are -- people who just slap together some crude technology to make as much money as quickly as they can before they get caught and then run and hide. So it doesn't surprise me that Kim Dotcom has set himself up as some champion of something or a martyr, but it doesn't stick. The facts on the ground don't support it. The guy does business for the sole purpose of infringing copyrights, and that's exactly what his business did. And now he just has to face the consequences of that.
The clock is ticking. Is the MPAA considering its own lawsuit against Megaupload and Kim Dotcom?
I think it's probably safe to say that all of the content communities are considering their options as to Megaupload and Kim Dotcom.
You were involved in the Aereo case as outside counsel representing a group of broadcasters. Most people think of Aereo for its ramifications to TV. Are there stakes for movies?
Aereo right now has limited its technology to over-the-air broadcast television. That's not to say that if we're not able to vindicate the rule of law that what Aereo is doing is wrong, then of course everything leads to the next thing. So we are keeping an eye out on Aereo because anything that allows unauthorized distribution or performance, in this case, of video content can have an impact on the motion picture industry.
There's been a trend in academia, even in law schools, that favor a freer approach to IP laws. Do you think there needs to be more engagement in terms of the entertainment industry with academic institutions and professors?
I do. And I believe that most of the content community realizes that too. You see the trend and things like that don't happen by accident. Things like that happen because companies like Google and others that see some advantage in weaker copyright laws have engaged for years in those communities. And I think it's time for us to engage as well.
Fabrizio keeps old copying devices like the Sony/Betamax recorder, which led the Supreme Court in 1984 to endorse time-shifting TV content.
What's going to be tougher, dealing with piracy or with Harvey Weinstein's ongoing fights over movie ratings?
I'm going to have to take a no comment on that and claim that it's my first day on the job. (Laughs.)
Do you have a favorite movie?
It's a little embarrassing, but what the heck. My wife and I got married in December of 2000, and we never had a song. But on our way to our honeymoon in Australia, we had one of those little video things, and we both rented the same movie and we both said, "OK one, two, three, push play," so that we would be watching it at the same time. And we watched a movie called The Replacements [a 2000 football drama starring Keanu Reeves]. That became our movie. Instead of a song, we have a movie. When we're grumpy with each other, we can put on The Replacements, sit back, put our feet up and fall in love again.