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Michael Page’s 13-year legal career as an intellectual property litigator hit high and low points in rapid succession over the summer. The nadir came in early August when one of Page’s clients, a company in St. Charles, Missouri, that manufactured and sold DVD copying software, announced that it was going out of business. The company, 321 Studios, had already been effectively shut down by three preliminary injunctions resulting from a barrage of copyright-infringement lawsuits brought by Hollywood movie studios and other plaintiffs. But that was followed by the zenith just 15 days later, when the Ninth Circuit U.S. Court of Appeals handed down a ruling in favor of another one of Page’s clients, Grokster Inc., a distributor of peer-to-peer file-sharing software. Page, a partner at San Francisco’s litigation boutique Keker & Van Nest, describes the Grokster ruling as his most significant legal victory ever. You might think that would have relieved some of the sting of the defeat that he suffered in the 321 Studios case. Instead, Grokster’s triumph only made it worse. That’s because Page interpreted the Grokster ruling as a sign that 321 Studios would also have ultimately prevailed if only it had been able to carry on the fight. “Losing a case that I thought we should have won, just not being able to see it through to the appeals court, having to basically quit while you’re down — I would say that’s the biggest disappointment,” says Page. “There were some really important issues of law but unfortunately [the company] could not survive long enough to get them to an appellate court.” The two cases illustrate a specialty area of IP law that Page and others at his firm have carved out for themselves in recent years — defending companies against suits claiming violations of the anti-circumvention provisions of the Digital Millennium Copyright Act. In an era in which digital copies of music, movies and other forms of entertainment content are easily — and freely — traded across the Internet, movie studios, record companies and other entertainment producers and copyright owners have increasingly relied on the new copyright law in trying to put the brakes on digital swapping. Though the specific issues and legal theories in the Grokster and 321 Studios cases differed, Page’s defense strategies shared some common themes. In particular, he sought to fit the disputed technology under the umbrella of a 20-year-old U.S. Supreme Court ruling that originally pitted Hollywood movie studios against recordable videocassette technology. The 1984 ruling in Sony v. Universal City Studios, established the doctrine that technology companies cannot be held liable for copyright infringement by their customers as long as the technology in question is also capable of substantial non-infringing uses. Keker & Van Nest first captured attention in the digital-related copyright realm in 2001 when a Russian programmer, Dmitry Sklyarov, was arrested by the FBI for selling software produced by his employer, a Moscow company called ElcomSoft. Prosecutors claimed that Sklyarov had unlawfully circumvented security features in Adobe Systems Inc.’s electronic books, allowing those files to be accessed in other formats. Handling the case on a pro bono basis, John Keker launched an aggressive defense and eventually secured a plea agreement under which his client, Keker boasted, got “everything he could get from an acquittal and more.” While Sklyarov agreed to testify against his employer, Keker said at the time that his client wouldn’t say anything different than if his employer called him to the stand. In December 2002 a federal jury in San Jose acquitted ElcomSoft of criminal violations of the DMCA. It was the Sklyarov case that brought 321 Studios to the law firm’s door. After reading about the case and worrying that they might be in line for similar legal treatment, the company’s founders contacted the Electronic Frontier Foundation, a San Francisco group that advocates relatively unfettered public access to digital content. The group, whose lawyers were also involved in defending Sklyarov and ElcomSoft, suggested that 321 Studios talk to the lawyers at Keker’s firm. The case eventually landed on Page’s desk. Page’s experience in this area of IP law certainly has helped to stamp him with a reputation as a true-believing digital freedom activist. “He and his firm have been great allies in the fight for technological innovation and the public’s right to fair use,” says Wendy Seltzer, a staff attorney at the Electronic Frontier Foundation, which has worked with Page on the 321 Studios, Grokster and other DMCA-related cases. “Although there are lots of lawyers working on these issues, most of them are on the other side.” In the Grokster case, for example, Seltzer points to the “enormous list” of prominent lawyers and firms representing movie studios, record companies and other amicus parties looking to bring down the purveyors of file-sharing software. But Page says his legal career just as easily could have ended up focusing on that other side of the IP divide. “You kind of fall into [a specialty] by mistake, first by reputation and second by conflicts,” he says. “But I’d be perfectly happy to take the other side of any of these issues. I think there are good arguments to be made on both sides. And I think good lawyering on both sides ends up developing good law that’s good for everybody eventually. � I don’t tend to look at this as if there’s a universe of good guys and a universe of bad guys.” Some of his adversaries express similar views about Page. “I have litigated against Mike Page extensively, and I have a high regard for him as an effective advocate,” says Carey Ramos, a New York partner at Paul, Weiss, Rifkind, Wharton & Garrison. Ramos is currently representing a class of thousands of musicians in the ongoing Grokster litigation. “Page is a first-class lawyer. But that doesn’t mean I embrace all the arguments he makes,” adds Ramos. Whether by sheer coincidence or the power of unseen cosmic forces, Page’s career as an IP litigator was preceded by years on the gritty front lines of the very same music business that is now so enmeshed in Internet-related legal battles. After graduating from the University of Pennsylvania, Page spent several years living the rock ‘n roll life — initially as a “roadie” and sound engineer for performers that included Hall and Oates, Neil Young, the Cars, Pattie LaBelle “and a whole bunch of people you’ve never heard of.” Over time, he gradually shifted into the role of production manager and tour manager for various performing artists. “The further I got from getting off the bus in the morning and hanging motors from the roof and the closer I got to management, the less I enjoyed it,” says Page. “I still really miss being around road crews. But I don’t miss living on buses and in hotels or even on Lear jets.” After he got married and started to raise a family, Page also began to think about finding a job that would keep him closer to home. Because of his involvement on the business side of the music industry, he was by then hardly a stranger to some of the industry’s legal aspects. Even so, the decision to go to law school was a bit of a dramatic turning point. Page remembers taking a red-eye flight from Dallas after his last show in order to make it on time for his first day of classes at UC-Berkeley’s Boalt Hall School of Law. Needless to say, law school “was a bit of a culture shock,” says Page. He originally thought about going into environmental law, only to have second thoughts after taking a course at Boalt “which actually had us doing what environmental lawyers do — parsing through thousands of pages of environmental regulations.” Instead, he gravitated toward copyright law, his interest piqued by an infringement case involving a product called “Game Genie,” which, when attached to a Nintendo game cartridge, allowed a player to change the rules of games. Nintendo claimed infringement, but the makers of the Game Genie eventually prevailed in a 1992 Ninth Circuit ruling, Galoob v. Nintendo, which established the right of consumers to modify copyrighted work for their own use. The company that made the Game Genie was represented by Martin Glick, a litigation partner at San Francisco’s Howard, Rice, Nemerovski, Canady, Falk & Rabkin. “I sort of camped on Marty’s doorstep and said I wanted to work on that case,” says Page. After he finished law school in 1991, Page clerked for U.S. District Judge Samuel Conti and then became an associate at Howard, Rice and worked on the Game Genie case with Glick. He moved over to Keker & Van Nest in 1995, where he became a partner four years later. During his time with the firm, Page has represented a steady stream of blue-chip clients involved in various IP disputes. In addition to his high-profile work for Grokster, Page has handled IP cases on behalf of America Online, Electronic Arts, Palm Computing, Sega Corp. and Google Inc. His client roster has even included Nintendo, the company whose legal fight against the Game Genie first inspired Page to take up IP law. Page, of course, is intimately familiar with the legal and philosophical debates that have been raging over the various digital file-sharing schemes ever since the original version of Napster made it easy for millions of songs to zip around cyberspace in the blink of an eye — and a click of the mouse. Whether or not it’s due to his previous “I’m with the band” life in the music industry, Page insists that the interests of entertainment-related corporate entities do not necessarily dovetail with those of the artists who fuel those companies with creative content. “It’s important to separate out artists from large companies that are invested in various distribution models,” he says. “We’ve seen through history that technology always redounds to the benefit of artists and copyright holders eventually, after whoever is running the current distribution system does its best to make the technology go away.” In some ways, the file-sharing controversy resembles the classic chicken-and-egg conundrum. In the digital age, the “which comes first?” question pits the technology wizards — the software masterminds behind the Napsters and Groksters of the world — against the copyright holders — movie studios, record companies and others who have been seeking to squelch technology until they can find ways to profit from it. Over the past 100 years, the very same technology vs. copyright debate has revolved around player pianos, radio, audiotaping devices, VCRs and any other innovation that has allowed for music, movies and other entertainment products to be distributed in ways beyond what the producers of entertainment originally envisioned. As an IP lawyer, Page wholeheartedly agrees that copyright holders deserve to be paid for their creative works. But in the same breath, he notes that solutions to do just that have always followed technology. A system of paying royalties based on radio airplay has long been in place. Movie studios, after fighting the VCR all the way to the Supreme Court and proclaiming the device to be the death of Hollywood, now make more money on videotapes and DVDs than on theatrical releases of their movies. Similarly, Page says he’s convinced that ways will be found to collect license fees for anything distributed over the Internet “if only everybody would stop fighting and figure out how to monetize it.” Clients like 321 Studios won’t be around to reap the benefits if and when such systems are in place. And whether outfits like Grokster go the way of Napster — which is back online as a fully licensed pay-to-download music service — remains to be seen. But Page, true to his life-on-the-road musical roots, sees a silver lining. “Electronic distribution of music literally reduces the distribution cost to zero,” he says. “In the end that has to be good for artists because all of the entertainment dollars that don’t go to distribution middlemen can now go to the artists themselves.” Mark Thompson is a freelance journalist in Los Angeles who frequently writes about legal topics.

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