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As a senior attorney for Texaco from the mid-1980s to the late-1990s, Mark Litvack flew from town to town across the country trying trademark infringement cases. But when Litvack became Hollywood’s leading anti-piracy legal strategist in 1998, his caseload dramatically skyrocketed — as did his frequent-flier miles. As an in-house lawyer for the Motion Picture Association of America, Litvack oversaw upwards of 12,000 cases in 70 countries, dwarfing the three or four trials he handled each year for Texaco. And rather than touching down in places like Spokane, Washington; Macon, Georgia; and Ft. Smith, Arkansas, he was jetting to such farther flung destinations as London, Hong Kong, Beijing and Cairo. “I went from being part of a trial team � to being a legal strategist, international ambassador and lobbyist for anti-piracy for, arguably, the United States’ most visible industry,” says Litvack. “It was a great learning experience.” And the perks weren’t so bad, either. “I remember taking my son to ‘The Emperor’s New Groove’ with the red carpet and people bringing him popcorn and soda,” says Litvack, referring to the animated Disney movie released in 2000. “After the movie, Sting [who sings on the soundtrack] was on stage. My son has learned that movies aren’t all like that.” Litvack recently found his own new groove. He left the MPAA in June to become an IP and business litigation partner at Los Angeles’ Mitchell Silberberg & Knupp. The move has him joining forces with partner Russell Frackman, whose own 35-year battle against music pirates began when songs were still spiraling around eight-track tapes and getting pressed into vinyl. Frackman and Litvack had previously become friends through their mutual movie and music contacts. At Mitchell Silberberg, a firm with historical ties to Hollywood, the attorneys have become a twin tour de force in music and movie anti-piracy. “I think they wanted me because I am a good attorney, and my background and my contacts are clearly an advantage,” says Litvack. His clients include movie studios, the MPAA, independent production companies and investment firms. The nearly century-old Mitchell Silberberg catered to the entertainment industry in its infancy, advising legendary filmmaker Howard Hughes, who headed RKO Radio Pictures Inc., and studio moguls for 20th Century Fox and Columbia Pictures as they shaped the movie industry. Frackman remembers attending a business meeting at Columbia in the early 1970s, only a few years after founding partner Mendel Silberberg had died. “Some of the oldtimers at Columbia told me that Mendel was the only guy [Columbia Pictures founder] Harry Cohn ever listened to,” says Frackman. The law firm’s work in anti-piracy matters also preceded Frackman’s arrival at the firm in 1970. Howard Smith, a partner at the firm, had been involved in piracy cases involving unauthorized duplication of vinyl record albums as early as the 1950s. “Howard did piracy work for the record companies before the RIAA was formed,” says Frackman, who has been representing the Recording Industry Association of America in the music industry’s ongoing legal battle against online music swapping. When Litvack went to work for the MPAA in 1998, movies for home viewing were largely confined to videotapes, which required pirates to resort to unauthorized transfers of videocassettes. The process was time consuming and also created inventory that was bulky and relatively expensive to ship across the country or overseas. Even so, movie piracy was rampant. Within months of Litvack’s arrival, however, advances in digital technology made it much easier to mass-produce unlawful copies of Hollywood blockbusters. “On my watch, video died, DVDs exploded and the Internet really took off. We were inundated with piracy cases,” says Litvack. A trifecta of technological advancements fueled an epidemic that is still raging, according to movie industry executives and their legal advocates. DVD duplication technology has made movie piracy cheap and easy while also ensuring high-quality results; the light, slender discs can be easily shipped or smuggled anywhere around the world; and the rise of broadband access around the globe has made it easier to transfer contraband movies over the Internet. Millions of people around the world who previously would not have had access to a purloined videotape could now readily purchase an illegal DVD or log onto a file-sharing Web site and download a movie — or 10, 100 or 1,000 movies, depending on the size of their hard drive and the speed of their Internet connection — for free. Within months, the number of lawsuits filed by the MPAA nearly doubled to 20,000 as piracy soared in countries like China and Russia. More than 2,000 lawsuits are pending in Taiwan alone. Litvack likens these suits to Whack-a-Mole, the popular carnival arcade game where a player tries, usually in vain, to clobber a mechanical mole, only to have the pesky rodent pop up someplace else. “The goal [with these suits] was not to play Whack-A-Mole,” says Litvack. “You can’t win.” Instead, he says, Hollywood’s overall strategy has been to convince consumers that piracy is unacceptable and to discourage repeat offenders. “You can’t litigate your way to end piracy,” says Litvack. “You have to get the word out that it’s wrong and illegal. You have to convince people from all walks of life — parents and kids.” And also foreign governments. While Litvack’s primary function at the MPAA was to craft litigation strategy, he also performed other roles that included serving as a liaison to member studios and as an international ambassador for the movie industry in general. “Mark impressed me significantly because he has the ability to have different perspectives on different matters,” says Frackman. “In doing what Mark did at the MPAA, you sometimes have to be blunt and make hard decisions and you simply can’t please everyone all the time and still be doing your job, especially with a trade organization with six or seven motion picture companies.” Litvack’s dexterity at silver-screen diplomacy was tested when he served as an industry ambassador whose job was to convince foreign governments that movie piracy was illegal and encourage them to prosecute offenders. “You learn that the judicial and the legal systems work better in some countries than in others,” he says. “Going to a country and meeting the justice minister, attorneys and judges and speaking as the legal director for anti-piracy for the U.S. movie industry was a greatly enjoyable experience.” Of course, the job also had its trying moments. After giving a speech to a group of Chinese judges, one of them asked Litvack whether they had to weigh the injury to the movie studio against the need of the defendant to steal the movie. “I answered harshly enough that one of my colleagues said I’d probably never be asked back,” says Litvack. “But they needed to learn from me, and I understood there are times when you have to clearly lay out your position.” Litvack also says he encountered foreign government officials who simply refused to regard movie piracy as a pressing issue. Some also viewed it as a victimless crime “because [pirates] were stealing from the rich to give to the poor,” he says. But Litvack didn’t have to travel outside the country to hear that sentiment. “I also got that at campuses in the United States.” Although he disagrees with those on the opposing side of the piracy issue, Litvack says he has benefited from studying their point of view. “I went in thinking that piracy was black and white,” he says. “I learned there is gray in it, and your ability to shade the gray lighter or darker will measure how effective you are.” Fred von Lohmann, a senior staff attorney with the San Francisco-based Electronic Frontier Foundation who has frequently defended clients against legal action initiated by Litvack, says the movie-industry lawyer argues forcefully but never takes legal differences personally. “He’s been a gentleman in all of our interactions. But more than that, he’s a fun and personable guy,” says von Lohmann. “He’s always ready with an interesting story. I always think to myself, it would be fun to be one of his kids because he’d be the kind of dad who would be a blast.” Litvack’s role model came in the form of his own father. Sanford Litvack began his career in the 1960s as a trial attorney in the U.S. Justice Department before moving into private practice at Donovan Leisure Newton & Irvine in New York City. During Jimmy Carter’s administration, Litvack served as assistant attorney general in charge of the antitrust division. He later became a partner at Dewey Ballantine and, in the 1990s, had his own Hollywood immersion as general counsel — and later chief of corporate operations — for The Walt Disney Co. Litvack, currently a partner in the Los Angeles office of Hogan & Hartson, made headlines recently after testifying in the shareholder litigation stemming from Michael Ovitz’s brief, but lucrative, tenure as Disney’s president. Growing up in New York, Mark Litvack was impressed not so much by his father’s legal acumen as his ability to score last-minute tickets to New York Knicks and Rangers games. Sanford Litvack says his son’s drive to become a lawyer was preceded by a level-headed determination, even as a 10-year-old. During one bustling Christmas season, Mark’s mother told him and his brother they were going to FAO Schwartz, the famed New York toy store. After Mark got lost in the crowd, she frantically called the police to report him missing. But the officer who took the call soon got a radio call from another officer saying that a young boy at FAO Schwartz had reported that his mother was lost. “He knew where he was going and he just went there,” says Sanford Litvack. “He always wanted to be a lawyer and he always wanted to be a trial lawyer.” The desire to spend more time in court is precisely what led Mark Litvack to leave the MPAA in favor of Mitchell Silberberg. At the MPAA, “I would devise the strategy and then wouldn’t be involved at all,” he says. “I never really argued a word in the courtroom. I get to do more litigation now. I love being back in the courtroom.” Indeed, he was so eager that during his first week at the firm, Litvack volunteered to assist another attorney and argue an in limine motion in a San Francisco courtroom. Litvack’s talents as a litigator are clearly in high demand at the firm. At the moment, Litvack is working with Frackman on MGM v. Grokster, a file-swapping copyright dispute between Hollywood studios and a company that distributes file-sharing software. Frackman argued the studios’ position before the Ninth Circuit U.S. Court of Appeals, which last year sided with Grokster. The U.S. Supreme Court has accepted the case, and a ruling is expected toward the end of the court’s current term in June. While Litvack sees the Supreme Court’s acceptance of the case as a potentially positive step for his side, years of doing legal battle with pirates has left him philosophical about the highs and lows of any particular case. He follows the advice of William Fremming Nielsen, a federal judge in the state of Washington and a former attorney with whom Litvack had tried cases in Spokane during his Texaco days. “He said no day in court is as good as you think or as bad as you think,” says Litvack. “No matter how well a witness did or how badly, no one thing loses a case by itself. During the length of a trial, you need to keep an emotionally even keel, and I think he’s right.” Kathy Braidhill is a freelance journalist in Pasadena.

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