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Usually, Los Angeles entertainment lawyer Russell Frackman tries to keep his clients out of the headlines. Most of them, like actors Jack Nicholson and Paul Newman, prefer to keep their legal laundry private. But now Frackman is trying to grab a piece of the spotlight as the main outside lawyer for the Recording Industry Association of America, Inc.’s crusade against Napster, Inc. The RIAA is one client that wants the Mitchell Silberberg & Knupp litigator out front and center to educate the public on the horrors of copyright infringement. But it hasn’t been easy. Napster’s marquee-name lawyer, David Boies, attracts a fawning press. And the renegade company’s creator and poster boy, the buff and bald 19-year-old Shawn Fanning, has graced the cover of Time and Fortune. Making matters more difficult, Napster’s arguments are portrayed as cutting-edge legal thought, while the RIAA has been cast as the new economy party pooper. Even the judges on the 9th U.S. Circuit Court of Appeals seemed cool to some of Frackman’s arguments during an October 2 hearing in San Francisco. Frackman’s job was to convince the three-judge panel to uphold a July preliminary injunction that ordered Napster to stop letting its users trade copywritten music files. Napster yelped that the injunction, which the 9th Circuit had stayed, would put it out of business. On the day of the arguments the 9th Circuit courthouse, located in a seedy neighborhood not far from City Hall, was packed with more than 300 people, not to mention those who tuned in to the proceedings on the Web. Frackman likened Napster to a flea market operator who allows conterfeit CDs to be sold on his property. In 1996 the court had held such an operator liable for infringement. (Frackman argued and won that case for the RIAA.) But the author of that ruling, Judge Mary Schroeder, cut him off. “This is really different,” she said. “Napster doesn’t have any idea what’s being transmitted.” At press time, the court had not ruled. Sitting in his cluttered office in Los Angeles two days after the arguments, wearing a button-down shirt, jeans, and running shoes, the 54-year-old Frackman seems pleased with his performance, despite the court’s tough questions. His office is littered with plentiful stacks of paper and kitschy memorabilia from cases he’s won. With his fatigued voice fading in and out, Frackman says he hasn’t watched the tapes of the arguments or even read most of the articles about it. Although he may not be the “it” boy of law like Boies, Frackman and his 125-lawyer firm have been representing the recording industry and major individual record labels on piracy matters for decades. In the 1970s he sued people for making eight-track tapes in their garages and putting labels on them. He’s also successfully litigated or settled countless claims against retail stores, CD pressing plants, and other manufacturers. And while Frackman had never appeared live on CNN until the Napster case, his job has provided some equally star-studded moments: He’s taken Yoko Ono’s deposition while sitting at her dining room table, and defended Paul Newman in the lush setting of the actor’s backyard pool. Frackman concedes it might be easy to get swept up in an Internet culture where anything is game. But, he says, “Napster is miseducating the public to believe that music, and by extension intellectual property rights, should be free over the Internet. … Napster has the message backward.” Now he wants to set it straight.

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