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If Fred von Lohmann had been born 100 years ago, “he would have had more insight into electric light bulbs and the legal issues they raised than anyone else in his time,” says William Schwartz, a partner at von Lohmann’s former firm, San Francisco’s Morrison & Foerster. But von Lohmann, who is a senior intellectual property attorney at the Electronic Frontier Foundation was born in 1968. And he has spent his career shedding light on the legal issues that the Internet raises. According to its mission statement, the San Francisco-based EFF is a public interest organization focusing on “free expression in the digital world,” privacy, and other civil rights. This year von Lohmann’s fight for free expression led him to the 9th U.S. Circuit Court of Appeals, where he argued for Streamcast Networks Inc., a company that distributes software that lets users trade copyrighted songs. Last year a federal court judge in Los Angeles ruled summarily that defendants Streamcast and Grokster, Ltd., a competitive service, were not liable for copyright infringement. The plaintiffs, major movie studios and recording companies, appealed. In his oral argument in early February, von Lohmann explained Streamcast’s technology in low-tech terms. He compared Streamcast’s Morpheus software with a megaphone that, he says, “allows a person who is connected to the Internet to lean out his window and ask his neighbors, ‘I’m looking for this, do you have it?’ Because his neighbors also have megaphones, they can lean out their windows and … answer.” Streamcast is like the megaphone manufacturer, he says: “No court could conclude that the megaphone manufacturer should be held liable for the neighbor’s infringements.” At press time the court had not issued a ruling. Von Lohmann wins high marks for his representation from Streamcast general counsel Matthew Neco, who says, “He’s very much in touch and aware of not only the law, but the technologies and how they interact with each other. He understands our technology better than I do.” Praise comes from rivals as well. Mark Litvak, a lawyer for the Motion Picture Association of America, who opposed von Lohmann in the Grokster litigation, says that while he does not always agree with von Lohmann, “I respect his integrity and his intelligence and admire his ability as an attorney.” Technology has always interested von Lohmann, who started using e-mail in 1985. As he explains, “I am a geek. I proudly claim the title. I know my share of Star Trek references.” Von Lohmann’s love affair with Internet law began in his third year at Stanford Law School, when, as a teaching assistant, he worked with professor Margaret Radin to develop Stanford’s first course on the subject. “My task was to learn everything there was to learn about cyberlaw. It filled one binder. Today that same course is taught over three semesters,” he says. At the EFF, von Lohmann is still teaching. “Our purpose is to explain to lawmakers and judges how technology works and how that matters for the law,” he says. Von Lohmann spends about half of his time at the EFF doing traditional legal work and the rest he spends working with the media and policy makers, and staying current on technology trends. [Von Lohmann wrote about the Digital Millennium Copyright Act in IP Law & Business's January issue.] Von Lohmann does not confine himself to copyright. He’s preparing an amicus brief in a patent dispute that, because of some peculiar twists, was appealed to the 9th Circuit. Von Lohmann’s brief will argue for the Arizona Cartridge Remanufacturers Association Inc., which lost a San Francisco federal court judge’s ruling allowing Lexmark International, Inc. to bar others from refilling its patented cartridges and reselling them. “Lexmark says if you refill the cartridge, you’re violating the contract,” says von Lohmann. Once Lexmark has sold the cartridge, von Lohmann argues, the company cannot control its future use. Von Lohmann ventures into trademark law when necessary, too. Recently he filed an amicus brief on behalf of Taxes.com, which was sued for trademark infringement by J.K. Harris & Company, a tax resolution company. Taxes.com used the company’s name so often on its Web site that when users searched online for J.K. Harris, Taxes.com came to the top of the results. Originally, U.S. district court judge Claudia Wilken ordered Taxes.com to reconfigure its Web pages, but then the EFF stepped in. “We came in as amicus to ask Judge Wilken to reconsider what we thought was an ill-conceived opinion. She invited us to argue and then withdrew her opinion,” von Lohmann says. After he graduated from Stanford in 1996, von Lohmann flitted between public service and MoFo. He spent a year clerking for Chief Judge Thelton Henderson of the Northern District of California before joining the firm. A year later he moved to Seattle to clerk for 9th Circuit senior judge Betty Fletcher. In 1998 he was back at MoFo, doing IP and technology transactional work under Schwartz’s tutelage. Von Lohmann came to the EFF in 2001 after a year as a visiting researcher at the Berkeley Center for Law & Technology at the University of California’s Boalt Hall School of Law. He worked with professor Pamela Samuelson (an EFF board member), studying the relationship between copyright law and technology. He could have returned to MoFo when the year was over, but decided the public interest was more important than his financial bottom line. Mike Jacobs, who heads MoFo’s IP practice, says the former associate “is making a tremendous contribution at the EFF, but I wish he were back here at MoFo. Fred is one of the country’s brightest and most thoughtful lawyers.” For now, von Lohmann says, the work he does at the EFF keeps him happy, but he “can’t imagine keeping up the pace for 30 years. If I were to leave, I’d probably consider academia first, but I wouldn’t rule out private practice if it could keep me as interested and engaged as the EFF has.” Schwartz and Jacobs would only be too happy to have him come home to MoFo.

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