SXSW 2011 Q&A: Kaiser Wahab
Matt Geraghty March 9, 2011
The Breakdown: SXSW is just a couple days away. We spoke with Kaiser Wahab, a Partner at law firm Wahab & Medecnica LLC. He’ll be be leading a panel called “Reconciling YouTube and Grokster: Business Models for Web3.0” tackling the critical subjects of the future of content distribution, viable delivery models, the DMCA, monetization opportunities and the implications for digital content creators going forward.
S/G: What can we expect from your Panel?
Kaiser: First: A debate where the black letter of the law meets the real world experience of those charged with making the content flow. Second: an actionable set of “best practices” for content distribs and producers to avoid liability and missed monetization opportunities. Far too often the debate over Copyright’s boundaries are purely academic and rarely take into account how real world copyright enforcement is moving further away from the black letter. What’s refreshing (or dangerous) about the Viacom line of cases is that it lays bare the inner workings of YouTube and is many ways a lesson in Startup 101 and Content 101. And everything from the history of the DMCA to actual emails sent by YouTube founders and Viacom execs can and are being picked apart by pundits, in order to produce a knowledge base for how to do things right the first time, rather than by trial and error. Our goal is to provide the “legal” (i.e., how do we avoid lawsuits?) knowledge base from those cases in a one hour format.
S/G: What are some of the cases you’ll be speaking to to frame the discussion on digital content delivery models?
Kaiser: Obviously, the YouTube/Google and Grokster cases loom large in the debate. Ironically though, most of the case law is in flux because the only two cases on record that have matured into judgments are YouTube/Google and Veoh (both of which are more solidly cast as DMCA debates) and Grokster (which gave rise to the so called “copyright inducement” standard.) Moreover, although the lower courts ruled on YouTube/Google, all those issues are up for grabs at the 2nd Circuit (and then perhaps the case goes to the Supremes.) There is a small universe of cases that raised the same issues, but those never made it to judgment due to being settled out of court (e.g., Imeem). So unfortunately, all of us are left with a very short list for reference and that is precisely why the YouTube/Google case is so seminal. It may single handedly make the prime rules governing all copyrighted content on the Net for the foreseeable future.
S/G: What are the main hurdles in making digital content delivery a viable industry?
Kaiser: There is a solid shift culturally and economically towards on demand and now even HD content for free that has been brought about by YouTube like technologies. There’s no going back and it’s becoming increasingly clear to most that Copyright as a “weapon” just doesn’t work well. So meanwhile, there is a robust and potentially crippling copyright damages scheme (and not merely for original works, but their derivatives as well), but the day to day reality is a far different portrait. The tension between the two, despite stopgap measures such as the DMCA is increasingly an obstacle for rational conversation between distribs and users. As a result, content owners have had to make “behind the scenes” adjustments to how they do business, while content distribs wait in fear for a “decapitation” style lawsuit. Moreover, as new technologies increase the ability of distribs to screen and police content, there is uncertainty if those will increase the duties of the distribs to do so. And in the meantime, practicing attorneys must advise their clients in the midst of this tension. There has to be a dedicated push by all parties to create alternative schemes that can be ultimately codified as law.
S/G: Who are some of your panelists and what unique perspectives will they bring?
Kaiser: Two of our panelists in particular provide unique and “rubber hits road” viewpoints. Jeff Dodes, EVP of marketing for Sony/Jive has had to navigate the tension between the daily infringement of top artists like Britney and the fact the infringers are his purchasing constituency. As a result, he has had to find alternative ways to monetize user content derived from his catalogue. That means working closely with YouTube to assure user creativity and enthusiasm are harnessed, while maintaining a window for the user to actually buy the music. In addition, Adrian Sexton, a digital branding consultant and former head of digital at Lionsgate, founded New Medici to advise large brands on the very same issues, as well as using digital media for high risk branding opportunities. And that kind of experience can be invaluable to other content creators/ distribs. I’ll be the moderator in a suit, for what it’s worth (I’m a lawyer after all), and my partner Olivera Medenica, widely published on the topics involving the Net and IP, will bring the “best practices” to the table.
S/G: What are you looking forward to at SXSW?
Kaiser: Not wearing suits most of the time. Mostly we’re looking forward to the very open, very raw discourse on everything from fear of robot overlords to whether Lamebook gets a legal “pass”. It’s just not often one sees this depth and breadth of future thinking crammed into a single set of conference rooms.
Explore the rest of the SXSW 2011 Q&A Series.
