Fordham Report 2014: General Counsel Roundtable

The GC Roundtable

Another bright and sunny day in Manhattan saw the General Counsel of leading American companies discuss the key challenges and opportunities in IP law for their businesses.  The panel consisted of Michael D. Fricklas (Executive Vice President (General Counsel and Secretary of Viacom), Kimberley D. Harris (Executive Vice President and General Counsel of NBCUniversal), David Hyman (General Counsel and Secretary of Netflix), Mark Seeley (Senior Vice President & General Counsel of Elsevier) and Brad Smith (Executive Vice President and General Counsel of Microsoft) who joined by video conference.  The AmeriKat summarized their key points as follows:

Michael D Fricklas
of Viacom

Biggest challenges:  There was general consensus that the biggest challenge is the rapid development of technology and the  slow development of IP law.  This was considered to be challenging as all the business were innovative in the field of apps, cloud computing and new means of broadcasting.  It was also agreed that it was increasingly challenging to obtain consensus by those in the political sphere when trying to develop "fit for purpose" IP laws.  Michael Fricklas of Viacom noted that copyright cases cost a lot of money and by the time you are before a court you are often faced with obsolete issues, so you see disrupters taking calculated risks in their business model to obtain market share in the hope by the time they get to court the public acceptance is behind them. Kimberly Harris from NBCUniversal stated that the biggest challenge her company is facing is the fact there is so much activity in IP reform, so it is crucial to keep on top of, for example, the copyright review efforts in the US and Europe.  When discussing the challenges of having IP cases decided by the Supreme Court the general view was that the court was making incremental decisions on IP law as they don't want to rock the boat and impact future decisions - this was not necessarily a bad thing as there is obvious wisdom in the incremental decisions as opposed to revolutionizing the law in one decision .  There was also concern that regulators and legislators are trying to predict the future in developing laws and regulations that they are not equipped to do.

Kimberly Harris of
NBC/Universal

Importance of lobbying:  It was agreed that companies need to be on top of issues and to be able to influence the process of developing legislation, especially at the moment in the field of copyright reform in Europe.  You need to pull whatever lever you can find.  It is important to work with local expertise in those local markets.  Education is important in this process in some local markets to ensure legislators know the impact.  Coalitions are also important - broader memberships and coalitions are more effective so lobbying efforts are not limited to, for example, content owners v consumers, but the role of actors, writers, etc.  Brad Smith of Microsoft noted that we are incredibly fortunate to be working on these issues because it is a fascinating time for IP given its impact on so many fields:  "It is fascinating to see every day that different people in different places answer the same questions in completely different ways".

David Hyman of
Netflix

Lawyers expertise:  The lawyers the GCs are looking for are those who understand the business and the economics that drive it.  Michael Fricklas from Viacom said that they are also looking for a lot of initiative in their lawyers as the problems that are presenting themselves are amorphous with unclear facts and uncertain or non-existent law.  David Hyman from Netflix said that it is all about a mindset about taking calculated risks in the face of uncertainty.  Lawyers that are in a business that is challenging certain status quo and are trying to innovate in ways that are uncertain, a lawyer operating in that business has to be comfortable in that uncertainty.  However, unfortunately lawyers want certainty or they want to be able to look at risks and say the risks of being sued are 50/50 and leave it at the feet of the business person.  Hyman continued:  "From our standpoint, I look towards those lawyers who are willing to put themselves in the business's shoes and make those calculated risks...you have to be able work with their business in a collaborative process."  It is easy to identify complexity, it is difficult to find a path.  The GCs also emphasized finding a solution that can be used across a variety of geographic regions is crucial.  Kimberly also noted that lawyers need to be creative and nimble, which is not easily identifiable in hiring situations.  Brad Smith from Microsoft emphasized not to put your own integrity or the company's integrity at risk.  David Hyman says that at Netflix they think about how they would feel if what they advised showed up on the New York Times as a litmus test for integrity.  Getting sued does not mean that you got it wrong, it just means that part of their risk assessment was hit.

Brad Smith of
Microsoft

Increasingly global:   Brad Smith of Microsoft commented that US is important market but only 4% of world's population live in the US.  From a business perspective you have to think about the impact of laws will help you or hurt you somewhere in the world.   Paul Fehlner from Novartis sitting in the audience asked the GC panel whether when they look for lawyers with a global perspective  it was important that they were internal or external lawyers.  The GCs said that it would be nice that everyone would think globally, but at some point not everyone in your team can know everything about every jurisdiction so you need local expertise.  The real importance is that the lawyers - external and internal - need to have a global view of the business.  Kimberly stated that in her business there was a lot of information sharing undertaken to achieve that global perspective with their internal and external lawyers, so that they understand when they take a step in the US they understand how that impacts the position elsewhere.  Brad stated that it was important that the legal team has a global perspective.

Mark Seeley
of Elsevier

Competition v IP law:  The GCs noted that they are all seeing the impact on competition issues in IP law and in their businesses.  Michael stated that they are seeing the regulators get a lot more involved in patent issues and now they are seeing that in copyright law citing the Premier League case in Europe as an example.  Often people who are looking at these issues are not that well-versed in the IP issues and are trying to overlay competition on top of IP.  The GCs noted that when antitrust people look at copyright issues it becomes challenging as they do not necessarily have the expertise required to fully assess the position.