Thomas C. Rubin: Los Angeles County Bar Association

Remarks by Thomas C. Rubin, Chief Counsel for Intellectual Property Strategy, Microsoft Corp.
Receiving the Corporate Alternative Dispute Resolution Award From Dispute Resolution Services of the Los Angeles County Bar Association
Los Angeles, Calif.
May 5, 2010

[Introduction by Alan Braverman, senior executive vice president and general counsel, The Walt Disney Company]

TOM RUBIN: Thank you very much Alan for that introduction and those very kind words. They mean a tremendous amount given your leadership role worthy of this award, and the feelings are entirely mutual.

On behalf of Microsoft and myself, thank you to Dispute Resolution Services and the Los Angeles County Bar Association for this wonderful award. It is a great honor to receive recognition from an innovative organization that does an outstanding job of improving the community through accessible conflict resolution services. It’s a particular honor to be here alongside Chief Beck, Justice Chaney and Attorney General Van de Kamp, three leaders who have deeply enriched society through their dedication to public service and the law.

I’d like to spend a few minutes tonight discussing the basis of this award, namely the groundbreaking agreement between many members of the technology and content industries known as the User Generated Content Principles, or UGC Principles. Now, I know what you’re thinking: an agreement between the technology and content industries that addresses our mutual needs without having to resort to vituperative words and costly litigation? Well, Congressman John Conyers said the day the agreement was announced that it’s worthy of a Nobel Peace Prize, but we’re more than happy receiving this generous award.

Actually, receiving the ADR award for this effort is particularly fitting, for it was intentionally designed to be truly alternate dispute resolution. I suspect that my brief discussion and the lessons we learned will resonate with many of you who are involved in other dispute resolution efforts.

Let me start by briefly explaining how this effort was hatched and how it was accomplished. To understand it, you need to put yourself back in time three years ago, when both video content and user- generated creativity were bursting forth on the Internet. User-generated video sites were coming into vogue — sites fueled by creative works and enabled by innovative technology. Content and technology — the two were inextricably linked.

The problem was that many of these UGC videos were not “user generated” but simply “user uploaded” — containing copyrighted works belonging to others. That wasn’t good for the creators who invested substantial time and money creating the original content, and it wasn’t good for companies like Microsoft looking to launch legitimate online video services. As a service provider, we wanted to encourage true creativity, not provide a platform for infringement. And as important, it wasn’t good for the public itself because it threatened to slow the growth of legitimate services for high-quality content, sites like Hulu that has become a great success today.

At that time, the law governing liability for online service providers was largely untested, and provided little guidance to those going into this business about the need to proactively police for infringement. Nor was it clear to content owners the extent of their obligation to alert a hosting site about infringing content. We believed that clearer rules and shared responsibility would provide a better path forward than legal uncertainty, so we began to outline internally at Microsoft what we thought would be sensible guidelines for content owners and service providers alike.

We didn’t know it at the time, but Alan Braverman at The Walt Disney Company, a great leader of this effort who moved mountains, had the very same idea from the opposite side of the issue. Shortly after Microsoft publicly announced its commitment to meet the needs of content owners half way by implementing a form of technological filtering for infringing content, we got a call from Alan. Alan said that Disney appreciated the leadership Microsoft showed in making that announcement, and suggested we work together to try to negotiate a middle-ground, practical business solution to the issues facing UGC sites. As we told him during that very first call, it was like he was reading our mind.

The lawsuits against YouTube seeking a billion dollars in damages reinforced our belief that this was the right path, and the fact that those cases are still being fought in court today — in fact, summary judgment motions were just filed — only confirms our view that cooperation and collaboration is a more efficient and certain path to meet the needs of business and of consumers.

So the discussion and intense negotiations that culminated in the UGC Principles began in early April 2007 and lasted over half a year. Let me say a word about the process that we engaged in, for we haven’t discussed that publicly before. It started with Disney and Microsoft exchanging countless drafts back and forth, and holding numerous lengthy conference calls lasting two hours, even four hours long. Alan and I and others on our teams passionately debated every last detail about which side should bear what burden; how to protect honest services from litigation; and most important, how to ensure that the rights, expectations and needs of our customers — including legitimate fair use of copyrighted works — were met.

Our goal throughout was to expand the effort to include the largest number of signatories possible and achieve true cross-industry consensus on the issue. We decided the best path to achieve that goal was to hammer out an agreement among ourselves and then use that draft as the basis for discussions with others. That process worked, and the circle expanded to include over a dozen other content owners and service providers — from venture-backed startups to popular international services — all of whom had important perspectives and provided feedback that significantly shaped the Principles.

To be completely frank, the process wasn’t always smooth and it wasn’t always linear. If bilateral negotiation with Disney was tough, multilateral negotiation between over a dozen parties was a killer. Several times the effort was on the verge of breaking apart even after months of negotiation. But as in any alternative dispute resolution process, that’s no surprise: The stakes are high, the issues are contentious and emotions run deep.

We persevered, and the vast majority of the parties to the negotiations signed onto the Principles. The final document, which you can find at, contains 15 paragraphs detailing the shared responsibility of content owners and online services alike to protect against infringement while ensuring that user-generated creativity can be vibrant and flourish. I’d like to take a moment to salute the constructive involvement of all the signatories, many of whom Microsoft has the pleasure of hosting at our table tonight: copyright owners CBS, Disney, Fox Entertainment, NBC Universal, Sony Pictures and Viacom, and online services Crackle, Dailymotion, MySpace, Sevenload and Veoh.

I think the key to the success of the UGC Principles can be summed up in two simple facts. First, we had a shared commitment to the process — a strong belief that launching principles would break a decades-long cycle of acrimony and disputes, and would best facilitate the adoption and growth of new technology and services. This commitment to the process led all parties to demonstrate a flexibility in positions and willingness to compromise that is often absent from public discourse.

The second key to success, and I cannot emphasize this enough, is that we had a shared respect for each other that let us break through typical posturing that often arises during negotiations. As Alan put it at one point, and I think he got it exactly right, what enabled the effort to succeed is that we were lawyers not acting like lawyers. Now, given that I’m addressing the bar association let me quickly add: not that there’s anything wrong with lawyers acting like lawyers. But we were willing to move off of many firmly held positions to achieve our goal, and all of us had to do that at one time or another during the process.

In the end, the broad base of companies that signed onto the Principles and the positive reaction to them around the world demonstrate the value of the effort. As one commentator wrote, the Principles “embody a much more constructive mindset than the out-and-out legal warfare we have witnessed in the past.” That was just the point. An analysis of the Principles in the Harvard Law Review noted: “[T]he Principles demonstrate that parties with competing interests can collaborate and negotiate to develop private arrangements, in this case generating a seemingly sensible, workable set of guidelines ….” That’s precisely right. Similarly, policymakers on both sides of the aisle, from Congressman Conyers to Senator Orrin Hatch, hailed the effort as groundbreaking and expressed hope that it would serve as a model going forward.

Looking ahead, there’s no shortage of contentious issues between the content and technology industries as the digital revolution continues. It would be naïve to think that the success of the UGC Principles demonstrates that resolving all differences will be easy. But the effort does stand as a proof of concept that in our fast-paced digital world, the courts and even the legislature are not the best place to solve all problems. Even if the result of the UGC Principles effort did not achieve perfection, it demonstrates that the open, voluntary and collaborative process we employed can work. And Microsoft remains committed to that process.

A commitment to alternative means to resolving disagreements through honesty in debate and flexibility in positions can achieve remarkable results. At a time when the content industries are undergoing a vast transformation and the technology industry is delivering innovations at breakneck speeds, sensible solutions between parties like this one can provide the best means to benefit our customers and advance the public we serve.

In closing, thank you once again to Dispute Resolution Services and the Los Angeles County Bar Association for your ongoing commitment to the community and for the honor of this award.

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