He never took a copyright nor a trademark course in law school, he said, and he intended to practice in the international or educational areas. A clerkship with a judge persuaded him he didn’t want to be a litigator. At one point, he pondered leaving the profession after practicing with a mid-sized firm that he loved, though he didn’t like the kind of law it handled. Instead, he sought a house counsel job and had the luck to interview with a Hollywood studio’s General Counsel, who liked his answer as to why he wanted to work at Warner Bros., because, this candidate said, “he loved Bugs Bunny.”

His initial, self-deprecating description may have thrown some audience members for a curve. But Dean Marks, an  entertainment industry expert on content protection and copyright law, then proceeded in his recent talk at Southwestern Law School to describe his ring-side seat to the enormous changes he has helped influence in working in intellectual property issues. He did so in speaking with Prof. Steven Krone as part of the Biederman Entertainment and Media Law Institute’s “A Conversation With” series.

Marks only recently left Warner Brothers, where he was senior vice president of intellectual property, to join the Motion Picture Association of America as its general deputy counsel for global content protection. He traced his own experiences as an industry IP watchdog to the good ol’ VHS days, when he and his colleagues watched technology tumble forward to current digital dilemmas of rampant piracy. He discussed the Copyright Act, some of his ideas about the future of content protection, the industry’s plan to counter-attack pirates, and how the British are defending their IP.

Digital revolution

Remember the gentler era of “Be Kind, Rewind?” Marks noted that studios once had few concerns about about piracy, because copies had to be struck from a master or else they degraded rapidly and sold poorly on limited black markets; with the rise of digital technologies, a whole shadow industry has burgeoned, he said, and the reality may be that piracy and its products always will be an issue. It may be reality the entertainment industry seems to have accepted, though it robustly pursues all available civil and criminal remedies against pirates.

Hollywood, instead, also has sought to provide consumers with best quality products at maximum convenience and affordability, thereby undercutting pirated products, aiming to make them cumbersome and less reliable, he said. The industry has started to work directly with the intermediaries that might work with pirates, like payment processors and ad agencies, to enlist them in anti-piracy efforts. Smaller film companies have created their own coalition against piracy.

A British approach

Meantime, the British have adopted other legal tactics to combat piracy, said Marks, who spent part of his career in Europe working on copyright protections. He noted that the United Kingdom’s  Article 8.3 of its Copyright Act permits parties to seek injunctive relief against internet intermediaries without finding liability; this has resulted in dozens of sites getting blocked so pirated content can’t be accessed through them, and, he said, research suggests this has a larger benefit in curbing piracy.

Marks, who also discussed Harry Potter and other fan sites and their potential infringement, as well as the expansion by Amazon and Netflix into content creation, joined the MPAA in January, after a 25-year career with Warner Bros. Entertainment Inc. and Time Warner, where he was most recently senior vice president intellectual property for Warner Bros.  There he was responsible for establishing and guiding business practices of the studio on copyright related issues, digital rights management and content protection, and emerging distribution technologies. He worked extensively on domestic and international copyright policy and legislation. He also actively participated in negotiations that resulted in the passage of the Digital Millennium Copyright Act in 1998.  From 1992 to 1995, he served as vice president in Time Warner’s European public affairs office in Brussels, where he lobbied on media and copyright related issues.

The “Conversation with…” series at Southwestern features leaders in entertainment and media, including executives, attorneys and creative artists from the worlds of film, television, music, sports, interactive entertainment and other creative industries.