The Right to Innovate

A gift from Viacom’s general counsel means more opportunities for students of IP law.

Michael Fricklas (LAW'84) and Donna Astion (SAR'82)

Michael Fricklas (’84) has made a career out of fighting piracy and protecting intellectual property rights. As executive vice president, general counsel, and secretary of Viacom, Fricklas led the film and television giant’s years-long legal battle with video-sharing behemoth YouTube (and, by extension, YouTube’s corporate parent, Google). He has long argued that copyright law exists not to dampen creativity and innovation but to promote them.

Now, one of Boston University School of Law’s distinguished alumni is giving back so that students of today (and tomorrow) will have the resources to pursue their own studies—and perhaps discover their own innovative ways to protect intellectual property. Fricklas and his wife, orthopedist Donna Astion (SAR’82), have pledged $1 million to BU to endow scholarship and research funds at the School of Law as well as the College of Health & Rehabilitation Sciences: Sargent College.

And Fricklas almost didn’t graduate from BU Law at all.

Staying the Course

Fricklas grew up in Denver, where he earned a bachelor’s degree in engineering from the University of Colorado. He came to Boston and excelled in his first year at BU Law—making the Law Review, ranking third in his section—but he struggled with the expense. “I was paying my own way with student loans and work,” he recalls, “the same problems students have now.” After the first year, he decided to transfer out of BU and enroll in his undergrad alma mater’s law school. Upon returning to Colorado that summer, Fricklas wrote a letter to BU Law Dean William Schwartz (DGE’52, LAW’55, GRS’60), as a courtesy, explaining why he’d left.

Give to BU LawSchwartz would have none of it. The dean found some discretionary funding to allow Fricklas to continue at BU. Fricklas never forgot that gesture. “I didn’t have lawyers in my family,” he says. “I didn’t have mentors or anyone guiding me through law school, but Dean Schwartz and BU Law enabled me to get a great education and a launch on a career.” Over his three years at the School, Fricklas says, “I got a fantastic overview of the law,” and by the time he received his JD, “I felt I could think well, and I had an understanding of how a lot of fields work.” That breadth, he notes, would serve him well.

Moreover, he had made the acquaintance of Astion, whom he would marry years later. It happened when Astion’s roommate, a Fricklas family friend, offered the law student a temporary place to stay.

“I’m opposed to [on-campus] housing for law students,” Fricklas quips. “If I hadn’t had to crash on Donna’s couch, we never would have met.”

Content Isn’t Free

The newly minted lawyer wound up in Silicon Valley, working on licensing and finance issues for technology companies. After several years in mergers and acquisitions, Fricklas returned to the East Coast in 1993 to manage the legal department of Viacom. From the company’s headquarters in New York City, he directs a team of 270 lawyers around the globe. Viacom owns Paramount Pictures as well as more than 200 cable networks worldwide, including MTV, Comedy Central, BET, and Nickelodeon.

Fricklas became Viacom’s general counsel in 1998—the same year Congress passed the Digital Millennium Copyright Act (DMCA), which would loom large in his office. In 2005, a website called YouTube began allowing users to upload videos—including hundreds of thousands of unauthorized clips from Viacom-owned cable TV programs such as The Daily Show and SpongeBob SquarePants.

After Google bought YouTube for $1.65 billion, Viacom negotiated a license agreement for clips of its shows. But when, according to Viacom, Google failed to honor its agreement and monitor for copyright infringement on You-Tube, the company sued for $1 billion for copyright infringement. Fricklas argued that the video-sharing site had profited in part from its use of Viacom-copyrighted content and was encouraging piracy. A few months later, YouTube launched Content ID, a system designed to prevent the uploading of copyrighted content, but argued against paying damages. Its counterargument was that the use of the videos fell under “safe harbor” provisions of the DMCA. Google and Viacom finally settled in 2014, after Google implemented a revenue-sharing plan for artists and continued to enhance Content ID.

"The Internet allows entrepreneurs to experiment with lots of different business models all the time, and thinking about how the law should evolve to address them is an interesting and important place for lawyers to function."Many Internet users, especially those who came of age with the medium, complained that Viacom was restricting their freedom, or that content should be free. But Fricklas makes the case that without copyright law protecting the livelihoods of the artists who create, eventually there would be a serious dearth of content. “Intellectual property law is very pro-consumer,” as he puts it. Or, as he wrote in an op-ed for the Washington Post in 2007: “Will forcing Google and YouTube to obey the law stifle innovation? Quite the opposite. Intellectual property is worth $650 billion a year to the US economy.” As Fricklas knows well from his days in Silicon Valley, “protecting intellectual property spurs investment and thereby the creation of new technologies and creative entertainment. This creates jobs and benefits consumers.”

Giving Back

The need to educate not only consumers about intellectual property but also lawyers is a big part of why Fricklas chose to support BU Law. The gift includes $125,000 to permanently endow the Michael Fricklas and Donna Astion Prize in Intellectual Property and Entertainment Law Fund. Each year, prizes totaling $2,500 will be awarded to one or more deserving students with a research interest in intellectual property and/or entertainment law.

“Understanding IP is hugely important for this century, and it’s a very complicated area of law,” Fricklas says. “The issues are evolving very fast as our world is evolving very fast. The Internet allows entrepreneurs to experiment with lots of different business models all the time, and thinking about how the law should evolve to address them is an interesting and important place for lawyers to function. So having law scholars who get it and having that be part of their thought process and careers—it will keep BU grads at the forefront of the issues affecting this business.”

The bulk of the gift, $625,000, is designated to permanently endow the Michael Fricklas and Donna Astion Scholarship Fund. This fund will provide deserving students with scholarships based on financial need, academic potential, or other factors. The dean will select these students annually. Another sizable chunk of the gift, $250,000, goes to create the Donna Astion and Michael Fricklas Doctoral Support Fellowship Fund at Sargent College.

Both Fricklas and Astion remember how financial assistance got them through BU—help from Dean Schwartz for Fricklas, Sargent’s book fund for Astion, who went on to medical school and eventual practice in orthopedics. That’s another reason for their ongoing generosity. Though it is the largest, this is but the latest of their gifts to BU. The couple has been active alumni for years—he’s on BU’s Board of Overseers and has been a member of the dean’s advisory board at LAW for more than 20 years; she’s on the dean’s advisory board at Sargent.

“I was lucky to have opportunities,” Fricklas says, “even though I didn’t have connections. And BU’s always been a place for that—it’s not a place where if you have a building named after your grandfather, you’re guaranteed to get in, with a cushy job waiting for you when you get out. BU’s always been a place for strivers.” With the prize and scholarship gift, he says, “I want to provide opportunities to those students. I want people who work hard and are ambitious to have access to the tools they need to succeed.”

This feature originally appeared in The Record, BU Law’s alumni magazine. Read the full issue here.

Reported by Patrick Kennedy (COM’04)

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