When Michael Eisen joined Microsoft Canada in 1998, he was a “one-man band” for a company that previously did not have in-house legal counsel. Today, Eisen oversees a seven-person team providing end-to-end legal services for the company’s business units. That includes a busy and growing mandate spanning everything from anti-piracy programs and intellectual property rights protection to working with law enforcement to combat child pornography.
“We are really a small law firm operating within the confines of a large Canadian company,” he says, during a recent interview at Microsoft Canada’s corporate offices in downtown Toronto. “We try to provide the basic core legal support ourselves, and then we will go to outside law firms when we can’t handle it ourselves or where there is an area that requires expertise we don’t have.”
The process of going from a single lawyer to a “corporate boutique” has been slow. Eisen says being pragmatic has allowed him to hire the right people who are capable of handling problems and challenges without being “micro-managed.”
At the same time, he focuses on building a diversified group of people with different perspectives, world views, and work practices. In addition to Eisen, who is chief legal officer, Microsoft Canada’s in-house team includes three lawyers, an investigation manager, a piracy paralegal, and an administrative assistant.
This has given Eisen the luxury of being an active member of Microsoft’s Canadian leadership team, as well as the ability to get involved in special projects such as the company’s highly respected efforts to help police battle child pornography. The Child Exploitation Tracking Systems (CETS) was created by Microsoft Canada and various law enforcement agencies, including the RCMP and Toronto Police Service. The system is used by investigators around the world to identify trends and pieces of information in different countries.
Microsoft got involved in 2003 when Bill Gates, the company’s chairman and chief software architect, received an email from Det.-Sgt. Paul Gillespie, a detective with the Toronto Police Service. Gillespie told Gates his officers faced a huge challenge tracking down sex offenders because they did not have the proper investigative tools. Three weeks later, Microsoft contacted Gillespie about what the company could do to help.
Eisen, an Osgoode Hall Law School graduate who was called to the bar in Ontario in 1977, says one of the challenges facing Microsoft as it works with law enforcement agencies is maintaining a balance between doing the right thing and respecting people’s privacy.
This issue regularly comes into play when Microsoft receives requests from police for information about people who use the company’s free email service, Hotmail, and whose accounts are part of investigations.
“We have a rigorous process where we strike the right balance between responding to requests when they are supported by the legal process,” he explains. “We respond in a way that satisfies the needs of the police but, at the same time, doesn’t go an inch further than is legally required.”
Another part of Microsoft Canada’s legal efforts is combating software piracy. Despite the industry’s effort, about 30 per cent of software used in Canada is unlicensed — accounting for hundreds of millions of dollars in lost sales. Eisen, who has been actively involved with the Canadian Alliance Against Software Theft, describes piracy as Microsoft’s “greatest competitor.”
Microsoft’s efforts to fight software piracy are multi-pronged. From a criminal perspective, the company works with law enforcement agencies such as the RCMP, and custom officials. There is also a civil campaign that involves anti-piracy programs, cease-and-desist letters, integrity shopping, and a significant number of lawsuits.
Eisen says a huge part of the problem is Canada’s intellectual property laws, which do not have the same clout as those in jurisdictions such as the U.S. or the standards established by global groups such as the World International Property Organization. “Canadian copyright reform takes an awful long time because of the competing interests. The promised legislation doesn’t quite seem to be bubbling to the surface as quickly as it should.”
Eisen, who worked with now-defunct Toronto law firm Morris Rose & Ledgett before joining Microsoft, adds Canada’s copyright woes are exacerbated by the fact many enforcement agencies do not have the proper resources. As well, he doubts there is the same amount of will to prioritize copyright issues in Canada as there is in the U.S. “Canada continues to face a problem that is greater than we as a sophisticated and mature country should be facing,” he says.
With a full slate of issues and projects to tackle, Eisen tries to give his team as much responsibility as possible. “My role is giving them an appropriate degree of supervision, support, and coaching. Their role is to provide the front line legal expertise a company like Microsoft needs to be as successful as possible.”
