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SCOTUS on Music Piracy & Asylum · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
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  Speaker 2: The music industry faced off against internet providers at the
• 0:12
  Speaker 2: Supreme Court this week. At stake billions of dollars and
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  Speaker 2: specifically a one billion dollar jury verdict against Cox Communications
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  Speaker 2: for not shutting down the accounts of customers who pirated
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  Speaker 2: more than ten thousand copyrighted songs by artists like Beyonce
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  Speaker 2: and Justin Timberlake. The lawyers painted pictures of extreme consequences
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  Speaker 2: if the court ruled against their client. Here are Joshua
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  Speaker 2: Rosenkrantz for the internet provider Cox, and Paul Clement for
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  Speaker 2: the music labels and publishers.
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  Speaker 3: The consequences of plaintiff's position are cataclysmic. There is no
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  Speaker 3: shortfire way for an ISP to avoid liability, and the
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  Speaker 3: only way it can is to cut off the Internet,
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  Speaker 3: not just for the accused infringer, but for anyone else
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  Speaker 3: who happens to use the same connection. That could be
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  Speaker 3: entire towns, universities, or hospitals.
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  Speaker 4: If Cox is right on the law, then Cox could
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  Speaker 4: take tens of thousands of copyright notices and throw them
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  Speaker 4: in the trash, and they could have its employees say
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  Speaker 4: f the DMCA. That is, in fact what the record says,
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  Speaker 4: which is why they're asking you for an extreme rule.
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  Speaker 2: The issue is whether Internet providers should be held responsible
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  Speaker 2: for contributing to copyright infringement when they know their customers
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  Speaker 2: are pirating music but don't terminate their Internet access. Some justices,
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  Speaker 2: like Samuel Alito, questioned whether forcing Internet service providers to
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  Speaker 2: cut off infringers could affect institutions like hospitals or universities.
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  Speaker 1: What is an I supposed to do with a university
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  Speaker 1: account that as let's say, seventy thousand users? What is
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  Speaker 1: the university supposed to do?
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  Speaker 2: But other justices seem skeptical that Cox had done enough
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  Speaker 2: to stop the piracy, and questioned whether a ruling too
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  Speaker 2: favorable to Internet service providers would allow them to ignore
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  Speaker 2: clear copyright infringement by their users. Here are Justices Sonya,
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  Speaker 2: So to Mayor and Amy Cony Barrett, you did.
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  Speaker 5: Nothing and in fact, counselor your clients sort of lais
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  Speaker 5: a fair attitude towards the respondents is probably what got
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  Speaker 5: the jury upset.
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  Speaker 6: What incentive would you have to do anything if you won?
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  Speaker 6: You if you win? And mere knowledge isn't enough? Why
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  Speaker 6: would you bother to send out any notices in the future, Well,
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  Speaker 6: your abligation.
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  Speaker 2: B my guest is intellectual property litigator Terrence Ross, a
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  Speaker 2: partner at Katin Yutchen Rosenman. Terry explained the issue here.
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  Speaker 7: The issue in the case involves process by which music companies,
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  Speaker 7: by music companies don't really mean recording companies track online
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  Speaker 7: that I'm sharing of musical compositions that they owned. The
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  Speaker 7: copyright in the process allows them to identify the IP
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  Speaker 7: address and the ISP that is providing the service to
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  Speaker 7: that IP address, and so the music companies recording companies
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  Speaker 7: regularly a daily basis, in fact, send notices of infringement
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  Speaker 7: to the ISPs that are providing the internet service to
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  Speaker 7: these infringers. And there are days in which they're sending
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  Speaker 7: out ten thousand notices to each individual ISP service, and
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  Speaker 7: the recording companies finally became fed up that the ISPs
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  Speaker 7: were not doing something. They wanted the ISPs to cut
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  Speaker 7: off service to these identified infringers, and the ISP's dragged
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  Speaker 7: their heels doing anything taking any real concrete action to
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  Speaker 7: stop it. And so the Recording got me finally sued
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  Speaker 7: Cox Cable Company, which is one of the largest ISPs
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  Speaker 7: in the nation, alleging that they had engaged in contributory
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  Speaker 7: copyright infringement.
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  Speaker 2: In its papers, Cox had argued that Grandma will be
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  Speaker 2: thrown off the Internet because Junior visited and illegally downloaded songs.
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  Speaker 2: Did some of the justices seem to pick up on
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  Speaker 2: that concern.
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  Speaker 7: There was only one justice who seemed to give some
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  Speaker 7: credence that, and that was just as the lead up.
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  Speaker 7: He was the only justice who really seemed to buy
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  Speaker 7: into the position by Cox that it was hesitant to
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  Speaker 7: kick people off because of and then you can fill
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  Speaker 7: in the blank as to what the reason is their grandmother,
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  Speaker 7: their university, their hospital. In fact, the hypothetic posed at
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  Speaker 7: oral argument in the Supreme Court was what happens when
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  Speaker 7: all you can do is identify that the IP address
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  Speaker 7: belongs to university or you were going to shut down
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  Speaker 7: the entire university. One of those odd hypotheticals that takes
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  Speaker 7: the case the extreme. The facts are actually contrast to that,
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  Speaker 7: and indeed none of the other justices seemed to buy
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  Speaker 7: into that argument. The reality is that over a period
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  Speaker 7: of time and issue, Cox had received one hundred and
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  Speaker 7: sixty three thousand notices of infringement and had kicked off
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  Speaker 7: of its service only thirty two customers. The policy of
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  Speaker 7: compliance used by Cox was described in some detail both
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  Speaker 7: of the Supreme Court and in the Lower Court, and
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  Speaker 7: it was subw wha they fare to use the word
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  Speaker 7: that one of the justices used to describe it. They
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  Speaker 7: had originally started off to say, well, if we get
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  Speaker 7: three notices about a particular user, we're going to tell
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  Speaker 7: them we're cutting off their service. That rose gradually over
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  Speaker 7: time from being a three strikes you're out policy to
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  Speaker 7: being a thirteen strikes and you're aut policy, and the
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  Speaker 7: thirteen strikes to reset every six months, so if you
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  Speaker 7: didn't get to thirteen within the six month period, you
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  Speaker 7: went back to zero, or if you got kicked off
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  Speaker 7: after six months off, you got put back on. They
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  Speaker 7: also capped the number of notices that they were accepting
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  Speaker 7: from recording companies at three hundred a day. And then
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  Speaker 7: probably the worst fact of all in which got brought
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  Speaker 7: up at the Supreme Court, if you could believe it,
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  Speaker 7: was the head of a copyright compliance at Cox sent
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  Speaker 7: out an email to the people in charge of enforcing
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  Speaker 7: copyright policy in which he said f the DMCA f
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  Speaker 7: the DMCA. Now, the DMCA refers to the Digital Millennium
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  Speaker 7: Copyright Act, which is one of the key statutes that
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  Speaker 7: shoe here and which requires ISPs to set up a
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  Speaker 7: policing mechanism against copyright infringement if they want to claim
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  Speaker 7: the safe harbor that is embedded in the Digital Millennium
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  Speaker 7: Copyright Act. In response to that, one of the minions
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  Speaker 7: for the head of Compliance wrote back saying, but we're
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  Speaker 7: helping law breaking customers, And there were dozens of emails
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  Speaker 7: like this amongst the compliance group of Cocks. That just
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  Speaker 7: manifested a complete disdain for copyright laws, which obviously impacted
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  Speaker 7: the jury because the jury below had awarded a billion
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  Speaker 7: dollars in damages against Cox. And in the Supreme Court
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  Speaker 7: argument it was clear that outside of Justice Alito, none
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  Speaker 7: of the eight other justices were buying what Cox was
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  Speaker 7: trying to claim was their reason for not cutting off people,
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  Speaker 7: that you'd kick Grandma's off of the Internet. The other
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  Speaker 7: eight justices just didn't buy it, and it was a
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  Speaker 7: loser argument for Cock.
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  Speaker 2: So then can you tell where most of the justices
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  Speaker 2: do stand?
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  Speaker 7: That's always a tough question. In this case, I think
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  Speaker 7: it's covered the most, I think, outside of Justice Alito,
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  Speaker 7: the other eight judges were just incredibly skeptical of Cox's
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  Speaker 7: excuses for allowing this widespread infringement to go on. In
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  Speaker 7: the record below, there's apparently one period of time at
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  Speaker 7: which twenty one percent of all traffic on the COXS
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  Speaker 7: internet connections twenty one percent involved copyright in fringe. And
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  Speaker 7: the lawsuit below didn't go after every single mom and
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  Speaker 7: pop business or every single college student. It was targeted
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  Speaker 7: only at distributors, not people who were downloading the occasional song,
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  Speaker 7: but people who were copying music digitally and distributing it
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  Speaker 7: on a mass scale. So there was this enormous skepticism
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  Speaker 7: expressed by the justice except for Justice Alita, that Cox
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  Speaker 7: really was and fulfilling it its obligation and needed to
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  Speaker 7: do something differently now. On the other hand, there also
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  Speaker 7: seemed to be some concern about the size of the
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  Speaker 7: jury verdict and whether or not the actions of Cox
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  Speaker 7: were sufficient to constitute willful contributory infringement, which is what
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  Speaker 7: set them up for much larger scale of damages than
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  Speaker 7: if they had been found to be just ordinary copyright infringement.
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  Speaker 2: So what's the standard that the justices would use here.
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  Speaker 2: Cox contends that under a two thousand and five Supreme
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  Speaker 2: Court ruling, it can't be held liable for contributory infringement
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  Speaker 2: unless it affirmatively fostered piracy or clearly intended to promote it.
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  Speaker 2: The music companies say it's enough that Cox's new subscribers
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  Speaker 2: were using its service to download songs illegally.
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  Speaker 7: The case on appeal is the Supreme Court present it
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  Speaker 7: to pretty crisp issues for decision. The first issue, which
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  Speaker 7: I think is where the real fight is going to be,
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  Speaker 7: is whether or not contributory copyright infringement required some sort
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  Speaker 7: of affirmative action by the defendant. The second question presented
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  Speaker 7: for review was whether or not wilfulness required some sort
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  Speaker 7: of knowledge of customer infringement. Now, the problem with that
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  Speaker 7: second question, the Wilfes standard, is that cops had failed
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  Speaker 7: to object in the trial court to the instruction that
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  Speaker 7: the judge gave to the jury about how to find wilfulness.
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  Speaker 7: So after the case has finished, all the evidence has submitted,
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  Speaker 7: and the attorneys have beda closing argument, and just before
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  Speaker 7: the jury goes into the jury room to make a decision,
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  Speaker 7: the judge reads to them a series of instructions as
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  Speaker 7: to what the law is, and one of those instructions
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  Speaker 7: will go something like Sony Music Corporation. Here is alleged
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  Speaker 7: that the contributor copyright infringement was wilful on the part
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  Speaker 7: of costs. In order for you to find wilfulness you
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  Speaker 7: must consider the falling factors. And typically if a party
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  Speaker 7: doesn't believe the judge has stayed at the law correctly
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  Speaker 7: to the jury, they get up and they object, and
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  Speaker 7: indeed they don't even have to do it at the
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  Speaker 7: time of trial. These during instructions are sent out to
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  Speaker 7: the lawyers while advance, and you file the objection with
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  Speaker 7: courts saying, well, objected this, and give the court a
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  Speaker 7: chance to refine it, improve it so that there's no
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  Speaker 7: objection here. The Cox folks, for whatever reason, failed to
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  Speaker 7: object to the wilfulness instruction, and that means they waived
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  Speaker 7: any objection to wilfulness and had really no excuse in
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  Speaker 7: their briefing as to why they did that or why
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  Speaker 7: they should be excused from that. They pointed to a
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  Speaker 7: prior case. This is a series of litigations. Here a
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  Speaker 7: prior case that was styled bmg Urtus from US it
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  Speaker 7: Group versus Cox, also coming out of the same Virginia court,
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  Speaker 7: and in that case they had objected to wilfulness and
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  Speaker 7: it had been overruled by the Fourth Circuit, but that
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  Speaker 7: case was not on appeal. Here, the case that was
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  Speaker 7: on appeal, they failed to object to the wilfulness instruction,
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  Speaker 7: and in fact, the fact that they'd done so the
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  Speaker 7: first trial but not in the second trial, so want
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  Speaker 7: to suggest that they knew they were supposed to do
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  Speaker 7: that and then failed to do it. So I just
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  Speaker 7: don't see question number two as being resolved in any
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  Speaker 7: way in favor of Cox, and indeed I suspect the
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  Speaker 7: court won't reach it so that we will get no
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  Speaker 7: further instruction from the Supreme Court on what constitutes wilfulness.
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  Speaker 7: I think the court is focused really on the position
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  Speaker 7: that Cox is arguing that contributory infring for infringement required
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  Speaker 7: some sort of affirmative act and that, as they phrased it,
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  Speaker 7: they can't be a contributory infringer by providing internet service
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  Speaker 7: to one of their custom commercial.
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  Speaker 8: So then do you think that they'll send it back
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  Speaker 8: to the lower court with an instruction.
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  Speaker 7: I just don't know what they're going to do here.
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  Speaker 7: I have to be frank this is one of the
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  Speaker 7: more opaque oral arguments I've listened to. The other commentators
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  Speaker 7: have argued that the Court might be looking for some
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  Speaker 7: sort of middle ground. Indeed, I think it was Justice
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  Speaker 7: so Too my Or commented at one point during the
• 13:30
  Speaker 7: argument that the Court was being forced to choose between
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  Speaker 7: two extreme positions, and in particular Justice so my Or,
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  Speaker 7: who was very skeptical of Cox's position but also didn't
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  Speaker 7: quite like the extreme argument being made by Sony Music Corp.
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  Speaker 7: In the recording company, seems really perplexed as to what
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  Speaker 7: to do. Genuinely perplexed. The problem the Supreme Court faces
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  Speaker 7: here is that the standard for contributory copyright infringement has
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  Speaker 7: been pretty well settled in this court for more than
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  Speaker 7: a century. As early as nineteen twelve, there was a
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  Speaker 7: case that involved mimeograph machines. If you remember those, they
• 14:13
  Speaker 7: were a pre xerox machines way of doing sort of
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  Speaker 7: a mass production, mass production, you know, a couple hundred
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  Speaker 7: and there was a case in which a publisher sued
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  Speaker 7: a mimeograph company for knowingly selling mimeograph materials to a
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  Speaker 7: company that it knew was engaged in infringing copyright works
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  Speaker 7: by using the mimiograph machine. And the standard was set
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  Speaker 7: out there and has been repeated over and over since
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  Speaker 7: that time nineteen twelve. And the standard is pretty simple.
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  Speaker 7: If you provide something that you know is going to
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  Speaker 7: be used by a person to commit copyright infringement, you've
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  Speaker 7: engaged in contributory infringement. And the path cases haven't spoken
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  Speaker 7: in terms of detail an affirmative act, although one could
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  Speaker 7: argue this did not come up. With the Supreme Court
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  Speaker 7: hearing that providing the Internet service is an affirmative act.
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  Speaker 7: The Cox Company argued the Supre Court that that's not
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  Speaker 7: an affirmative act, but that's sort of a stretch in
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  Speaker 7: order to try to get around that line cases, the
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  Speaker 7: Cox Company argued that contributory infringement is really akin to
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  Speaker 7: aiding and a betting liability in the context of torts
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  Speaker 7: and criminal laws. And that's a real stretch that I
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  Speaker 7: think is just dead wrong. It would give the court
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  Speaker 7: a way to get out of this dilemma, but it
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  Speaker 7: would mean the Court would have to overturn half a
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  Speaker 7: dozen cases going back to nineteen twelve for over a
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  Speaker 7: century and say now they're not good law anymore. I
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  Speaker 7: don't see the Court doing that here. So I just
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  Speaker 7: don't see question number two as being resolved in any
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  Speaker 7: way in favor of Cox, and indeed, I suspect the
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  Speaker 7: Court won't reach it so that we will get no
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  Speaker 7: further instruction from the Supreme Court on what constitutes wilfulness.
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  Speaker 7: I think the Court is focused really on the position
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  Speaker 7: that Cox is arguing that contributory in infringement required some
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  Speaker 7: sort of affirmative act, and that, as they phrased it,
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  Speaker 7: they can't be a contributory infringer by providing internet service
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  Speaker 7: to one of their customers.
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  Speaker 8: So then do you think that they'll send it back
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  Speaker 8: to the lower court with an instruction.
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  Speaker 7: I just don't know what they're going to do here.
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  Speaker 7: I have to be frank. This is one of the
• 16:36
  Speaker 7: more opaque oral arguments I have listened to. The other
• 16:40
  Speaker 7: commentators have argued that the Court might be looking for
• 16:47
  Speaker 7: some sort of middle ground. Indeed, I think it was
• 16:49
  Speaker 7: Justice sodomy Or commented at one point during the argument
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  Speaker 7: that the Court was being forced to choose between two
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  Speaker 7: extreme positions and ticlar Justice somai Or, who was very
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  Speaker 7: skeptical of Cox's position but also didn't quite like the
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  Speaker 7: extreme argument being made by Sony Music corpor In. The
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  Speaker 7: recording company seems really perplexed as to what to do,
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  Speaker 7: genuinely perplexed. The problem the Supreme Court faces here is
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  Speaker 7: that the standard for contributory copyright infringement has been pretty
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  Speaker 7: well settled in this court for more than a century.
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  Speaker 7: As early as nineteen twelve, there was a case that
• 17:32
  Speaker 7: involved minograph machines. If you remember those, they were a
• 17:36
  Speaker 7: pre xerox machines way of doing sort of a mass production,
• 17:41
  Speaker 7: mass production, you know, a couple hundred and there was
• 17:44
  Speaker 7: a case in which a publisher sued a mimeograph company
• 17:48
  Speaker 7: for knowingly selling mimeograph materials to a company that it
• 17:55
  Speaker 7: knew was engaged in infringing copyright works by using the
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  Speaker 7: miniograph machine. And the standard was set out there and
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  Speaker 7: has been repeated over and over since that time nineteen twelve.
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  Speaker 7: And the standard is pretty simple. If you provide something
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  Speaker 7: that you know is going to be used by a
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  Speaker 7: person to commit copyright infringement, you've engaged in contributory infringement.
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  Speaker 7: And the past cases haven't spoken in terms of needing
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  Speaker 7: an affirmative Act, although one could argue this did not
• 18:26
  Speaker 7: come up with the Supreme Court hearing that providing the
• 18:29
  Speaker 7: internet service is an affirmative act. The COTS company argued
• 18:34
  Speaker 7: court that that's not an affirmative act. But that's sort
• 18:37
  Speaker 7: of a stretch in order to try to get around
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  Speaker 7: that line cases. The co's company argued that contributory infringement
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  Speaker 7: is really a kin to aiding and a betting liability
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  Speaker 7: in the context of torts and criminal laws. And that's
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  Speaker 7: a real stretch that I think is just dead wrong.
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  Speaker 7: It would give the Court a way to get out
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  Speaker 7: of this dilemma, but it would mean the Court would
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  Speaker 7: have to overturn half a dozen cases going back to
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  Speaker 7: nineteen twelve for over a century and say now they're
• 19:07
  Speaker 7: not good law anymore. I don't see the Court doing
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  Speaker 7: that here.
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  Speaker 2: Do you think we'll see that Justice is coming up
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  Speaker 2: with some sort of middle ground.
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  Speaker 7: Oh, it's a shame that Justice Ginsburg is no longer
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  Speaker 7: on the Court, as we've had many conversations about our
• 19:23
  Speaker 7: knowledge of copyright law and her ability to copy together
• 19:27
  Speaker 7: coalitions or positions under the Copyright Act that we're actually
• 19:32
  Speaker 7: quite pragmatic and useful. And I just don't see anybody
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  Speaker 7: either with that depth of knowledge to copyright law or
• 19:39
  Speaker 7: the ability to do that sort of log rolling on
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  Speaker 7: this court. And so I think it's going to be
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  Speaker 7: real struggle for this Court to come up with some
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  Speaker 7: sort of middle ground, particularly in light of the fact
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  Speaker 7: that the law here is just so set for such
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  Speaker 7: a long period time and fits exactly into the past
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  Speaker 7: case law, and these sort of odd cases that co
• 20:00
  Speaker 7: cited to the Supreme Court, including this recent gun distribution
• 20:04
  Speaker 7: case in the case Supreme Court to site recently where
• 20:07
  Speaker 7: the gun companies were being sued for deaths in Mexico,
• 20:11
  Speaker 7: and the argument was they were aiding embedding this criminal activity.
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  Speaker 7: And the gun company said, well, we sold the guns
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  Speaker 7: to dealers in Texas, not knowing what they were going
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  Speaker 7: to do with them, and if anybody's contributed to them,
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  Speaker 7: but it's not us. We had no knowledge of it.
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  Speaker 7: And that case just doesn't fit here, either legally or factually.
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  Speaker 7: And yet cops sort of did a lot on that.
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  Speaker 7: I mean, it was almost as if there's a oh, hey,
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  Speaker 7: we believe we cite to some case in which the
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  Speaker 7: second Circuit, which everybody believes in on the Supreme Court,
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  Speaker 7: that'll get us over the humpire it's just such a
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  Speaker 7: stretch that in fact backfires. One starts to think, well,
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  Speaker 7: what's wrong with their case? That that's the best they've got.
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  Speaker 2: And that's a question they didn't ask during two hours
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  Speaker 2: of Supreme Court oral argument. Thanks so much, Terry, as always,
• 21:02
  Speaker 2: that's Terrence Ross of Catain Mutchen Rosenman. Turning now to
• 21:07
  Speaker 2: another Supreme Court case this week, the Court considered the
• 21:10
  Speaker 2: federal judiciary's role in asylum cases, and the justices appeared
• 21:16
  Speaker 2: open to allowing courts to defer to administrative decisions on
• 21:20
  Speaker 2: whether immigrants have shown they face harm serious enough to
• 21:24
  Speaker 2: qualify for asylum. Joining me is immigration law expert Leon Fresco,
• 21:29
  Speaker 2: a partner at hollanden Knight. So asylum seekers can ask
• 21:33
  Speaker 2: a federal appeals court to review their case if the
• 21:36
  Speaker 2: Board of Immigration Appeals denies their asylum claim. This case
• 21:40
  Speaker 2: is about the role of the federal appeals court versus
• 21:44
  Speaker 2: the role of the Board of Immigration Appeals.
• 21:47
  Speaker 1: Correct. Basically, here's the issue. What a person asks for asylum.
• 21:52
  Speaker 1: They have to prove, at the end of the day
• 21:55
  Speaker 1: that they have what's called a well founded fear of
• 21:59
  Speaker 1: future person acution on the basis of their race, religion,
• 22:03
  Speaker 1: political origin, social group, things like that. One of the
• 22:07
  Speaker 1: main parts of such a case. There's a presumption that
• 22:12
  Speaker 1: if you have experienced what's called past persecution, there's a
• 22:16
  Speaker 1: presumption that you will then have a well founded fear
• 22:20
  Speaker 1: of future persecution. So what does that mean. That means
• 22:24
  Speaker 1: that people go into immigration court and they explain what
• 22:28
  Speaker 1: happened in their country that caused them to leave, and
• 22:31
  Speaker 1: there's cross examination and the judge can ask questions. At
• 22:35
  Speaker 1: the end of all of this, there's two determinations. One
• 22:38
  Speaker 1: did the person experience past persecution? And number two was
• 22:43
  Speaker 1: it on the basis of one of the protected grounds.
• 22:47
  Speaker 1: So in this Supreme Court case, what happened was there
• 22:51
  Speaker 1: literally was no dispute about the credibility of the facts
• 22:56
  Speaker 1: raised by the foreign national in this case, Douglas Umberto Oriana,
• 23:02
  Speaker 1: who said that he fled El Salvador after repeated threats
• 23:06
  Speaker 1: and violence from a hitman linked to a drug lord,
• 23:09
  Speaker 1: and he said that the drug lord shot his hot
• 23:12
  Speaker 1: brothers and tracked and thread in his family. And so
• 23:15
  Speaker 1: since there was no dispute about the facts, there was
• 23:18
  Speaker 1: not a factual issue that was being raised on appeal. Instead,
• 23:24
  Speaker 1: the court said I'm going to take all of the
• 23:25
  Speaker 1: facts that you've presented today as true, and I'm going
• 23:29
  Speaker 1: to say that they still do not rise to the
• 23:31
  Speaker 1: level of the high level of this word persecution such
• 23:36
  Speaker 1: that we can say that you experienced past persecution such
• 23:41
  Speaker 1: that you would get the presumption of future persecution. So
• 23:45
  Speaker 1: now mister Orias Oriana then says, well, how is that possible.
• 23:50
  Speaker 1: I would like to get review of that. And so
• 23:53
  Speaker 1: when it gets to the First Circuit Court of Appeals,
• 23:57
  Speaker 1: the first Circuit says, We're going to defer to the
• 24:00
  Speaker 1: Board of Immigration Appeals, which is the administrative court that
• 24:04
  Speaker 1: decides this issue at the end of the day. We're
• 24:06
  Speaker 1: gonna defer to them and say that even though the
• 24:10
  Speaker 1: facts are not in dispute, we still have to give
• 24:15
  Speaker 1: some difference to their decision in terms of let's say
• 24:19
  Speaker 1: there's a scale and you're weighing it, how many pebbles
• 24:23
  Speaker 1: go on one scale, how many pebbles go on the
• 24:25
  Speaker 1: other scale, that even that determination gets some difference. That
• 24:31
  Speaker 1: the federal courts can't just reweigh the evidence on their
• 24:37
  Speaker 1: ends and decide whether the facts that were undisputed in
• 24:41
  Speaker 1: a particular case constituted persecution such that the person should
• 24:46
  Speaker 1: win their asylum case. So that creates sort of a
• 24:49
  Speaker 1: circuit split.
• 24:51
  Speaker 2: So the case goes to the Supreme Court. What are
• 24:54
  Speaker 2: the justices going to decide?
• 24:57
  Speaker 1: The Supreme Court then has to decide, Okay, what happens
• 25:01
  Speaker 1: in a case like this where there's not a dispute
• 25:05
  Speaker 1: about the actual facts, but there's a dispute about whether
• 25:08
  Speaker 1: the facts when you weigh them, there's quote unquote significant
• 25:12
  Speaker 1: enough pebbles on the scale. Does the foreign national win
• 25:17
  Speaker 1: or do they lose? Can we reweigh that on our
• 25:20
  Speaker 1: own or do we have to give some different under
• 25:23
  Speaker 1: some standard of deferential review? And so the foreign nationals
• 25:29
  Speaker 1: obviously claiming there should be the Novo review. The Court
• 25:32
  Speaker 1: should look at this and say, okay, we're the threads
• 25:35
  Speaker 1: here that were undisputed sufficient to say that that was
• 25:39
  Speaker 1: past persecution. And the government says no, no, no, the
• 25:42
  Speaker 1: standard is actually much different and that this is actually
• 25:47
  Speaker 1: a mixed question of law and fact, and so you
• 25:51
  Speaker 1: have to treat that with some type of deferential review.
• 25:56
  Speaker 1: And so you had justices like Justice Go It's saying
• 26:01
  Speaker 1: a reasonable fact find their standard as opposed to the
• 26:04
  Speaker 1: Novo review, and others wanted to weigh it even more
• 26:10
  Speaker 1: deferentially potentially than even that and say that basically, if
• 26:15
  Speaker 1: there's substantial evidence to support the determination of the lower
• 26:20
  Speaker 1: administrative court, that's enough. So that would be even a
• 26:23
  Speaker 1: broader deferential standard. And it appears as if really there's
• 26:29
  Speaker 1: not a lot of excitement in the Supreme Court for
• 26:31
  Speaker 1: having a complete the novo review of this process. So
• 26:34
  Speaker 1: the issue is really going to be how much difference
• 26:37
  Speaker 1: is given in these types of cases moving forward.
• 26:41
  Speaker 2: So leon just to clarify, everyone accepts that the facts
• 26:44
  Speaker 2: of the asylum claim are determined by the court below,
• 26:48
  Speaker 2: the immigration court, So the only question is how the
• 26:52
  Speaker 2: federal appellate court is going to weigh those facts.
• 26:56
  Speaker 1: Correct. So what the lower court said in this case was, yes,
• 27:02
  Speaker 1: all these very bad and serious things happened to you,
• 27:05
  Speaker 1: but when we put all those pebbles on the stone,
• 27:08
  Speaker 1: they're not sufficiently weighty enough on the scale to actually
• 27:12
  Speaker 1: constitute persecution for the purposes of winning your case. And
• 27:17
  Speaker 1: then the question is, Okay, when this gets to the
• 27:20
  Speaker 1: federal court, can they literally reweigh all of that exact
• 27:23
  Speaker 1: evidence and say no, no, no, those stones do weigh enough
• 27:26
  Speaker 1: to tip the scales in favor of the foreign national
• 27:31
  Speaker 1: or are they stuck with Hey, if this is in
• 27:34
  Speaker 1: any way defensible, we have to keep this decision the
• 27:37
  Speaker 1: way it is. And it seemed like the Supreme Court
• 27:40
  Speaker 1: did want to give more difference than rather reweighing all
• 27:45
  Speaker 1: of the facts in the case, even if they're undisputed,
• 27:48
  Speaker 1: to decide if they need the legal standard of past persecution.
• 27:53
  Speaker 2: If the appeals court can't reweigh what the lower court decided,
• 27:58
  Speaker 2: it's not much of a you, is it correct?
• 28:01
  Speaker 1: I mean, there would only be a review if essentially
• 28:05
  Speaker 1: what happened was somebody goes into immigration court and they say,
• 28:11
  Speaker 1: the government came in and shot me one time in
• 28:14
  Speaker 1: the left arm because I'm a dissident, and then they left,
• 28:18
  Speaker 1: and then two weeks later they shot me in the
• 28:20
  Speaker 1: right arm, and then three weeks later they shot me
• 28:23
  Speaker 1: in the left leg, and they said, you want this
• 28:25
  Speaker 1: to keep going or are you're going to stop being
• 28:27
  Speaker 1: a dissident? And then the immigration judge says, well, that
• 28:31
  Speaker 1: doesn't seem like sufficient persecution. You only got shot three times.
• 28:35
  Speaker 1: Maybe in a case like that, then the court would say, well,
• 28:39
  Speaker 1: there's no way a reasonable fact finder could come to
• 28:42
  Speaker 1: that determination that that wasn't persecution, because then you'd have
• 28:46
  Speaker 1: this sort of reasonable fact finder deference or some other
• 28:50
  Speaker 1: standard like that. But it's not, it's not never will
• 28:54
  Speaker 1: we review it. So they're not saying never, but as
• 28:56
  Speaker 1: opposed to a case like this, where they're saying, okay, threats,
• 29:01
  Speaker 1: how serious are the threats? Or the threats very serious?
• 29:04
  Speaker 1: They might say, look, this is the kind of case
• 29:06
  Speaker 1: that falls into gray zone. And when you're in the
• 29:08
  Speaker 1: gray zone, the government wins.
• 29:11
  Speaker 2: I'm curious, what do you think about the threats in
• 29:13
  Speaker 2: this case? Do you think they were serious enough for
• 29:16
  Speaker 2: an asylum claim?
• 29:18
  Speaker 1: I think it's really in the gray zone. I think
• 29:20
  Speaker 1: this is the problem when they talk about sort of
• 29:22
  Speaker 1: bad facts make bad law, is this is the exact
• 29:26
  Speaker 1: type of case where one judge would definitely grant asylum
• 29:30
  Speaker 1: one hundred out of one hundred times and another judge
• 29:33
  Speaker 1: would never grant the asylum zero out of one hundred times,
• 29:36
  Speaker 1: because people just approach these cases with different levels of
• 29:40
  Speaker 1: sympathy and different levels of concern and different standards in
• 29:45
  Speaker 1: their mind of what constitutes persecution. And so the problem
• 29:50
  Speaker 1: is when you have such subjective it's not ai deciding
• 29:54
  Speaker 1: this case of people with their various levels of subjectiveness,
• 29:58
  Speaker 1: and unfortunately they bring their life experiences and preferences into
• 30:03
  Speaker 1: the court system and things that they've seen and perhaps
• 30:07
  Speaker 1: other cases that they've heard in similar context, which they're
• 30:10
  Speaker 1: not technically supposed to do. But you know, they're sitting
• 30:14
  Speaker 1: there in Immigration court and they're listening to hundreds of
• 30:16
  Speaker 1: these cases a year, and so some of them start
• 30:19
  Speaker 1: sounding similar, and they start then either sounding more sympathetic
• 30:23
  Speaker 1: or less, depending on how many of these you hear
• 30:25
  Speaker 1: and what you're hearing on different days. And so because
• 30:28
  Speaker 1: all of that's happening, it really does become problematic in
• 30:33
  Speaker 1: terms of the subjectiveness of the process. But what the
• 30:37
  Speaker 1: Supreme Court's trying to figure out is where does the
• 30:40
  Speaker 1: subjectiveness stop. Does it stop at the Court of Appeals
• 30:43
  Speaker 1: or does it stop at the administrative level. And it
• 30:46
  Speaker 1: seems like they're going to stop it at the administrative
• 30:49
  Speaker 1: level for the most part, and not bring in sort
• 30:52
  Speaker 1: of a new antiseptic Court of Appeals who's just reading
• 30:56
  Speaker 1: a transcript without any other context than decide is this
• 31:00
  Speaker 1: sufficient persecution. It did really seem like any of the
• 31:04
  Speaker 1: Supreme Court justices wanted to do that the NOVO.
• 31:07
  Speaker 2: What's happening as far as the Trump administration's position on
• 31:11
  Speaker 2: granting asylum.
• 31:13
  Speaker 1: Well, after this horrible attack on the National Guard where
• 31:16
  Speaker 1: one of them has passed away and the other is
• 31:19
  Speaker 1: clinging to their life. The Afghan foreign national who had
• 31:22
  Speaker 1: come in during the withdrawal from Afghanistan, and then he
• 31:26
  Speaker 1: subsequently got asylum because he wasn't able to get what's
• 31:31
  Speaker 1: called a special immigrant visa due to various timing issues.
• 31:34
  Speaker 1: So this individual ends up getting asylum. And so because
• 31:39
  Speaker 1: of that, the Trump administration has said that the asylum
• 31:43
  Speaker 1: system needs an overhaul in terms of the way in
• 31:48
  Speaker 1: which people applying for asylum are being scrutinized. So at
• 31:51
  Speaker 1: the moment, there's currently a pause, meaning the entire country,
• 31:56
  Speaker 1: nobody who's applied for asylum is going to get a decision. Now,
• 32:00
  Speaker 1: interestingly about that is that is also a nothing in
• 32:05
  Speaker 1: immigration is simple, because somebody might say, oh, well, that's
• 32:09
  Speaker 1: a simple solution. Just hold all these cases in abeyance
• 32:12
  Speaker 1: and no one will get asylum and we won't have
• 32:14
  Speaker 1: this problem. But you know, nothing is simple like that.
• 32:17
  Speaker 1: There's always two sides to every coin. And the point
• 32:20
  Speaker 1: is these human beings are here, so it's not like
• 32:23
  Speaker 1: they're sitting in some other country and you're holding these
• 32:25
  Speaker 1: cases in abeyance. When someone applies for asylum, the number
• 32:29
  Speaker 1: one criteria of being able to get asylum is that
• 32:32
  Speaker 1: your body is here in America. So they're here already
• 32:35
  Speaker 1: and they're applying, and so if you hold their case
• 32:38
  Speaker 1: in abeyance, sure there's some people who won't get the
• 32:42
  Speaker 1: protection of asylum. That's certainly better than not having it,
• 32:46
  Speaker 1: but there's a lot of other people who you might
• 32:48
  Speaker 1: have wanted to deport and get them out faster, who
• 32:51
  Speaker 1: you're not doing that because you're holding all the cases
• 32:54
  Speaker 1: in abeyance and you're not making any decisions. So from
• 32:58
  Speaker 1: that standpoint, I don't think this is a long term
• 33:02
  Speaker 1: or durable solution. Now, they may do something else, and
• 33:05
  Speaker 1: they may try to figure out some way to have
• 33:07
  Speaker 1: a blanket denial of all asylum planes, but I don't
• 33:10
  Speaker 1: think the courts are going to let them do that,
• 33:13
  Speaker 1: and so I think this is just an effort to
• 33:15
  Speaker 1: sort of count this for as long as possible until
• 33:19
  Speaker 1: some other solution can be done to limit the way
• 33:23
  Speaker 1: a number of people getting asylum, But just a pause
• 33:27
  Speaker 1: in and of itself definitely has these conflicting outcomes because yes,
• 33:34
  Speaker 1: people don't get asylum when you have a pause, but
• 33:36
  Speaker 1: also people who have no business staying in the country
• 33:40
  Speaker 1: get to stay longer because their cases remain pending.
• 33:44
  Speaker 2: Let's turn now to these arrests that immigration officials are making.
• 33:50
  Speaker 2: So DC federal Judge Beryl Howell ruled that US officials
• 33:55
  Speaker 2: have to stop enforcing this policy of conducting warrantless immigration
• 34:01
  Speaker 2: arrests without probable cause to believe in arrestee is likely
• 34:05
  Speaker 2: to escape before officials can obtain an administrative warrant. I mean,
• 34:09
  Speaker 2: that's basic law, isn't it that you can only make
• 34:12
  Speaker 2: an immigration arrest without a warrant if the individual is
• 34:15
  Speaker 2: violating an immigration law or is likely to escape before
• 34:20
  Speaker 2: agents can get a warrant.
• 34:22
  Speaker 1: So this is a very tricky issue because this is
• 34:25
  Speaker 1: about a policy as opposed to an actual police officer
• 34:29
  Speaker 1: doing something. So what do I mean by that? What
• 34:32
  Speaker 1: I mean is if a police officer is just observing
• 34:37
  Speaker 1: in the middle of there, or an ice officer. Let's
• 34:40
  Speaker 1: be more precise about this, If an ice officer is
• 34:43
  Speaker 1: just observing in the middle of their daily operations of
• 34:46
  Speaker 1: what they're doing at ice the war. You know, they're
• 34:48
  Speaker 1: serving a warrantyer, they're looking at an investigation here, and
• 34:52
  Speaker 1: they happen to see somebody crossing the border illegally or
• 34:57
  Speaker 1: something like that happening right in front of and they
• 35:00
  Speaker 1: can arrest that person. They don't need a warrant, they
• 35:03
  Speaker 1: don't need probable cause of escape risk or anything like that.
• 35:08
  Speaker 1: They're allowed to make that arrest because they're observing an
• 35:11
  Speaker 1: immigration violation in front of them. What's complicated about this
• 35:15
  Speaker 1: DC District Court case is they're saying that's different than
• 35:20
  Speaker 1: having a policy in place that is saying, hey, Ice,
• 35:25
  Speaker 1: go around and create a mass enforcement effort that does
• 35:31
  Speaker 1: not require warrants. Just go around and start basically asking
• 35:36
  Speaker 1: people about their immigration status and start arresting people anytime
• 35:40
  Speaker 1: you see anyone that looks suspicious to you. So the
• 35:44
  Speaker 1: issue in this case is whether a policy like that
• 35:47
  Speaker 1: can be put in place. Now the administration would say
• 35:50
  Speaker 1: doesn't have a policy like that, And then there's the
• 35:52
  Speaker 1: words about the arguments about well, that's what the leaders
• 35:56
  Speaker 1: are articulating is the policy, so that it becomes the
• 36:00
  Speaker 1: fact though policy that that's what that you're trying to accomplish.
• 36:04
  Speaker 1: So the court says, fine, that is a policy that
• 36:07
  Speaker 1: has had where the administration, whether there's a piece of
• 36:11
  Speaker 1: paper or not, that says it has this policy of
• 36:14
  Speaker 1: saying civil immigration arrest can be done without having a
• 36:18
  Speaker 1: probable cause determination of escape risk, and so is that
• 36:24
  Speaker 1: legal or not? And this has actually come up in
• 36:27
  Speaker 1: other places. It's come up in LA, it's come up
• 36:30
  Speaker 1: in Chicago, and in all these places, the district courts
• 36:33
  Speaker 1: have held that what ICE needs to be doing is
• 36:36
  Speaker 1: every day going through a list of people that it
• 36:39
  Speaker 1: knows has undocumented status and going and finding those people,
• 36:43
  Speaker 1: whether it's at their work or at their home or wherever,
• 36:47
  Speaker 1: but not just sweeping around looking around saying, oh, this
• 36:51
  Speaker 1: person looks weird, go find them. Now. The complication is oh,
• 36:56
  Speaker 1: and so, by the way, So what happens is in
• 36:58
  Speaker 1: the district court here December second issues a injunction saying, no,
• 37:04
  Speaker 1: you can't do this anymore. You now need to have
• 37:07
  Speaker 1: probable cause that the person is both unlawfully present and
• 37:11
  Speaker 1: likely to escape, and you need a warrant to do
• 37:15
  Speaker 1: these arrests. So it's basically back to what the Los
• 37:19
  Speaker 1: Angeles Court held and the Chicago court held is you
• 37:23
  Speaker 1: need to have a list every day of undocumented people
• 37:25
  Speaker 1: that you go and apprehend, or you need to have
• 37:29
  Speaker 1: a police officer who's actually looking at something, not pursued
• 37:33
  Speaker 1: to a policy, but just as doing their job and
• 37:36
  Speaker 1: observing some immigration crime happening. Yes, they can make an arrest.
• 37:40
  Speaker 1: They don't need to go get a warrant to do it.
• 37:43
  Speaker 1: But otherwise you can't just have these sweeping patrols. The
• 37:46
  Speaker 1: problem is, just as Cavanagh has already held in a
• 37:50
  Speaker 1: case involving the Los Angeles issue, that there can be
• 37:55
  Speaker 1: these arrests, you know, they're sort of called now Cavanah stops,
• 37:59
  Speaker 1: where you you can have these sort of inquiries that
• 38:03
  Speaker 1: ICE is making if they feel like this is the
• 38:06
  Speaker 1: kind of situation where normally undocumented people are in a
• 38:11
  Speaker 1: particular location, or there's some intelligence that they hang out
• 38:15
  Speaker 1: at a particular place or do a particular thing, you
• 38:18
  Speaker 1: could make these quote unquote Kavanaugh stop. So I think
• 38:21
  Speaker 1: that as this case goes up to the DC Circuit
• 38:24
  Speaker 1: and back to the Supreme Court, it will probably run
• 38:27
  Speaker 1: up against the same problem where the Supreme Court has
• 38:31
  Speaker 1: already said that they can, with reasonable suspicion start asking
• 38:36
  Speaker 1: people about their immigration stutus and.
• 38:38
  Speaker 2: That decision was made on the emergency docket without full
• 38:43
  Speaker 2: briefing or oral arguments. Thanks so much, Leon. That's Leon Fresco,
• 38:49
  Speaker 2: a partner at Hollanden Knight. And that's it for this
• 38:52
  Speaker 2: edition of The Bloomberg Law Show. Remember you can always
• 38:55
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• 38:58
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• 39:01
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• 39:09
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