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Social Media Addiction Verdict & Cox SCOTUS Decision · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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  Speaker 2: After nine days of deliberations, a jury found Meta and
• 0:12
  Speaker 2: YouTube libel in a first of its kind lawsuit that
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  Speaker 2: aimed to hold social media platforms responsible for harm to
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  Speaker 2: children from using their services. Los Angeles jurors decided that
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  Speaker 2: Meta and YouTube were negligent in the design or operation
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  Speaker 2: of their platforms, and that each company's negligence was a
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  Speaker 2: substantial factor in causing harm to the plaintiff. The twenty
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  Speaker 2: year old woman had argued that her use of social
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  Speaker 2: media as a child addicted her to the technology and
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  Speaker 2: exacerbated her mental health struggles. The jury awarded her three
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  Speaker 2: million dollars in compensatory damages and three million dollars in
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  Speaker 2: punitive damages. Her attorney, Mark Lanier said the case is
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  Speaker 2: a game changer.
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  Speaker 3: I feel like what we're about here is something beyond
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  Speaker 3: just trying to make a buck, beyond just trying to
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  Speaker 3: help Kayley. I feel like we're about something that is
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  Speaker 3: incredibly socially important and responsible.
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  Speaker 2: Meta spokesperson Ashley Nicole Davis says the company will appeal.
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  Speaker 4: We respectfully disagree with the verdict and will appeal team.
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  Speaker 4: Mental health is profoundly complex and cannot be linked to
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  Speaker 4: a single app. We will continue to defend ourselves vigorously
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  Speaker 4: as every case is different, and we remain confident in
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  Speaker 4: our record of protecting teens online.
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  Speaker 2: My guest is Colin Walkee, a cybersecurity and data privacy
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  Speaker 2: partner at haul Estel. Colin, this is one case among thousands.
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  Speaker 2: What does this verdict stand for?
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  Speaker 5: This verdict actually stands for the proposition that Meta and
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  Speaker 5: YouTube intentionally made their algorithm addictive and negatively impacted someone's
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  Speaker 5: mental health as a result. This particular claim is based
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  Speaker 5: upon negligence, i e. They knew and owed a duty
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  Speaker 5: to individuals to not make their algorithms addictive.
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  Speaker 1: They did it anyway.
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  Speaker 5: However, you could look at a recent case out of
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  Speaker 5: New Mexico to the tune of three hundred and seventy
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  Speaker 5: five million dollars where tech companies were found to have
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  Speaker 5: violated the consumer protection law. So the difference here is
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  Speaker 5: is this is just a traditional negligence theory. There is
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  Speaker 5: no statutory action against these companies.
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  Speaker 2: Meta argued that the plaintiff had struggle with her mental
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  Speaker 2: health separately from her social media use, and they pointed
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  Speaker 2: to her turbulent home life and bullying at.
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  Speaker 6: School, et cetera, et cetera.
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  Speaker 2: Did the jury discount those factors? Did they find they
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  Speaker 2: were not contributory?
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  Speaker 5: That wasn't the only thing that their attorneys pointed to.
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  Speaker 5: YouTube's attorney also pointed to the fact that in all
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  Speaker 5: of the evidence presented, only a few moments or a
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  Speaker 5: few minutes worth of time was actually proven to have
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  Speaker 5: been on YouTube. So I don't think that the jury
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  Speaker 5: discounted that fact. I think the jury knew what we
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  Speaker 5: all know, which is we reach for our phones when
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  Speaker 5: we don't intend to, when we're sitting on their couch
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  Speaker 5: without thinking, and why because social media is addictive.
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  Speaker 1: And not only that, this case is a long time coming.
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  Speaker 5: It's not as though we haven't read tell All book
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  Speaker 5: after tell All book about the manner and method by
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  Speaker 5: which these tech companies have attempted to make their algorithms
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  Speaker 5: more addictive in order to get more attention, in order
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  Speaker 5: to sell more advertising. When you are using a free product,
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  Speaker 5: you are the product. And so I think the jury
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  Speaker 5: knew that, understood it and have lived through it, and
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  Speaker 5: simply did what has been a long time coming.
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  Speaker 2: I mean, can you compare this to let's say you know,
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  Speaker 2: a bakery bakes delicious cakes and you start to gain weight.
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  Speaker 2: I mean, are you responsible or is the bakery responsible
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  Speaker 2: for trying to make the cakes as delicious as possible
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  Speaker 2: to hook you. I know that's a far out example,
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  Speaker 2: but I'm just trying to get to the question of
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  Speaker 2: where does our personal responsibility or parental responsibility factor in
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  Speaker 2: or do the social media company shoulder all the blame.
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  Speaker 5: So let me show you the distinction between your example
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  Speaker 5: and the tech companies, which is to say, some of
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  Speaker 5: the evidence that came out during this trial. For example,
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  Speaker 5: was a study that Meta had suppressed and they had
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  Speaker 5: conducted it themselves that showed when individuals in particularly youth,
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  Speaker 5: put away their phone for a week, there was an
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  Speaker 5: actual causative relation. We're not talking correlative relation, We're talking
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  Speaker 5: causitive relationship between that showing that there was an effect
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  Speaker 5: on mental health. Not only that, but another study that
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  Speaker 5: they conducted showed that individuals who are were already predisposed
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  Speaker 5: to mental health issues increase their usage of social media
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  Speaker 5: and increase their worsening mental health. So these were some
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  Speaker 5: of the studies that were shown. So this put meta
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  Speaker 5: on notice of what their algorithm were doing. So in
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  Speaker 5: your case, if the bakery knew that all of that
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  Speaker 5: fat and sugary goods was in fact addicting the individuals,
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  Speaker 5: there might be a claim there.
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  Speaker 2: So Colin, what's the ultimate answer. Are the social media
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  Speaker 2: companies supposed to go out of business?
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  Speaker 1: Well, I don't think that they're supposed to go out
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  Speaker 1: of business.
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  Speaker 5: I think that they are supposed to show generalized and
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  Speaker 5: neutralized algorithms, not algorithms that are designed to get you hooked.
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  Speaker 5: In other words, one thing they could do, for example,
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  Speaker 5: is stop infinite scroll. The whole reason why infinite scroll
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  Speaker 5: was invented was because ase people got tired of having
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  Speaker 5: to wait for their page to load. A little bit
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  Speaker 5: of patients built into an algorithm might actually get us
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  Speaker 5: off of our phones. And that's one of the things
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  Speaker 5: that I find so ironic about this. The entire point
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  Speaker 5: of this case is that social media negatively impacts mental health.
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  Speaker 5: And I go and I look at the front page
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  Speaker 5: of the newspaper after this verdict comes down, and everybody
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  Speaker 5: is on their cell phone sharing it in social media.
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  Speaker 1: The irony is thick here.
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  Speaker 5: And we don't realize that we ourselves are participating in
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  Speaker 5: this problem.
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  Speaker 6: Will you just explain what infinite scroll is.
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  Speaker 5: Yeah, So, anybody who grew up with the Internet between
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  Speaker 5: two thousand and about twenty and eleven, if you had
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  Speaker 5: a GPS unit, for example, when you were driving, it
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  Speaker 5: would show that your car was driving towards the top
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  Speaker 5: of the screen, and then once it got to the
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  Speaker 5: top of the screen, it loaded more data, so you
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  Speaker 5: would know where to drive further. Now it just tracks
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  Speaker 5: along as you drive. And so the same thing on
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  Speaker 5: social media. You'd get to the bottom of a page
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  Speaker 5: and you'd have to wait for it to load. Well,
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  Speaker 5: now you don't even have to wait for it to load.
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  Speaker 5: It just shows you the next thing that you want
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  Speaker 5: to see.
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  Speaker 2: So only nine out of the twelve jurors had to
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  Speaker 2: agree on each claim against each defendant. Two jurors consistently
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  Speaker 2: disagreed with the other ten on whether the tech company
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  Speaker 2: should be held liable. So the social media companies now
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  Speaker 2: know what kinds of jurors lean toward their position. Will
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  Speaker 2: they be looking to select jurors with similar characteristics to
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  Speaker 2: those two in upcoming trials?
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  Speaker 4: Oh?
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  Speaker 5: Absolutely, And I'm confident that Meta and the tech companies
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  Speaker 5: spend tons of money on jury consultants and identifying the
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  Speaker 5: type of juror they want. And I'm confident now that
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  Speaker 5: they've identified these two jurors, their personality profiles will be
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  Speaker 5: what is sought out in the future. I mean that
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  Speaker 5: being said, Meta has already indicated it's going to appeal,
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  Speaker 5: so they have legal arguments to appeal from, and then
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  Speaker 5: they may have some factual arguments to appeal from. And
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  Speaker 5: the fact that you have two descending jurors certainly helps
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  Speaker 5: that case. But at the end of the day, jury
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  Speaker 5: verdicts are typically fairly sacred and they're very hard to overturn.
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  Speaker 5: So absence the judge making an error on the law
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  Speaker 5: or the jury really abusing their findings of fact, I
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  Speaker 5: think this verdict stent.
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  Speaker 2: The jury was out for nine days forty hours over
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  Speaker 2: nine days, so they must have been struggling with some
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  Speaker 2: aspect of the plaintiff's case, right, Well, it.
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  Speaker 5: Could be something that was holding them up from a
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  Speaker 5: liability standpoint. To your point earlier, well, this individual did
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  Speaker 5: have mental health issues in any event, is that really
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  Speaker 5: the cause here, because we have to prove its causative.
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  Speaker 5: But I think more to the point, it could also
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  Speaker 5: be on the damage valuation. This woman was ultimately awarded
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  Speaker 5: three million dollars in actual damages and three million dollars
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  Speaker 5: in punitive damages. Sometimes the fight isn't over the liability.
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  Speaker 5: The fight is is, okay, how much do we award?
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  Speaker 2: And where huge liability for the companies could have come
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  Speaker 2: in is in the punitive damages. I mean, three million
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  Speaker 2: dollars in punitive damages is just a drop in the
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  Speaker 2: bucket to Meta or Google. Isn't it usually the case
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  Speaker 2: that when you hear about these huge verdicts, most of
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  Speaker 2: it is in the punitives.
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  Speaker 5: Absolutely absolutely, and so whether the evidence shows that their
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  Speaker 5: actions were willful and wanton and in reckless disregard of.
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  Speaker 1: The plaintiff's rights. And they're going to point back.
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  Speaker 5: To those studies where the individuals new at Meta the
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  Speaker 5: consequences of these algorithms. And so, for example, one famous
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  Speaker 5: jury verdict that resulted in a several hundred million dollars
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  Speaker 5: perunit of damage award was likened to a parking ticket.
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  Speaker 5: If I make one hundred thousand dollars a year and
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  Speaker 5: I get a parking ticket for one hundred and fifty dollars, well,
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  Speaker 5: you know that's really one percent.
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  Speaker 1: Of my income or whatever. That comes out to be
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  Speaker 1: point oh one.
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  Speaker 5: And so if you did the same thing to Meta's point,
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  Speaker 5: you know, sixty billion dollars in profits last year, that
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  Speaker 5: can be a fairly big number just for a speeding ticket.
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  Speaker 2: You know. Lawyers for both platforms consistently pointed to the
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  Speaker 2: safety features and guard rails they each have available for
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  Speaker 2: people to monitor and customize their use. I guess the
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  Speaker 2: jury didn't think much of those well.
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  Speaker 5: And part of the issue in this particular case, if
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  Speaker 5: I recall correctly, is that this individual actually started before
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  Speaker 5: Instagram had begun the age control checks and those sorts
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  Speaker 5: of things. So if the facts had been different to
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  Speaker 5: your point earlier June, the jury might go, well, there
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  Speaker 5: were rental controls, there was age verification.
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  Speaker 1: Those sorts of things.
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  Speaker 5: But it also begs the question whether or not those
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  Speaker 5: companies are actually fulfilling their requirements on the back end
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  Speaker 5: to verify and the evidence that would show to the contrary.
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  Speaker 2: So, as I mentioned, this is just the first verdict.
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  Speaker 2: Do you think that Meta now goes out and tries
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  Speaker 2: to start settling. Do you think they're going to take
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  Speaker 2: the long road and say, well, wait for the appeal,
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  Speaker 2: wait to see how other cases shake out.
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  Speaker 5: Yeah, I mean, I found it odd that they wanted
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  Speaker 5: to use this as their test case, but they clearly
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  Speaker 5: have and they have a creative First Amendment argument with
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  Speaker 5: regard to.
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  Speaker 1: The whole problem with prosecuting. Previously has been thought that
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  Speaker 1: section two.
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  Speaker 5: Thirty of federal law, which says that social media companies
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  Speaker 5: cannot be liable for the information that is posted on
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  Speaker 5: their website.
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  Speaker 1: This lawsuit says.
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  Speaker 5: That that's true, but they can be held liable for
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  Speaker 5: the decisions and the algorithms that show that content, how
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  Speaker 5: all that content is portrayed. And typically in intellectual property law,
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  Speaker 5: those are considered editorial rights. We are editing what you
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  Speaker 5: are seeing. Why is that a problem? And so there's
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  Speaker 5: a First Amendment case that they are alleging here. And
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  Speaker 5: so if it goes up on appeal, makes to the
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  Speaker 5: Supreme Court, and the Supreme Court insulates them from liability.
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  Speaker 1: They're not likely to settle anything in the future.
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  Speaker 5: And that's why I think they'll keep prolonging in this
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  Speaker 5: litigation at least through that opinion.
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  Speaker 2: Do you think people are jumping the gun too much?
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  Speaker 2: They're comparing this to the tobacco litigation and the global
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  Speaker 2: settlement there, and the opioid litigation. I mean, it seems
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  Speaker 2: like we're just at the starting gate.
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  Speaker 1: I do think it's the starting gate.
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  Speaker 5: But I think that so many people, in spite of
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  Speaker 5: their constant social media usage, have been expecting this to
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  Speaker 5: come for so long that it does feel like the
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  Speaker 5: big tobacco settlement a scenario the opioid issues. But what
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  Speaker 5: I will tell you is that at least with regards
• 11:53
  Speaker 5: to tobacco, to your point, June, three million dollars is
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  Speaker 5: a drop in the bucket, And last year Metapos is
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  Speaker 5: sixty billion dollars in profit. In nineteen ninety seven, the
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  Speaker 5: year before the tobacco settlement got entered into Philip Morris,
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  Speaker 5: their profits were magnitudes of orders less than that, like
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  Speaker 5: five billion. And so the point here is is Meta
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  Speaker 5: and these other tech companies have plenty of money to
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  Speaker 5: continue to fight on. Even if they settle a billion
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  Speaker 5: dollars yere and a billion dollars there, they have plenty
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  Speaker 5: of money to keep fighting.
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  Speaker 2: So bottom line, Colin, how depressed do you think Meta
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  Speaker 2: and Google should be about this verdict?
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  Speaker 4: Well?
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  Speaker 5: I don't know, because if you look at the approach
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  Speaker 5: that our government has taken to regulating AI and data
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  Speaker 5: privacy in general, which is to say we.
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  Speaker 1: Don't and we won't.
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  Speaker 5: I would not be surprised at all if what you
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  Speaker 5: see is a bunch of legislation coming down the pike,
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  Speaker 5: pushed by tech industry lobbyists that says we're insulating these
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  Speaker 5: companies from these types of lawsuits. The only manner and
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  Speaker 5: method by which you consue these companies is for X, Y,
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  Speaker 5: and Z and negligence. Ain't one of them some sort
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  Speaker 5: of insulation from their liabilities. I can see that happening,
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  Speaker 5: and I can see the legislators, if history is prologued,
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  Speaker 5: bending over backwards to accommodate that request.
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  Speaker 2: When I look at the big picture, social media is
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  Speaker 2: so entwined with our everyday lives, whether it's Instagram or
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  Speaker 2: TikTok or whatever, or whether it's just looking at the
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  Speaker 2: news and getting caught up in one news story after
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  Speaker 2: the other, I find it hard to believe.
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  Speaker 6: That there'll be a time when it won't be.
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  Speaker 2: If you want to use the word addictive, I mean
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  Speaker 2: it's all around us.
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  Speaker 1: Well to that point.
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  Speaker 5: So a few years ago, there was an editorial I
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  Speaker 5: believe it was in the New York Times, and what
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  Speaker 5: it spoke about was the future. The number one indicator
• 13:40
  Speaker 5: right now if you are in poverty is whether you smoke, period,
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  Speaker 5: end of sorty. And so the argument here was in
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  Speaker 5: the future, those who are impoverished are going to be
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  Speaker 5: the ones utilizing social media for free. They're the ones
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  Speaker 5: who are going to be bought and sold and exploited.
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  Speaker 5: The individuals who have money will be able to subscribe
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  Speaker 5: and obtain their privacy through paying for the product into
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  Speaker 5: the future.
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  Speaker 1: And so if you think.
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  Speaker 5: About it from that perspective, yeah, social media will always
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  Speaker 5: be around, but not necessarily in the way that we
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  Speaker 5: see it today.
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  Speaker 2: Is there a big lesson from this verdict?
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  Speaker 5: I think that this should be a lesson to everyone
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  Speaker 5: who says we can't regulate tech, because we don't need
• 14:19
  Speaker 5: to regulate tech. We need to apply the laws that
• 14:21
  Speaker 5: we currently have on the books in the same area
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  Speaker 5: and method and we can get the same results.
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  Speaker 1: This is a negligence claim. It's common law.
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  Speaker 5: It's been around for hundreds of years, so I think
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  Speaker 5: it was a long time coming, and we'll see what.
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  Speaker 1: Happens on appeal.
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  Speaker 2: Colin, do you think the defendants have a good chance
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  Speaker 2: on appeal.
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  Speaker 1: I do not necessarily like their first Amendment argument, I e.
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  Speaker 5: That it's editorial commentary, because again you're going back to
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  Speaker 5: thinking about advertising for tobacco companies. They knew what they
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  Speaker 5: were portraying in these advertisements was addictive, you know, the
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  Speaker 5: product was.
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  Speaker 1: So I don't know that goes very far.
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  Speaker 5: And I haven't seen any strong arguments that the judge
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  Speaker 5: made a huge factual errors or someth along those lines.
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  Speaker 5: Evidence chariers trial. So I think it's gonna be a
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  Speaker 5: hard road to hoe. And let's think get that first
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  Speaker 5: mimic claim in.
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  Speaker 2: Thanks so much, Colin. That's Colin Walkee, a cybersecurity and
• 15:10
  Speaker 2: data privacy partner at Holestell. The Supreme Court threw out
• 15:14
  Speaker 2: a copyright infringement verdict against Cox Communications, dealing a major
• 15:20
  Speaker 2: blow to music industry efforts to hold internet providers responsible
• 15:25
  Speaker 2: for piracy by their customers. Any unanimous decision, the justices
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  Speaker 2: said Cox couldn't be held liable for failing to shut
• 15:34
  Speaker 2: down the accounts of people who repeatedly downloaded and distributed
• 15:38
  Speaker 2: songs without permission. A federal appeals court had upheld the
• 15:42
  Speaker 2: jury's finding that Cox contributed to infringement by its subscribers.
• 15:49
  Speaker 2: My guest is an expert in intellectual property law. Shambalganesh,
• 15:53
  Speaker 2: a professor at Columbia Law School, tell us about the
• 15:56
  Speaker 2: Supreme Court's decision today.
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  Speaker 7: Okay, So Fox versus Sony Communications was the Court being
• 16:03
  Speaker 7: asked to reconsider what the level of intent is under
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  Speaker 7: a doctrine called contributory infringement in copyright law, which traces
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  Speaker 7: itself back to decisions of the Court, the most prominent
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  Speaker 7: of which was Sony versus Universal City in Post nineteen
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  Speaker 7: seventy six. But a basically judge made doctrine that wasn't
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  Speaker 7: codified in the statute that says that someone who actively
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  Speaker 7: encourages or induces infringement could themselves be liable for infringement.
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  Speaker 7: So it was a case examining contributory infringement and its
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  Speaker 7: scope around the prong of intent by the person who's
• 16:37
  Speaker 7: doing the encouraging. And so the question was the liability
• 16:41
  Speaker 7: of an Internet service provider for potential knowledge that it
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  Speaker 7: had that some of its users based on IP addresses
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  Speaker 7: were engaged in illegal copyright infringement, and the question was
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  Speaker 7: whether that satisfied the intent requirement when this knowledge was
• 16:57
  Speaker 7: made available to the Internet service provider, and despite subsequent
• 17:01
  Speaker 7: requests and notices, it didn't terminate the services of the subscribers.
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  Speaker 7: Many of them it allowed to continue, and it knowingly therefore,
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  Speaker 7: in some sense allowed the illegal activity to go on.
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  Speaker 7: So the question was whether this knowledge was sufficient to
• 17:16
  Speaker 7: satisfy the intent requirement, and the Supreme Court says no.
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  Speaker 7: The Supreme Court says no. What contributory infringement requires on
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  Speaker 7: the intent prong is very specific, as we've told you
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  Speaker 7: before in our prior decisions referencing Sony versus Universal and
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  Speaker 7: then later on MGM versus Grockster, two major decisions where
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  Speaker 7: the Court clarified what it means. The first thing it
• 17:40
  Speaker 7: says is, well, the two meanings of intent for our
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  Speaker 7: purposes are one, if there's an active encouragement of the
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  Speaker 7: infringement by specific actions. That was the Grockster case where
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  Speaker 7: a peer to peer file sharing service was marketing itself
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  Speaker 7: for usage for infringement. That active inducement, active encouragement. That's
• 18:01
  Speaker 7: the first prong. And the second one is if a service,
• 18:05
  Speaker 7: it says, is specifically tailored to infringement. So if the
• 18:09
  Speaker 7: service being offered by the provider is tailored for infringement. Well,
• 18:13
  Speaker 7: how do we understand if it's tailored for infringement? Here
• 18:16
  Speaker 7: the Court says, if that service is not capable of
• 18:20
  Speaker 7: substantial non infringing uses. So, if it's capable of substantial
• 18:23
  Speaker 7: non infringing users, that means it wasn't tailored to the infringement.
• 18:26
  Speaker 7: But only if it's not capable of substantial noninfringing uses
• 18:30
  Speaker 7: we could say that it's tailored to the infringement, not
• 18:33
  Speaker 7: simply on the basis of knowledge we have never held before.
• 18:36
  Speaker 7: The Court says that mere knowledge is sufficient for satisfying
• 18:40
  Speaker 7: the intent prong and here Cox did not satisfy either
• 18:44
  Speaker 7: of them, and as a result cannot be held liable.
• 18:46
  Speaker 7: So it reverses the decision of the Fourth Circuit on
• 18:49
  Speaker 7: contributory infringement.
• 18:50
  Speaker 6: So the decision was unanimous.
• 18:52
  Speaker 2: And if the Supreme Court's precedence was so clear, how
• 18:57
  Speaker 2: did the Fourth Circuit get it so wrong?
• 19:00
  Speaker 7: Yeah, the honest answer is the Supreme Court's prior president
• 19:03
  Speaker 7: was not this clear. So there is a oversimplistic reiteration
• 19:08
  Speaker 7: of the prior precedent by Justice Thomas, writing for the majority.
• 19:12
  Speaker 7: I think one of the things that's very glaring in
• 19:14
  Speaker 7: the opinion is how there is an oversimplification of the
• 19:18
  Speaker 7: entire complexity of the doctrine that was present not just
• 19:23
  Speaker 7: in the Supreme Court's own prior presidents, but the way
• 19:26
  Speaker 7: in which the intermediate courts of appeal had understood those
• 19:29
  Speaker 7: precedents and applied it in case after case. So there's
• 19:32
  Speaker 7: a simplification here. So just to give you an example,
• 19:35
  Speaker 7: one of the things that the majority doesn't talk about
• 19:38
  Speaker 7: is the fact that when Congress enacted the nineteen seventy
• 19:41
  Speaker 7: six Act and put in place Section one zero six,
• 19:43
  Speaker 7: which deals with the different kinds of infringement, the legislative
• 19:46
  Speaker 7: history makes clear that Congress used a phrase to authorize,
• 19:51
  Speaker 7: and it used that phrase specifically to recognize that contributory
• 19:56
  Speaker 7: infringement was meant to continue under thenineteen seventy six Act,
• 20:01
  Speaker 7: which was a doctrine that had been created by courts before.
• 20:05
  Speaker 7: Just as Thomas is basically saying right now that all
• 20:08
  Speaker 7: that generativity around the contributory infringement doctrine that existed before
• 20:13
  Speaker 7: is off the table, these are the only two variants.
• 20:16
  Speaker 7: He's effectively saying that, let's treat this almost as though
• 20:19
  Speaker 7: Its a textualist claim that unless it falls within the
• 20:23
  Speaker 7: narrow parameters of what we have said before, there is
• 20:26
  Speaker 7: no basis for contributory infringement. And that's the striking part
• 20:29
  Speaker 7: of the opinion in some ways, which is not that
• 20:32
  Speaker 7: the decision is problematic in any way or form. I
• 20:35
  Speaker 7: think many people believed that Cox should have won. The
• 20:38
  Speaker 7: outcome is not the problematic thing. It's what he does
• 20:41
  Speaker 7: with the doctrine of contributory infringement and really the role
• 20:44
  Speaker 7: of the courts, where he's basically saying that the room
• 20:47
  Speaker 7: for innovation and expansion, which has been the hallmark of
• 20:51
  Speaker 7: this entire area, is off the table. It's only these
• 20:54
  Speaker 7: narrow parameters that need to be complied with in the
• 20:56
  Speaker 7: expansion of the doctrine. And the reason that's problematic is
• 20:59
  Speaker 7: one June, just as you pointed out, the Court itself
• 21:03
  Speaker 7: had adopted a very different approach in MGM versus Rockster.
• 21:07
  Speaker 7: It introduced inducement which did not exist in the statute.
• 21:10
  Speaker 7: And secondly, Congress intended that generativity to continue. So there's
• 21:14
  Speaker 7: something institutional going on here where Justice Thomas does not
• 21:18
  Speaker 7: want the courts to continue developing it. When I say
• 21:20
  Speaker 7: Justice Thomas, writing for the majority.
• 21:22
  Speaker 2: So is that why two of the liberal justices Sonya
• 21:26
  Speaker 2: so To Mayor and Katanji Brown Jackson joined in a
• 21:30
  Speaker 2: concurrence saying the Court went too far in insulating Internet
• 21:35
  Speaker 2: service providers and the Court should have left open the
• 21:39
  Speaker 2: possibility of suits against companies that intentionally assist specific instances
• 21:45
  Speaker 2: of infringement.
• 21:46
  Speaker 7: That's exactly right. I think the concurring opinion by Justices
• 21:49
  Speaker 7: Sotomayor and Jackson agrees with the result, but it is
• 21:54
  Speaker 7: vehement in its disagreement on the reasoning adopted to come
• 21:57
  Speaker 7: at that because the concurrence, they see what Justice Thomas
• 22:01
  Speaker 7: the majority is doing is stifling the further creation of
• 22:05
  Speaker 7: expansion of contributory infringement to domains that Congress and the
• 22:09
  Speaker 7: Court itself indicated required potential expansion. And so Justice Sotomayor's
• 22:14
  Speaker 7: opinion actually goes to some lengths to indicate how such
• 22:18
  Speaker 7: an expansion should actually happen, How you might want to
• 22:21
  Speaker 7: look at instances where specific knowledge actually can be a
• 22:25
  Speaker 7: basis of intent. And she says, look, if you have
• 22:28
  Speaker 7: absolute certainty that something is going to be used for
• 22:31
  Speaker 7: a bad purpose, shouldn't that heightened level of knowledge be
• 22:35
  Speaker 7: equivalent to intent and therefore satisfy the prong. So you
• 22:39
  Speaker 7: give a product to someone when they come to you
• 22:41
  Speaker 7: saying I want to use it for X purpose and
• 22:44
  Speaker 7: X purpose only, and you say sure and give them
• 22:46
  Speaker 7: your product, Well, you have a heightened level of knowledge
• 22:49
  Speaker 7: that is the kind of intent that is sufficient for
• 22:52
  Speaker 7: the purposes of contributory infringement and the understanding of the
• 22:55
  Speaker 7: reasoning of the majority, she says, takes that entirely off
• 22:58
  Speaker 7: the table, and that.
• 22:59
  Speaker 1: Should not be the case.
• 23:01
  Speaker 7: But she's also very ready to point out that even
• 23:03
  Speaker 7: in that expanded universe, it did not exist here, which
• 23:06
  Speaker 7: is why she agrees and concurs with the results. So
• 23:09
  Speaker 7: she says, even under that modified, expanded standard of hers
• 23:13
  Speaker 7: differing from the majority, Cox would not be liable because
• 23:17
  Speaker 7: she basically says that while Cox may have had specific
• 23:22
  Speaker 7: knowledge as to the IP addresses which were committing the infringement,
• 23:26
  Speaker 7: what she points out is there is not a singular
• 23:29
  Speaker 7: correlation between an IP address and an individual user, right,
• 23:33
  Speaker 7: so multiple users could be associated with an IP address.
• 23:37
  Speaker 7: In fact, many IP addresses are establishments where you have
• 23:40
  Speaker 7: multiple users and employees. So all that they had was
• 23:44
  Speaker 7: the IP address specific knowledge, not the individual act specific knowledge,
• 23:49
  Speaker 7: and she says because of that, Cox would not be
• 23:51
  Speaker 7: found liable even under.
• 23:52
  Speaker 2: Herbert Coming up, I'll continue this conversation with Columbia Law
• 23:56
  Speaker 2: School professor Balganesh. The Supreme Court today sided with internet
• 24:02
  Speaker 2: service provider Cox Communications in its copyright fight with record
• 24:07
  Speaker 2: labels over illegal music downloads by Cox customers. The justices
• 24:13
  Speaker 2: ruled unanimously that Cox bears no liability for the copyright
• 24:17
  Speaker 2: violations of its customers, reversing a jury verdict and lower
• 24:21
  Speaker 2: court rulings. I've been talking to Columbia Law School professor
• 24:25
  Speaker 2: sham Baganesh. Do you think that Cox, in arguing us
• 24:30
  Speaker 2: sort of scare tactics and saying, well, we could be
• 24:33
  Speaker 2: cutting off a whole university because of one person, or
• 24:37
  Speaker 2: a grandma because her grandchild is pirting music.
• 24:42
  Speaker 7: Yeah, so I think they did use that, and that's characteristic,
• 24:45
  Speaker 7: of course, as you know of Supreme Court arguments painting
• 24:47
  Speaker 7: the doomsday scenario of an expensive holding. Did that play
• 24:52
  Speaker 7: into it? Perhaps some, But I don't believe that the
• 24:55
  Speaker 7: decision coming out the other way in terms of saying
• 24:58
  Speaker 7: we're taking knowledge off the table was driven by the
• 25:00
  Speaker 7: doomsday scenario kind of you know, worst case, here's what
• 25:04
  Speaker 7: will happen if we adopt the alternate approach. Why do
• 25:06
  Speaker 7: I say that. I say that for two reasons. One,
• 25:08
  Speaker 7: I think the Court has in the past, when presented
• 25:11
  Speaker 7: with these kinds of doomsday scenarios, even in copyright, been
• 25:13
  Speaker 7: willing to split the difference in some ways and come
• 25:16
  Speaker 7: up with a compromise solution, saying we don't need to
• 25:18
  Speaker 7: go all the way to say any knowledge is enough.
• 25:21
  Speaker 7: We can, you know, slice and dice what kind of
• 25:24
  Speaker 7: knowledge is requirement. And that's what Justice Sotomayor.
• 25:26
  Speaker 1: Does, right.
• 25:27
  Speaker 7: She says, Look, even though I'm willing to accept a
• 25:29
  Speaker 7: level of knowledge as being possible in contributory infringement, I'm
• 25:33
  Speaker 7: not ready to accept that it's just any knowledge. I'm
• 25:36
  Speaker 7: looking for heightened and specific knowledge. So I don't think
• 25:39
  Speaker 7: it was the sort of worst case doomsday scenario that
• 25:42
  Speaker 7: was motivating the Court. It may have played a role,
• 25:45
  Speaker 7: perhaps amongst some of the justices, but I really do
• 25:48
  Speaker 7: think that at the end of the day, what seems
• 25:50
  Speaker 7: to be playing a real role in the majority of
• 25:52
  Speaker 7: his opinion is this vision of what the judicial role
• 25:55
  Speaker 7: should be in copyright lawmaking and June. To be honest,
• 25:58
  Speaker 7: that's giving me the big pause, which is that this
• 26:02
  Speaker 7: is not just a one off opinion. Justice Thomas has
• 26:05
  Speaker 7: made these views clear, interestingly in two prior opinions. One
• 26:10
  Speaker 7: he wrote the majority opinion in Star Athletica. If you remember,
• 26:13
  Speaker 7: this was an opinion about the design of cheerleading uniforms
• 26:17
  Speaker 7: and whether they would become eligible for copyright protection. And
• 26:20
  Speaker 7: we had a vast amount of case law from the
• 26:23
  Speaker 7: Intermediate Court of Appeals, multiple Courts of Appeals that had
• 26:27
  Speaker 7: developed standards for operationalizing what was called a separability test.
• 26:31
  Speaker 7: But what's striking in that opinion is what he says, right,
• 26:33
  Speaker 7: which is that developing a test is not a question
• 26:37
  Speaker 7: of looking for the best copyright policy. That is Congress's job.
• 26:42
  Speaker 7: Our task is simply to interpret the text of the opinion,
• 26:45
  Speaker 7: and then he goes to develop a framework which has
• 26:48
  Speaker 7: obvious workability.
• 26:49
  Speaker 1: Issues with it.
• 26:50
  Speaker 7: But he says something very similar in another dissenting opinion.
• 26:53
  Speaker 7: This was a case Public Dot Resource dot Org versus
• 26:56
  Speaker 7: Georgia having to do with the copyright ability of annotated
• 27:01
  Speaker 7: codes of Georgia, and the majority opinion was written by
• 27:04
  Speaker 7: Chief Justice Roberts. Justice Thomas wrote the dissenting opinion in
• 27:08
  Speaker 7: that case, and what he did very interestingly was he
• 27:11
  Speaker 7: called out Chief Justice Roberts as taking the Court's opinion
• 27:16
  Speaker 7: in a direction beyond the appropriate judicial role of courts
• 27:21
  Speaker 7: in copyright. And I think what I'm seeing in the
• 27:23
  Speaker 7: majority opinion here is him very much hewing to that
• 27:27
  Speaker 7: worldview that courts need to stay in their lane, interpret
• 27:30
  Speaker 7: the statute, not go beyond trying to look at the
• 27:35
  Speaker 7: narrow areas where Congress has left some room open for
• 27:40
  Speaker 7: courts to develop and should not be taking the law
• 27:43
  Speaker 7: and taking it in new directions. And insofar as the
• 27:46
  Speaker 7: Court had done that before in both Sony and Groster,
• 27:49
  Speaker 7: his view is maybe we need to really stop there.
• 27:51
  Speaker 7: We do not want to go beyond that. And as
• 27:54
  Speaker 7: I said, my concern with that is that ignores the
• 27:56
  Speaker 7: fact that Congress wanted courts to go beyond that. Congress said,
• 28:01
  Speaker 7: this is an area that we are preserving by putting
• 28:04
  Speaker 7: in one word in the statute, and that preservation is
• 28:07
  Speaker 7: meant to indicate that this doctrine thrives, even though we're
• 28:10
  Speaker 7: not specifically referencing the doctrine. But he doesn't even cite
• 28:13
  Speaker 7: to that legislative history nor talk about it. It may
• 28:16
  Speaker 7: well be that he wanted to ignore it, but the
• 28:18
  Speaker 7: fact that he's not engaging it, I think is quite telling.
• 28:20
  Speaker 2: So according to Justice Thomas's opinion, what would it take
• 28:26
  Speaker 2: to hold an Internet service provider responsible libel for piracy
• 28:33
  Speaker 2: by their customers?
• 28:34
  Speaker 7: Yeah, so let's look at either of his prongs. So
• 28:36
  Speaker 7: one is if the Internet service provider is encouraging the infringement.
• 28:40
  Speaker 7: So if the internet service provider were to advertise it saying, hey,
• 28:43
  Speaker 7: we're going to look the other way if you infringe it, oh,
• 28:46
  Speaker 7: it would advertise its terms of service by saying, oh,
• 28:49
  Speaker 7: our terms of service are lenient to downloaders, we do
• 28:52
  Speaker 7: not kick you off if you are illegally downloading copyrighted
• 28:56
  Speaker 7: content or things like that. That could be interpreted as
• 28:59
  Speaker 7: active encouragement. But that's an extreme example, I think. The
• 29:03
  Speaker 7: other one, which is what comes closer to what was
• 29:06
  Speaker 7: an issue here, is the tailoring of the service and
• 29:09
  Speaker 7: whether that was capable of non infringing use.
• 29:13
  Speaker 1: So, in other.
• 29:13
  Speaker 7: Words, if the service were itself tailored in a way
• 29:17
  Speaker 7: that was specifically for infringing uses. And now again that
• 29:21
  Speaker 7: would perhaps be tailored technologically or some kind of protection
• 29:25
  Speaker 7: for infringing services. That might be the kind of situation
• 29:28
  Speaker 7: that would satisfy the second one. But as you can see,
• 29:31
  Speaker 7: these are so narrow and they're in some ways outlandish that,
• 29:35
  Speaker 7: as Justice Sotomayer points out, it's a really really low
• 29:39
  Speaker 7: bar for them to obtain protection. In other words, it's
• 29:42
  Speaker 7: a high bar for liability. Where she effectively says that
• 29:46
  Speaker 7: ISPs are now in some sense scott free.
• 29:48
  Speaker 2: There's a similar case, a music industry suit that seeks
• 29:53
  Speaker 2: as much as two point six billion dollars from Verizon.
• 29:56
  Speaker 6: Is that suit dead as well?
• 29:58
  Speaker 7: I think very very likely. I have to go back
• 30:00
  Speaker 7: and look at what the nature of the argument is,
• 30:01
  Speaker 7: and I do believe contributory infringement was one of them.
• 30:04
  Speaker 7: So it's important to recognize that this case was about
• 30:07
  Speaker 7: one doctrine of indirect lively, it was a contributory infringement.
• 30:10
  Speaker 7: So insofar as that case is claim about contributory infringement
• 30:13
  Speaker 7: goes and if they were relying on a heightened knowledge requirement,
• 30:17
  Speaker 7: I think it absolutely is they would have to recast
• 30:20
  Speaker 7: it in terms of one of the two available prongs
• 30:22
  Speaker 7: that the majority opinion recognizes. I think one additional thing
• 30:25
  Speaker 7: I will say June is. It is surprising but important
• 30:28
  Speaker 7: to note that Justice is Sodomyer and Jackson wrote this
• 30:32
  Speaker 7: concurring opinion because it's not always the case that you
• 30:35
  Speaker 7: have a concurring opinion that is so firmly on the
• 30:38
  Speaker 7: same side as the outcome, but writes in extra eight
• 30:41
  Speaker 7: or nine pages to talk about the flaw and the reasoning.
• 30:44
  Speaker 7: And I think that just goes to show you the
• 30:45
  Speaker 7: point that I'm making, which is how oversimplified the reasoning
• 30:49
  Speaker 7: of the majority is. I will say it to people
• 30:52
  Speaker 7: who have been following this area, if you just look
• 30:54
  Speaker 7: at the complexity of the briefing in the case, looking
• 30:57
  Speaker 7: at different versions of intent and the common life law
• 31:00
  Speaker 7: and how they had been structured, there's a sense in
• 31:03
  Speaker 7: which the majority basically is saying, we don't care one bit.
• 31:06
  Speaker 7: Our task is to look at what we have said
• 31:09
  Speaker 7: before narrow grounds. We can get to this in a
• 31:12
  Speaker 7: very very simplistic way. What are you talking about? And
• 31:15
  Speaker 7: I think that's the most in some ways surprising, if
• 31:19
  Speaker 7: not bewildering, part of the opinion.
• 31:21
  Speaker 2: I think Justice Thomas's opinions have bewildered some of us before.
• 31:25
  Speaker 2: Thanks so much for joining me tonight. That's Columbia Law
• 31:29
  Speaker 2: School Professor sham Balganesh. And that's it for this edition
• 31:32
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• 31:35
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• 31:38
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• 31:52
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