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Weekend Law: Law Firms, Maps & Robots Can't Get Copyrights · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: I just think that the law firms have to behave themselves,
0:12
Speaker 2: and we've proven that we have others that want to
0:15
Speaker 2: make a settlement also having to do with the election
0:19
Speaker 2: and other things. They behave very badly, very wrongly, and
0:23
Speaker 2: I appreciate the one. You know, these are the biggest firms.
0:25
Speaker 3: President Donald Trump has been complaining about a legal system
0:29
Speaker 3: rigged against him for many years, and he seems to
0:33
Speaker 3: think that any law firm that has challenged him in
0:36
Speaker 3: court has behaved quote very badly, and to get those
0:40
Speaker 3: firms to behave themselves, he's punishing them with executive orders
0:45
Speaker 3: that threaten their businesses and their ability to represent clients.
0:49
Speaker 3: In the last month, he's targeted four major law firms
0:53
Speaker 3: with executive orders. Three of the firms chose to defy
0:56
Speaker 3: Trump by suing him, but one firm, Paul Weiss, chose
1:01
Speaker 3: to surrender by cutting a forty million dollar deal in
1:04
Speaker 3: pro bono services with the administration, and another firm, scad
1:09
Speaker 3: and Arps, caved before an executive order was even issued
1:13
Speaker 3: against it, cutting a similar one hundred million dollar deal.
1:17
Speaker 3: My guest is an expert in the legal profession, Matthew Diller,
1:20
Speaker 3: a professor at Fordham Law School. Trump's attack on the
1:24
Speaker 3: legal system has really been multi pronged.
1:27
Speaker 4: The Trump administration has really broad out its attack. Initially
1:31
Speaker 4: started with its attacks on the judiciary, and now it
1:35
Speaker 4: is continuing to attack the judiciary and has added in
1:39
Speaker 4: attacks on the legal profession really as a whole. And
1:42
Speaker 4: the attacks go to the fundamental ethos and role of
1:46
Speaker 4: the legal profession in our society. So from the very
1:49
Speaker 4: start of the administration, government lawyers, the lawyers who worked
1:53
Speaker 4: for the federal government were under siege. And those lawyers
1:56
Speaker 4: play a critical role in our system of law enforcements
2:00
Speaker 4: and upholding rules and making sure the government is not abusive.
2:05
Speaker 4: And so almost as soon as he came into office,
2:08
Speaker 4: President Trump began to remove the most experienced leaders within
2:12
Speaker 4: the Department of Justice. And I'm not talking about the
2:14
Speaker 4: political appointees. I'm talking about the career lawyers of the
2:17
Speaker 4: Department of Justice. We saw this with the blow up
2:20
Speaker 4: over the lawyers working on the Eric Adams case, quite
2:23
Speaker 4: a few of whom resigned. But there's also Denise Chung,
2:26
Speaker 4: the top prosecutor in the DCUs Attorney's Office who resigned
2:30
Speaker 4: when she was asked to launch an investigation without any basis.
2:34
Speaker 4: The Chief Irs Council was pushed out, the all the
2:38
Speaker 4: inspector generals and the different agencies, and so the lawyers
2:42
Speaker 4: in key positions who have put a premium on making
2:46
Speaker 4: sure that government follows the law, who put an allegiance
2:50
Speaker 4: to the law first, are being removed and being replaced
2:54
Speaker 4: with the lawyers who focused on loyalty to the administration.
2:58
Speaker 4: And that to me is scary because those government lawyers
3:02
Speaker 4: play a critical role. And then what's happened over the
3:05
Speaker 4: past few weeks is that the attack has broadened out
3:08
Speaker 4: to cover the private bar, and really the elements in
3:10
Speaker 4: the private bar that are the ones that the administration
3:13
Speaker 4: views as the biggest threat, which are the major of
3:15
Speaker 4: private law firms that have a lot of resources and
3:18
Speaker 4: a lot of experience in litigating against the government.
3:22
Speaker 3: So it started with a memo attacking Covington Burling, and
3:26
Speaker 3: then executive orders targeting Perkins, Cooey, Paul Weiss, jennerin Block
3:31
Speaker 3: and Wilmer Hale tell us about the executive orders and
3:34
Speaker 3: whether there's any legal basis for them.
3:37
Speaker 4: Those executive orders just simply shocked me. They are astounding
3:41
Speaker 4: documents to read. So the executive orders are really attempts
3:45
Speaker 4: to take down these firms because they go far beyond
3:49
Speaker 4: revoking security coherences. They also terminate all contracts with the firms,
3:54
Speaker 4: so that if the government, any arm of the government,
3:56
Speaker 4: has hired the firms to do anything mose contracts would end.
4:00
Speaker 4: And the single most devastating piece of it, they require
4:04
Speaker 4: businesses that have relationships with the firms to disclose those
4:08
Speaker 4: relationships and then instruct the agencies to terminate their contracts
4:13
Speaker 4: with those businesses. So what that does is it strikes
4:16
Speaker 4: at the client of the firm. So what it says
4:19
Speaker 4: to the firm's clients is that if you continue to
4:22
Speaker 4: retain these firms, you will lose all your government contracts,
4:25
Speaker 4: and that, of course strikes at the heart of these
4:28
Speaker 4: firms and their business model and their basic income and
4:31
Speaker 4: ability to survive as a firm. And you asked about
4:34
Speaker 4: the legal basis for these orders, the orders cite no
4:37
Speaker 4: legal basis. Typically in executive order and the pre Trump
4:40
Speaker 4: euro we'd most often start with a recitation of what
4:43
Speaker 4: the legal basis for the order is and what the
4:46
Speaker 4: authority is where the statutes are. These orders don't do
4:49
Speaker 4: that in any way, shape or form, and in fact,
4:52
Speaker 4: they include a lot of language that shows that the
4:55
Speaker 4: purposes of these orders are clearly unconstitutional and illegal, and
4:59
Speaker 4: just flush that out of it. First of all, they
5:02
Speaker 4: make claim that the basis of the order is that
5:04
Speaker 4: the administration doesn't like representations that have been undertaken by
5:10
Speaker 4: lawyers of these firms, and so those lawyers have a
5:12
Speaker 4: right they undertake those representations. You know, the First Amendment
5:16
Speaker 4: gives them the right to both express their use. There's
5:19
Speaker 4: a right of access to the court system. These firms
5:23
Speaker 4: have no obligation to only undertake litigation and representations that
5:27
Speaker 4: President Trump approves of. And then secondly, they did this
5:31
Speaker 4: without any hearing of any kind. So these orders just
5:35
Speaker 4: came completely out of the blue. There was no hearing,
5:38
Speaker 4: an opportunity for these firms to contest whatever the quote
5:42
Speaker 4: charges might be against them. And then a final element
5:47
Speaker 4: that's very concerning is that it really impinges on the
5:50
Speaker 4: rights of the clients of these firms to choose their lawyers.
5:53
Speaker 4: In our country, the basic system for regulating lawyer conduct
5:57
Speaker 4: is governed by the states and by the courts, and
6:00
Speaker 4: there are proceedings and rules about what happens when a
6:03
Speaker 4: lawyer is accused of unethical or improper conduct. Those lawyers
6:08
Speaker 4: received notice of the charges basically in an opportunity to
6:11
Speaker 4: defend themselves. Nothing like that happened in these cases. And indeed,
6:15
Speaker 4: the executive branch of the federal government, the president, has
6:19
Speaker 4: no general free roaming authority to impost discipline on lawyers.
6:23
Speaker 4: SENI laterally, so I'm unaware of any arguments. I have
6:28
Speaker 4: trouble even thinking of an argument of how these orders
6:31
Speaker 4: can be legal.
6:32
Speaker 3: So Paul Weis caved and made a deal. But three
6:35
Speaker 3: law firms are fighting the executive order suing the Trump administration.
6:41
Speaker 3: That's Perkins Coohy, Wilmer and Hale and generin Block. Let's
6:44
Speaker 3: talk about the Perkins Cooey suit because they were targeted first,
6:49
Speaker 3: and that suit has gone the farthest.
6:51
Speaker 4: So Perkins Coohy immediately filed a lawsuit and sought a
6:55
Speaker 4: temporary restraining order, which the judge granted, and the judge
6:58
Speaker 4: said the executive order against he sent chills down her spine.
7:02
Speaker 4: And today the government has not put in any papers
7:06
Speaker 4: defending the legality of the executive order against Perkins. Instead,
7:09
Speaker 4: the government has sought to remove the judge, arguing that
7:13
Speaker 4: she's biased. So I don't know what the government's argument
7:16
Speaker 4: will be on why the order against Perkins was legal.
7:18
Speaker 4: We haven't seen that yet. Paul Weiss took a very
7:21
Speaker 4: different path. Instead, The ahead of Paul Weise met with
7:24
Speaker 4: President Trump directly one on one. The meeting was said
7:28
Speaker 4: to be three hours long, and then President Trump and
7:32
Speaker 4: Brad carp who's head of Paul Weis, ironed at an
7:34
Speaker 4: agreement and President Trump withdrew the executive order. And I
7:38
Speaker 4: think there are a couple of things to really focus
7:40
Speaker 4: on here. So the biggest one is that this was
7:43
Speaker 4: a shakedown of Paul Weiss that Paul Wise. You know,
7:46
Speaker 4: there's a lot of debate now about whether Paul Weis
7:48
Speaker 4: did the right thing by reaching an agreement with President Trump.
7:51
Speaker 4: But I think the larger picture to look at is
7:54
Speaker 4: that Paul Whites never should have been in this situation
7:57
Speaker 4: in the first but that the White House really put
8:00
Speaker 4: Paul Wess under an existential threat that never should have
8:04
Speaker 4: been there. I myself, I'm disappointed that it has played
8:07
Speaker 4: out this way because if firms like Paul Weiss don't
8:11
Speaker 4: push back against illegal executive orders like this, then who will?
8:14
Speaker 4: So it sends a message to the legal profession that
8:17
Speaker 4: is very disheartened because the Trump administration has made plain
8:21
Speaker 4: that they're not stopping with Jess Perkins, Pooty and Paul Weiss.
8:24
Speaker 4: They're going to continue to target firms.
8:26
Speaker 3: And to demonstrate the chilling effect of these orders, Scadden
8:30
Speaker 3: Arps reached a one hundred million dollars deal for pro
8:34
Speaker 3: bono services to avoid being targeted in one of these
8:38
Speaker 3: executive orders by Trump. So what's the message if firms
8:42
Speaker 3: like Paul Weiss and scad and Arps won't stand up
8:45
Speaker 3: to Trump?
8:46
Speaker 4: So I think it really reflects the incredible power of
8:50
Speaker 4: the federal government that Trump is really harnessing here in
8:53
Speaker 4: illegitimate ways. Now, Paul Waits's calculation was, even when they
8:57
Speaker 4: won the lawsuit, and you can be sure were highly
9:00
Speaker 4: confident of winning this lawsuit, it wouldn't save them because
9:04
Speaker 4: it would send the message to all their clients that
9:07
Speaker 4: do business with the federal government, to all the criminal
9:10
Speaker 4: defendants whom they are represented or being prosecuted by the
9:13
Speaker 4: federal government, that they will not get fair treatment from
9:16
Speaker 4: the federal government as long as they're represented by a
9:19
Speaker 4: firm that the administration doesn't like, and so that's an
9:22
Speaker 4: existential threat for a firm like Paul Weite, and they
9:25
Speaker 4: never should have been in that situation. One thing that's
9:28
Speaker 4: interesting is there are some discrepancies between the way the
9:32
Speaker 4: White House has described the agreement and the way Paul
9:35
Speaker 4: Weite has described it. Paul Weiss has really broadcast that
9:38
Speaker 4: it didn't agree to much beyond what it would ordinarily do.
9:42
Speaker 4: And if the agreement is true to the firm's values
9:45
Speaker 4: and some of the things in the agreement, like a
9:47
Speaker 4: commitment to not accept clients and matters based on the
9:50
Speaker 4: politics and political leanings of the clients, is the value
9:54
Speaker 4: that Poul Wite says it has always had, and saying
9:57
Speaker 4: that pol Weis would do pro bono work on behalf
9:59
Speaker 4: of it veteran combat anti Semitism. Paul Weiss's position is
10:03
Speaker 4: that's all fine with them today, would do this work anyway.
10:06
Speaker 4: But to me, there are a couple of aspects of
10:08
Speaker 4: the agreement that don't strike me as business as usual.
10:12
Speaker 4: So one is Paul Weiss has agreed to an audit
10:15
Speaker 4: of its employment practices by a mutually agreed expert. So
10:20
Speaker 4: that means that Paul Weiss now has to reach an
10:23
Speaker 4: agreement with the administration as to who will review their
10:27
Speaker 4: employment practices. And the administration has taken a position, particularly
10:33
Speaker 4: around issues of race and gender discrimination that is really
10:37
Speaker 4: incredibly aggressive and not at all clear that is required
10:41
Speaker 4: by law. And so we'll see what happens with that
10:44
Speaker 4: the audit of Paul Weis's hiring practices. And then the
10:47
Speaker 4: second piece of language that particularly concerns me is that
10:51
Speaker 4: the commitment to do forty million dollars worth of pro
10:54
Speaker 4: bono work, it lists a couple of projects and then
10:57
Speaker 4: it says and mutually agreed project. Does that mean that
11:00
Speaker 4: Paul Wise needs to go back to the Trump administration
11:04
Speaker 4: to get approval as to whether particular pro bono representations
11:09
Speaker 4: counter don't count towards the forty million dollars. That troubles
11:12
Speaker 4: me in terms of giving the White House or direct
11:15
Speaker 4: voice in what cases Paul Wise now will select. We'll
11:19
Speaker 4: see how it plays out. I mean, I think it's
11:21
Speaker 4: very unclear what this agreement will mean in practice, but
11:24
Speaker 4: those are some of my particular concrens with the substance
11:27
Speaker 4: of it. Of course, the message sent by the agreement
11:30
Speaker 4: is far broader, and it's the message that Paul Weis
11:32
Speaker 4: won't stand up to the Trump administration than who will.
11:35
Speaker 4: And I think that that's an important question to ask.
11:39
Speaker 3: I guess we'll find out as Trump continues to target
11:42
Speaker 3: law firms. Thanks for being here. That's Professor Matthew Diller
11:46
Speaker 3: of Fordham Law School coming up next. The Supreme Court
11:49
Speaker 3: takes a look at Louisiana's map. I'm June Grosso. When
11:52
Speaker 3: you're listening to Bloomberg.
11:55
Speaker 5: We're in the business of complying with federal court decisions,
11:57
Speaker 5: and when they told us that we needed to draw
11:59
Speaker 5: a second mait black district, that's what we did.
12:02
Speaker 3: That's how Louisiana Solicitor General Ben Aguinaga summed up his
12:07
Speaker 3: state's position in the challenge to its congressional map at
12:11
Speaker 3: the Supreme Court. At issue is the map drawn by
12:14
Speaker 3: Republicans to create a new majority black district as required
12:19
Speaker 3: by a court order, and at the same time to
12:21
Speaker 3: protect incumbent Republicans, including House Speaker Mike Johnson. So it's
12:26
Speaker 3: a case that involves the interplay between race and politics
12:31
Speaker 3: in drawing political boundaries and the oral arguments signaled a
12:35
Speaker 3: deep divide among the justices over whether race was the
12:38
Speaker 3: predominant factor driving the new map, which the Court has
12:42
Speaker 3: said is unconstitutional. Chief Justice John Roberts mocked the new district,
12:47
Speaker 3: which runs a jagged course over two hundred and fifty miles,
12:51
Speaker 3: saying it looked like a snake that runs from one
12:54
Speaker 3: end of the state to the other.
12:56
Speaker 6: And you think the drawing of this district was not
12:58
Speaker 6: predominantly based on rape. I think that it runs from
13:01
Speaker 6: one side of the state angling up to the other,
13:03
Speaker 6: picking up popular black populations as it goes along.
13:07
Speaker 3: But the three liberal justices suggested the district shape was
13:11
Speaker 3: a product of politics, something the Court has previously said
13:15
Speaker 3: is a permissible factor. Here's Justice Katanji Brown Jackson questioning
13:20
Speaker 3: Attorney Stuart Nathy.
13:22
Speaker 5: Is the reason why we're looking at a snake like
13:25
Speaker 5: map rather than the compact map is because of political considerations.
13:29
Speaker 5: Politics is the only reason that the state chose that
13:32
Speaker 5: map over the compact maps.
13:34
Speaker 3: Joining me is elections. Law expert Richard Brofald, a professor
13:37
Speaker 3: at Columbia Law School. Rich explained the issue before the justices.
13:42
Speaker 7: This is a very strange and unusual case in order
13:45
Speaker 7: to discuss the issue, you actually have to go back
13:47
Speaker 7: to a prior case. And so a couple of years ago,
13:50
Speaker 7: lawsuit was brought in Louisiana by black voters claiming that
13:54
Speaker 7: the congressional map in Louisiana discriminated against black voters because
13:58
Speaker 7: they were underrepresented that had a discriminatory effect. Louisiana is
14:02
Speaker 7: something like one third black. The state has six congressional districts,
14:06
Speaker 7: but only one of them had a black majority. The
14:08
Speaker 7: plaintiffs said it was relatively easy to create a compact
14:12
Speaker 7: district that followed traditional districting patterns in part of the
14:16
Speaker 7: state that would create a second black majority district. They
14:18
Speaker 7: went to court and they won. It was a five
14:21
Speaker 7: day trial, lots of exhibits, lots of witnesses. They wanted
14:24
Speaker 7: the district court, and that was subsequently affirmed by the
14:26
Speaker 7: Fifth Secret Court of Appeals, which is itself a pretty
14:28
Speaker 7: conservative court.
14:29
Speaker 3: And how did the Louisiana legislature come up with this map?
14:33
Speaker 7: The plaintiffs had a map that they liked which would
14:36
Speaker 7: have created that second black majority district, but the usual
14:39
Speaker 7: rules to allow the legislature to crack at it and
14:42
Speaker 7: to see if they can do it in time, otherwise
14:44
Speaker 7: a court will create a map. So this went to
14:45
Speaker 7: the Louisiana legislature and the governor said, we need to
14:48
Speaker 7: do a map. We would have liked to fight this
14:50
Speaker 7: case more, but we've already lost twice in the district court,
14:53
Speaker 7: in the Court of Appeals. We need to write our
14:55
Speaker 7: own map rather than having a court imposmon on us.
14:58
Speaker 7: When the legislature sat down to draw, they had a
15:01
Speaker 7: problem because it's a Republican majority legislature, Republican governor, Republican delegation,
15:06
Speaker 7: and several of the Republican members of Congress and Louisiana
15:08
Speaker 7: are very powerful, including the Speaker of the House, the
15:10
Speaker 7: majority leader, and somebody else they really liked. And so
15:13
Speaker 7: they decided, the legislature in Louisiana that they would sacrifice
15:17
Speaker 7: one Republican district, but not the district that made sense
15:22
Speaker 7: in terms of the plaintiff's original lawsuit seeking a black
15:25
Speaker 7: majority district. They kind of cobbled together a new district
15:29
Speaker 7: that stretched across the state and got rid of a
15:32
Speaker 7: different white Republican congressman in order to preserve the districts
15:36
Speaker 7: of the Speaker, the Majority leader, and a member of
15:38
Speaker 7: Congress who they favored. This news district is a black
15:41
Speaker 7: majority district that comes out of this lawsuit. Now, some
15:44
Speaker 7: white plaintiffs have sued, claiming that this district is unconstitutional
15:49
Speaker 7: because it's unconstitutionally race based. That is a racial gerrymander,
15:53
Speaker 7: that the decision to draw this district was primarily based
15:56
Speaker 7: on race, and the Supreme Court has for some time
15:58
Speaker 7: said that that's on constitution. The state is defending it,
16:02
Speaker 7: as are the original plaintiffs, the black voters, on the
16:05
Speaker 7: grounds that no, it's not racially predominant, it's really politically predominant.
16:11
Speaker 7: The reason this district has this odd shape is not
16:14
Speaker 7: really because of race, but because the legislature wanted to
16:18
Speaker 7: basically protect Republican incumbents. And a different lower court than
16:23
Speaker 7: the one that heard the original case said, no, this
16:25
Speaker 7: is racial predominance. The only reason this district exists is
16:29
Speaker 7: to create a black majority district. And that's the argument
16:31
Speaker 7: before the Supreme Court. And it's kind of an odd one.
16:34
Speaker 3: And what are the Supreme Court precedents on this question?
16:38
Speaker 7: Supreme Court has said in the past that if something
16:41
Speaker 7: is drawn primarily from the basis of race, and there's
16:44
Speaker 7: no other justification for it, then it may be unconstitutional
16:47
Speaker 7: on the legal protection clause. But if it's done primarily
16:50
Speaker 7: for party, that's parties in gerrymandering, and you can challenge that.
16:54
Speaker 7: And the question of whether something is based on race
16:56
Speaker 7: or on party has really been before the court several times.
16:59
Speaker 7: But that's kind of what they have to decide here.
17:01
Speaker 7: Is this district primarily based on partisanship because that's why
17:06
Speaker 7: the legislature drew it the way they did it, Or
17:08
Speaker 7: is it based on race because they wouldn't have been
17:10
Speaker 7: drawing a new district at all but for the earlier
17:14
Speaker 7: judgment that Louisiana needed a second black majority district. Obviously
17:18
Speaker 7: you couldn't remedy Voting Rights Act violations unless you took
17:21
Speaker 7: race into account in drawing the remedy. But the question
17:24
Speaker 7: is sort of when does race too much? That's where
17:27
Speaker 7: the court has settled out over the less several decades.
17:29
Speaker 7: You can't ignore race, and sometimes you have to take
17:31
Speaker 7: race into account. But if you give race too much attention,
17:34
Speaker 7: they use the notion of predominance, and unless it's justified
17:37
Speaker 7: by something else like the Voting Rights Act, then it
17:40
Speaker 7: violates ecal protection clause.
17:42
Speaker 3: Did you hear a divide between the conservative justices and
17:46
Speaker 3: the liberal justices on the use of race in this case.
17:51
Speaker 7: Well, the conservative justices, who I think, yes, they were
17:54
Speaker 7: troubled by it. I think they were slightly frustrated by
17:56
Speaker 7: the fact that to the Louisiana Conservative Republican let's state
18:00
Speaker 7: is defending the map, and the state basically kept making
18:03
Speaker 7: the point the reason we did this is because we
18:06
Speaker 7: had a judgment against us, and I think some of
18:09
Speaker 7: the conservatives maybe kind of wondered, you know, maybe you
18:11
Speaker 7: should have challenged that, do you agree with that judgment
18:13
Speaker 7: against you? And of course the state's position is now,
18:15
Speaker 7: we don't agree with the judgment against us, but we
18:17
Speaker 7: lost twice and we didn't want the courts to impose
18:20
Speaker 7: a map on us. So I think the conservatives were
18:23
Speaker 7: somewhat frustrated in this case because they're not directly reviewing
18:27
Speaker 7: the original lower court case that said Louisiana violated the
18:31
Speaker 7: Voting Rights Act. They never took that case. What they're
18:34
Speaker 7: reviewing is the state's remedy, in which, although it's clear
18:38
Speaker 7: that race plays an important role in their redoing the
18:42
Speaker 7: map altogether, I think the states argument was that this
18:45
Speaker 7: particular configuration reflects our political judgment that if we had
18:50
Speaker 7: to sacrifice one white Republican congressman, we chose Congressman X
18:54
Speaker 7: and not Congresswoman Why.
18:56
Speaker 3: There's been a lot of talk lately about the stand
19:00
Speaker 3: off between the Trump administration and the courts, and the
19:04
Speaker 3: question of whether the Trump administration is actually following complying
19:08
Speaker 3: with court orders. Did you see subtle references to that
19:13
Speaker 3: during the oral arguments? You had the Louisiana Solicitor General
19:16
Speaker 3: saying right, we're in the business of complying with federal
19:20
Speaker 3: court decisions, and Justice Jackson clarifying with him later that
19:26
Speaker 3: the court order was the reason why Louisiana drew up
19:30
Speaker 3: the map, and it didn't matter whether the order was
19:33
Speaker 3: right or wrong.
19:34
Speaker 5: The question is whether or not the fact that you
19:36
Speaker 5: had a court order was good enough reason for you
19:39
Speaker 5: to do it. Is that what you understand the basic
19:42
Speaker 5: question to be. That's correct, not just one order, but
19:44
Speaker 5: two layers of orders. Yes, you're honor and I guess
19:47
Speaker 5: I'm still a little confused as to why it matters
19:50
Speaker 5: whether the court order was right or not. You were
19:54
Speaker 5: still being compelled by the court to do what you
19:59
Speaker 5: did in this case. Correct, That's correct, Justice Jackson.
20:03
Speaker 7: That was my impression as well, is that this listener
20:05
Speaker 7: general was being very good about saying, we follow court orders.
20:09
Speaker 7: We lost once, we took an appeal, and then we
20:11
Speaker 7: follow the court orders. And some of the justices were
20:14
Speaker 7: pressing him, well, what if it was completely wrong? You know,
20:16
Speaker 7: would you follow it if it was completely wrong? And
20:19
Speaker 7: he was saying, you know, we're not going to get
20:20
Speaker 7: the judgment of deciding whether there's completely wrong.
20:23
Speaker 1: We didn't like it.
20:24
Speaker 7: We defended our position, we thought we were right, we
20:26
Speaker 7: took an appeal, we thought we ran an appeal, we
20:28
Speaker 7: lost the appeal, and I think our solution was, instead
20:30
Speaker 7: of keeping fighting, we want to be able to control
20:33
Speaker 7: our own map.
20:34
Speaker 3: Which do you have any inkling for what the court
20:36
Speaker 3: might do here?
20:37
Speaker 7: First off, never partict the Supreme Court, but I think
20:40
Speaker 7: there seemed to be enough understanding of this by at
20:43
Speaker 7: least some of the justices that you might say that
20:45
Speaker 7: justice is in the middle, like Kavanaugh and Barrett, of
20:49
Speaker 7: the tight squeeze that the state was in, and the
20:52
Speaker 7: idea that the state should have some space, some discretion
20:56
Speaker 7: to accommodate a court and also to accommodate its own
20:59
Speaker 7: political preferences. Corsa, Glito, and Thomas were clearly very unhappy
21:04
Speaker 7: with this map. Roberts said very little as far as
21:07
Speaker 7: I could tell, and I think maybe I'm overreading it,
21:10
Speaker 7: but I think there was some sympathy I saw in
21:12
Speaker 7: Barrett and Cavanaugh for the situation that the state was in.
21:16
Speaker 7: You have the impression from the very conservative justices and
21:19
Speaker 7: even from some of the justices in the middle, that
21:21
Speaker 7: they may be looking to rethink the Voting Rights Act
21:24
Speaker 7: and rethink how much attention race should be given in districting.
21:28
Speaker 7: But my impression is at least some of the justices
21:30
Speaker 7: may be realizing that this is not the vehicle for that,
21:34
Speaker 7: because given the state's defenses so heavily based on partisan considerations,
21:39
Speaker 7: which I think they were pretty good at showing were
21:41
Speaker 7: real and not pretend.
21:43
Speaker 3: Tell us a little bit about how the Supreme Court
21:46
Speaker 3: has sort of been chipping away at the power of
21:49
Speaker 3: the Voting.
21:50
Speaker 7: Rights Act, well, I mean, candidly. The one case that's
21:52
Speaker 7: most relevant is the case that they didn't the Albama
21:55
Speaker 7: redistrict in Case Milligan, which was as ided two years ago,
21:57
Speaker 7: and this case follows immediately on it, where by a
22:00
Speaker 7: five to four vote. They actually upheld the lower court
22:02
Speaker 7: judgment that the Alabama congressional district being planned had a
22:06
Speaker 7: racially disparate impact and that it denied fair representation to
22:09
Speaker 7: black voters in Alabama and required the creation of a
22:12
Speaker 7: second black majority district in Alabama. That was a five
22:15
Speaker 7: to four case, and it was a bit of a
22:17
Speaker 7: surprise because they previously issued a stay against the lower
22:20
Speaker 7: court order in that case, so that he allowed the
22:22
Speaker 7: old map to be used one more election. You know,
22:25
Speaker 7: in other areas, the court has certainly cut back. They
22:27
Speaker 7: have made it now almost impossible for plaintiffs to bring
22:31
Speaker 7: voting right sack claims challenging various mechanisms like voter ID
22:36
Speaker 7: and issues with a claim is that certain you know,
22:38
Speaker 7: voter registration and voter ID rules the disparate impact on
22:42
Speaker 7: black or other minority voters to court in the case
22:44
Speaker 7: called Bernovich some years ago threw that out. Now more
22:47
Speaker 7: than ten years ago. They got rid of Section five,
22:49
Speaker 7: which was the preclearance requirement, which was probably the most
22:52
Speaker 7: important piece of the voting rightsack requiring certain states which
22:56
Speaker 7: had a very bad track record of racial discrimination to
22:58
Speaker 7: get their voting law. Change is preclued by the Department
23:01
Speaker 7: of Justice now about ten years ago, and they've been
23:03
Speaker 7: sending signals at least a number of justices that they
23:06
Speaker 7: are troubled by the reader which the Voiding Rights Act
23:09
Speaker 7: is being used to challenge voting laws, voting rules, and
23:12
Speaker 7: things like districting plans. But right now, the most recent case,
23:16
Speaker 7: that Alabama case, is one where they actually are continuing
23:18
Speaker 7: to enforce it. Some people are seeing this as another challenge.
23:21
Speaker 7: I think if the Court is going to start cutting
23:23
Speaker 7: back on the role of Section two the Voting Rights
23:25
Speaker 7: Act in challenging districting plans, I'll go out on a
23:28
Speaker 7: limb and say this is probably not the case, but
23:30
Speaker 7: you could imagine it happening in the not too distant future.
23:34
Speaker 3: I mean, you were surprised by that Alabama case. I
23:36
Speaker 3: was stunned, and I'm wondering if it's an exception rather
23:40
Speaker 3: than the rule, because it sort of stood out right.
23:42
Speaker 7: But this case is an immediate follow on. The thing
23:45
Speaker 7: is this case is not a direct review of that case.
23:47
Speaker 7: In some ways, it is arguably an indirect review of
23:50
Speaker 7: that case. But the Louisiana case was very, very similar
23:53
Speaker 7: to the Alabama case, so it would be a real
23:56
Speaker 7: stretch I think to say that the district is racially
23:58
Speaker 7: predominant when the state was acting because of a court order,
24:02
Speaker 7: and the factors that led to this particular district design
24:05
Speaker 7: work at least to some degree political. There's an interesting
24:08
Speaker 7: bit of dialogue between Justice Cavanon one of the advocates
24:11
Speaker 7: about how do you decide whether something is racially predominant
24:14
Speaker 7: or politically predominant? It fifty to fifty is a sixty
24:17
Speaker 7: forties and seventy thirty, and the Swister General for Louisiana saying,
24:20
Speaker 7: we think this is about seventy percent political, and that
24:23
Speaker 7: if it's in the sixty eighty percent political, ought to
24:25
Speaker 7: be seen as politically predominant or not racially predominant.
24:28
Speaker 3: I wonder how he came up with those numbers. Thanks
24:30
Speaker 3: so much, rich That's Columbia Law School professor Richard Brefault
24:35
Speaker 3: coming up next. Only works created by humans can get
24:38
Speaker 3: a copyright. I'm June Grass. When you're listening to Bloomberg, we.
24:42
Speaker 4: Are fat in five four.
24:47
Speaker 6: Now here's mister midnight jack.
24:52
Speaker 1: Down, Oh good evening night owls, and thank you for
24:57
Speaker 1: allowing me into your living rooms.
25:01
Speaker 6: You're meddling with things you don't understand well, ladies.
25:04
Speaker 1: And gentlemen, please stay tuned for a live television first
25:08
Speaker 1: as we attempt to commune with the Devil.
25:12
Speaker 3: The horror movie Late Night with the Devil is about
25:15
Speaker 3: a seventies talk show host who keeps the cameras rolling
25:19
Speaker 3: during a live demonic possession that goes horribly awry. It
25:23
Speaker 3: sounds scary, right, but what actually scared a lot of
25:28
Speaker 3: filmgoers and critics even more was the use of AI
25:32
Speaker 3: to create art in three still images used in transitions
25:36
Speaker 3: of the talk show. The social media backlash even included
25:40
Speaker 3: calls to boycott the movie. The use of AI in
25:44
Speaker 3: creative works can be a controversial and murky area, but
25:49
Speaker 3: now a federal appellate court has made one thing about
25:52
Speaker 3: artificial intelligence clear. A work completely generated by AI cannot
25:58
Speaker 3: get copyright proteid. In a landmark decision, the DC Circuit
26:03
Speaker 3: Court of Appeals found unanimously that human authorship is required
26:08
Speaker 3: to get a copyright for a work. My guest is
26:11
Speaker 3: intellectual property litigator Terrence Ross, a partner Katon Neutchen Rosenmann.
26:16
Speaker 3: So Terry tell us about the issues in this case
26:19
Speaker 3: before the DC's Circuit Court, where a computer scientist wanted
26:23
Speaker 3: a copyright for an AI generated piece of art.
26:28
Speaker 1: Now we have the first appellate court decision on whether
26:34
Speaker 1: or not artificial intelligence can create works that can be copyrighted,
26:38
Speaker 1: and this involves a computer scientist by the name of
26:41
Speaker 1: doctor Stevens. Paller, and he came up with his own
26:45
Speaker 1: generative artificial intelligence, which he has dubbed the Creativity Machine.
26:49
Speaker 1: And just so everybody understands, AI gets used in a
26:53
Speaker 1: lot of misleading contexts and commercials and advertising. Nowadays, real
26:57
Speaker 1: artificial intelligence is called generative AI because it's capable of
27:01
Speaker 1: learning and it improves itself without human interaction. And so
27:07
Speaker 1: doctor Toller came up with this creativity machine, and he
27:10
Speaker 1: asked it to paint a picture for him and rendered
27:13
Speaker 1: a lovely work, multi colored work of what appeared to
27:16
Speaker 1: me to be a garden scene. But doctor Toller gave
27:19
Speaker 1: it the name A Recent Entrance to Paradise, and he
27:22
Speaker 1: printed that off. He took it to the US Copyright
27:26
Speaker 1: Office and filed an application to register that work for
27:30
Speaker 1: copyright registration purposes, and on the form said it was
27:34
Speaker 1: created by this creativity machine. Not surprisingly, the US Copyright
27:39
Speaker 1: Office denied that application for registration and by way the
27:43
Speaker 1: historical background, this didn't come as a surprise to anybody.
27:47
Speaker 1: Way back in nineteen seventy three, the US Copyright Office,
27:51
Speaker 1: in its internal regulations announced that only humans can obtain
27:56
Speaker 1: copyright registrations. So this is a really long standing position
28:00
Speaker 1: of the Copyright Office, not something unique to this case
28:03
Speaker 1: or unique to the current trend in AI.
28:06
Speaker 3: Also not really surprising. When doctor Toller appealed the decision
28:10
Speaker 3: of the Copyright Office, he lost.
28:13
Speaker 1: The DC Circuit affirmed the District Court, which in turn
28:17
Speaker 1: had affirmed the US Copyright Office. The DC Circuit agreed
28:21
Speaker 1: with everybody else who had looked at this and said
28:23
Speaker 1: that copyright registrations can't be granted to robots. I think
28:29
Speaker 1: the consensus was the case would come out this way,
28:32
Speaker 1: and it's really driven by the factual predicate. Doctor Toller
28:37
Speaker 1: was unequivocal in telling the Copyright Office and every step
28:41
Speaker 1: on appeal that he was not the creator of this drawing,
28:47
Speaker 1: that it was the creativity machine, a generative AI, that
28:51
Speaker 1: had rendered the drawing. So there was no dispute on
28:55
Speaker 1: the facts. There was no line drawing to be done,
28:57
Speaker 1: there's no gray areas, had a nice crisp clear presentation
29:01
Speaker 1: of that central fact. Given that lack of de speed
29:04
Speaker 1: on facts, it was really then driven by the law.
29:08
Speaker 1: And the interesting thing about the DC Circuit's opinion, which
29:13
Speaker 1: differed from a Copyright Office decision in the District Court decision,
29:17
Speaker 1: is a laser like focus by the DC Circuit on
29:21
Speaker 1: the text of the Copyright Act in nineteen seventy six.
29:24
Speaker 1: And this is sort of the trend in appellate courts
29:28
Speaker 1: and the Supreme Court these days what is referred to
29:30
Speaker 1: by lawyers as textual analysis. It is no longer some
29:35
Speaker 1: right wing theory propagated by Justice Scalia. This concept of
29:40
Speaker 1: textual literalism has just seized the appellate courts. In the
29:44
Speaker 1: Supreme Court, you see both the so called liberal justice
29:47
Speaker 1: of the Supreme Court and the conservative justices on the
29:49
Speaker 1: Supreme Court agreeing that you apply this sort of textual
29:53
Speaker 1: analysis whenever there's a statute of constitution. This is a
29:56
Speaker 1: sea change from twenty years ago, and here you see
29:59
Speaker 1: it being done by the DC Circuit in connection with.
30:02
Speaker 3: This case and take us through the process. The DC
30:05
Speaker 3: Circuit Court went through.
30:07
Speaker 1: The DC Circuit marched through the Copyright Act and they said,
30:10
Speaker 1: you know, there's a distinction in the text of the
30:13
Speaker 1: Copyright Act between machines and authors, and they laid out
30:18
Speaker 1: that machines don't own property because under the Act, copyrights
30:22
Speaker 1: are property and authors get to own copyrights, but machines
30:26
Speaker 1: don't own property. Machines don't have a lifetime because copyright
30:30
Speaker 1: registrations are measured in part by the lifetime of the
30:33
Speaker 1: author plus a certain number of years. But machines don't
30:37
Speaker 1: have a lifetime. Machines have no errors. There's nobody who
30:40
Speaker 1: inherits from machine, in part because it doesn't have a death,
30:43
Speaker 1: it doesn't have a lifetime. And yet there's a provision
30:45
Speaker 1: in there that says the errors of authors obtain their rights,
30:50
Speaker 1: So how do you account for that? And then there's
30:51
Speaker 1: also provision in the text about the nationality and domicile
30:55
Speaker 1: of authors. Yet machines don't have nationality. Machines don't have
30:59
Speaker 1: don't Indeed, the court pointed out that in the text
31:03
Speaker 1: of the Copyright Act nineteen seventy six, every time a
31:06
Speaker 1: machine is referenced, it is as a tool being used
31:10
Speaker 1: by human authors. And they thought that was telling. And
31:13
Speaker 1: there's an express reference to computer programs. Computer programs don't
31:17
Speaker 1: get to register themselves. They're simply a tool used by
31:20
Speaker 1: human beings to create works. And they thought that this
31:23
Speaker 1: distinction between machines and authors in the text was determinative here.
31:28
Speaker 1: And if you follow their logic, if you agree with
31:30
Speaker 1: the logic that we followed, the text seems inescapable that
31:33
Speaker 1: an author for purposes of copyright has to be a
31:36
Speaker 1: human being.
31:37
Speaker 3: What arguments did doctor Toller make to try to get
31:40
Speaker 3: a copyright?
31:41
Speaker 1: So Teller makes a couple arguments. The only one that
31:44
Speaker 1: they gave much credence to was dictionary definition. There are
31:47
Speaker 1: dictionary definitions where you look up creator and the definition
31:52
Speaker 1: suggests it could be a machine. But as VC Circuit
31:55
Speaker 1: pointed out, we don't go to a dictionary definition unless
31:59
Speaker 1: they're ambiguity in the statue. And here they said, you know,
32:03
Speaker 1: we're doing a textual analysis. Here, we're looking strictly the text,
32:06
Speaker 1: and the text is clear as can be that there
32:09
Speaker 1: is a distinction drawn between authors who get copyrights and
32:13
Speaker 1: machines who are merely tools used by authors, and therefore
32:16
Speaker 1: we don't need to look at any dictionary definition. Now.
32:19
Speaker 1: The rest of the arguments made by Taller they described
32:22
Speaker 1: as public policy arguments. And again this is telling. They said,
32:26
Speaker 1: on all these other public policy arguments you have, you
32:29
Speaker 1: take those to the Congress. And there's a great quote
32:32
Speaker 1: in here. They say, our duty as a court is
32:36
Speaker 1: to apply the statute as written. That's a quote, apply
32:40
Speaker 1: the statute is written. I mean, this would make Justice
32:43
Speaker 1: Scalia so happy that this has become the norm.
32:47
Speaker 3: Now, so this work was created wholly by AI. What
32:52
Speaker 3: about works that are created with a mixture of human
32:57
Speaker 3: and AI input? Are they copyrightable?
33:00
Speaker 1: So this is the issue that is really getting all
33:04
Speaker 1: the discussion in the academic circles that I run in.
33:07
Speaker 1: And Taller made arguments like that which the DC Circuit
33:12
Speaker 1: again lumped into the public policy type arguments. And what
33:15
Speaker 1: they said is that we only decide cases that are
33:19
Speaker 1: presented to us. These what they described as line drawing arguments.
33:23
Speaker 1: You know, where do you draw the line between a
33:25
Speaker 1: human author and a machine author? These line drawing arguments
33:29
Speaker 1: aren't presented to us here, and so we're not going
33:32
Speaker 1: to decide those. And they recognize that there were disagreements
33:36
Speaker 1: over how much of a contribution by AI makes it
33:40
Speaker 1: a machine generated work as opposed to human generated work,
33:44
Speaker 1: and the d C Circus said that's not this case.
33:46
Speaker 1: Doctor Toller has never made that argument. He's been crystal
33:49
Speaker 1: clear that the machine, the robot, did all the drawing here,
33:53
Speaker 1: and that's all we have to decide.
33:55
Speaker 3: So I read that the Copyright Office how's allowed the
33:57
Speaker 3: registration of works made by humans who use AI?
34:04
Speaker 1: That is correct. There have been several of those because
34:06
Speaker 1: those were allowed. I'm not sure how we ever get
34:09
Speaker 1: a review in a court of law. That at some
34:12
Speaker 1: point we will have a case where the copywriter says
34:16
Speaker 1: not enough human involvement, too much machine involvement, and then
34:20
Speaker 1: that will get us a review and we might understand
34:22
Speaker 1: this better. But think about it in these terms. Humans
34:25
Speaker 1: use machines all the time to create works. As a newsperson,
34:30
Speaker 1: you're doing that with your typewriter. Authors are doing that
34:33
Speaker 1: with their typewriters, laptops. Journalists, news networks are doing it
34:37
Speaker 1: with cameras. Radio newscasters are sticking a microphone in front
34:41
Speaker 1: of the sports hero and recording his thoughts. Does that
34:44
Speaker 1: mean the humans not involved? I don't think so. Humans
34:46
Speaker 1: use machines all the time and there should be no
34:49
Speaker 1: difference with respect to using AI to help. So I
34:53
Speaker 1: think that's the answer to that question, it's simply the
34:55
Speaker 1: machine being used by human. It's not the machine getting
34:59
Speaker 1: a cop right registration.
35:01
Speaker 3: Maybe I'll have AI assistance in writing the lead into
35:04
Speaker 3: this segment.
35:05
Speaker 1: Oh god, I'm sure you could.
35:07
Speaker 3: Explain the importance of this decision. What the stakes are here?
35:11
Speaker 1: No, Jude, this is a surprisingly important issue. If you remember,
35:16
Speaker 1: almost two years ago, the Writer's Guilt of America went
35:19
Speaker 1: on strike and stopped all production of film and television shows,
35:23
Speaker 1: and one of the core issues that was presented was
35:27
Speaker 1: the use by the studios of artificial intelligence to write scripts.
35:31
Speaker 1: The writers viewed this as an existential threat to their work,
35:36
Speaker 1: that it would put writers out on the street because
35:39
Speaker 1: artificial intelligence would simply take over and do all the
35:43
Speaker 1: script writing. And that was one of the concessions that
35:46
Speaker 1: they obtained when that strike was settled. But the point
35:49
Speaker 1: here is that if artificial intelligence scripts cannot be copyrighted,
35:55
Speaker 1: then that shifts the bargaining power to the writers, because
35:59
Speaker 1: a studio spending two hundred fifty million dollars on a
36:01
Speaker 1: big hit score generate a billion dollars in revenues cannot
36:04
Speaker 1: afford to go without a copyright. And so this is
36:07
Speaker 1: actually very important. In the computer context. Artificial intelligence is
36:10
Speaker 1: being used to help coders write new applications, new software.
36:15
Speaker 1: If again, those companies, the Microsofts of the world, can't
36:18
Speaker 1: get copyrights on their new computer programs because of the
36:22
Speaker 1: use of artificial intelligence, that will limit their willingness to
36:26
Speaker 1: employ artificial intelligence in that way, and so again the
36:29
Speaker 1: computer scientists, the coders will keep their jobs. So this
36:33
Speaker 1: is really important. And the problem is people don't understand
36:36
Speaker 1: the extent of which copyright impacts the economy. It is
36:40
Speaker 1: really critical, and the founders saw it this way. The
36:43
Speaker 1: Founders viewed copyright. It's one of the most important drivers
36:47
Speaker 1: of the US economy and that came to fruition. And
36:51
Speaker 1: by stopping robots from getting copyrights, we preserve enormous amounts
36:58
Speaker 1: of creative position in the economy across multiple businesses. And
37:03
Speaker 1: that's why this decision is so important, not just in
37:06
Speaker 1: an abstract sense, but as a very real consequence for
37:10
Speaker 1: United States economy in multiple industries.
37:13
Speaker 3: That's what's defined as a high stakes case. Always a
37:16
Speaker 3: pleasure Terry, thanks so much. That's Terrence Ross of Catain
37:19
Speaker 3: Muchen Rosenman. And that's it for this edition of The
37:22
Speaker 3: Bloomberg Law Show. Remember you can always get the latest
37:25
Speaker 3: legal news on our Bloomberg Law Podcast. You can find
37:28
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37:32
Speaker 3: dot com, slash podcast slash Law, and remember to tune
37:36
Speaker 3: into The Bloomberg Law Show every weeknight at ten pm
37:39
Speaker 3: Wall Street Time. I'm June Grosso and you're listening to
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