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Music Piracy, SCOTUS Backloaded & Malibu Sand Spat · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 1: You might remember the end of the Supreme Court's term
0:12
Speaker 1: in June, when in the space of a week, the
0:15
Speaker 1: Republican super majority slashed the power of regulators, curbed the
0:20
Speaker 1: SEC's use of in house judges, tossed a six billion
0:24
Speaker 1: dollar opioid settlement, and allowed cities to evict the homeless
0:28
Speaker 1: from public encampments. And then the justices added a day
0:33
Speaker 1: to issue the blockbuster decision shielding former presidents from criminal
0:37
Speaker 1: prosecution and giving Donald Trump an electioneer boost. Increasingly we
0:43
Speaker 1: see the most controversial decisions handed down the last week
0:47
Speaker 1: of the term. Justics Elena Kagan recently told a group
0:50
Speaker 1: of judges and lawyers that it's not planned that way.
0:54
Speaker 2: You know, I read at the end of every year
0:56
Speaker 2: all these theories about how we've sort of planned it
1:00
Speaker 2: this way, and you know, what I would say are
1:04
Speaker 2: a little bit conspiracy theories and the truth of the matter, truly,
1:07
Speaker 2: you know, this is really, truly the case, is that
1:10
Speaker 2: we announce decisions when they're done.
1:13
Speaker 1: More and more, the Court's workload is bunched up toward
1:16
Speaker 1: the end of the term, and the upcoming term appears
1:19
Speaker 1: to be no exception, as the justices are off to
1:24
Speaker 1: a slow start. Joining me is Bloomberg Law Supreme Court
1:27
Speaker 1: reporter Kimberly Strowbridge Robinson who's investigated this. Kimberly start by
1:33
Speaker 1: explaining how the Supreme Court's calendar works.
1:37
Speaker 3: Yeah, so the Supreme Court has a pre long break
1:40
Speaker 3: in the middle of the summer, which I think a
1:42
Speaker 3: lot of the justices like it tends to break up
1:46
Speaker 3: the workload, at least in the past, is broken up
1:48
Speaker 3: the workload. But that means that when the Justices come
1:51
Speaker 3: back to start off their terms in October, they really
1:55
Speaker 3: have had to do some work beforehand to sort of
1:58
Speaker 3: have enough cases that have already gone through briefing and
2:01
Speaker 3: that are ready for arguments. So it really means that
2:04
Speaker 3: in January, February, March, the Justices need to be granting
2:08
Speaker 3: cases for their October, November, and December sittings. The problem
2:13
Speaker 3: with that is that's also when the Court is still
2:16
Speaker 3: hearing new cases and trying to get decisions together, so
2:20
Speaker 3: it becomes a really busy time for the justices and
2:23
Speaker 3: so they.
2:23
Speaker 1: Have argument sittings in the fall. How many cases have
2:28
Speaker 1: they lined up for that, and how does it compare
2:31
Speaker 1: with other terms.
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Speaker 3: Well, this term is starting off like many recent terms,
2:36
Speaker 3: where the justices are really getting a pretty slow start.
2:40
Speaker 3: You know, a full calendar, we think of a full
2:42
Speaker 3: argument calendar is about two cases a day, where the
2:46
Speaker 3: justices here cases, you know in the morning at ten
2:49
Speaker 3: and eleven. We haven't really seen that for a few terms,
2:51
Speaker 3: and so instead, you know, the justices are coming in
2:54
Speaker 3: under their full calendar, and that just means that they're
2:57
Speaker 3: going to have to make up those empty are human
3:00
Speaker 3: sittings in the later sittings that they have in January, February, March, April.
3:05
Speaker 3: And you know, again that's creating this backlog where right
3:09
Speaker 3: as other work is sort of ramping up, they're having
3:12
Speaker 3: to go back in and fill in for the deficits
3:15
Speaker 3: that they had in the fall.
3:17
Speaker 1: And they're hearing far fewer cases than they did years ago.
3:22
Speaker 3: Yeah, that's one thing you know, even Justice Kagan she
3:25
Speaker 3: talked about when she clerked many decades ago, the court
3:29
Speaker 3: was hearing you know, one hundred to one hundred and
3:31
Speaker 3: fifty cases. Now the justices are hearing about sixty. So
3:34
Speaker 3: it's been a really dramatic decrease and it's been a
3:37
Speaker 3: really steady one too. And I started covering the court
3:40
Speaker 3: about a dozen years ago, and the court was hearing
3:43
Speaker 3: about seventy five cases, and now it's it's closer to
3:45
Speaker 3: sixty each year, So it keeps getting smaller and smaller.
3:49
Speaker 3: Nobody really knows why. We know, the justices are aware
3:51
Speaker 3: of this, but nobody has really been able to pin
3:54
Speaker 3: down why it is that the Court's hearing so so
3:56
Speaker 3: fewer cases.
3:58
Speaker 1: And Justice Kagan said that even she doesn't understand one
4:02
Speaker 1: part of this process.
4:05
Speaker 2: One part of it is a little bit unfathomable to me,
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Speaker 2: which is, for whatever reason, we seem to get a
4:10
Speaker 2: lot of cert petitions that we take at a time
4:14
Speaker 2: of the year where arguments are scheduled in March and April,
4:19
Speaker 2: and those cases are just not realistically going to come
4:22
Speaker 2: down until the end of June. And in fact, even
4:26
Speaker 2: that is very it's a very crunched time period.
4:30
Speaker 3: Yeah, I think she was referring to the fact that,
4:33
Speaker 3: you know, for some reason, a lot of the really
4:36
Speaker 3: significant petitions seem to be coming into the court sort
4:40
Speaker 3: of in the later months of its term, right when
4:43
Speaker 3: the Court is really trying to get out all of
4:46
Speaker 3: its opinions, usually when the justices are circulating opinions on
4:49
Speaker 3: its most sort of consequential cases, and so it just
4:53
Speaker 3: really seems like all the work is sort of bunching
4:56
Speaker 3: up in the later months of the term, which you
4:58
Speaker 3: know are in the spring and early summer. And so
5:01
Speaker 3: she she didn't really have an explanation for it, but
5:04
Speaker 3: she said, you know, for whatever reason, that just seems
5:07
Speaker 3: to be the case that it makes for a really
5:09
Speaker 3: really busy march in April sitting. And then she said
5:12
Speaker 3: something that I thought was really candid was that, you know,
5:15
Speaker 3: she doesn't think that the justices can really do their
5:18
Speaker 3: best work in those months because there's so much going on.
5:21
Speaker 3: And she sort of told the story of a previous
5:24
Speaker 3: justice talking about, you know, one of his clerks coming
5:26
Speaker 3: to him and saying, I can't make sense of this case.
5:29
Speaker 3: Then he would say, well, when was it decided? Is
5:31
Speaker 3: it an April case? Than if it is, then that
5:33
Speaker 3: would explain why the case didn't really make any sense.
5:36
Speaker 3: So Jessice Kagan was talking about that seems to still
5:39
Speaker 3: be the case decades on.
5:41
Speaker 1: Is there anything in the way they're handling cases or
5:44
Speaker 1: a green cases that's changed over the years.
5:49
Speaker 3: I think one thing that you know, advocates that I
5:51
Speaker 3: talked to people who had clerked his court, people who
5:53
Speaker 3: argue with the court, if they say that it seems
5:55
Speaker 3: like the Court is taking bigger cases, meaning you know,
5:59
Speaker 3: these cases that really grapple with big social issues that
6:02
Speaker 3: are really important for the country. You know, I think
6:04
Speaker 3: a lot of times we think of the court sort
6:07
Speaker 3: of handling these run of them most cases about jurisdiction
6:10
Speaker 3: or about you know, burdens of proof, things like that.
6:12
Speaker 3: But anybody who's been paying attentions for the last few
6:15
Speaker 3: terms as the court knows that it's not really been
6:17
Speaker 3: like that. There's been one major case after another, and
6:21
Speaker 3: those cases, you know, they're hard cases. They take up
6:24
Speaker 3: a lot of the court's time. They're more likely to
6:27
Speaker 3: be divided cases, which means that there's more likely to
6:30
Speaker 3: be more opinions, more to cents, more concurrences. All that
6:34
Speaker 3: just takes a lot of time.
6:35
Speaker 1: The number of concurring opinions has really shot up in
6:39
Speaker 1: recent terms.
6:41
Speaker 3: It has, you know, I think one of the best
6:43
Speaker 3: examples of this from from last term was the Second
6:46
Speaker 3: Amendment case Brahemi, about whether or not the federal government
6:50
Speaker 3: could bar those with a domestic violence restraining order from
6:54
Speaker 3: owning guns. And there we saw not only a majority
6:58
Speaker 3: and a descent, but we saw many. I think there
7:02
Speaker 3: were five concurrences, and so, you know, in a case
7:05
Speaker 3: that was eight to one, to see seven different opinions
7:09
Speaker 3: was really striking. But I think it's something that people
7:11
Speaker 3: think is going to be happening more and more, as
7:14
Speaker 3: again we have these more consequential cases where the justices
7:17
Speaker 3: be like, you know, they really got to get it
7:18
Speaker 3: right and they got to explain their reasoning.
7:20
Speaker 1: Yeah, that seemed like they were each explaining their approach
7:25
Speaker 1: to originalism or textualism or right despite agreeing. Now, I
7:29
Speaker 1: thought this was really interesting. You spoke to someone who
7:32
Speaker 1: said that if the court returned to hearing seventy five
7:36
Speaker 1: cases or more, the justices would probably pick up the pace.
7:41
Speaker 3: Yeah. I think the thinking there is that, you know,
7:44
Speaker 3: if the court is taking you know, fewer cases, and
7:48
Speaker 3: if a larger majority of those cases are really high profile,
7:52
Speaker 3: that all that's going to suck up a lot of time.
7:54
Speaker 3: And if the court were to go back to a
7:56
Speaker 3: time where it was sort of resolving you know, circuit
7:59
Speaker 3: splits or cases where it really doesn't matter what the
8:03
Speaker 3: outcome is. It just there really needs to be some
8:05
Speaker 3: sort of rule for lawyers. But they wouldn't spend so
8:08
Speaker 3: much time on these concurring opinions, there wouldn't be so
8:10
Speaker 3: many dissenting opinions, and it wouldn't create the kind of
8:13
Speaker 3: bottlenecks that we sort of are guessing is happening at
8:16
Speaker 3: the court to kind of push everything back. You know,
8:18
Speaker 3: we really saw that this term when the justices, you know,
8:21
Speaker 3: they used to be sort of a hard deadline that
8:23
Speaker 3: they would not go into July, that that was sort
8:25
Speaker 3: of a sacred time for them to go off and
8:27
Speaker 3: take a break or to do some sort of teaching assignments.
8:31
Speaker 3: But for the second time and a few terms, they
8:33
Speaker 3: went into July. And we think it's probably because of
8:36
Speaker 3: this effect of having so few cases and such a
8:39
Speaker 3: high portion of them being really high profile.
8:42
Speaker 1: You think about the justices being off from July through October,
8:48
Speaker 1: but are they working at that time?
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Speaker 3: Yeah, especially now, you know, this is another thing that
8:53
Speaker 3: Justice Kagan spoke about, as well as Justice Kavanaugh and
8:56
Speaker 3: Justice Thomas. We're also speaking this summer, and they all
9:00
Speaker 3: said that they feel really busy, you know, and they're
9:02
Speaker 3: granting sixty or so cases, which isn't as many as before,
9:06
Speaker 3: but they feel like they're working just as hard. And
9:08
Speaker 3: that's because even in the summertime, when they typically wouldn't
9:11
Speaker 3: have a lot of work to do, they're sort of
9:13
Speaker 3: inundated with what we've come to know is the shadow
9:16
Speaker 3: dog at these emergency requests, So they're definitely not on,
9:20
Speaker 3: you know, these vacations like they used to have.
9:23
Speaker 1: Are there any big cases coming up next term?
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Speaker 3: So far, they don't think we really see the kind
9:29
Speaker 3: of high profile cases that we saw from last term,
9:32
Speaker 3: which was just blockbuster after blockbuster after blockbuster. But there
9:35
Speaker 3: are some big cases. I think the biggest one is
9:38
Speaker 3: probably the United States versus here Many, which deals with
9:41
Speaker 3: a Tennessee law that is a ban on gender affirming
9:45
Speaker 3: care for minors. That's going to be a big one
9:47
Speaker 3: and hasn't been set for argument yet. There's also another
9:49
Speaker 3: Second Amendment case that's sort of like the bump stock
9:52
Speaker 3: case from last year, this one dealing with ghost guns.
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Speaker 2: You know.
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Speaker 3: The Biden administration says that if the Justices strike down
9:59
Speaker 3: this that it could really undo federal gun regulations because
10:03
Speaker 3: people can just take these kits these ghost guns and
10:07
Speaker 3: sort of circumvent all federal laws. And then there's another,
10:11
Speaker 3: you know, important environmental case. The justices have really been
10:14
Speaker 3: sort of dismantling environmental cases under democratic presidential administration. So
10:19
Speaker 3: a few big ones, but again nothing like we saw
10:21
Speaker 3: a last term or a couple of terms ago with
10:24
Speaker 3: abortion and affirmative action. But there's still a lot of
10:27
Speaker 3: time to go.
10:27
Speaker 1: I was going to say there might be election cases too,
10:31
Speaker 1: coming up, right.
10:32
Speaker 3: I do think, you know that maybe part of the
10:35
Speaker 3: reason that the Court has gotten off to a slow
10:37
Speaker 3: start as well is that they do anticipate that there
10:40
Speaker 3: will be some emergency election cases that will be sort
10:43
Speaker 3: of making their way up to the justices that will
10:45
Speaker 3: require them to really focus on that in a short
10:48
Speaker 3: period of time. And actually we already see that happening
10:51
Speaker 3: at the course. There's a pending election case out of
10:53
Speaker 3: Arizona that justices are considering on an emergency basis. So
10:57
Speaker 3: it would be reasonable, I think, for them to think
10:59
Speaker 3: that some of those cases are going to come, but
11:01
Speaker 3: of course they don't know what those are going to
11:03
Speaker 3: look like, and.
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Speaker 1: Of course there is a long way to go. Even
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Speaker 1: before the first Monday in October thanks so much, Kimberly.
11:11
Speaker 1: That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson coming
11:16
Speaker 1: up next on the Bloomberg Law Show. Will the Supreme
11:19
Speaker 1: Court take this case? The justices are being asked to
11:22
Speaker 1: reverse a copyright loss in a one billion dollar music case.
11:27
Speaker 1: We'll tell you all about it. This is Bloomberg. In
11:31
Speaker 1: twenty nineteen, a jury awarded a group of major music
11:34
Speaker 1: labels a one billion dollar award against internet service provider
11:39
Speaker 1: Cox Communications, finding it libel for music piracy committed by
11:45
Speaker 1: its customers. The Fourth Circuit reversed part of the verdict
11:49
Speaker 1: and ordered a new trial on damages. Cox is asking
11:52
Speaker 1: the Supreme Court to reverse that ruling, saying it shouldn't
11:56
Speaker 1: be libel for infringement at all, and that the Fourth
11:59
Speaker 1: Circuit Good's opinion would force ISPs to terminate service and
12:04
Speaker 1: the Internet lifeline, where tens of thousands of homes and
12:07
Speaker 1: businesses or else face crushing liability. Joining me is an
12:12
Speaker 1: expert in internet and copyright law. Alfred Jann, a professor
12:16
Speaker 1: at Boston College Law School, tell us about that one
12:19
Speaker 1: billion dollar verdict.
12:21
Speaker 4: So, as you know, internet service providers provide internet service
12:25
Speaker 4: to people. People do whatever they want with that Internet service,
12:28
Speaker 4: and a fair number of those people do commit copyright infringement.
12:32
Speaker 4: They might download or upload music to the Internet without permission.
12:36
Speaker 4: That's the most common, but movies or books might also
12:39
Speaker 4: be the subject of that kind of behavior. In this
12:41
Speaker 4: particular case, a bunch of record companies sued Coxcommunication because
12:46
Speaker 4: it's subscribers did what I just described, and in this
12:50
Speaker 4: particular case, an automated notice service and automated notices every
12:54
Speaker 4: time they thought they detected someone committing copyright infringement. And
12:58
Speaker 4: in this particular case, the court held that Coxcommunication was
13:02
Speaker 4: responsible for their subscribers infringement, and that's a lot of infringement.
13:06
Speaker 5: The record labels or the rights holders have said that
13:10
Speaker 5: the ISPs are the only ones in the position to
13:14
Speaker 5: be able to identify and cut off the infringement.
13:19
Speaker 4: They may not be the only people who are in
13:21
Speaker 4: a position to identify infringers. After all, the fact that
13:25
Speaker 4: they were sending notices to the ISPs suggests that they
13:29
Speaker 4: were also able to notify infringers. It is true that
13:32
Speaker 4: the ISPs are in a good position to turn internet
13:37
Speaker 4: service off and thereby stop infringement. However, I think it's
13:42
Speaker 4: important to understand that there's a bit of a wrinkle
13:46
Speaker 4: here in that internet service is not used just to
13:50
Speaker 4: commit copyright infringement. There are lots of important things that
13:54
Speaker 4: people do with internet service. You participate in work calls
13:57
Speaker 4: or get assignments from your boss, access your health care,
14:01
Speaker 4: you handle your finances, and you pay your bills and investments. Right,
14:05
Speaker 4: you do all these things over the Internet. And so
14:08
Speaker 4: if the expected remedy for copyright infringement is that the
14:11
Speaker 4: service provider would turn somebody's Internet service off, the person
14:15
Speaker 4: whose Internet service is turned off will wake up in
14:18
Speaker 4: the morning and find out I can't get into my
14:20
Speaker 4: bank account, I can't pay my bills, I'm not getting
14:22
Speaker 4: communication from my employer, so on and so forth. So
14:26
Speaker 4: it's not entirely certain, and the law does not make
14:29
Speaker 4: particularly clear exactly what the extent of the Internet service
14:34
Speaker 4: provider is to prevent copyright infringement by turning somebody's Internet
14:39
Speaker 4: service off.
14:40
Speaker 1: Okay, So then what happened is Cox took it to
14:42
Speaker 1: the Fourth Circuit, and the Fourth Circuit determined that that
14:47
Speaker 1: award wasn't justified, but sent it back for a new trial.
14:51
Speaker 4: That's right now, The reason for that is that the
14:54
Speaker 4: plaintiff originally brought two different theories of liability against cos
15:00
Speaker 4: One is called vicarious liability and the others called contributory infringement.
15:05
Speaker 4: The vicarious liability theory would probably lead to broader liability,
15:10
Speaker 4: and the jury found the lower court found that Cox
15:15
Speaker 4: was liable on both theory. On appeal, the Fourth Circuit
15:20
Speaker 4: determined that the vicarious liability theory was not valid and
15:25
Speaker 4: therefore only contributory liability could pertain to Cox. And so
15:31
Speaker 4: that's why they wanted another trial on the damages because
15:34
Speaker 4: now that we don't know what theory of liability is
15:36
Speaker 4: actually supporting the damages, that needs to be straightened out.
15:40
Speaker 1: So is this the first verdict of its kind? Are
15:44
Speaker 1: the music labels going after other service providers?
15:47
Speaker 4: Music labels are definitely going after other service providers. This
15:51
Speaker 4: might be one of the first cases to get to
15:53
Speaker 4: this particular position in litigation where Cox is now appealing
15:57
Speaker 4: to the United States Supreme Court for relief from the
16:00
Speaker 4: Fourth Circuit's decision affirming liability on contributory liability grounds.
16:06
Speaker 1: What are the reasons it's giving the Supreme Court.
16:07
Speaker 4: To take the case, So technically, what Cox will say
16:12
Speaker 4: is that the Fourth Circuit's decision creates a conflict among
16:15
Speaker 4: the circuits that other circuits who have come to consider
16:19
Speaker 4: this particular question of law, although maybe not exactly precisely,
16:24
Speaker 4: have done it in a different way. So the Supreme
16:27
Speaker 4: Court needs to come in and you know, basically straighten
16:29
Speaker 4: the whole thing out right, get the courts all on
16:31
Speaker 4: the same page. Now, Behind that is a much bigger
16:35
Speaker 4: policy question, which is what I was alluding to earlier,
16:39
Speaker 4: namely that Cox thinks it's extremely important for the Supreme
16:43
Speaker 4: Court to tell the Fourth Circuit that before they can
16:47
Speaker 4: impose contributory liability against Cox, they have to show that
16:51
Speaker 4: Cox behaved unreasonably in deciding to continue selling Internet services
16:58
Speaker 4: to subscribers who commit copyright infringement.
17:01
Speaker 1: And where did Cox get that unreasonable standard?
17:05
Speaker 4: There are two Supreme Court cases that are fairly directly
17:11
Speaker 4: relevant to this dispute. In those cases, the Supreme Court
17:16
Speaker 4: said that common law principles of fault based liability should
17:22
Speaker 4: govern the development of law. All right, what does that
17:25
Speaker 4: mean in tort law? In common law of tort, right,
17:28
Speaker 4: there are two general theories of liability. Intentional tort I
17:34
Speaker 4: walked up you and punched you in the face because
17:36
Speaker 4: I don't like you, and negligence. I was careless and
17:40
Speaker 4: had unreasonable disregard for your safety. I was speeding, or
17:44
Speaker 4: maybe I didn't brush the snow off the sidewalk or
17:47
Speaker 4: something like that. In this particular case, the Fourth Circuit
17:51
Speaker 4: said that COS should be held liable as an intentional
17:57
Speaker 4: tort feezer that because they knew that their subscribers were
18:01
Speaker 4: substantially certain to commit infringement for all intents and purposes,
18:07
Speaker 4: Cox must have wanted that infringement to occur, and therefore
18:11
Speaker 4: they should be held liable. Now, in my particular view,
18:15
Speaker 4: that is not a correct understanding of intent under the
18:19
Speaker 4: law of torte. First of all, Cox does not want
18:24
Speaker 4: copyright infringement to occur. They're indifferent. They just want to
18:27
Speaker 4: sell people internet service. Second, the mere fact that they
18:31
Speaker 4: are substantially certain that some of their subscribers will infringe
18:36
Speaker 4: does not make them culpable under the law of intent. So,
18:40
Speaker 4: for example, the electric company sells electricity to people every day,
18:45
Speaker 4: and they know that some of the people who use
18:47
Speaker 4: the electricity will do bad things with it. They may
18:50
Speaker 4: shock other people. You know, some people will suffer electric shocks.
18:53
Speaker 4: People may use the electricity to commit financial crimes on
18:57
Speaker 4: the Internet. That doesn't make the electric company liable for
19:01
Speaker 4: that kind of behavior. So I think that the fourth
19:06
Speaker 4: circuits construction of liability under intent based tort law is
19:13
Speaker 4: not accurate, and I think that is effectively the basis
19:18
Speaker 4: for Cox's appeal. It may be dressed up another language,
19:21
Speaker 4: but I think at root that's the conceptual basis for it.
19:24
Speaker 4: They're saying that you've got to do more than say
19:27
Speaker 4: we know our subscribers commit copyright infringement. You have to
19:32
Speaker 4: show that our refusal to cut their service off was
19:37
Speaker 4: also unreasonable. I suspect what Cox would then contend is
19:41
Speaker 4: that it was not unreasonable for us to continue to
19:46
Speaker 4: sell internet service to these people, because the consequences would
19:50
Speaker 4: have been catastrophic to those people. They wouldn't have been
19:54
Speaker 4: able to get their healthcare or get emails from their
19:57
Speaker 4: boss or whatever. It's a little bit like how the
19:59
Speaker 4: electric come and he has to be really careful about
20:02
Speaker 4: turning off your power in the middle of winter. I mean, yeah,
20:05
Speaker 4: that's right, maybe you didn't pay your electric bill, but
20:07
Speaker 4: that doesn't mean they're justified in cutting your power off, right,
20:10
Speaker 4: away because you might freeze.
20:13
Speaker 1: That sounds very reasonable to me. I'm wondering why the
20:16
Speaker 1: Fourth Circuit didn't see it that way. I mean, the
20:19
Speaker 1: problems with cutting off people's access to the Internet.
20:25
Speaker 4: Well, mistakes do occur, and so I think there is
20:30
Speaker 4: behind this case a larger question of what the competing
20:35
Speaker 4: priorities in our society are. Right. Let's suppose that copyright
20:40
Speaker 4: infringement was the equivalent of thermonuclear warfare, and it would
20:43
Speaker 4: mean the end of the world. Well, then we would
20:45
Speaker 4: expect people like Cox to go to great lengths to
20:48
Speaker 4: prevent copyright infringement, even if it meant that some people
20:52
Speaker 4: might not be able to handle their investments or communicate
20:55
Speaker 4: with their boss. Right. On the other hand, if we
20:57
Speaker 4: think that doing your job and you know, getting your
21:00
Speaker 4: health care, and you know, attending online classes or whatever
21:04
Speaker 4: is more important than some level of copyright infringement, then
21:07
Speaker 4: maybe we feel differently. So I think that's what Cox
21:11
Speaker 4: wants to get the Supreme Court to think about. I
21:15
Speaker 4: think what the Fourth Circuit fell prey to is that
21:19
Speaker 4: it's true that Cox's selling of internet service enables some
21:25
Speaker 4: people to violate the law, and then they fell into
21:28
Speaker 4: the easy conclusion, then then well, Cox ought to do
21:32
Speaker 4: something to stop it, without asking further what would the
21:36
Speaker 4: consequences of taking the desired action be. So let me
21:40
Speaker 4: give a different example to sort of give you an
21:42
Speaker 4: idea of what I'm saying. Okay, let's suppose that you're
21:44
Speaker 4: driving a car and you're on your way to the
21:46
Speaker 4: hospital and you could speed. Right now, ordinarily we would
21:52
Speaker 4: say yacht, not speed, that's negligent, right, But let's suppose
21:56
Speaker 4: instead that you have a woman who's pregnant and in labor,
22:01
Speaker 4: or maybe someone who's bleeding to death in your car
22:04
Speaker 4: and you're driving to the hospital. Would it be reasonable
22:06
Speaker 4: to speed? Maybe it would be right. And so I
22:10
Speaker 4: think what this case is really about is making sure
22:14
Speaker 4: that courts consider the entire circumstances under which a service
22:18
Speaker 4: provider operates before concluding that the service provider has to
22:23
Speaker 4: cut off the service of infringing subscribers on pain of
22:27
Speaker 4: becoming liable for their misdeed.
22:30
Speaker 1: Do you have any inkling as to whether or not
22:33
Speaker 1: the Supreme Court will take up this case? I take
22:37
Speaker 1: it you think they should.
22:38
Speaker 4: I think they should. If I knew what the Supreme
22:41
Speaker 4: Court was going.
22:42
Speaker 1: To do, I like to ask the question anyway.
22:46
Speaker 4: I do not claim to have any crystal ball. I
22:48
Speaker 4: do think that the existing Supreme Court pressed in the
22:51
Speaker 4: area suggests that the four Circuit decision was incorrect and
22:55
Speaker 4: that there is a reason for them to step in
22:58
Speaker 4: here and correct the error. But whether they choose to
23:01
Speaker 4: do it now or wait for another case to come
23:04
Speaker 4: down the road, I mean, the justices have many reasons
23:07
Speaker 4: for choosing the cases that they do.
23:09
Speaker 6: Well.
23:09
Speaker 1: It sounds like there are some good reasons here, So
23:11
Speaker 1: we'll see what happens. Thanks so much for being on
23:14
Speaker 1: the show. That's Professor Alfred jen of Boston College Law School.
23:18
Speaker 1: Coming up next on The Bloomberg Lawn Show. Malibu, a
23:22
Speaker 1: getaway for celebrities and tech and finance billionaires where two
23:27
Speaker 1: neighbors are currently having a spat about sand. Turning now
23:32
Speaker 1: to the sandbox feud. Malibu. The twenty one mile stretch
23:36
Speaker 1: of beachfront is a getaway for celebrities, tech, and finance billionaires,
23:41
Speaker 1: with the most expensive homes ever sold in California, a
23:45
Speaker 1: state where the ultra rich often get involved in disputes.
23:49
Speaker 1: The latest Malibu fight between neighbors is about stealing sand.
23:54
Speaker 1: You heard that correctly stealing sand from the beach. Here
23:58
Speaker 1: to tell us more about it is Bloomberg Legal reporter
24:01
Speaker 1: Rachel Graff. Rachel tell us about the people who are
24:04
Speaker 1: involved in this sandbox bat So.
24:07
Speaker 7: The person who filed the suits is the son of
24:12
Speaker 7: the co founder of private equity firm KKR. His name
24:17
Speaker 7: is Jim Kolberg. He bought his beachfront home in Malibu
24:22
Speaker 7: a few years ago for just north of fourteen million dollars,
24:26
Speaker 7: and he is doing the owner of the baseball team
24:31
Speaker 7: the Milwaukee Brewers, who is named Mark at Nasio and
24:35
Speaker 7: at Nasio paid about twenty three million dollars back in
24:39
Speaker 7: two thousand and seven for one of the properties and
24:42
Speaker 7: then over six million dollars for a lot next door.
24:47
Speaker 1: And explain the sort of mystique of Malibu.
24:51
Speaker 7: So Malibu is a very wealthy neighborhood near Los Angeles.
24:56
Speaker 7: I mean, it has some of the most expensive homes
24:59
Speaker 7: in californ Ornia. It's known to be a getaway for
25:03
Speaker 7: celebrities and these very wealthy executives. So it's a very
25:10
Speaker 7: well to do area on the California coast.
25:13
Speaker 8: Well to do is almost an understatement. I mean, what
25:16
Speaker 8: Beyonce and jay Z bought a place there for one
25:19
Speaker 8: hundred and ninety million, and there may be a sale
25:21
Speaker 8: of a three hundred million dollar property there.
25:24
Speaker 1: So now tell us what this feud is all about.
25:26
Speaker 7: At Nacio got a permit to repair the private sea
25:30
Speaker 7: wall on one of his parcels of land. So Colbert
25:35
Speaker 7: is claiming that at Nacio is dredging up land on
25:40
Speaker 7: a public beach in Malibu for his own private youth,
25:44
Speaker 7: and that he's disturbing marine life in violation of certain
25:49
Speaker 7: environmental protections and also just causing nuisance to his neighbors,
25:54
Speaker 7: which include Colberg himself.
25:56
Speaker 6: Would that be against the permit or they're claiming that
25:58
Speaker 6: that's against the permit.
26:00
Speaker 7: So at Nafia was saying that he is doing everything
26:03
Speaker 7: in accordance with the permits, that his construction is in
26:08
Speaker 7: compliance with the permits. So that is what he's using
26:13
Speaker 7: as his defense, and whether that stands up in court
26:16
Speaker 7: is yet to be seen.
26:17
Speaker 1: It doesn't seem like a difficult case to figure out
26:20
Speaker 1: what happened. There are pictures of a giant excavator excavating
26:25
Speaker 1: the sand right.
26:26
Speaker 7: Yes, in the complaints there is a photo of a
26:30
Speaker 7: rather large excavator that appears to be on the beach.
26:36
Speaker 8: I mean, these are very very wealthy people. Yeah, I mean,
26:40
Speaker 8: couldn't he just get sand from someplace else? Why would
26:43
Speaker 8: he have to excavate the beach?
26:45
Speaker 7: I can't tell you that. It seems like sometimes the
26:47
Speaker 7: wealthiest people are involved in some of the silliest disputes.
26:52
Speaker 1: And speaking about silly disputes, there was one involving Bill
26:56
Speaker 1: Gross a few years ago.
26:58
Speaker 7: Yes, so just south of Malibu. Bill Gross has a
27:03
Speaker 7: property in Laguna Beach and he, according to court documents,
27:09
Speaker 7: had this statue or something to that effect in his
27:12
Speaker 7: yard that he wanted to protect. So he put netting
27:15
Speaker 7: above the fixture, and his neighbors sued, claiming that this
27:19
Speaker 7: netting blocked their view of the beach, for which I'm
27:23
Speaker 7: sure they paid a pretty penny. And so after that,
27:26
Speaker 7: Bill Gross started playing loudly outdoors the theme songs to
27:32
Speaker 7: Gilligan's Island. He claims that he just had an affinity
27:36
Speaker 7: for that theme song because in the opening shot of
27:40
Speaker 7: Gilligan's Island you can see another one of his properties,
27:43
Speaker 7: and so he just loved that theme song, and that
27:46
Speaker 7: argument did not fly. He was ordered to stop doing
27:50
Speaker 7: that and got a bit of a stop on the
27:52
Speaker 7: risk from the judge there. So yeah, another again kind
27:56
Speaker 7: of silly dispute among very wealthy business men in a
28:01
Speaker 7: rich California neighborhood.
28:03
Speaker 1: And then a fifteen year fight by venture capital billionaire
28:07
Speaker 1: vinad Coast Law over public access to the beach.
28:12
Speaker 7: Yes, so he's for fifteen years now been trying to
28:17
Speaker 7: block public access through his private property from I guess
28:22
Speaker 7: sturfers try to cut through his private property near San Francisco,
28:27
Speaker 7: and so he's trying to prevent those public people from
28:32
Speaker 7: what he says is his own private property.
28:34
Speaker 6: Is the beach in front of these homes public?
28:37
Speaker 7: The beach is public, It's broad beach.
28:40
Speaker 3: I believe the.
28:41
Speaker 7: Beach and it is a public beach, which is part
28:44
Speaker 7: of the dispute. Holberg is claiming that at Nacio is
28:49
Speaker 7: taking from this public beach for his own private youth
28:54
Speaker 7: And was.
28:54
Speaker 1: The Sandbox complaint filed with the California Coastal Commission or
28:59
Speaker 1: was it filed in court?
29:00
Speaker 7: The complaint was filed in a California state court, but
29:05
Speaker 7: prior to the filing of the complaint, Kolberg says that
29:09
Speaker 7: he launched his own complaints with the California Coastal Commission,
29:14
Speaker 7: which he says has launched an investigation, but they have
29:17
Speaker 7: yet to do anything to actually stop at Nacio from
29:20
Speaker 7: taking this sand. So he did go to the California
29:23
Speaker 7: Coastal Commission to try to get them to stop this behavior,
29:27
Speaker 7: and when they did not do so, he filed a
29:30
Speaker 7: complaint in the state court system.
29:33
Speaker 6: Is it alleged that this is still going on? Is
29:36
Speaker 6: dredging of the sand?
29:38
Speaker 7: It is, yes, and so the complaint is asking for
29:43
Speaker 7: a court order blocking at Nacio from taking any more
29:47
Speaker 7: sand and also requiring him to replace the sand that
29:51
Speaker 7: he's already taken.
29:53
Speaker 1: I'm actually interested to see what happens here. Let us know, Rachel.
29:57
Speaker 1: That's Bloomberg Legal reporter Rachel and that's it for this
30:01
Speaker 1: edition of the Bloomberg Law Podcast. Remember you can always
30:04
Speaker 1: get the latest legal news by subscribing and listening to
30:07
Speaker 1: the show on Apple Podcasts, Spotify, and at Bloomberg dot Com,
30:11
Speaker 1: Slash podcast, Slash Law. I'm June Grosso and this is
30:15
Speaker 1: Bloomberg