Latest / Bloomberg Law / Syed Conviction Reinstated, Yelp Antitrust & Trump Music Ban

Transcript

Syed Conviction Reinstated, Yelp Antitrust & Trump Music Ban · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:13
Speaker 2: This is Prepaid came firm a non say it.
0:17
Speaker 3: His case captured the attention of millions on the hit
0:21
Speaker 3: podcast Serial, which raised doubts about his conviction for the
0:25
Speaker 3: murder of his former high school girlfriend. There have been
0:28
Speaker 3: so many extraordinary twists and turns in Adnan Sayed's twenty
0:34
Speaker 3: four year legal saga. It seemed like the case was
0:37
Speaker 3: over in twenty twenty two when a judge vacated Sayed's
0:41
Speaker 3: murder conviction after Baltimore's State Attorney, Marilyn Moseby, found errors
0:46
Speaker 3: in the prosecution of the case against him in two thousand.
0:50
Speaker 4: The Attorney General's office failing to disclose relevant information on
0:53
Speaker 4: the alternative suspects, one of whom threatened to kill and
0:57
Speaker 4: had motive to kill this victim. Both had a pattern
1:00
Speaker 4: of violence against women and sexual assault. The improper clearance
1:04
Speaker 4: of the suspects by investigators based on multi polygraph tests,
1:08
Speaker 4: the faulty cell site information that is used today that
1:12
Speaker 4: was used then that wouldn't be used today.
1:14
Speaker 3: Sayed was released after serving twenty three years in prison,
1:18
Speaker 3: but now the forty two year old is facing prison
1:21
Speaker 3: once again. The Maryland Supreme Court has ordered a redo
1:25
Speaker 3: of the hearing that freed him two years ago, ruling
1:29
Speaker 3: that the rights of the victim's family were violated because
1:33
Speaker 3: they weren't given enough notice of the time of that hearing.
1:36
Speaker 3: Syed has maintained his innocence throughout.
1:40
Speaker 4: We definitely understand that Hayes' family has suffered so much
1:44
Speaker 4: and they continue to suffer, and I just it's just
1:47
Speaker 4: that we suffer too.
1:49
Speaker 3: The closely divided ruling means that Syed's murder conviction is
1:53
Speaker 3: reinstated for the foreseeable future, although he remains free pending
1:58
Speaker 3: a new hearing. Joining me is trial attorney David Ring
2:01
Speaker 3: of Taylor and Ring David. The former Baltimore State's Attorney,
2:06
Speaker 3: Marilyn Moseby, has said that this decision sets a dangerous
2:10
Speaker 3: precedent over a prosecutor's ability to reverse an injustice. If
2:16
Speaker 3: prosecutors decide they've wrongly convicted someone, shouldn't it be their
2:20
Speaker 3: decision to drop the charges with a rubber stamp by
2:24
Speaker 3: a court. Why should the Supreme Court here interfere?
2:28
Speaker 1: The court has a say in that because the court's
2:31
Speaker 1: the ultimate gatekeeper. You know, we have to have checks
2:34
Speaker 1: and balances. Look, most of the time, if the prosecution
2:37
Speaker 1: comes in and says, hey, you know, this guy's wrongfully convicted,
2:41
Speaker 1: the fast majority of the time, the court's going to
2:43
Speaker 1: agree with them and drop the charges. But this court
2:47
Speaker 1: still has to sign off on it. There still has
2:49
Speaker 1: to be some sort of hearing, and it's just a
2:51
Speaker 1: way to have checks and balances to make sure that
2:54
Speaker 1: everyone's playing fairly in the system.
2:56
Speaker 3: The only issue is that the victim's brother, who spoke
3:00
Speaker 3: at the hearing by Zoom, argues that he didn't get
3:04
Speaker 3: enough notice of the proceeding. He was told on Friday
3:08
Speaker 3: about the hearing that would take place on Monday. That's
3:11
Speaker 3: the only issue.
3:12
Speaker 1: Here, right, that was the issue. But here's the bigger
3:15
Speaker 1: picture on that issue, because the way it's kind of
3:18
Speaker 1: framed sometimes in the media, it's like, well, what's the
3:20
Speaker 1: big deal he beared by Zoom, But that hearing was
3:23
Speaker 1: a monumental hearing. That was a hearing where the prosecution
3:27
Speaker 1: basically came into court and said, hey, Court, we want
3:31
Speaker 1: to drop these charges. We want to have this conviction overturned.
3:34
Speaker 1: And what Mariland's highest court has said in respond to
3:38
Speaker 1: that was if you're going to have a hearing like that,
3:41
Speaker 1: the victim or the victim's representative absolutely has a right
3:45
Speaker 1: not only to be there in person, but to be heard.
3:49
Speaker 1: And that's a big part of this ruling is that
3:52
Speaker 1: you know the victim's brother, mister Lee, he was in California.
3:56
Speaker 1: He was given notice on a Friday to be there Monday.
3:59
Speaker 1: He had a turn who was representing him. They said, hey,
4:01
Speaker 1: give us another week. We want to be there in
4:03
Speaker 1: person and we want to be hurt. And they weren't
4:05
Speaker 1: given that opportunity. And the key to this decision is
4:08
Speaker 1: if he had been given time to come to Baltimore
4:12
Speaker 1: to appear in court with his lawyer, the lawyer has
4:15
Speaker 1: a right to argue, basically in the shoes of the
4:18
Speaker 1: victim and say, why is this conviction being dropped. There's
4:22
Speaker 1: plenty of evidence here this guy did it. There's no
4:24
Speaker 1: new evidence to drop it, and they basically have a
4:27
Speaker 1: right to challenge the prosecution's decision to drop the case.
4:31
Speaker 1: That's where this decision is so important.
4:34
Speaker 3: In Marilyn law, there's no set time for notice to
4:38
Speaker 3: be given to the victim. So how did the court
4:42
Speaker 3: here decide that the victim's brother wasn't given enough notice.
4:46
Speaker 1: It's a reasonableness standard, and so basically, in a very
4:49
Speaker 1: close decision four to three, the Supreme Court said it's
4:53
Speaker 1: not reasonable to tell the victims representative on a Friday
4:58
Speaker 1: that you're having a hearing on a Monday and say,
5:01
Speaker 1: oh to you, but you can appear by zoom. That's
5:03
Speaker 1: not reasonable. They have a right to be there in person.
5:06
Speaker 1: So what's reasonable? Okay, set it a week out, two
5:09
Speaker 1: weeks out, but setting it on the next business day unreasonable.
5:13
Speaker 1: It denied the victim's representative of his right to be
5:17
Speaker 1: in court and to be heard.
5:19
Speaker 3: That's the key in the dissenting opinion, and as you noted,
5:23
Speaker 3: it was five to four, so closely divided. Justice Michelle
5:27
Speaker 3: Hotton argued the issue was moot because the underlying charges
5:31
Speaker 3: no longer exist. Quote. This case exists as a procedural zombie.
5:37
Speaker 3: It has been re animated despite its expiration. The doctrine
5:41
Speaker 3: of mootoness was designed to prevent such judicial necromancy. What
5:45
Speaker 3: evocative language there.
5:47
Speaker 1: I totally disagree with her. I think in this day
5:50
Speaker 1: and age, victims' rights are incredibly important, and too many
5:54
Speaker 1: times the victim or their family the right to get
5:56
Speaker 1: trampled in the criminal process. And the prosecutor. Remember, the
6:00
Speaker 1: prosecutor represents the people, they don't necessarily represent the victim's
6:04
Speaker 1: family or the victim. And so I think what Maryland
6:07
Speaker 1: Supreme Court has said here is, hey, you know what,
6:10
Speaker 1: we're going to respect the victim's rights here. And this
6:13
Speaker 1: victim had his rights trampled upon by this prosecutor who
6:17
Speaker 1: quickly went into court, had completely reversed course on how
6:20
Speaker 1: they felt about Thaii's the conviction, and suddenly was willing
6:24
Speaker 1: to let this guy go free. And basically the Supreme
6:27
Speaker 1: Court of Maryland said, hey, that's not fair. This victim,
6:31
Speaker 1: her representative has an absolute right to be there and
6:34
Speaker 1: to challenge that decision by the prosecutor. Look, I think
6:38
Speaker 1: if you want to kind of read between the lines here,
6:40
Speaker 1: you know, sometimes we have to read between the lines
6:43
Speaker 1: of how these decisions get played out in the highest court.
6:47
Speaker 1: I think that the Supreme Court is basically saying, we
6:51
Speaker 1: don't think Saia should be free. We think there should
6:53
Speaker 1: be a new trial.
6:54
Speaker 3: The rights of the victim are one thing, but you
6:56
Speaker 3: know that our justice system is far from perfect, and
7:00
Speaker 3: there are a lot of wrongful convictions. So how do
7:03
Speaker 3: you weigh, you know, the rights of the victim versus
7:06
Speaker 3: the rights of a defendant that the prosecution says now
7:11
Speaker 3: was wrongfully convicted.
7:14
Speaker 1: Well, here's where this dynamic kicks in again. It's all
7:17
Speaker 1: about the opportunity to be heard and to have a
7:20
Speaker 1: fair playing field. And so when the prosecution came in
7:24
Speaker 1: in twenty twenty two and said, oh, we have new
7:26
Speaker 1: evidence which we think exonerates said, well, they did that
7:30
Speaker 1: behind closed doors. They didn't do that in open court.
7:34
Speaker 1: You know it's come out what the evidence was. But
7:37
Speaker 1: I'll tell you, if you'd have fresh eyes on that
7:39
Speaker 1: so called new evidence, I'm not sure how new or
7:42
Speaker 1: exculpatory it really is. I mean, there's no DNA in
7:45
Speaker 1: her shoes. To me, that's like a so what you know,
7:48
Speaker 1: she was strangled to death, why would there be his
7:51
Speaker 1: DNA on her shoes. I get it. There's two sides
7:53
Speaker 1: to this case. There are people who absolutely believe he
7:57
Speaker 1: got railroaded and didn't do it, and there's people who
7:59
Speaker 1: believe that he absolutely did it. And so the Supreme
8:03
Speaker 1: Court is saying, you know what, not so fast here,
8:05
Speaker 1: not so fast prosecution. There's got to be a hearing
8:08
Speaker 1: on this. We want to shine a spotlight on what
8:11
Speaker 1: your new evidence is and what your reasons are for
8:14
Speaker 1: suddenly reversing a conviction and letting a guy go free,
8:17
Speaker 1: and we're not going to let you do it behind
8:18
Speaker 1: closed doors.
8:20
Speaker 3: Now there's another twist in the case because the Baltimore
8:25
Speaker 3: State's Attorney, Marilyn Moseby, who had moved to throw out
8:28
Speaker 3: the conviction, she's no longer the Baltimore State attorney. And
8:33
Speaker 3: now there's a new Baltimore State Attorney and his office
8:36
Speaker 3: said it needed time to review the Supreme Courts lent
8:39
Speaker 3: the opinion and to determine whether his office has a
8:43
Speaker 3: conflict of interest in the case. What kind of conflict
8:46
Speaker 3: of interest are they referring to.
8:48
Speaker 1: So you have a new prosecutor, Ivan Bates, And in
8:52
Speaker 1: his campaign to become the prosecutor, he seemed to be
8:55
Speaker 1: a proponent that the conviction should be dropped. So, look,
8:58
Speaker 1: he's in a political pickle right now, because it's a
9:01
Speaker 1: tough decision. Do you drop this conviction for murder or
9:04
Speaker 1: do you go ahead and reverse course yet again and
9:08
Speaker 1: have a new trial. So he might take the easy
9:11
Speaker 1: way out. He might punt it to another independent agency
9:14
Speaker 1: and let them make the decision. You know, he may
9:16
Speaker 1: look back at it and say, hey, this is too
9:18
Speaker 1: much water under the bridge here for this Baltimore prosecution office,
9:22
Speaker 1: and we've lost credibility on this case. Let's let another
9:25
Speaker 1: state agency come in and make that decision for us.
9:29
Speaker 3: This decision was a close one. Saya has been out
9:32
Speaker 3: of prison for two years. The former state's attorney is
9:36
Speaker 3: on record talking about the many problems with the original prosecution,
9:41
Speaker 3: and it's been nearly a quarter century since the murder.
9:45
Speaker 3: Do you think any prosecutor, any state agency would say,
9:49
Speaker 3: we're going to refile the charges and have a new trial.
9:53
Speaker 1: I don't think anyone's expecting that decision to be made,
9:56
Speaker 1: because that's a tough decision to say, you know what,
9:59
Speaker 1: we're going to another trial. We're going to go through
10:01
Speaker 1: this all over again, and that's going to be more
10:04
Speaker 1: years and more appeals and all that, and you know,
10:07
Speaker 1: we're going to take this guy who's now out there
10:08
Speaker 1: and free and we're going to put him back in prison.
10:10
Speaker 1: That's the toughest decision to make. And you're right, the
10:13
Speaker 1: easy decision is we're just going to let things stand
10:15
Speaker 1: where they are. We're not going to pursue this any further.
10:18
Speaker 1: It's been going on too long already. He was convicted
10:20
Speaker 1: in the year two thousand. This case has been going
10:23
Speaker 1: on for a long time. But it's not over yet
10:26
Speaker 1: because we still have to have this new hearing. The
10:28
Speaker 1: Supreme Court said there's going to be another hearing on
10:31
Speaker 1: whether this conviction is going to be dropped. The victim's
10:34
Speaker 1: brother has a right to be heard at that hearing,
10:37
Speaker 1: and then there could be appeals that flow from that.
10:40
Speaker 3: Although if the victim's family gets its chance to appear
10:44
Speaker 3: and the charges are dropped again, that should and the
10:48
Speaker 3: appeals also. We haven't talked about the obstacles to trying
10:53
Speaker 3: a murder case twenty five years.
10:55
Speaker 1: Later, very very difficult, especially given this incredibly high profile
11:00
Speaker 1: nature of this case and all the interviews and the
11:04
Speaker 1: podcasts and all of the statements made by some of
11:07
Speaker 1: the key witnesses over the years and wildly inconsistent statements,
11:12
Speaker 1: and let's face it, the forensic evidence twenty five years
11:15
Speaker 1: ago is far different than what it is today. DNA
11:19
Speaker 1: and cell phone towers and all that. It would make
11:21
Speaker 1: it really really tough to retry this case. Twenty five
11:25
Speaker 1: years later, it.
11:27
Speaker 3: Does seem unlikely. Thanks so much, David. That's David Ring
11:31
Speaker 3: of Tailor and Ring. Coming up next on the Bloomberg
11:33
Speaker 3: Law Show. NFL Sunday Ticket subscribers are appealing the tossing
11:38
Speaker 3: of their multi billion dollar verdict against the NFL, and
11:43
Speaker 3: Yelp is the first rival to sue Google. I'm June
11:46
Speaker 3: Grosso and you're listening to Bloomberg.
11:50
Speaker 5: With NFL Sunday Ticket on YouTube, you can watch your
11:52
Speaker 5: favorite teams out of market Sunday games, So.
11:55
Speaker 1: No matter where you live, it'll feel a little more
11:58
Speaker 1: like on Sundays.
12:01
Speaker 3: NFL Sunday Ticket only on YouTube and YouTube TV. The
12:04
Speaker 3: legal battle over the pricing of the NFL Sunday Ticket
12:08
Speaker 3: broadcast package has been going on for ten years, and
12:12
Speaker 3: it's not game over yet. The NFL lost at trial
12:16
Speaker 3: in June, when a jury awarded the Sunday Ticket subscribers
12:21
Speaker 3: four point seven billion dollars after finding the NFL violated
12:25
Speaker 3: antitrust laws in distributing out of market Sunday afternoon games
12:30
Speaker 3: on a premium subscription service. But then in August, the
12:34
Speaker 3: trial judge tossed out that verdict, concluding the jury calculated
12:39
Speaker 3: the damages improperly. So it comes as no surprise in
12:43
Speaker 3: this long running legal game that the subscribers are appealing
12:48
Speaker 3: the judge's decision. In fact, the case was dismissed once
12:52
Speaker 3: before in twenty seventeen, and then reinstated two years later
12:56
Speaker 3: by the Ninth Circuit Court of Appeals, the same court
13:00
Speaker 3: where this appeal will be heard. Joining me is anti
13:03
Speaker 3: trust expert Harry First, a professor at NYU Law School. So, Harry,
13:09
Speaker 3: the judge said that there was liability, but the jury
13:11
Speaker 3: miscalculated the damages, so he threw out the jury award.
13:15
Speaker 3: But then he didn't order a new trial, right that
13:18
Speaker 3: seems odd to me?
13:19
Speaker 2: Well, yes, that's presumably going to be one of the
13:23
Speaker 2: arguments on appeal as to whether it should have been
13:27
Speaker 2: returned for a new trial on damages. Now, as I
13:31
Speaker 2: read the judge's opinion, the judge said, well, it looks
13:34
Speaker 2: from the number that the jury came up with it
13:36
Speaker 2: they didn't really rely on the expert's evidence and clear
13:42
Speaker 2: how they got to these numbers. I'm not quite sure
13:44
Speaker 2: why the plaintiffs should not be allowed to, you know,
13:49
Speaker 2: to come forward with evidence on damages that are not
13:54
Speaker 2: from these flawed Well, what judge found was flawed damage's estimates,
13:58
Speaker 2: So I'm not quite sure whether that's going to be
14:02
Speaker 2: supportable on appeal. The judge did say, you're right that
14:06
Speaker 2: there was sufficient evidence from which the jury could infer
14:09
Speaker 2: a violation of Section one of the Sherman Act. Well,
14:12
Speaker 2: that's you know, that's a pretty important finding. So I think,
14:16
Speaker 2: you know, this argument is yet to be fought out
14:19
Speaker 2: in the Court of Appeals as to whether that's supportable,
14:24
Speaker 2: And it sort of raises a good question about how
14:27
Speaker 2: we feel about these juries in these complex cases. And
14:32
Speaker 2: it seems to me that the desire of plaintiffness includes
14:35
Speaker 2: the federal government to bring their cases before juries is
14:39
Speaker 2: increasing precisely because jurors do have a sense of they
14:45
Speaker 2: are consumers and they have a sense of when things
14:48
Speaker 2: have gone wrong in the marketplace. So I think this
14:51
Speaker 2: will be an interesting one to follow through on appeal
14:55
Speaker 2: and see whether that is supportable and whether plaintiff should
14:59
Speaker 2: have gotten a new tru Do.
15:00
Speaker 3: Plaintiff's lawyers and the government want juries because they might
15:05
Speaker 3: give awards that are larger or perhaps based on an
15:09
Speaker 3: emotional response to the evidence, unlike an awarded judge might give.
15:14
Speaker 2: Well, I can't psychoanalyze plaintiff's lawyers. I think they assume
15:18
Speaker 2: that jurors might be more open to large damages awards
15:24
Speaker 2: than judges, who you know, judges can be pretty skeptical,
15:29
Speaker 2: and judges are often conservative, you know, that's how they
15:32
Speaker 2: got there. And I don't mean conservative in a Republican
15:35
Speaker 2: point of view, I mean just generally, you know, they're conservative.
15:38
Speaker 2: They're not lay people. So yes, maybe plaintiffs think that
15:42
Speaker 2: jurors are a more hospitable forum, but I think it
15:46
Speaker 2: goes beyond that. I think it goes to the question
15:50
Speaker 2: of jurors being not as attached to technical evidence as
15:56
Speaker 2: to you know, sort of a broader understanding of how
16:00
Speaker 2: the business operating, what the defendants have done, and they
16:04
Speaker 2: haven't seen it all before. Judges may have seen a
16:07
Speaker 2: lot of this before, so they may come with a
16:10
Speaker 2: more open mind. You know, that may be better and
16:13
Speaker 2: in some sense more democratic.
16:16
Speaker 3: This is the tenth year of this lawsuit. I mean
16:19
Speaker 3: they could win the appeal, then there could be another trial,
16:23
Speaker 3: then more appeals, more appeals. Is this something that could
16:27
Speaker 3: be settled or after ten years are they dug in?
16:31
Speaker 2: I hadn't really thought about that since they hadn't settled before.
16:35
Speaker 2: I think, you know, lawyers assess risk, and the NFL
16:39
Speaker 2: assesses risk, and the owner's assess risk. So is it
16:43
Speaker 2: possible to settle this? Well, you know, there's a liability finding,
16:47
Speaker 2: so maybe maybe that will be possible. But on the
16:51
Speaker 2: other hand, at this point, the worst that can happen
16:55
Speaker 2: for the defendants, I guess is a new trial now
16:58
Speaker 2: that might just make the cost of settlement more expensive,
17:01
Speaker 2: I guess, or maybe the plaintiffs then would be more
17:04
Speaker 2: willing to settle. So it's a delicate issue. Settlements possible
17:08
Speaker 2: at any time, even while the jury's out, and you know,
17:12
Speaker 2: there's more that we'll go into it, including the defendant's
17:15
Speaker 2: reputation for whether they'll settle or sue.
17:18
Speaker 3: Let's turn to another antitrust case, and they just keep
17:21
Speaker 3: coming and coming from the government and from private plaintiffs.
17:25
Speaker 3: Yelp is the first tech rival of Googles to sue
17:29
Speaker 3: the search giant to try to capitalize on last month's
17:33
Speaker 3: landmark decision finding that Google is a monopolist. Yelp didn't
17:38
Speaker 3: even wait for the Google case to be finished. Judge
17:42
Speaker 3: Ahmet met Us still has to decide on the remedy.
17:45
Speaker 3: Can you tell us a little bit about Yelp's complaint.
17:49
Speaker 2: Well, I think generally, I mean, yelp has felt that
17:52
Speaker 2: Google has has stolen their lunch the right phrase, you.
17:58
Speaker 3: Know phrase, I don't know if it's the right phrase.
18:00
Speaker 2: Well, the local reviews. You know, Google has incorporated into
18:05
Speaker 2: its own system and then gotten advertising off of it,
18:10
Speaker 2: including reviews. So you know, to the extent that yelp
18:15
Speaker 2: has to buy advertising, you know, under Google to get
18:19
Speaker 2: viewers to then click onto Yelp is one problems, and
18:24
Speaker 2: another problem may be the way reviews are done and
18:27
Speaker 2: whether Google's self preferenced its own search results over yelps.
18:34
Speaker 2: I mean, basically, I think they're complaining that Google runs
18:38
Speaker 2: its business in a way that makes it very hard
18:40
Speaker 2: for yelp to compete, because you know, they control the
18:44
Speaker 2: search engine results page and in the end degrade searches
18:49
Speaker 2: by favoring their own results, or at least that may
18:52
Speaker 2: be what they're claiming.
18:54
Speaker 3: JUDGEMENTA found that Google had a monopoly in general search
18:58
Speaker 3: yelp is talking about now the local search advertising market.
19:03
Speaker 3: So how relevant are Meta's findings to Yelp's case, Well.
19:08
Speaker 2: He looked at really a different market. First of all,
19:11
Speaker 2: rejected the idea brought by the States that there was
19:15
Speaker 2: some problem with vertical search engines, which Yelp is. So
19:20
Speaker 2: the advertising market that Yelp is alleging is different than
19:24
Speaker 2: the search advertising market that Judge Meta focused on. So
19:29
Speaker 2: they'll have to slog through that. The idea that there
19:33
Speaker 2: is some degree of degrading of search results, which is
19:38
Speaker 2: shown by preferencing Google search results over others, that may help.
19:44
Speaker 2: But again I think this is all going to have
19:46
Speaker 2: to be sort of fought out anew by Yelp at
19:50
Speaker 2: this point in litigation because they don't get any technical
19:53
Speaker 2: benefit from whatever findings judgemental made and Judge Metal decided
19:59
Speaker 2: on a somewhat different market than I think Yelp is
20:02
Speaker 2: a legend.
20:03
Speaker 3: The Yelp complaint was filed in the Northern District of California.
20:08
Speaker 3: Judge Meta is in the DC circuit. His ruling doesn't
20:11
Speaker 3: even have any presidential power in another.
20:14
Speaker 2: Circuit, Well, it doesn't have any presidential value now in
20:17
Speaker 2: a technical sense at all, because it's not final and
20:21
Speaker 2: it hasn't been appealed. So what Judge Meta's opinion has
20:25
Speaker 2: is sort of legal momentum, so similar issues have been
20:29
Speaker 2: presented in different courts, and judges will look to see
20:33
Speaker 2: they're not necessarily bound. Well, they're not bound, but they
20:37
Speaker 2: look to see, you know, what other judges have done.
20:39
Speaker 2: There aren't that many cases like this, so on product
20:43
Speaker 2: market definition, Judge Meta looked at a case that involved
20:47
Speaker 2: digital advertising in a completely different setting with different parties,
20:51
Speaker 2: and it was a merger case. So I would expect,
20:54
Speaker 2: you know, a judge in the Northern District of California
20:57
Speaker 2: to consider carefully what Meta is very thoughtful, very thorough opinion,
21:03
Speaker 2: and you know it may be persuasive, but I assume
21:06
Speaker 2: you help file there for other reasons, like thinking they'll
21:10
Speaker 2: have a better shot on damages and maybe a better
21:13
Speaker 2: shot on appeal. So you know, there are all sorts
21:16
Speaker 2: of complicated reasons for choice of court. But in any event,
21:21
Speaker 2: even filing in DC, other judge doesn't have to follow
21:25
Speaker 2: what Meta has decided because it's still not final.
21:28
Speaker 3: Do you think that now all Google's rivals are going
21:31
Speaker 3: to start filing private antitrust suits against Google bouncing off
21:37
Speaker 3: that decision?
21:38
Speaker 2: Yeah, I think that's as they say, TBD a more
21:41
Speaker 2: conservative response is to wait until the decision is finalized
21:48
Speaker 2: for a number of reasons. There are legal benefits to
21:51
Speaker 2: a final judgment that may be far off given that
21:54
Speaker 2: this will have to go through appeals, so it's not
21:57
Speaker 2: clear how much they'll want to wait. It's also not clear,
22:01
Speaker 2: you know, what sort of private negotiations might occur, not
22:04
Speaker 2: clear what sort of remedy the government might seek and
22:08
Speaker 2: whether that might help any of these competitors. Any trust
22:12
Speaker 2: litigation is expensive and private litigation. Although there can be
22:17
Speaker 2: a pot of gold at the end because litigants can
22:21
Speaker 2: get treble their damages plus attorneys fees, the end can
22:24
Speaker 2: be you know, I guess the end of the rainbow
22:28
Speaker 2: is far off. So it requires a good claim and
22:32
Speaker 2: private counsel who are willing to wait or somehow finance
22:37
Speaker 2: this litigation. So I don't know. We do see this
22:40
Speaker 2: one case, YELP has been a complainant both in the
22:44
Speaker 2: US and in Europe by a complainant to the government,
22:48
Speaker 2: so it struck me as a little early maybe, but
22:52
Speaker 2: there are always the possibilities of settlement between these parties.
22:55
Speaker 2: So if we go back to the Microsoft litigation itself,
22:58
Speaker 2: a lot of private parties sued including potential competitors and
23:03
Speaker 2: licensees of Windows, and some of them got quite substantial,
23:09
Speaker 2: you know settlement from Microsoft. But of course Microsoft you know,
23:13
Speaker 2: eventually did lose on appeal, so that helped a lot.
23:16
Speaker 2: So yes, I would expect more, not just yelp. But
23:20
Speaker 2: I'm looking to see whether Microsoft will sue, which I
23:24
Speaker 2: think would be just quite amusing from any tress point
23:28
Speaker 2: of view, because you know, they testified that BING just
23:33
Speaker 2: could never get any traction because of Google's practices. They
23:37
Speaker 2: couldn't get the scale they needed. So in some ways
23:40
Speaker 2: BING should have a good suit. The question, you know
23:44
Speaker 2: would be what's their damages and what sort of relief
23:47
Speaker 2: do they want? So yes, maybe being maybe duck duck go,
23:51
Speaker 2: and we can you know, start listing them. People are
23:54
Speaker 2: suggesting maybe some you know advertisers who complained that price
23:59
Speaker 2: of advertizing was raised because they monopolized this general search
24:03
Speaker 2: text advertising market. You know, all of these cases present
24:07
Speaker 2: difficulties even with the win that the government just had
24:12
Speaker 2: on liability, so no laydowns here. But on the other hand,
24:17
Speaker 2: Google does face the possibility of these sorts of lawsuits.
24:21
Speaker 3: Thanks Harry, It's always wonderful to have your insights that's
24:24
Speaker 3: Professor Harry First of NYU Law School coming up next.
24:28
Speaker 3: A judge order is Donald Trump to stop playing the
24:31
Speaker 3: song hold On I'm Coming at his rallies. I'm June
24:35
Speaker 3: Grosso and you're listening to Bloomberg Salm and Dave's nineteen
24:54
Speaker 3: sixty sole classic hold On I'm Coming is instantly recognizable
25:00
Speaker 3: from the instrumental introduction to the well known chorus. Perhaps
25:13
Speaker 3: that's why Donald Trump has been playing the song as
25:17
Speaker 3: his exit music at rallies since twenty twenty, playing it unlawfully,
25:22
Speaker 3: according to a copyright lawsuit by the estate of Isaac Hayes,
25:26
Speaker 3: who co wrote the song with Dave Porter. The lawsuit
25:30
Speaker 3: says that Trump and his campaign never sought permission or
25:34
Speaker 3: consent from Hayes's estate to play the song, and havn't
25:38
Speaker 3: gotten a valid public performance license, even though the estate
25:42
Speaker 3: sent Trump a cease and desist letter in twenty twenty.
25:45
Speaker 3: Of course, many artists have objected to Trump's campaign using
25:49
Speaker 3: their songs. In fact, the abcs of artists from Abba
25:53
Speaker 3: and Beyonce to Jack White and Neil Young and don't
25:57
Speaker 3: forget Celine Dion, Bruce spring Stein, Rihanna, rim Guns n' roses,
26:03
Speaker 3: food fighters, and on and on. But for the first
26:06
Speaker 3: time there's an actual legal judgment and Atlanta judge has
26:11
Speaker 3: ordered Trump to stop playing hold On On Coming at
26:15
Speaker 3: his rallies while the Hayes lawsuit plays out in court.
26:19
Speaker 3: Joining me is Heidi Vakarano, a partner at Fox Rothschild.
26:23
Speaker 3: Let's say a politician wants to play the song of
26:26
Speaker 3: an artist at campaign rallies. What do they have to
26:30
Speaker 3: do legally?
26:31
Speaker 5: So it is a little bit complicated because of the
26:35
Speaker 5: nature of how the licensing system is in the United States.
26:38
Speaker 5: So if they're just going to play it at a
26:40
Speaker 5: campaign at a public location like a convention center or rally,
26:43
Speaker 5: then they need to obtain a public performance license from
26:48
Speaker 5: the public performance organizations, which include ASCAT, BMI, FEBACK, or GMR.
26:54
Speaker 5: And you need to obtain a license from each one
26:57
Speaker 5: of them because a song could have various writers that
26:59
Speaker 5: are registered to either one of the pros. So it's
27:03
Speaker 5: not just that you would go to ASKCAF and think
27:05
Speaker 5: that you have an entire license for a song, because
27:08
Speaker 5: there may be four songwriters and two are registered with ASKAF,
27:11
Speaker 5: one is registered with BMI, and one is registered with fsacks,
27:14
Speaker 5: so they would need to obtain a license from each
27:16
Speaker 5: of these pros.
27:17
Speaker 3: Does an artist have the right to say I don't
27:20
Speaker 3: want Trump to be playing my songs at his rallies
27:24
Speaker 3: because there's an implication that I'm endorsing him.
27:28
Speaker 5: Yes, they do. It's part of the rights under the
27:31
Speaker 5: copyright law in the US, and it's also considered false endorsement.
27:36
Speaker 5: So they do have the right to deny a youth,
27:39
Speaker 5: either through their publishing administrator or their record label.
27:43
Speaker 3: Is it unusual that a case like this actually gets
27:47
Speaker 3: to a trial judge?
27:50
Speaker 5: I would say so yes. Normally, a license like this
27:53
Speaker 5: would be a very simple thing to obtain, and if
27:56
Speaker 5: somebody sends a season to this letter, then they would
27:58
Speaker 5: definitely can you the youth? But I feel like this
28:02
Speaker 5: has kind of gone all the way because it is
28:04
Speaker 5: like the nature of the political campaign.
28:07
Speaker 3: The Isakaysa state claims that it sent a cease and
28:10
Speaker 3: desist letter to Trump in twenty twenty if they didn't
28:13
Speaker 3: have a license and they didn't get permission from the
28:16
Speaker 3: Hayesa state. Is it a pretty easy decision for the
28:19
Speaker 3: judge to say you can't play that.
28:21
Speaker 5: Yeah, it should be like I said, you would have
28:23
Speaker 5: to check if they have the proper public performance licenses
28:27
Speaker 5: from all the songwriters involved in this case. You can
28:29
Speaker 5: at least see that it is performed by a separate artist,
28:32
Speaker 5: but written by Isaac Case, which is owned by the
28:34
Speaker 5: Isaac Kase estate. So if they did not have the
28:37
Speaker 5: proper licenses, it should be very easy, according to a copywriter.
28:41
Speaker 3: At the hearing, the lawyers for Trump said a couple
28:44
Speaker 3: of things. They said that the Isaakaysa State didn't own
28:49
Speaker 3: the copyright, and apparently the Isaakaysa State produced documents for
28:53
Speaker 3: the judge. They also said they obtained a license from
28:55
Speaker 3: BMI Music in November twenty twenty two.
28:59
Speaker 5: I believe has also sent a season desist letter too,
29:03
Speaker 5: removing the song from its catalog for you. So at
29:07
Speaker 5: this point, a lot of what the public performance organizations
29:10
Speaker 5: are doing is actively going to their members and saying,
29:13
Speaker 5: if you would like to exclude your works from use
29:15
Speaker 5: by political campaigns, then please contact us and send us
29:19
Speaker 5: a notice letter along with a list of your work
29:21
Speaker 5: that you want to have excluded from use and political campaign.
29:25
Speaker 3: So is there a possibility they got a license from
29:28
Speaker 3: BMI at any point.
29:30
Speaker 5: Whether they obtained a license from BMI, and if that's
29:33
Speaker 5: the correct license, you would have to check, Like if
29:36
Speaker 5: each of the songwriters were all registered with BMI, then
29:39
Speaker 5: that would cover all of the songs. But it's not
29:41
Speaker 5: just enough to have a license from BMI. There might
29:44
Speaker 5: be songwriters who are registered with a different pro that
29:47
Speaker 5: they would still have.
29:48
Speaker 3: So the judges preliminarian junction said the Trump campaign couldn't
29:52
Speaker 3: continue to use the song without a proper license, but
29:56
Speaker 3: he is allowing the campaign to keep vito that already
30:01
Speaker 3: exist that include hold on, I'm coming. Do you know
30:04
Speaker 3: what the basis of that is?
30:06
Speaker 5: But even if a song is used in the background
30:08
Speaker 5: of a video, you would still have to pain a
30:10
Speaker 5: synchronization use. My understanding would be that at this point
30:14
Speaker 5: they would probably go back into Discovery and see what
30:17
Speaker 5: licenses they obtained and if he obtained all the proper licenses.
30:21
Speaker 3: I was confused because Trump's attorney said that we are
30:24
Speaker 3: gratified that the court recognized the First Amendment issues at
30:27
Speaker 3: stake and didn't order a takedown of existing videos.
30:31
Speaker 5: I don't think that's in line with the reasoning. But
30:33
Speaker 5: the court, I think that they would definitely want to
30:35
Speaker 5: go in and see what licenses were obtained and see
30:37
Speaker 5: if the videos that they're using with the song were
30:40
Speaker 5: properly licensed. When you use a song in a video,
30:43
Speaker 5: it's called the synchronization licensing. You need to paint a
30:46
Speaker 5: license for both the master recording, so whatever master version
30:50
Speaker 5: they use, and also on the US publishing side from
30:53
Speaker 5: the songwriters of the music.
30:55
Speaker 3: I mean, do most campaigns go through all these hoops?
30:59
Speaker 5: They should definitely should be someone in a campaign who
31:02
Speaker 5: is looking into all of the clearances required, whether it's
31:06
Speaker 5: just that a political rally or they're going to be
31:09
Speaker 5: using it in commercials.
31:10
Speaker 3: There are so many artists I counted more than twenty
31:13
Speaker 3: who have complained about Trump using their songs in his
31:16
Speaker 3: presidential campaigns. Some complained publicly, others sense cease and desist letters,
31:23
Speaker 3: and Trump has often continued to play the songs even
31:26
Speaker 3: after the objections were raised. Last month, they actually played
31:31
Speaker 3: a video of Celine Dion performing My Heart Will Go
31:35
Speaker 3: On at a Trump campaign rally in Bozeman, Montana. A
31:40
Speaker 3: post on Dion's Instagram page said the usage was unauthorized.
31:45
Speaker 3: It added, and really that song.
31:48
Speaker 5: That is definitely an infringing use, not only from the
31:51
Speaker 5: use of the music, but also the false endorsement any
31:55
Speaker 5: potential trademarks that we're using. Whoever the owner of the
31:58
Speaker 5: video footage is as well.
32:00
Speaker 3: Isaacay's the third called the preliminary injunction, the first step
32:04
Speaker 3: in our copyright infringement case against Donald Trump and Donald
32:09
Speaker 3: Trump for President. They're seeking actual and punitive damages for
32:13
Speaker 3: each infringement, and they say Trump infringed the copyright one
32:18
Speaker 3: hundred and thirty three times.
32:20
Speaker 5: So the nature of how our copyright works is once
32:23
Speaker 5: yours have protection under the copyright, you registered it with
32:27
Speaker 5: the Copyright Office, then you are entitled for statutory damages
32:30
Speaker 5: and potentially additional damages, punitive damages like they're requesting if
32:35
Speaker 5: they have sent these feats into this letters and can
32:38
Speaker 5: prove that there has been economic harm due to the continued.
32:42
Speaker 2: Use of the song.
32:43
Speaker 3: One of the things that Trump's lawyer said is that
32:45
Speaker 3: they weren't harmed by this. They weren't economically harmed by this.
32:48
Speaker 3: What kind of economic harm can you prove?
32:51
Speaker 5: It could be that they lost other for example, like
32:54
Speaker 5: imagine if this was a car commercial and the ISO
32:57
Speaker 5: cases State decided, okay, we have our you have a
33:00
Speaker 5: deal with BMW but then Volbo used it, you know,
33:03
Speaker 5: so if they have existing licenses that this would put
33:06
Speaker 5: them in breach of That's one issue, right that they
33:08
Speaker 5: can show they've lost money due to this infringing use
33:11
Speaker 5: that was unauthorized. They can also show that they potentially
33:15
Speaker 5: lost other uses because of this false endorsement from the
33:18
Speaker 5: use of their music. And they can also use the
33:21
Speaker 5: fact that they were in active negotiations potentially with other
33:26
Speaker 5: publishers or whoever they are, that the use of their
33:29
Speaker 5: music lost value because of a campaign that used their
33:32
Speaker 5: music unauthorized.
33:33
Speaker 3: That sounds a little more difficult than I thought. It's
33:36
Speaker 3: not just give me economic damages because you use this
33:40
Speaker 3: song one hundred and thirty three times without my permission.
33:42
Speaker 5: No, the statutory damages are set by the US copyright
33:47
Speaker 5: law for each infringing use right, but economic damages or
33:51
Speaker 5: punitive damages are more nuanced, and they would have to
33:55
Speaker 5: prove that they potentially lost other licensing opportunities and dam
34:00
Speaker 5: I mentioned their name, imager likeness.
34:02
Speaker 3: There's a little bit of a twist here because Sam
34:04
Speaker 3: Moore of Sam and Dave was against the filing of
34:08
Speaker 3: this lawsuit.
34:09
Speaker 5: So Sam Moore had performed the song at an inauguration
34:14
Speaker 5: concert for Trump.
34:15
Speaker 2: Right.
34:15
Speaker 5: So what's interesting in the US is that you know,
34:18
Speaker 5: Britney Spears can perform a song, but it's written by
34:22
Speaker 5: four different songwriters, but it's her who's on the master recording,
34:26
Speaker 5: who's a performer on this. So they would still need
34:29
Speaker 5: to get permission from the artists. So in this case
34:31
Speaker 5: where Sam is saying like, hey, I gave provission or
34:34
Speaker 5: potentially saying I'm okay with the youth, if one person
34:37
Speaker 5: out of four songwriters denies the youth, then you cannot
34:41
Speaker 5: use the song either way.
34:43
Speaker 3: Actually, Trump's lawyers filed a sworn statement from Sam Moore
34:48
Speaker 3: with the court where he said he was opposed to
34:50
Speaker 3: the actions taken by the Hayes estate. That carries no weight,
34:54
Speaker 3: I take it, no.
34:56
Speaker 5: Not really. There's a nuance to the US cup up
35:00
Speaker 5: where a songwriter of a composition can license the use
35:05
Speaker 5: of the song for non exclusive use, just solely in
35:09
Speaker 5: the US, but that does not really extend to public
35:12
Speaker 5: performance uses because those are controlled by the public performance
35:16
Speaker 5: organization and the campaign would still need to obtain a license.
35:19
Speaker 5: And if a songwriter from one of the songs has
35:23
Speaker 5: already asked the pro to exclude their music, then they
35:26
Speaker 5: couldn't grant the license.
35:28
Speaker 3: How much does a public license usually cost, because the
35:32
Speaker 3: Hayeses State said it would allow Trump to pay a
35:36
Speaker 3: quote very discounted three million dollar licensing fee. I mean,
35:40
Speaker 3: are they that high? No, I don't.
35:42
Speaker 5: The public performance license depends on what the nature of
35:46
Speaker 5: the use will be, whether it's just like for the
35:49
Speaker 5: life of the political campaign which lasts up until Canada
35:53
Speaker 5: is born into office. I'm not exactly sure what the
35:56
Speaker 5: price is for each pro but I don't believe it's
35:59
Speaker 5: in the millions.
36:00
Speaker 3: This is much more complicated than it seems at first.
36:04
Speaker 3: Blush correct.
36:05
Speaker 5: It's a very complicated licensing structure also due to the fact,
36:09
Speaker 5: like these are very popular songs, right, and you're able
36:12
Speaker 5: to find the songwriters. But there are some songs where
36:15
Speaker 5: you don't know who owns what, who the administrator is.
36:18
Speaker 5: So it's a very difficult process. But you know, there
36:21
Speaker 5: should be someone on a campaign who has, you know,
36:24
Speaker 5: the experience, and it's in their wheelhouse to obtain the
36:26
Speaker 5: licenses so that each political campaign is properly licensed.
36:31
Speaker 3: It's going to be fascinating to see just how this
36:34
Speaker 3: case plays out and whether they're able to prove economic harm.
36:38
Speaker 3: Thanks so much, Heidi. That's Heidi Vakarano, a partner at
36:41
Speaker 3: Fox Rothschild. And in case you're wondering, Trump is apparently
36:45
Speaker 3: back to using the Village People's YMCA to close out
36:50
Speaker 3: his rallies. That group reportedly sent a CS and Assist
36:54
Speaker 3: letter to Trump in twenty twenty three over his use
36:57
Speaker 3: of their song Macho Man. And that's it for this
37:00
Speaker 3: edition of the Bloomberg Law Podcast. Remember you can always
37:03
Speaker 3: get the latest legal news by subscribing and listening to
37:06
Speaker 3: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,
37:10
Speaker 3: slash podcast, Slash Law. I'm June Grosso and this is
37:14
Speaker 3: Bloomberg