Latest / Bloomberg Law / Weekend Law: Social Media Addiction, Music Piracy & Asylum

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Weekend Law: Social Media Addiction, Music Piracy & Asylum · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It took nine days of deliberations, but on Wednesday, a
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Speaker 2: California jury found Meta and Google libel in a first
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Speaker 2: of its kind lawsuit. The jurors held the social media
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Speaker 2: platforms responsible for a twenty year old woman's mental health struggles,
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Speaker 2: which she said were caused by her addiction to the platforms.
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Speaker 2: Jurors awarded her six million dollars, finding that Meta and
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Speaker 2: Google were negligent in the design and operation of their platforms.
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Speaker 2: Her attorney, Mark Lanier says the verdict is a game changer.
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Speaker 3: I feel like what we're about here is something beyond
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Speaker 3: just trying to make a buck, beyond just trying to
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Speaker 3: help Kayley. I feel like we're about something that is
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Speaker 3: incredibly socially important and responsible.
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Speaker 2: There are thousands of other lawsuits that claim that Instagram,
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Speaker 2: YouTube and other platforms are intentionally designed to addict young users,
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Speaker 2: but it's a long road ahead for those plaintiffs, as
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Speaker 2: Meta and Google will appeal.
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Speaker 4: We respectfully disagree with the verdict and will appeal. Team
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Speaker 4: mental health is profoundly complex and cannot be linked to
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Speaker 4: a single app. We will continue to defend ourselves vigorously
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Speaker 4: as every case is different, and we remain confident in
1:31
Speaker 4: our record of protecting teens online.
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Speaker 2: This is what's called a bellweathered trial or a test
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Speaker 2: case designed to foresee how future litigation will play out.
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Speaker 2: And the next case is slated to go to trial
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Speaker 2: in California in July. Joining me is an expert in
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Speaker 2: cybersecurity and data privacy, Colin Walkee, a partner at haul Estel. Colin.
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Speaker 2: This is one case among thousands. What does this verdict
1:57
Speaker 2: stand for?
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Speaker 1: This verdict actually stands for the proposition that Meta and
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Speaker 1: YouTube intentionally made their algorithms addictive and negatively impacted someone's
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Speaker 1: mental health as a result.
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Speaker 5: This particular claim is based upon negligence, i e.
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Speaker 1: They knew and owed a duty to individuals to not
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Speaker 1: make their algorithms addictive. They did it anyway. However, you
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Speaker 1: could look at a recent case out of New Mexico
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Speaker 1: to the tune of three hundred and seventy five million
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Speaker 1: dollars where tech companies were found to have violated the
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Speaker 1: consumer protection law. So the difference here is is this
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Speaker 1: is just a traditional negligence theory. There is no statutory
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Speaker 1: action against these companies.
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Speaker 2: Meta argued that the plaintiff had struggle with her mental
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Speaker 2: health separately from her social media use, and they pointed
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Speaker 2: to her turbulent home life and bullying at school, etc.
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Speaker 2: Did the jury discount those factors? Did they find they
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Speaker 2: were not contributory?
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Speaker 1: That wasn't the only thing that their attorney's pointed to.
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Speaker 1: YouTube's attorney also pointed to the fact that in all
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Speaker 1: of the evidence presented, only a few minutes worth of
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Speaker 1: time was actually proven to have been on YouTube. So
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Speaker 1: I don't think that the jury discounted that fact. I
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Speaker 1: think the jury knew what we all know, which is
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Speaker 1: we reach for our phones when we don't intend to,
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Speaker 1: when we're sitting on their couch without thinking, and why
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Speaker 1: because social media is addictive.
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Speaker 5: And not only that this case is a long time coming.
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Speaker 1: It's not as though we haven't read tell All book
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Speaker 1: after tell All book about the manner and method by
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Speaker 1: which these tech companies have attempted to make their algorithms
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Speaker 1: more addictive in order to get more attention, in order
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Speaker 1: to sell more advertising.
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Speaker 6: When you are using a.
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Speaker 5: Free product, you are the product.
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Speaker 1: And so I think the jury knew that, understood it,
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Speaker 1: and have lived through it and simply did what has
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Speaker 1: been a long time coming.
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Speaker 2: What do you think the strongest evidence was showing the
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Speaker 2: intention of the platforms to knowingly addict young users.
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Speaker 1: Some of the evidence that came out during this trial,
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Speaker 1: for example, was a study that Meta had suppressed and
4:01
Speaker 1: they had conducted it themselves that showed when individuals in
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Speaker 1: particularly youth, put away their phone for a week, there
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Speaker 1: was an actual causative relation. We're not talking correlative relation,
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Speaker 1: We're talking causitive relationship between that, showing that there was
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Speaker 1: an effect on mental health. Not only that, but another
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Speaker 1: study that they conducted showed that individuals who were already
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Speaker 1: predisposed to mental health issues increase their usage of social
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Speaker 1: media and increase their worsening mental health.
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Speaker 5: So these were some of the studies that were shown.
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Speaker 1: So this put Meta on notice of what their algorithms
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Speaker 1: were doing.
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Speaker 2: The jury was out for nine days forty hours over
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Speaker 2: nine days, so they must have been struggling with some
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Speaker 2: aspect of the plaintiff's case, right.
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Speaker 1: Well, it could be something that was holding them up
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Speaker 1: from a liability standpoint. To your point earlier, well, this
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Speaker 1: individual did have mental health issues in any event, is
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Speaker 1: that really the cause here because we had to prove
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Speaker 1: its positive. But I think more to the point, it
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Speaker 1: could also be on the damage valuation. This woman was
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Speaker 1: ultimately awarded three million dollars in actual damages and three
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Speaker 1: million dollars.
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Speaker 5: In punitive damages.
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Speaker 1: Sometimes the fight isn't over the liability. The fight is, okay,
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Speaker 1: how much do we award?
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Speaker 2: And where huge liability for the companies could have come
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Speaker 2: in is in the punitive damages. I mean, three million
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Speaker 2: dollars in punitive damages is just a drop in the
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Speaker 2: bucket to Meta or Google. Isn't it usually the case
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Speaker 2: that when you hear about these huge verdicts, most of
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Speaker 2: it is in the punitives.
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Speaker 1: Absolutely whether the evidence shows that their actions were willful
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Speaker 1: and wanton and in reckless disregard.
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Speaker 5: Of the plaintiff's rights. Point back to.
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Speaker 1: Those studies, were the individuals new at Meta the consequences
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Speaker 1: of these algorithms and so for example, one famous jury
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Speaker 1: verdict that resulted in a several hundred million dollars punitive
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Speaker 1: damage award was likened to a parking ticket. If I
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Speaker 1: made one hundred thousand dollars a year and I get
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Speaker 1: a parking ticket for one hundred and fifty dollars. Well,
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Speaker 1: you know, that's really one percent of my income or
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Speaker 1: whatever that comes out to be point oh one. And
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Speaker 1: so if you did the same thing to Meta's, you know,
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Speaker 1: sixty billion dollars in profits last year, that can be.
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Speaker 5: A fairly big number just for a speeding ticket.
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Speaker 2: So only nine out of the twelve jurors had to
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Speaker 2: agree on each claim against each defendant. Two jurors consistently
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Speaker 2: disagreed with the other ten on whether the tech company
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Speaker 2: should be held liabel. So the social media companies now
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Speaker 2: know what kinds of jurors lean toward their position. Will
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Speaker 2: they be looking to select jurors with similar characteristics to
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Speaker 2: those two in upcoming trials?
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Speaker 5: Oh?
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Speaker 1: Absolutely, And I'm confident that Meta and the tech companies
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Speaker 1: spent tons of money on jury consultants and identifying the
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Speaker 1: type of juror they want. And I'm confident now that
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Speaker 1: they've identified these two jurors, their personality profiles.
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Speaker 5: Will be what is sought out in the future.
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Speaker 1: I mean that being said, and Meta has already indicated
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Speaker 1: it's going to appeal, so they have legal arguments to
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Speaker 1: appeal from, and then they may have some factual arguments
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Speaker 1: to appeal from and the fact that you have two
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Speaker 1: descending jurors certainly helps that case. But at the end
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Speaker 1: of the day, jury verdicts are typically fairly sacred and
7:17
Speaker 1: they're very hard to overturn. So absence the judge making
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Speaker 1: an error on the law or the jury really abusing.
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Speaker 5: Their findings of fact, I think this verdict stands.
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Speaker 2: So, as I mentioned, this is just the first verdict.
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Speaker 2: Do you think that Meta now goes out and tries
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Speaker 2: to start settling. Do you think they're going to take
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Speaker 2: the long road and say, well, wait for the appeal,
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Speaker 2: wait for other cases, to see how other cases shake out.
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Speaker 5: Yeah.
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Speaker 1: I mean I found it odd that they wanted to
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Speaker 1: use this as their test case, but they clearly have
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Speaker 1: and they have a creative First Amendment argument with regard
7:50
Speaker 1: to the.
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Speaker 5: Whole problem with prosecuting.
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Speaker 1: Previously has been thought that section two thirty of federal law,
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Speaker 1: which says that social media companies can not be liable
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Speaker 1: for the information that is posted on their website. This
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Speaker 1: lawsuit says that that's true, but they can be held
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Speaker 1: liable for the decisions and the algorithms that show that content,
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Speaker 1: how that content is portrayed, and typically in intellectual property law,
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Speaker 1: those are considered editorial rights. We are editing what you
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Speaker 1: are seeing. Why is that a problem. And so there's
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Speaker 1: a First Amendment case that they are alleging here. And
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Speaker 1: so if it goes up on appeal, makes it to
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Speaker 1: the Supreme Court, and the Supreme Court insulates them from liability, they're.
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Speaker 5: Not likely to settle anything in the future.
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Speaker 1: And that's why I think they'll keep prolonging in this
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Speaker 1: litigation at least through that opinion.
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Speaker 2: Do you think people are jumping the gun too much?
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Speaker 2: They're comparing this to the tobacco litigation and the global
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Speaker 2: settlement there and the opioid litigation. I mean, it seems
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Speaker 2: like we're just at the starting gate.
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Speaker 5: I do think it's the starting gate.
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Speaker 1: But I think that so many people, in spite of
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Speaker 1: their constant social media usage, have been expecting this to
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Speaker 1: come for so long that it does feel like the
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Speaker 1: big Tobaccos settlement scenario the opioid issues.
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Speaker 5: But what I will tell you is, at least with
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Speaker 5: regards to.
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Speaker 1: Tobacco, to your point, June, three million dollars is a
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Speaker 1: drop in the bucket, and last year Meta posted sixty
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Speaker 1: billion dollars in profit in nineteen ninety seven, the year
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Speaker 1: before the tobacco settlement got entered into Philip Morris, their
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Speaker 1: profits were magnitudes of orders less than that, like five billion.
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Speaker 5: And so the point here is Meta and these other.
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Speaker 1: Tech companies have plenty of money to continue to fight on.
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Speaker 1: Even if they settle a billion dollars year and a
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Speaker 1: billion dollars there, they have plenty of money to keep fighting.
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Speaker 2: To put it in terms we all can relate to,
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Speaker 2: how depressed do you think Meta and Google should be
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Speaker 2: about this verdict?
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Speaker 4: Well?
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Speaker 1: I don't know, because if you look at the approach
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Speaker 1: that our government has taken too regulating AI and data
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Speaker 1: privacy in general, which is to say we don't and
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Speaker 1: we won't, I would not be surprised at all if
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Speaker 1: what you see is a bunch of legislation coming down
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Speaker 1: the pike, pushed by tech industry lobbyists that says we're
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Speaker 1: insulating these companies from these types of lawsuits. The only
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Speaker 1: mannering method by which you consue these companies is for X, Y,
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Speaker 1: and Z and negligence. Ain't one of them some sort
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Speaker 1: of insulation from their liabilities. I can see that happening,
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Speaker 1: and I can see the legislators, if history is prologue
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Speaker 1: bending over backwards to accommodate that request.
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Speaker 2: Colin, what do you see as the ultimate sort of
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Speaker 2: ideal answer the social media companies go out of business.
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Speaker 5: Well, I don't think that they're supposed to go out
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Speaker 5: of business.
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Speaker 1: I think that they are supposed to show generalized and
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Speaker 1: neutralized algorithms, not algorithms that are designed to get you hooked.
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Speaker 1: In other words, one thing they could do, for example,
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Speaker 1: is stop infinite scroll. The whole reason why infinite scroll
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Speaker 1: was invented was because ase people got tired of having
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Speaker 1: to wait for their page to load, a little bit
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Speaker 1: of patients built into an algorithm might actually get us
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Speaker 1: off of our phones. And that's one of the things
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Speaker 1: that I find so ironic about this. The entire point
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Speaker 1: of this case is that social media negatively impacts mental health.
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Speaker 1: And I go and I look at the front page
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Speaker 1: of the newspaper after this verdict comes down, and everybody
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Speaker 1: is on their cell phone sharing it in social media.
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Speaker 5: The irony is.
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Speaker 1: Thick here, and we don't realize that we ourselves are
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Speaker 1: participating in this problem.
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Speaker 2: I guess I'll have to plead guilty to that as well.
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Speaker 2: Thanks so much Colin. That's Colin Walkee of hall Estell
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Speaker 2: coming up next on the Bloomberg Law Show. In a
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Speaker 2: landmark case, the Supreme Court deals a major blow to
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Speaker 2: the music industry's efforts to stop music piracy. I'm June
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Speaker 2: Grosso and you're listening to Bloomberg. A jury had returned
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Speaker 2: a one billion dollar verdict against Cox Communications for failing
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Speaker 2: to shut down the accounts of more than one hundred
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Speaker 2: thousand users who illegally downloaded and distributed copyrighted songs. Justice
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Speaker 2: is Sonya Sotomayor and Amy Coney Barrett had called Cox
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Speaker 2: out for its flagrant behavior during oral arguments.
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Speaker 7: You did nothing and in fact, counselor your clients sort
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Speaker 7: of lais a fair attitude towards the respondents is probably
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Speaker 7: what got the jury upset.
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Speaker 8: What incentive would you have to do anything if you won?
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Speaker 8: You if you win and mere knowledge isn't enough, Why
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Speaker 8: would you bother to send out any notices in the future.
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Speaker 2: And yet Sodamayor and Barrett join their colleagues in letting
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Speaker 2: Cox completely off the hook. In a unanimous decision, the
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Speaker 2: Court overturned the verdict and found that internet service providers
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Speaker 2: like Cox can't be held liable for copyright infringement even
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Speaker 2: if they know their users are illegally copying and sharing
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Speaker 2: protected content. The decision sets a precedent that's a serious
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Speaker 2: blow to the music industry's efforts to curb online piracy.
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Speaker 2: My guest is intellect actual property litigator Terrence Ross, a
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Speaker 2: partner at catin Mutchen, Rosenmann Terry. The jury said Cox
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Speaker 2: had to pay a billion dollars in damages, and now
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Speaker 2: the Supreme Court says, no, Cox doesn't have to pay
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Speaker 2: anything at all.
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Speaker 5: That's correct.
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Speaker 9: The cause of action in the lower court was for
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Speaker 9: contributory copyright infringement, which means that the defendant did not
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Speaker 9: actually commit the copyright theft, but somehow contributed to the
13:28
Speaker 9: ability of a third party to commit copyright infringement, and
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Speaker 9: the Supreme Court determined that the lower courts had applied
13:38
Speaker 9: the wrong standard for measuring whether or not contributory copyright
13:43
Speaker 9: infringement had occurred, and therefore reversed as to liability, which
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Speaker 9: eliminated the damages verdict.
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Speaker 2: Just as so do Mayors scolded Cox's attorney, saying you
13:55
Speaker 2: did nothing, and now the court is saying that's fine.
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Speaker 2: You don't have to do anything well.
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Speaker 9: As we discussed that week after the oral argument before
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Speaker 9: the Supreme Court, I had commented that I thought this
14:08
Speaker 9: was one of the most opaque oral arguments I'd ever
14:11
Speaker 9: listened to at the Supreme Court. And you'd ask me,
14:14
Speaker 9: what's Gordon Hamn? I said, I just blained, don't know,
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Speaker 9: I do not have a clue. And I was proven right.
14:19
Speaker 9: The oral argument centered so heavily on the really terrible
14:24
Speaker 9: facts were Cox surrounding its efforts, half hearted at best,
14:29
Speaker 9: to comply with the safe Harbor provision of the Digital
14:32
Speaker 9: Millennium Copyright Act, and they were just terrible facts. We
14:36
Speaker 9: know the jury thought they were so bad that they
14:38
Speaker 9: found Cox to be willfully liable for contributory infringement. And
14:44
Speaker 9: yet none of that came out in this opinion. There
14:47
Speaker 9: was some discussion, although very limited, during oral argument as
14:52
Speaker 9: to what the correct standard for contributory copyright fragment was,
14:57
Speaker 9: but Cox in particular had pushed that argument into a
15:00
Speaker 9: very odd place where it was drawing upon aiding in
15:03
Speaker 9: a betting cases from common torts. Even cited to the
15:07
Speaker 9: recent Mexican government case against American gun manufacturers, which was
15:12
Speaker 9: an aiding in a betting theory that the Supreme Court
15:14
Speaker 9: had lost, And so the decision is maybe not surprising
15:20
Speaker 9: as to the result, but a little bit surprising after
15:23
Speaker 9: the or or argument that it went in the direction
15:26
Speaker 9: that it went.
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Speaker 2: How did the court handle the apparent violations of the
15:30
Speaker 2: DMCA with Cox ignoring more than one hundred and sixty
15:33
Speaker 2: thousand copyright infringement notices and giving users chance after chance
15:39
Speaker 2: after chance rather than terminating their service. And there was
15:43
Speaker 2: evidence that the Cox manager who was overseeing compliance told
15:48
Speaker 2: his team to ignore the DMCA, using foul language to
15:53
Speaker 2: say that.
15:54
Speaker 6: That's clearly all correct.
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Speaker 9: Justice Thomas, who wrote the opinion from the majority of
15:59
Speaker 9: the Court, simply chose to ignore the Digital Millennium Copyright Act.
16:03
Speaker 9: In essence, he said that Cox had failed to comply
16:09
Speaker 9: with the safe harbor in the Digital Millennium Copyright Act
16:12
Speaker 9: because they did not have a program in place to
16:16
Speaker 9: comply with copyright infringement notices. But then he said, and
16:20
Speaker 9: this is an important party set, but that does not
16:22
Speaker 9: prove the case for the recording companies. He said, a
16:27
Speaker 9: mere failure to establish that you're entitled to take advantage
16:31
Speaker 9: of the safe harbor defense of the Digital Millennium Copyright
16:35
Speaker 9: Act does not establish the affirmative grounds for contributory copyright infringement.
16:42
Speaker 9: And then he went through an analysis of what he
16:46
Speaker 9: viewed to be the elements of cause of action for
16:50
Speaker 9: contributory copyright infringement. He found that there was an affirmative
16:55
Speaker 9: action required on the part of the defendant be accused
16:58
Speaker 9: of contributory copyright infringement. And that's what surprised I think
17:03
Speaker 9: a lot of us. There is a long history of
17:06
Speaker 9: decisions in the circuit courts and in the Supreme Court
17:11
Speaker 9: stretching back to nineteen twelve, in which courts have allowed
17:16
Speaker 9: contributory copyright infringement cases go forward in situations factual situations,
17:22
Speaker 9: which has seemed to be nothing more than providing a
17:25
Speaker 9: product or a service, and Justice Thomas starts off by
17:31
Speaker 9: recharacterizing those cases as findings that a company cannot be
17:35
Speaker 9: liable as a copyright infringement for purely providing a service
17:39
Speaker 9: to the general public, even with knowledge that it will
17:41
Speaker 9: be used by some copyright infringers. And that's the big
17:44
Speaker 9: surprise here.
17:45
Speaker 5: The cases had.
17:46
Speaker 9: Implicitly understood the provision of services and products that led
17:52
Speaker 9: to copyright infringement as an affirmative action on the part
17:56
Speaker 9: of the defendant. Now, the Supreme Court says that's.
17:59
Speaker 6: Not good enough.
18:00
Speaker 9: They seem to be of the view that the only
18:04
Speaker 9: way you can bring a contributory copyright infringement case against
18:09
Speaker 9: a provider of a service or product is if they
18:12
Speaker 9: specifically promote that product or service as capable of engaging.
18:18
Speaker 6: In copyright infringement.
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Speaker 9: And so the result of this case is that it
18:24
Speaker 9: will be extraordinarily hard to ever again bring a cause
18:29
Speaker 9: of action for contributory copyright infringement.
18:32
Speaker 2: Terry, do you have any idea how the justices reached this.
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Speaker 2: I'll call it a radical decision. Do you think it
18:39
Speaker 2: was the result of compromise.
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Speaker 9: I call this a way out, not a compromise. This
18:43
Speaker 9: was a way to avoid a really hard decision with
18:46
Speaker 9: respect to the damage element, but was not a compromise.
18:50
Speaker 9: It was basically a complete one to eighty change in
18:53
Speaker 9: direction of the cases that have existed for one hundred
18:57
Speaker 9: and twenty years now. This case adopts such a radical
19:02
Speaker 9: view of secondary liability under the Copyright Act, and I
19:05
Speaker 9: don't think was attended by Congress that it basically kills
19:08
Speaker 9: off the two causes of action only a complete moron
19:12
Speaker 9: could be found liable for a contributory or vicary's copyright
19:15
Speaker 9: infringement at this point in time, So I don't know
19:17
Speaker 9: what went on behind closed door. I found it fascinating
19:20
Speaker 9: that Justice Thomas wrote the opinions. Justice Thomas tends to
19:24
Speaker 9: write opinions that are short, sweetened to the point, and
19:28
Speaker 9: so sometimes he gets designated for a case that the
19:33
Speaker 9: Court does not want to spend too much time intellectualizing.
19:37
Speaker 5: They just say, look, here's.
19:38
Speaker 6: What we think.
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Speaker 9: You only get contributory infringement if you show an affirmative act.
19:42
Speaker 9: There was no firmative act found case over, and that's
19:45
Speaker 9: what this opinion is. It certainly doesn't address any of
19:48
Speaker 9: the past cases involving contributory copyright infringement except for Rochester
19:52
Speaker 9: and Betamax, both of them the Preme Court cases, which
19:56
Speaker 9: were only slightly helpful in this decision. They really needed
19:59
Speaker 9: to look at the full spectrum of contributory copyright cases
20:03
Speaker 9: over the last century and have failed to do that.
20:05
Speaker 2: And this is supposed to be a textualist court, But
20:09
Speaker 2: were they reading the text here?
20:11
Speaker 9: None of this is in the Copyright Act. I mean,
20:13
Speaker 9: the whole purpose of having a statute is to set
20:17
Speaker 9: out the meats and bounds of causes of action and writes.
20:21
Speaker 9: None of this is in the Copyright Act.
20:23
Speaker 6: I just plain, don't give it.
20:24
Speaker 9: And you know, over the years there have been a
20:26
Speaker 9: lot of good justices no copyright law, and even Justice Scalia,
20:31
Speaker 9: who was all about the text, never ever stopped to say,
20:35
Speaker 9: wait a minute, there is no secondary liability in the
20:38
Speaker 9: seventy six Copyright Act. What are we talking about here?
20:40
Speaker 6: It's just crazy.
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Speaker 2: How much does this decision hamper the music industry's efforts
20:46
Speaker 2: to combat online piracy? Are there any other options available
20:51
Speaker 2: to music labels?
20:53
Speaker 10: Now?
20:54
Speaker 9: Okay, so it seems to me there are two options here.
20:56
Speaker 9: One is legal and once legislative legislative. They could go
21:00
Speaker 9: to Congress and say, look, this is an absurd decision
21:03
Speaker 9: and it's completely gut it the Digital Millennium Copyright Act.
21:06
Speaker 9: This is not what you intended with the Digital Millennium
21:09
Speaker 9: Copyright Act. And I thought I saw congressmen put out
21:13
Speaker 9: a press release essentially saying that they could then ask
21:16
Speaker 9: Congress to rewrite the Digital Millennium Copyright Act to provide
21:20
Speaker 9: that the ISPs must comply with the Safe Harbor provisions
21:26
Speaker 9: in order to avoid contributory or vicarious copyright fridemen. So
21:30
Speaker 9: that's one route that the music companies could pursue. The
21:34
Speaker 9: other route, which is more complicated, is to serve subpoenas
21:40
Speaker 9: upon Cox or other ISPs for the IP addresses that
21:46
Speaker 9: are doing the most downloading of copyright music and get
21:52
Speaker 9: the names and addresses of whoever the owner is and
21:56
Speaker 9: then sue that owner. So you bypass Cox and you
22:00
Speaker 9: sue the person who's actually engaged in the music file
22:03
Speaker 9: downloading for copyright infringement. Now, this was a course of
22:07
Speaker 9: action that occasionally has happened in the past, and it's
22:10
Speaker 9: relatively successful because the defendant usually caves in quickly and
22:16
Speaker 9: they enter into some settlement where they agree never to
22:18
Speaker 9: download music again. It seems to me that that remains
22:22
Speaker 9: a viable option from a legal side. It's just very cumbersome.
22:26
Speaker 9: You don't always get courts willing to enforce such a subpoena,
22:30
Speaker 9: and that it requires it follow on litigation, so it's
22:34
Speaker 9: going to be a little bit more costly. But those
22:36
Speaker 9: are the only two options I see for the music
22:39
Speaker 9: company at this point.
22:40
Speaker 2: How much does the music industry lose because of this piracy.
22:45
Speaker 9: I've seen all sorts of estimates, but it's over a
22:47
Speaker 9: billion dollars a year typically. Now, the interesting thing about
22:50
Speaker 9: this case is that the music companies didn't even pursue
22:53
Speaker 9: all the copyright infringements that were being utilized through the
22:59
Speaker 9: Cock system. They were only going after the really large
23:03
Speaker 9: downloads and distributions of files. And the jury found damages
23:08
Speaker 9: of a billion dollars. And that was against a single ISP,
23:12
Speaker 9: not the many ISP's in this country, and for only
23:15
Speaker 9: a portion of the copyright infringement that was going on.
23:18
Speaker 9: So that suggests that the number is many billions of dollars.
23:22
Speaker 9: Look to understand the extent of the problem. June, at
23:26
Speaker 9: one point in time, over the entire Cox Internet system,
23:30
Speaker 9: twenty one percent of all traffic involved music copyright infringement.
23:36
Speaker 9: The fall the traffic is infringement upon copyrighted music. I mean,
23:41
Speaker 9: it's just a phenomenal number. And here the Supreme Court says, wow,
23:45
Speaker 9: now there's actually no remedy for that, And that's not
23:47
Speaker 9: what Congress thought when they passed the Digital Millennium Copyright Act.
23:51
Speaker 2: It'll be interesting to see what happens to a similar
23:55
Speaker 2: music industry case against Verizon that's seeking two points six
24:00
Speaker 2: billion dollars in damages. We'll see whether that case survives.
24:05
Speaker 2: It's always a pleasure to have you on Terry, Thanks
24:07
Speaker 2: so much. That's Terence Ross of Catanutchen Rosaman Coming up next.
24:12
Speaker 2: The Supreme Court appears ready to allow asylum seekers to
24:16
Speaker 2: be turned away at the border. I'm June Grosso. When
24:19
Speaker 2: you're listening to Bloomberg in the Trump administration turn away
24:25
Speaker 2: asylum seekers at the US Mexico border. Federal law says
24:29
Speaker 2: that any non citizen who quote arrives in the United
24:33
Speaker 2: States can apply for asylum. So the answer turns on
24:38
Speaker 2: what it means to arrive in the United States. Though
24:41
Speaker 2: that may sound like a simple question, most of the
24:45
Speaker 2: oral arguments at the Supreme Court on Tuesday were basically
24:49
Speaker 2: an attempt to determine what those four words mean. The
24:53
Speaker 2: government's attorney, Vivek Suri said, a person has to have
24:56
Speaker 2: crossed the border in order to be considered to have
24:59
Speaker 2: a in the United States.
25:01
Speaker 10: You can't arrive in the United States while you're still
25:04
Speaker 10: standing in Mexico. That should be the end of this case.
25:08
Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.
25:13
Speaker 11: Imagine a person who has a placard on their body
25:16
Speaker 11: as they approach the border that says, you know, I
25:20
Speaker 11: would like entrigue. I'm being persecuted in Mexico. Your suggestion
25:26
Speaker 11: that the United States would say, unless you can figure
25:28
Speaker 11: out a way to illegally cross, we're not going to
25:31
Speaker 11: entertain that claim seems very peculiar.
25:35
Speaker 2: And the attorney arguing on behalf of asylum seekers, Kelsey Corkran,
25:40
Speaker 2: said until a policy changed ten years ago, arriving in
25:44
Speaker 2: the United States simply meant making it to a port
25:47
Speaker 2: of entry.
25:48
Speaker 12: From nineteen seventeen to twenty sixteen, ninety nine years, there
25:53
Speaker 12: was not a single example of a turnback. So what
25:55
Speaker 12: was happening is people would come through the port. At
25:58
Speaker 12: that point. When they were in the port, they would
26:00
Speaker 12: be inspected and processing. What happen. So it's an unusual
26:03
Speaker 12: scenario we have here where we have the officers standing
26:05
Speaker 12: there and turning people back.
26:07
Speaker 2: The justices pressed her with questions about whether an asylum
26:11
Speaker 2: seeker had arrived in the United States if they reached
26:14
Speaker 2: the border wall or made it almost halfway through the
26:17
Speaker 2: Rio Grande, or cross the Rio Grande, or we're first
26:21
Speaker 2: in the line waiting to enter a port of entry
26:24
Speaker 2: or second in the line. Here are Justices Amy Cony,
26:27
Speaker 2: Barrett and Neil Gorsuch.
26:30
Speaker 8: How do you know under your theory, when the person
26:32
Speaker 8: is close enough that we could say they have arrived
26:35
Speaker 8: in or arrived in the destination? I mean, what if
26:38
Speaker 8: there's a queue and they're far back, or what if
26:40
Speaker 8: they arrived not at a port of entry? How close
26:43
Speaker 8: do you have to be to the border? Could you
26:45
Speaker 8: say that someone arrives in the United States if they're
26:47
Speaker 8: at a portion of the border that does not have
26:49
Speaker 8: a port of entry, Like, what is it if it's
26:51
Speaker 8: not crossing the physical border? What is the magic thing
26:56
Speaker 8: or the dispositive thing that we're looking for where we say, ah,
26:58
Speaker 8: now that person we can say arrives in the United States.
27:02
Speaker 10: Now, how come somebody who's in the line, isn't it?
27:05
Speaker 10: I mean, if the whole point is to make sure
27:08
Speaker 10: that people who are attempting to get into the country
27:11
Speaker 10: have the opportunity to file asylum claims, and they've made
27:16
Speaker 10: it all the way, why doesn't matter he's second in line.
27:20
Speaker 2: The High Court's answers could reshape the government's asylum policy.
27:25
Speaker 2: Joining me is Leon Fresco, a partner at Holland and Knight.
27:29
Speaker 2: He was the head of the Office of Immigration Litigation
27:32
Speaker 2: during the Obama administration. Leon this case stems from a
27:36
Speaker 2: policy called metering that was adopted in twenty sixteen because
27:41
Speaker 2: of an overwhelming surge of migrants. It required people to
27:46
Speaker 2: wait on the Mexican side of the border. So what's
27:49
Speaker 2: the issue here.
27:51
Speaker 13: So in this case, which is called Gnome versus alot Lado,
27:55
Speaker 13: the issue is whether a non citizen who has stopped
27:58
Speaker 13: on the Mexican side of the US Mexican border, are
28:02
Speaker 13: they considered someone under the statute who arrived in the
28:06
Speaker 13: United States for the purposes of being allowed to get
28:09
Speaker 13: asylum processing under the immigration laws. So here's how this works.
28:14
Speaker 13: So there's two kinds of people who tried to apply
28:17
Speaker 13: for asylum. There's the people who tried to sneak across
28:20
Speaker 13: the border. And so for those people, traditionally, for the
28:25
Speaker 13: last thirty forty years or so, there was this understanding
28:29
Speaker 13: that yes, once you got across the border, you could
28:32
Speaker 13: make a claim for asylum. Now there's a separate case
28:35
Speaker 13: and a separate issue involved with President Trump basically using
28:38
Speaker 13: the travel ban authority to say no, if you cross
28:42
Speaker 13: the border, you can't get asylum, but that's not an
28:45
Speaker 13: issue in this case. This case is about whenever you
28:48
Speaker 13: ask people what you're supposed to do when you really
28:52
Speaker 13: want asylum, they say, well, go to a port of
28:55
Speaker 13: entry and present yourself as a proper person. Don't create
29:00
Speaker 13: chaos and all kinds of confusion by running across the border.
29:04
Speaker 13: Go to a port of entry. So what happens is
29:07
Speaker 13: you go to a port of entry, if the government
29:09
Speaker 13: refuses to ever see you, it just keeps you on
29:12
Speaker 13: the Mexican side, which is what's currently happening, then you
29:16
Speaker 13: never get to apply for asylum either.
29:19
Speaker 6: So the question that this case tries to.
29:21
Speaker 13: Deal with is what happens to those individuals who've clearly
29:25
Speaker 13: presented themselves and said I want asylum, but their human
29:30
Speaker 13: body is on the Mexican side of the border. Does
29:33
Speaker 13: the US government have an obligation to still process these
29:37
Speaker 13: individuals for asylum? That's the question, and the Trump administration
29:41
Speaker 13: says no, if your body's on the Mexican side of the.
29:44
Speaker 6: Border, you don't get to apply for asylum.
29:47
Speaker 13: And the litigants who were from this organization called Al
29:50
Speaker 13: Ultra Lado said that's not correct, and the Ninth Circuits
29:54
Speaker 13: did the same thing that once you've presented yourself for asylum,
29:58
Speaker 13: you've done what's needed.
29:59
Speaker 6: It's not really mattering if your body is a.
30:02
Speaker 13: Few feet away from the US territorial border.
30:06
Speaker 2: Explain the questions over the interpretation of the phrase arrives
30:11
Speaker 2: in the United States.
30:13
Speaker 13: So the asylum statute uses the quote arrives in or
30:19
Speaker 13: is quote physically present in the United States. So if
30:23
Speaker 13: you were just to do again an artificial intelligence or
30:26
Speaker 13: a dictionary or something like that, then that would be
30:31
Speaker 13: the end of this, because then that would mean if
30:33
Speaker 13: you arrived in your body would have to be inside
30:35
Speaker 13: the United States, or if you were physically president in
30:38
Speaker 13: the United States, that would mean your body would have
30:40
Speaker 13: to be inside the United States. But then there's a
30:43
Speaker 13: separate concept in the immigration law called an arriving alien,
30:48
Speaker 13: and the idea is, if you are an arriving alien
30:51
Speaker 13: and you're apprehended or somehow in the custody of the
30:54
Speaker 13: government or even the situational awareness of the government that
30:59
Speaker 13: you are in a alien, you're someone who can apply
31:01
Speaker 13: for asylum. Yes, you're kept in detention during this time,
31:05
Speaker 13: but you can apply for asylum. The law actually uses
31:08
Speaker 13: this word arriving alien. So the question is, why would
31:12
Speaker 13: the law use the term arriving alien if that didn't
31:17
Speaker 13: mean anything, if the sort of process of arriving didn't
31:21
Speaker 13: shield you in some way, if the government knew about
31:25
Speaker 13: you and apprehended you in some way, whether the apprehension
31:28
Speaker 13: was inside the United States or to prevent you from
31:32
Speaker 13: coming inside the United States. And so that's the sort
31:35
Speaker 13: of debate or dispute here is once the government knows
31:39
Speaker 13: about you and is doing something to stop you, then
31:43
Speaker 13: the plaintiffs, the immigrants' rights groups thing that should be
31:46
Speaker 13: the end of it. They think, hey, that's the answer here.
31:49
Speaker 13: You are an arriving alien, you've been apprehended. You should
31:52
Speaker 13: now get to apply for asylum. And the government says, yeah,
31:55
Speaker 13: but that's not how that works. The arriving alien is
31:58
Speaker 13: sort of for the apprehension of the person and then
32:02
Speaker 13: the deportation of the person and the detention. But the
32:05
Speaker 13: actual act of applying for asylum requires an actual arrival
32:10
Speaker 13: and requires physical presence in the United States.
32:13
Speaker 2: This is why Justice Scalia used to reach for the
32:16
Speaker 2: dictionary sometimes. So what's your take on how the justices
32:19
Speaker 2: might rule here.
32:21
Speaker 13: So I do think that because much of this court
32:25
Speaker 13: is textualists. So you have three very strong textualists on
32:29
Speaker 13: the court, but then you also have people who are
32:31
Speaker 13: asking practical questions amongst the conservative justices that I think
32:36
Speaker 13: out of the six conservative justices, you're probably likely to
32:39
Speaker 13: find at least five votes, probably for the government's argument
32:45
Speaker 13: that in order to be eligible for asylum, your human
32:49
Speaker 13: body actually has to be inside the United States. Now,
32:53
Speaker 13: they may say, look, this is very cruel that the
32:56
Speaker 13: administration can just keep people out from the ports of
32:59
Speaker 13: entry when they're saying, go to the ports of entry.
33:02
Speaker 6: This has to be your solution.
33:04
Speaker 13: But they may say that's something for the Congress to
33:08
Speaker 13: have to adjudicate in terms of passing a bill that
33:11
Speaker 13: lets a certain amount of people get screened each day
33:15
Speaker 13: or does something else, but it's not an issue for
33:18
Speaker 13: the courts to decide. I think that's where this is
33:21
Speaker 13: likely going, but we'll have to wait and see.
33:23
Speaker 2: The Justice has posed all these hypotheticals to determine what
33:28
Speaker 2: point an asylum seeker had to have reached in order
33:31
Speaker 2: to be considered to have arrived in the United States.
33:35
Speaker 2: So was it enough if they reached the border wall
33:38
Speaker 2: or made it almost halfway through the Rio Grande, or
33:42
Speaker 2: suppose they were first in line waiting to enter a
33:46
Speaker 2: port of entry, or suppose they were last in line. Obviously,
33:49
Speaker 2: there are a lot of variables.
33:51
Speaker 6: That's correct. I mean.
33:52
Speaker 13: The problem is it's very hard to draw a bright
33:55
Speaker 13: line rule. The easiest right line rule to draw, which
33:58
Speaker 13: is why I think this is going to be a
33:59
Speaker 13: peace to the Conservative justices is that your body is
34:03
Speaker 13: inside the United States. And this is why they talked
34:06
Speaker 13: a lot about the Haitian interdiction cases where Haitians were
34:10
Speaker 13: interdicted at sea, and the question was did those cases
34:15
Speaker 13: require asylum and they did not. Those were considered extra
34:19
Speaker 13: territorial cases, and that the asylum laws didn't apply to
34:23
Speaker 13: the Haitians that were interredicted at sea. And so I
34:27
Speaker 13: don't know how you would draw this line. But what's
34:31
Speaker 13: going to be interesting is I do think, assuming that
34:35
Speaker 13: the immigrants rights groups lose here on that basis, that
34:39
Speaker 13: it's sort of hard.
34:39
Speaker 6: To draw a line.
34:40
Speaker 13: And so we might as well read the statute the
34:42
Speaker 13: way it says, which is arrives and that your body
34:45
Speaker 13: has to be in the US. There's still going to
34:47
Speaker 13: be a second case that comes to the Supreme Court, Well,
34:50
Speaker 13: when you do arrive and you do apply for asylum,
34:53
Speaker 13: can the Trump administration still ban you anyway? And I
34:57
Speaker 13: think it's going to be hard for the court if
34:58
Speaker 13: they rule against them, Gridsier to rule against them yet
35:01
Speaker 13: again a second time and say there's just literally no
35:05
Speaker 13: way to apply for asylum ever in America.
35:08
Speaker 6: So we'll see.
35:10
Speaker 13: But I do think the difficulty they're having with this
35:13
Speaker 13: case for shadows a potential triumph for the immigrants' rights
35:19
Speaker 13: groups in this second case about what happens when people
35:22
Speaker 13: do actually arrive.
35:24
Speaker 6: But again, we'll just have to wait and see.
35:26
Speaker 2: What's happening at the border right now, because during the
35:29
Speaker 2: oral arguments they said that the administration is not engaging
35:33
Speaker 2: in this practice called metering at this time.
35:37
Speaker 13: Correct, they're banning everybody from asylum. So that's what they're
35:41
Speaker 13: doing right now, is they're saying you're just completely banned
35:44
Speaker 13: from seeking asylum at the southern border of the United States.
35:48
Speaker 6: What I do think is when they then get to
35:50
Speaker 6: the second.
35:50
Speaker 13: Case about well, what about when your body is in
35:52
Speaker 13: the United States, can the president still unilate early ban you,
35:57
Speaker 13: then they're going to have to look at that within
35:58
Speaker 13: the context of what they dicay here and see that
36:01
Speaker 13: this really would mean that a president could ignore all
36:04
Speaker 13: of these statutes that talk about asylum and its pages
36:08
Speaker 13: and pages and pages of statutes and regulation, that could
36:11
Speaker 13: just ignore all of them and say this whole thing
36:13
Speaker 13: doesn't exist anymore.
36:15
Speaker 6: And I do think that.
36:16
Speaker 13: Will probably give the court some pause, although who knows,
36:19
Speaker 13: because the question is do they also want to just
36:22
Speaker 13: allow a one hundred percent ban on asylum cases.
36:25
Speaker 6: So we'll have to wait and see.
36:26
Speaker 2: And this is just one of the immigration cases that
36:29
Speaker 2: the Supreme Court is hearing this term. This coming Wednesday,
36:33
Speaker 2: the Justices will be hearing arguments in one of the
36:36
Speaker 2: most high profile cases of the term, a challenge to
36:39
Speaker 2: President Trump's executive order seeking to end birthright citizenship. Thanks
36:44
Speaker 2: so much for joining me, Leon, that's Leon Fresco of
36:47
Speaker 2: Holland and Knight. And that's it for this edition of
36:50
Speaker 2: the Bloomberg Law Show. Remember you can always get the
36:52
Speaker 2: latest legal news on our Bloomberg Law Podcast. You can
36:55
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37:00
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37:07
Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening
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