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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Yelp is the first, but it won't be the last.

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Speaker 1: There will certainly be other tech rivals who launched private

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Speaker 1: anti trust suits against Google to try to capitalize on

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Speaker 1: its major antitrust defeat. The online review site filed a

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Speaker 1: complaint last week in federal court in California alleging Google

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Speaker 1: has monopoly power in the local search advertising market. This,

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Speaker 1: of course follows the landmark ruling in early August of

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Speaker 1: DC federal Judge Amitt Meta, who found that Google had

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Speaker 1: monopoly power in the product markets for general search services

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Speaker 1: and general search text ads. Yelp didn't even wait for

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Speaker 1: the case to end before suing Google. There's still going

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Speaker 1: to be another trial to determine the remedy against Google.

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Speaker 1: Joining me is anti trust expert Harry First, a professor

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Speaker 1: at NYU Law School. Harry, it seems like there's an

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Speaker 1: anti trust story in the news every other day, well

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Speaker 1: sometimes every day. Is it the Biden administration's push or

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Speaker 1: something else.

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Speaker 2: Yeah, it's been amazing. It's been going on sort of

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Speaker 2: for the last couple of years, but it seems like

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Speaker 2: it's particularly intense at the moment, and you know, I

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Speaker 2: don't really see any let up at least in the

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Speaker 2: near future.

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Speaker 1: So great for me, well great for me too, But

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Speaker 1: I mean, do you think if there's a Trump administration

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Speaker 1: we'll see less anti trust action and Lena Khan will

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Speaker 1: be deposed?

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Speaker 2: Well, you know, this is everyone's favorite guessing game. To me,

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Speaker 2: the answer depends on I mean, it's partly on the president,

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Speaker 2: of course, but it also depends a lot on who

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Speaker 2: gets appointed to the main enforcement roles. There is a

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Speaker 2: strain of populism in the Trump movement, if you will.

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Speaker 2: And J. D. Vance had expressed support for Lena on

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Speaker 2: in the past, thought she was a really good federal

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Speaker 2: enforcement agents. But you know who knows what that would

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Speaker 2: translate to were they elected to office, And you know

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Speaker 2: who knows what interest he would take, how the president

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Speaker 2: would take in the specifics of any trust You know,

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Speaker 2: the two of the cases, the major cases that are

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Speaker 2: in process now were filed at the end of the

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Speaker 2: Trump administration, and that depended a lot, I think, on

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Speaker 2: who was attorney general at the time. So you know,

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Speaker 2: we would have to wait and see who does get

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Speaker 2: to be appointed attorney general and then who gets to

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Speaker 2: be appointed as head of any trust division or the

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Speaker 2: new chair at the Federal Trade Commission. And it's not

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Speaker 2: so clear what the Harrison administration will do, so, you know,

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Speaker 2: although you read that they're interested in continuing the current

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Speaker 2: enforcement effort, there's always a change when a new administration

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Speaker 2: comes in, always, and it's unpredictable, in part because you

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Speaker 2: don't know who's going to come in, in part because

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Speaker 2: you don't know what's going to happen, what mergers are

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Speaker 2: going to be proposed, you know, all of that.

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Speaker 1: Do you think that now all Google's rivals are going

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Speaker 1: to start filing private antitrust suits against Google bouncing off

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Speaker 1: that decision.

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Speaker 2: Well, if they do, that'll keep us even busier. Yeah,

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Speaker 2: I think that's as they say TBD. A more conservative

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Speaker 2: response is to wait until the decision is finalized for

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Speaker 2: a number of reasons. There are legal benefits to a

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Speaker 2: final judgment that may be far off, given that this

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Speaker 2: will have to go through appeals, So it's not clear

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Speaker 2: how much they want to wait. It's also not clear,

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Speaker 2: you know, what sort of private negotiations might occur, not

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Speaker 2: clear what sort of remedy the government might seek and

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Speaker 2: whether that might help any of these competitors. Any trust

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Speaker 2: litigation is expensive and private litigation, although there can be

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Speaker 2: a pot of gold at the end because litigants can

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Speaker 2: get treble their damages plus attorney's fees, the end can

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Speaker 2: be you know, I guess the end of the rainbow

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Speaker 2: is far off. So it requires a good claim and

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Speaker 2: private counsel who are willing to wait or be paid

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Speaker 2: or somehow finance this litigation. So I don't know. We

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Speaker 2: do see this one case, Yelp has been a complainant

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Speaker 2: both in the US and in Europe by a complainant

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Speaker 2: to the government, so it struck me as a little

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Speaker 2: early maybe, but I don't know. There are always the

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Speaker 2: possibilities of settlement, so if we go back, I mean

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Speaker 2: settlement between these parties. If we go back to the

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Speaker 2: Microsoft litigation itself, a lot of private parties sued, including

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Speaker 2: potential competitors and licensees of Windows, and some of them

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Speaker 2: got quite substantial, you know, settle from Microsoft. But of

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Speaker 2: course Microsoft, you know, eventually did lose on appeal, so

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Speaker 2: that helped a lot. So yes, I would expect more,

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Speaker 2: not just YELP. But I'm looking to see whether Microsoft

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Speaker 2: will sue, which I think would be just quite amusing

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Speaker 2: from any dress point of view, because you know, they

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Speaker 2: testified that BING just could never get any traction because

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Speaker 2: of Google's practices. They couldn't get the scale they needed.

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Speaker 2: So in some ways BING should have a good suit.

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Speaker 2: The question, you know, would be what's their damages and

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Speaker 2: what sort of relief do they want? So yes, maybe

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Speaker 2: being Yelp, maybe duck duck go, and we can you know,

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Speaker 2: start listing them. People are suggesting maybe some you know

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Speaker 2: advertisers who complained that price of advertising was raised because

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Speaker 2: they monopolized this general search text advertising market. You know,

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Speaker 2: all of these cases present different occulties, even with the

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Speaker 2: win that the government just had on liability, so no

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Speaker 2: lay downs here. But on the other hand, Google does

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Speaker 2: face the possibility of these sorts of lawsuits.

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Speaker 1: So the Yelp complaint was filed in the Northern District

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Speaker 1: of California. Judge Meta is in the DC circuit. His

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Speaker 1: ruling doesn't even have any presidential power in another circuit,

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Speaker 1: does it.

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Speaker 2: Well, it doesn't have any presidential value now in a

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Speaker 2: technical sense at all, because it's not final and it

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Speaker 2: hasn't been appealed. So what Judge Meta's opinion has is

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Speaker 2: sort of legal momentum, so similar issues have been presented

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Speaker 2: in different courts, and judges will look to see they're

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Speaker 2: not necessarily bound. Well they're not bound, but they look

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Speaker 2: to see, you know, what other judges have done. There

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Speaker 2: aren't that many cases like this, so on product market definition,

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Speaker 2: Judge Meta looked at a case that involve digital advertising

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Speaker 2: in a completely different setting with different parties, and it

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Speaker 2: was a merger case. So you know, I would expect,

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Speaker 2: you know, a judge in the northern industry of California

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Speaker 2: to consider carefully what Judge Meta is very thoughtful, very

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Speaker 2: thorough opinion, and you know it may be persuasive. But

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Speaker 2: I assume YELP file there for other reasons like thinking

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Speaker 2: they'll have a better shot on damages and maybe a

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Speaker 2: better shot on appeal. So you know, there are all

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Speaker 2: sorts of complicated reasons for choice of court. But in

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Speaker 2: any event, even filing in DC, another judge doesn't have

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Speaker 2: to follow what Meta has decided because it's still not final.

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Speaker 1: Can you explain what Yelp's complaint is?

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Speaker 2: Well, I think generally, I mean YELP has YELP has

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Speaker 2: felt that Google has has stolen their lunch the right phrase,

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Speaker 2: you know.

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Speaker 1: I don't know if it's the right phrase.

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Speaker 2: Well, the local reviews, you know, Google has incorporated into

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Speaker 2: its own system and then gotten advertising off of it,

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Speaker 2: including reviews, So you know, to the extent that Yelp

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Speaker 2: has to you know, buy advertising you know, under Google

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Speaker 2: to get viewers, you know, to then click onto Yelp

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Speaker 2: is one problems, and another problem may be the way

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Speaker 2: reviews are done and whether Google has self preferenced its

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Speaker 2: own search results over yelps. I mean, basically, I think

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Speaker 2: they're complaining that Google runs its business in a way

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Speaker 2: that makes it very hard for Yelp to compete because

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Speaker 2: you know, they control the search engine results page and

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Speaker 2: in the end degrade searches by favoring their own results,

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Speaker 2: or at least that may be what they're claiming.

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Speaker 1: Do Judgmenta's findings have anything to do with that the

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Speaker 1: local search results that.

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Speaker 2: Yelp does, well, he looked at it's really a different market.

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Speaker 2: First of all, rejected the idea that brought by the

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Speaker 2: States that there was some problem with vertical search engines,

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Speaker 2: which Yelp is. So the advertising market that Yelp is

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Speaker 2: alleging is different than the search advertising market that judge

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Speaker 2: Meta focused on, so they'll have to slog through that.

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Speaker 2: The idea that there is some degree of degrading of

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Speaker 2: search results, which is shown by preferencing Google search results

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Speaker 2: over others, that may help, But again I think this

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Speaker 2: is all going to have to be sort of fought

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Speaker 2: out anew by Yelp at this point in litigation, because

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Speaker 2: they don't get any technical benefit from whatever findings judgemental

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Speaker 2: made and judgementals decided on a somewhat different market, and

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Speaker 2: I think Yelp is a legend.

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Speaker 1: Wouldn't it be hard to prove damages in a case

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Speaker 1: like this, Well.

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Speaker 2: Yelp, assuming they can find some sort of liability if

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Speaker 2: they've been excluded or their business has been harmed, My

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Speaker 2: guess is that they would have a shot at damages.

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Speaker 2: Excluded competitors are the most directly injured from these kinds

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Speaker 2: of monopolizing behaviors because the focus is to exclude you know,

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Speaker 2: other competitors. So, you know, damages are always a problem.

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Speaker 2: Causation is a problem. You know, did it really cause

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Speaker 2: you know, whatever the conduct in which Google engaged these

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Speaker 2: particularly you know, exclusive contracts and so forth, paying for

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Speaker 2: defaults on search. Did that directly harm YELP is going

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Speaker 2: to be another question. They'll they'll have to litigate, but

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Speaker 2: my guess is they'll have you know, good economists who

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Speaker 2: will model the effect on their business, and you know,

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Speaker 2: they do have a business, and presumably they can show

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Speaker 2: that they you know, but for that behavior, they would

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Speaker 2: have been more successful.

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Speaker 1: And what do you think about the remedy in the

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Speaker 1: Google case. I've been hearing that the Justice Department might

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Speaker 1: actually ask for a breakup.

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Speaker 2: Well, I hear that some commentators want a justice to

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Speaker 2: ask for some sort of breakup. The Department probably will

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Speaker 2: not want to call it a breakup, but a restructuring

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Speaker 2: of Google's business. Now, I don't know. This has been

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Speaker 2: one of the big puzzles to me of the Google litigations,

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Speaker 2: to you know, what they will be able to get

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Speaker 2: from the judge in terms of relief that will actually

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Speaker 2: bring competition to this search business, And I don't, frankly,

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Speaker 2: I'm not sure what that is. So it is possible

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Speaker 2: that they'll ask that Chrome be spun off or that

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Speaker 2: Android be you know, the Android operating system be spun off.

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Speaker 2: But there are a lot of technical issues and bottom

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Speaker 2: financial issues because these all rely on being connected to

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Speaker 2: Google's advertising machine. So this is really a stay tuned

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Speaker 2: and you know, let's see what they come up with.

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Speaker 1: Coming up next on the Bloomberg Lawn Show, I'll continue

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Speaker 1: this conversation with NYU law professor Harry First in Nvidia

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Speaker 1: gets a subpoena in a Justice Department investigation and NFL

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Speaker 1: Sunday ticket subscribers appeal a judge's decision tossing a four

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Speaker 1: point seven billion dollar jury verdict. This is Bloomberg. NFL

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Speaker 1: Sunday ticket subscribers are appealing a judge's decision to toss

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Speaker 1: a four point seven billion dollar jury verdict against the league,

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Speaker 1: an award that could have been tripled to fourteen billion

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Speaker 1: under federal antitrust laws. The appeal is certainly not a

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Speaker 1: surprise in the legal fight over pricing of the NFL's

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Speaker 1: ticket game broadcast package. It's a case that's been going

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Speaker 1: on for ten years. The judge found that the jury's

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Speaker 1: damages awards were not based on quote the evidence and

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Speaker 1: reasonable inferences, but instead we're more akin to guesswork or speculation.

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Speaker 1: But he did not order a new trial. I've been

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Speaker 1: talking to antitrust professor Harry First of NYU Law School.

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Speaker 1: The judge said that there was liability, but the jury

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Speaker 1: miscalculated the damages, so he threw out the jury award,

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Speaker 1: but then he didn't order a new trial, right that

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Speaker 1: seems odd to me.

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Speaker 2: Well, yes, that's presumably going to be one of the

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Speaker 2: arguments on appeal as to whether it should have been

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Speaker 2: returned for a new trial on damages. Now, as I

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Speaker 2: read the judge's opinion, the judge said, well, it looks

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Speaker 2: from the number that the jury came up with that

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Speaker 2: they didn't really rely on the you know, on the

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Speaker 2: expert's evidence. Not clear how they got to these numbers,

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Speaker 2: And he didn't seem to have confidence that the jury

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Speaker 2: could now go back and come to some other decision.

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Speaker 2: I'm not quite sure why, and I'm not quite sure

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Speaker 2: why the plaintiffs should not be allowed to, you know,

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Speaker 2: to come forward with evidence on damages that are not

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Speaker 2: from these flawed well what judge found was flawed damage's estimates.

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Speaker 2: So I'm not quite sure whether that's going to be

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Speaker 2: supportable on appeal. The judge did say, you're right that

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Speaker 2: there was sufficient evidence from which the jury could infer

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Speaker 2: a violation of Section one of the Sherman Act. Well,

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Speaker 2: that's you know, that's that's a pretty important finding. So

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Speaker 2: I think, you know, this argument is yet to be

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Speaker 2: fought out in the court of appeals as to whether

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Speaker 2: that's supportable, and it raises a good question about how

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Speaker 2: we feel about these juries in these complex cases. And

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Speaker 2: it seems to me that the use of juries, the

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Speaker 2: desire of plaintiffses includes the federal government to bring their

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Speaker 2: cases before juries, is increasing precisely because jurors do have

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Speaker 2: a sense of they are consumers, and they have a

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Speaker 2: sense of when things have gone wrong in the marketplace.

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Speaker 2: So I think this will be an interesting one to

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Speaker 2: follow through on appeal and see whether that is supportable

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Speaker 2: and whether plaintiff should have gotten a new trial.

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Speaker 1: I mean, you would think that if there's liability but

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Speaker 1: the jury miscalculated the damages, that okay, it seems like

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Speaker 1: a new trial would be in order. There. Do they

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Speaker 1: want juris plaintiff's attorneys in the government because juries will

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Speaker 1: give awards that are bigger and perhaps more emotional than

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Speaker 1: a judge would.

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Speaker 2: Well, I can't psychoanalyze plaintiff lawyers. I think they assume

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Speaker 2: that jurors might be more more open to large damages

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Speaker 2: awards than judges who you know, judges can be pretty skeptical,

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Speaker 2: and you know, judges are often conservative, you know, that's

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Speaker 2: how they got there. And I don't mean conservative in

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Speaker 2: a Republican point of view, I mean just generally, you know,

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Speaker 2: they're conservative. They're not lay people. So yes, maybe plaintiffs

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Speaker 2: think that jurors are a more hospitable forum, but I

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Speaker 2: think it goes beyond that. I think it goes to

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Speaker 2: the question of jurors being not as attached to technical

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Speaker 2: evidence as to you know, sort of a broader understanding of,

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Speaker 2: you know, how the business operating, what the defendants have done,

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Speaker 2: and they haven't seen it all before. Judges may have

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Speaker 2: seen a lot of this before, so they may come

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Speaker 2: with a more open mind, you know, that may be

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Speaker 2: better and in some sense more democratic.

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Speaker 1: This is the tenth year I think of this lawsuit.

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Speaker 1: I mean they could appeal, then there could be another trial,

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Speaker 1: then more appeals, more appeals. Is this something that could

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Speaker 1: be settled or after ten years are they dug in?

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Speaker 2: I hadn't really thought about that, since they hadn't settled before.

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Speaker 2: I think, you know, lawyers assess risk and the NFL

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Speaker 2: assesses risk and the owners a sess risk. So is

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Speaker 2: it possible to settle this? Well, you know, there's a

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Speaker 2: liability finding, so maybe maybe that will be possible. But

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Speaker 2: on the other hand, at this point, the worst that

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Speaker 2: can happen for the defendants, I guess is a new trial.

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Speaker 2: Now that might just make the chances of settlement, I mean,

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Speaker 2: the cost of settlement more expensive, I guess, or maybe

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Speaker 2: the plaintiffsin would be more willing to settle. So it's

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Speaker 2: a delicate issue. Settlements possible at any time, even while

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Speaker 2: the jury's out and the time you know, past time

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Speaker 2: doesn't matter, and you know, there's more that we'll go

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Speaker 2: into it, including the defendant's reputation for whether they'll settle

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Speaker 2: or sue.

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Speaker 1: Turning to another anti trust story, the Justice Department sent

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Speaker 1: subpoenas to Nvidia and other companies as it seeks evidence

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Speaker 1: that the chip maker violated antitrust laws. According to Bloomberg sources,

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Speaker 1: that's an escalation of the Justice Department's investigation into the

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Speaker 1: dominant provider of AI processors. According to people familiar with

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Speaker 1: the investigation, the Justice Department, which had previously delivered questionnaires

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Speaker 1: to companies, is now seeking legally binding requests that obliged

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Speaker 1: recipients to provide information. In response to a Bloomberg News story,

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Speaker 1: in DA said it has been in contact with the

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Speaker 1: government agency, but hasn't been subpoenaed. The DOJ often sends

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Speaker 1: requests for information in the form of what's known as

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Speaker 1: a civil investigative demand, which is commonly referred to as

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Speaker 1: a subpoena, And, according to one person what's direct knowledge

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Speaker 1: of the matter, the Justice Department has sent such a

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Speaker 1: request seeking information about Nvidia's acquisition of run Ai and

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Speaker 1: aspects of its chip business. So, Harry, what's the real

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Speaker 1: significance of the Justice Department sending subpoenas or the civil

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Speaker 1: investigative demands to Nvidia and other companies?

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Speaker 2: Well, I guess you know. The most direct answer is

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Speaker 2: they're investigating so an ant trust investigation I hope is

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Speaker 2: you know, not just chopped liver as they say. It's

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Speaker 2: something important for a company and it may amount to

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Speaker 2: no case being broad who knows what it'll amount to.

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Speaker 2: But what it doesn't amount to is it's not nothing.

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Speaker 2: So they are being looked at, and you'd rather not

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Speaker 2: be looked at. Now, the other side of that is

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Speaker 2: all the cases we're talking about take a long time

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Speaker 2: before anything happens by way of remedy to any of

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Speaker 2: these companies. You know you mentioned the Sunday ticket case.

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Speaker 2: By looking at the government cases, I mean the decision

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Speaker 2: JUDGMENTSA just decided this in twenty twenty four. The case

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Speaker 2: was filed in twenty twenty and this is just the trial.

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Speaker 2: So as Google's business been harmed by this, well, I

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Speaker 2: don't know they spend time defending it, but people aren't

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Speaker 2: selling off didn't sell off Google stock because of any

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Speaker 2: trust investigation, and my guess is they're not really the

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Speaker 2: volatility and Nvidia stock is not really much affected by

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Speaker 2: this now, but you know, who knows what they'll find.

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Speaker 2: And what what is interesting to me is in Vidia

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Speaker 2: has a business plan that, as you read about it

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Speaker 2: in say the Wall Street Journal, is interested in being

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Speaker 2: not just if you can say, just the chip seller

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Speaker 2: for AI, but having a much broader role in the industry.

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Speaker 2: There's a lot of concern I think this would be

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Speaker 2: broad ranging about how the AI industry, if you want

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Speaker 2: to call it that, or how AI is going to

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Speaker 2: evolve and who's going to control it. So I don't

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Speaker 2: know what the probe is about, and who knows what

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Speaker 2: they'll find, but they may turn out to be interested

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Speaker 2: in how Nvidia is pursuing this broader strategy and that

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Speaker 2: might present some challenge for the company that really does

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Speaker 2: it wants to be around in a broader sense that

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Speaker 2: the big platform companies are today. They that's my sense

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Speaker 2: of it. So yeah, in the long run, this may

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Speaker 2: pose some challenge to what they want to do is

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Speaker 2: evolving business.

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Speaker 1: So the subpoenas don't necessarily indicate that the government is

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Speaker 1: getting ready to file a lawsuit.

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Speaker 2: Oh no, no, these are they're civil investigation demands. They're

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Speaker 2: not grand jury subpoenas. So I mean it's not a

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Speaker 2: criminal case. I mean, although the report just says subpoenas,

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Speaker 2: I'm not sure how technical the terms being used. I

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Speaker 2: don't assume it's a grand jury, which is just for

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Speaker 2: criminal matters. So I assume there's what are called civil

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Speaker 2: investigative demands, and it's the beginning of gathering information. And

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Speaker 2: I mean, this can happen and then nothing happens, or

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Speaker 2: you know, it takes the departments are complicated companies. Takes

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Speaker 2: a division and trust division sometime to you know, get

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Speaker 2: the information, figure out what to do, and then figure

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Speaker 2: out what to do next. You know who they want

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Speaker 2: to talk to, what documents. I mean, it is a lot,

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Speaker 2: so I don't look for anything quick. I think they

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Speaker 2: are at the beginning of this investigation. But you know,

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Speaker 2: maybe there are complainants that have put them on the

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Speaker 2: track of some very specific practices involving exclusive contracts of

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Speaker 2: things that they think they can remedy rather quickly. So

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Speaker 2: we'll see, we will see.

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Speaker 1: And when we do see, I'll call you Harry, thanks

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Speaker 1: so much. That's Professor Harry First of NYU Law School

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Speaker 1: coming up next. Trump is barred from playing hold On

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Speaker 1: at rallies. This is Bloomberg. Donald Trump has been playing

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Speaker 1: the Sam and Dave song hold On at his rally

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Speaker 1: since twenty twenty, but according to a complaint by the

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Speaker 1: estate of the late musician Isaac Hayes, Trump never got

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Speaker 1: permission or obtained a valid license, and even ignored a

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Speaker 1: cease and assist letter the estates sent in twenty twenty.

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Speaker 1: It's unusual that these kinds of disputes with artists reach

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Speaker 1: a trial judge, but it's Donald Trump, whose tendency to

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Speaker 1: litigate is well known. Now A federal judge in Atlanta

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Speaker 1: has issued a preliminary injunction stopping Trump from playing the

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Speaker 1: song as the copyright case against him proceeds. Joining me

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Speaker 1: is Heidi Vakarano, a partner Fox Rothschild. Let's say a

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Speaker 1: politician wants to play the song of an artist at

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Speaker 1: campaign rallies. What do they have to do legally?

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Speaker 3: So it is a little bit complicated because of the

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Speaker 3: nature of how the licensing system is in the United States.

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Speaker 3: So if they're just going to play it at a

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Speaker 3: campaign at a public location like a convention center or rally,

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Speaker 3: then they need to obtain a public performance license from

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Speaker 3: the public performance organizations, which include ASCAP, BMI, Feedback or GMR.

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Speaker 3: And you need to obtain a license from each one

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Speaker 3: of them because a song could have various writers that

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Speaker 3: are registered to either one of these pros. So it's

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Speaker 3: not just that you would go to ASKCAF and think

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Speaker 3: that you have an entire license for a song, because

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Speaker 3: the songwriters there may be four songwriters and two are

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Speaker 3: registered with ASKCAF, one is registered with BMI, and one

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Speaker 3: is registered with FEEDSACKS. So they would need to obtain

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Speaker 3: a license from each of these pros.

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Speaker 1: Does an artist have the right to say I don't

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Speaker 1: want Trump to be playing my songs at his rallies

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Speaker 1: because there's an implication that I'm endorsing him.

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Speaker 3: They do. It's part of the rights under the copyright

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Speaker 3: law in the US, and it's also considered false endorsement.

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Speaker 3: So they do have the right to deny a youth,

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Speaker 3: either through their publishing administrator or their record label.

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Speaker 1: Is it unusual that a case like this actually gets

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Speaker 1: to a trial judge?

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Speaker 3: I would say so yes. Normally, a license like this

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Speaker 3: would be a very simple thing to obtain, and if

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Speaker 3: somebody sends a season assist letter, then they would definitely

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Speaker 3: discontinue the use. But I feel like this has kind

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Speaker 3: of gone all the way because it is like the

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Speaker 3: nature of the political campaign.

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Speaker 1: The Isaac Kaysa State claims that it sent a cease

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Speaker 1: and desist letter to Trump in twenty twenty when he

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Speaker 1: was using the song at his campaign rallies. If they

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Speaker 1: didn't have a license and they didn't get permission from

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Speaker 1: the Hayes estate, is it a pretty easy decision for

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Speaker 1: the judge to say you can't play that.

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Speaker 3: Yeah, it should be so, like I said, you would

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Speaker 3: have to check if they have the proper public performance

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Speaker 3: licenses from all the songwriters involved in this case. You

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Speaker 3: can at least see that it is performed by a

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Speaker 3: separate artist, but written by that Isaac case right who,

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Speaker 3: which is owned by the Isaac Caase estate. So if

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Speaker 3: they did not have the proper licenses, it should be

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Speaker 3: very easy. According to a copywriter.

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Speaker 1: At the hearing, the lawyers for Trump said a couple

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Speaker 1: of things. They said that the ISAA Kaysa State didn't

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Speaker 1: own the copyright and apparently the ISAACASA state produced documents

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Speaker 1: for the judge. They also said they obtained a license

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Speaker 1: from BMI Music in November twenty twenty two.

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Speaker 3: Also, I believe BMI has also sent a season desist

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Speaker 3: letter two removing the song from its catalog for youth.

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Speaker 3: So at this point, a lot of what the public

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Speaker 3: performance organizations are doing is actively going to their members

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Speaker 3: and saying, if you would like to exclude your works

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Speaker 3: from use by political campaigns, then please contact us and

435
00:27:44,520 --> 00:27:46,960
Speaker 3: send us a notice letter along with a list of

436
00:27:46,960 --> 00:27:49,879
Speaker 3: your work that you want to have excluded from use

437
00:27:49,960 --> 00:27:51,399
Speaker 3: and political campaign.

438
00:27:51,960 --> 00:27:54,560
Speaker 1: So is there a possibility they get a license from

439
00:27:54,600 --> 00:27:57,120
Speaker 1: BMI at any point, whether.

440
00:27:56,920 --> 00:28:00,040
Speaker 3: They obtained a license from BMI, and if that's the

441
00:28:00,040 --> 00:28:02,320
Speaker 3: correct license, you would have to check. Like if each

442
00:28:02,359 --> 00:28:05,239
Speaker 3: of the songwriters were all registered with VMI, then that

443
00:28:05,280 --> 00:28:07,439
Speaker 3: would cover all of the songs. But it's not just

444
00:28:07,560 --> 00:28:10,560
Speaker 3: enough to have a license from BMI. There might be

445
00:28:10,680 --> 00:28:13,760
Speaker 3: songwriters who are registered with a different pro that they

446
00:28:13,800 --> 00:28:14,399
Speaker 3: would still have.

447
00:28:14,800 --> 00:28:19,240
Speaker 1: So the judges preliminary injunction said the Trump campaign couldn't

448
00:28:19,240 --> 00:28:22,560
Speaker 1: continue to use the song without a proper license, but

449
00:28:22,760 --> 00:28:27,920
Speaker 1: he is allowing the campaign to keep videos that already

450
00:28:27,960 --> 00:28:31,199
Speaker 1: exist that include hold On, I'm Coming.

451
00:28:31,680 --> 00:28:34,040
Speaker 3: But even if a song is used in the background

452
00:28:34,119 --> 00:28:36,200
Speaker 3: of a video, you would still have to pain a

453
00:28:36,240 --> 00:28:39,520
Speaker 3: synchronization needs. My understanding would be that at this point

454
00:28:39,560 --> 00:28:43,200
Speaker 3: they would probably go back into Discovery and see what

455
00:28:43,320 --> 00:28:45,560
Speaker 3: licenses they had pained. An a fit he had pained

456
00:28:45,600 --> 00:28:46,880
Speaker 3: all the proper licenses.

457
00:28:47,040 --> 00:28:49,920
Speaker 1: I was confused because Trump's attorney said that we are

458
00:28:50,080 --> 00:28:53,360
Speaker 1: gratified that the court recognized the First Amendment issues at

459
00:28:53,360 --> 00:28:56,760
Speaker 1: stake and didn't order a takedown of existing videos.

460
00:28:57,080 --> 00:28:59,120
Speaker 3: I don't think that's in line with with the reasoning.

461
00:28:59,160 --> 00:29:01,240
Speaker 3: But the court, I think they would definitely want to

462
00:29:01,280 --> 00:29:03,400
Speaker 3: go in and see what licenses were obtained and see

463
00:29:03,400 --> 00:29:06,360
Speaker 3: if the videos that they're using with the song were

464
00:29:06,400 --> 00:29:09,760
Speaker 3: properly licensed. So if the videos, like when you use

465
00:29:09,760 --> 00:29:13,120
Speaker 3: a song in a video, it's called the synchronization licensing,

466
00:29:13,200 --> 00:29:16,000
Speaker 3: you need to obtain a license for both the master

467
00:29:16,160 --> 00:29:20,040
Speaker 3: recording so whatever master version they use, and also from

468
00:29:20,080 --> 00:29:23,800
Speaker 3: the music on the music publishing sides from the songwriters

469
00:29:23,840 --> 00:29:24,400
Speaker 3: of the music.

470
00:29:24,720 --> 00:29:27,880
Speaker 1: I mean, do most campaigns go through all these hoops?

471
00:29:28,320 --> 00:29:31,160
Speaker 3: They should. There definitely should be someone in a campaign

472
00:29:31,200 --> 00:29:35,520
Speaker 3: who is looking into all of the clearances required, whether

473
00:29:35,640 --> 00:29:38,520
Speaker 3: it's just that a political rally or they're going to

474
00:29:38,560 --> 00:29:40,200
Speaker 3: be using it in commercials.

475
00:29:40,760 --> 00:29:43,280
Speaker 1: Correct me if I'm wrong, But this doesn't go to

476
00:29:43,360 --> 00:29:46,400
Speaker 1: court much because usually when artists say I don't want you.

477
00:29:46,400 --> 00:29:49,000
Speaker 3: To use that, you stop using it.

478
00:29:49,120 --> 00:29:53,400
Speaker 1: Correct. There are lists of artists who have been complaining

479
00:29:53,520 --> 00:30:00,360
Speaker 1: about Trump using their songs, from Celine Dion to Bruce Springsteen, Rihanna.

480
00:30:01,080 --> 00:30:04,600
Speaker 1: The list is long. They featured a video at one

481
00:30:04,600 --> 00:30:09,160
Speaker 1: of their campaigns of Celine Dion performing I can't even

482
00:30:09,320 --> 00:30:11,440
Speaker 1: imagine any way that you could think that that was

483
00:30:11,880 --> 00:30:13,240
Speaker 1: allowable and all the rice use.

484
00:30:13,400 --> 00:30:16,960
Speaker 3: Yeah, that is definitely an infringing use, not only from

485
00:30:17,080 --> 00:30:20,720
Speaker 3: the use of the music, but also the false endorsement

486
00:30:20,920 --> 00:30:24,040
Speaker 3: any potential trademarks that we're used in whoever the owner

487
00:30:24,040 --> 00:30:25,440
Speaker 3: of the video footage is as well.

488
00:30:26,080 --> 00:30:29,440
Speaker 1: Isaac case the third said, we're pleased with this decision

489
00:30:29,480 --> 00:30:31,720
Speaker 1: by the court and move to the next phase of

490
00:30:31,760 --> 00:30:34,600
Speaker 1: the lawsuit. He called it the first step in the

491
00:30:34,600 --> 00:30:38,320
Speaker 1: copyright infringement case against Donald Trump and Donald Trump for President.

492
00:30:38,560 --> 00:30:43,880
Speaker 1: They're seeking actual and punitive damages for each proven infringement.

493
00:30:44,760 --> 00:30:47,800
Speaker 3: So the nature of how our copyright works is once

494
00:30:47,840 --> 00:30:51,720
Speaker 3: your cops have protection under the copyright, you registered it

495
00:30:51,760 --> 00:30:55,120
Speaker 3: with the copyright office, then you are entitled for statutory

496
00:30:55,200 --> 00:30:59,280
Speaker 3: damages and potentially additional damages, punitive damages like they're requesting

497
00:30:59,680 --> 00:31:02,720
Speaker 3: if they have sent these feats into this letters and

498
00:31:02,760 --> 00:31:06,080
Speaker 3: can prove that there has been economic harm due to

499
00:31:06,160 --> 00:31:07,760
Speaker 3: the continued use of the songs.

500
00:31:08,480 --> 00:31:10,360
Speaker 1: One of the things that Trump's lawyer said is that

501
00:31:10,400 --> 00:31:13,080
Speaker 1: they weren't harmed by this. They weren't economically harmed by this.

502
00:31:13,480 --> 00:31:16,320
Speaker 1: What kind of economic harm can you prove?

503
00:31:16,840 --> 00:31:20,200
Speaker 3: For example, like imagine if this was a car commercial

504
00:31:20,440 --> 00:31:24,880
Speaker 3: and they were the ISIC cases. They decided, okay, we

505
00:31:25,160 --> 00:31:28,040
Speaker 3: have already had a deal with BMW, But then bulbo

506
00:31:28,200 --> 00:31:31,080
Speaker 3: used it, you know, so if they have existing licenses

507
00:31:31,120 --> 00:31:33,720
Speaker 3: that this would put them in breach of that's one issue,

508
00:31:33,800 --> 00:31:36,600
Speaker 3: right that they can show they've lost money due to

509
00:31:36,680 --> 00:31:40,400
Speaker 3: this infringing use that was unauthorized. They can also show

510
00:31:40,520 --> 00:31:43,840
Speaker 3: that they potentially lost other uses because of this false

511
00:31:43,920 --> 00:31:46,680
Speaker 3: endorsement from the use of their music. And they can

512
00:31:46,760 --> 00:31:52,000
Speaker 3: also use the fact that they were in active negotiations

513
00:31:52,040 --> 00:31:55,400
Speaker 3: potentially with other publishers or whoever they are, that the

514
00:31:55,520 --> 00:31:58,200
Speaker 3: use of their music lost value because of a campaign

515
00:31:58,280 --> 00:32:00,640
Speaker 3: that used their music and authorized.

516
00:32:01,000 --> 00:32:03,480
Speaker 1: That sounds a little more difficult than I thought. It's

517
00:32:03,520 --> 00:32:07,080
Speaker 1: not just give me economic damages because you use this

518
00:32:07,160 --> 00:32:09,680
Speaker 1: song one hundred and thirty three times without my permission.

519
00:32:10,240 --> 00:32:14,640
Speaker 3: Correct. No, the statutory damages are set by the US

520
00:32:14,720 --> 00:32:18,520
Speaker 3: copyright law for this for each infringing use right. But

521
00:32:18,800 --> 00:32:23,240
Speaker 3: economic damages or for punitive damages are you know, more nuanced,

522
00:32:23,240 --> 00:32:25,760
Speaker 3: and they would have to prove that they potentially lost

523
00:32:25,800 --> 00:32:31,640
Speaker 3: other licensing opportunities and damaged their name imager likeness.

524
00:32:31,960 --> 00:32:34,240
Speaker 1: There's a little bit of a twist here because Sam

525
00:32:34,280 --> 00:32:38,200
Speaker 1: Moore of Sam and Dave was against the filing of

526
00:32:38,240 --> 00:32:39,160
Speaker 1: this lawsuit.

527
00:32:39,400 --> 00:32:44,040
Speaker 3: So Sam Moore had performed a song at an inauguration

528
00:32:44,160 --> 00:32:47,640
Speaker 3: concert for Trump. Right, So what's interesting in the US

529
00:32:47,800 --> 00:32:50,400
Speaker 3: is that you know, Britney Spears can perform a song,

530
00:32:50,840 --> 00:32:55,360
Speaker 3: but it's written by four different songwriters, right, But it's

531
00:32:55,440 --> 00:32:58,400
Speaker 3: her who's on the master recording, who's a performer on this.

532
00:32:58,560 --> 00:33:02,120
Speaker 3: So they would still need to get permission from the artists.

533
00:33:02,160 --> 00:33:04,360
Speaker 3: So in this case where Sam is saying like, hey,

534
00:33:04,440 --> 00:33:07,640
Speaker 3: I gave provision or potentially saying I'm okay with the youth,

535
00:33:08,000 --> 00:33:11,560
Speaker 3: if one person out of four songwriters denies the youth,

536
00:33:12,080 --> 00:33:14,120
Speaker 3: then you cannot use the song either way.

537
00:33:14,840 --> 00:33:18,080
Speaker 1: Actually, the Trump lawyers filed with the court a sworn

538
00:33:18,160 --> 00:33:21,080
Speaker 1: statement where he said he was opposed to the actions

539
00:33:21,120 --> 00:33:24,720
Speaker 1: sought by the Hayes estate. That carries no weight, I take.

540
00:33:24,560 --> 00:33:28,240
Speaker 3: It, no, not really. I mean, there's a nuance to

541
00:33:28,320 --> 00:33:32,480
Speaker 3: the US copyright app where a songwriter of a composition

542
00:33:33,240 --> 00:33:37,160
Speaker 3: can license the use of the songs for non exclusive use,

543
00:33:37,600 --> 00:33:40,680
Speaker 3: just solely in the US, But that does not really

544
00:33:40,720 --> 00:33:44,080
Speaker 3: extend to public performance uses because those are controlled by

545
00:33:44,120 --> 00:33:47,560
Speaker 3: the public performance organization and they would need the campaign

546
00:33:47,560 --> 00:33:50,440
Speaker 3: would still need to obtain a license from that. And

547
00:33:50,600 --> 00:33:54,400
Speaker 3: if a songwriter from one of the songs has already

548
00:33:54,480 --> 00:33:57,760
Speaker 3: asked the PRORO to exclude their music, then they couldn't

549
00:33:57,760 --> 00:33:58,560
Speaker 3: grant a license.

550
00:33:58,880 --> 00:34:01,560
Speaker 1: Sam Moore also said that he was afraid that if

551
00:34:01,640 --> 00:34:04,840
Speaker 1: the court were to grant the Hayes of States' wishes,

552
00:34:05,680 --> 00:34:08,800
Speaker 1: that he might be prohibited from ever appearing and performing

553
00:34:08,840 --> 00:34:11,640
Speaker 1: the song at a Trump event during or after the election.

554
00:34:12,400 --> 00:34:14,400
Speaker 1: That is true, then according to what you said, that

555
00:34:14,520 --> 00:34:17,680
Speaker 1: he is not allowed to perform that without the permission

556
00:34:17,880 --> 00:34:18,640
Speaker 1: of the Hazen.

557
00:34:18,440 --> 00:34:21,480
Speaker 3: Write the songwriter. Yeah, they would not be able to

558
00:34:21,480 --> 00:34:23,720
Speaker 3: obtain a public performance license.

559
00:34:23,400 --> 00:34:28,280
Speaker 1: For that song. How much does a public license usually cost?

560
00:34:28,320 --> 00:34:31,719
Speaker 1: Because the Hayes State said it would allow Trump to

561
00:34:31,760 --> 00:34:36,440
Speaker 1: pay a quote very discounted three million dollar licensing fee.

562
00:34:36,520 --> 00:34:38,120
Speaker 1: I mean, are they that high?

563
00:34:38,320 --> 00:34:41,919
Speaker 3: No, I don't. The public performance license depends on what

564
00:34:42,239 --> 00:34:45,359
Speaker 3: the nature of the youth will be, whether it's just

565
00:34:45,560 --> 00:34:48,600
Speaker 3: like for the life of the political campaign, which lasts

566
00:34:48,680 --> 00:34:52,680
Speaker 3: up until Canada is born into office. I'm not exactly

567
00:34:52,719 --> 00:34:55,799
Speaker 3: sure what the price is for each pro but I

568
00:34:55,880 --> 00:34:57,160
Speaker 3: don't believe it's been a million.

569
00:34:57,920 --> 00:35:00,560
Speaker 1: It'll be interesting to see how this turns out, since

570
00:35:00,600 --> 00:35:04,440
Speaker 1: we don't normally get this far in litigation over the

571
00:35:04,640 --> 00:35:08,360
Speaker 1: use of songs. Thanks so much, Heidi. That's Heidie Dekarano,

572
00:35:08,480 --> 00:35:11,200
Speaker 1: a partner at Fox Rothschild. And that's it for this

573
00:35:11,320 --> 00:35:14,480
Speaker 1: edition of the Bloomberg Law Podcast. Remember you can always

574
00:35:14,480 --> 00:35:17,239
Speaker 1: get the latest legal news by subscribing and listening to

575
00:35:17,280 --> 00:35:21,440
Speaker 1: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,

576
00:35:21,440 --> 00:35:25,719
Speaker 1: slash podcast, slash Law. I'm June Grosso and this is

577
00:35:25,760 --> 00:35:26,360
Speaker 1: Bloomberg