1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio. 2 00:00:11,680 --> 00:00:15,920 Speaker 1: Have you seen the little biggies calling in the dud? 3 00:00:17,079 --> 00:00:20,880 Speaker 1: And for all the little biggies, life is getting on. 4 00:00:22,800 --> 00:00:26,599 Speaker 1: A new California law requires the humane treatment of pigs, 5 00:00:26,960 --> 00:00:30,000 Speaker 1: but pork producers say the greatest impact of the law 6 00:00:30,080 --> 00:00:34,280 Speaker 1: would be outside California, threatening the twenty six billion dollar 7 00:00:34,320 --> 00:00:37,600 Speaker 1: a year pork industry. At oral arguments this week, the 8 00:00:37,720 --> 00:00:41,360 Speaker 1: question of one state imposing its moral values on another 9 00:00:41,600 --> 00:00:44,840 Speaker 1: was a key concern for the justices, one that caught 10 00:00:44,840 --> 00:00:49,959 Speaker 1: across ideological lines. Here's Chief Justice John Roberts and Justices 11 00:00:49,960 --> 00:00:54,360 Speaker 1: Elena Kagan and Neil Gorsuch under your analysis, Uh, it's 12 00:00:54,440 --> 00:00:58,400 Speaker 1: California's view of morality that prevails over the views of 13 00:00:58,720 --> 00:01:02,800 Speaker 1: people in other states because of the market power that 14 00:01:02,960 --> 00:01:06,240 Speaker 1: they have. You know, do we want to live in 15 00:01:06,280 --> 00:01:11,200 Speaker 1: a world where we're constantly at each other's throats? And um, yeah, 16 00:01:11,880 --> 00:01:14,920 Speaker 1: Texas is at war with California, and California at war 17 00:01:14,959 --> 00:01:22,800 Speaker 1: with Texas As. I understand California's position charitably. It's that Californians, 18 00:01:24,280 --> 00:01:28,200 Speaker 1: of them voted for this law. They don't wish to 19 00:01:28,319 --> 00:01:33,800 Speaker 1: have California be complicit even indirectly, in the in the 20 00:01:33,959 --> 00:01:40,080 Speaker 1: in livestock practices that they find aboard wherever they occur. 21 00:01:40,600 --> 00:01:43,240 Speaker 1: My guest is Harold Crant, a professor at the Chicago 22 00:01:43,319 --> 00:01:46,600 Speaker 1: Kent College of Law. He'll tell us about this California 23 00:01:46,680 --> 00:01:49,520 Speaker 1: law that hasn't even gone into effect yet. The law 24 00:01:49,600 --> 00:01:54,600 Speaker 1: says that California will not import pork products if the 25 00:01:54,600 --> 00:01:57,480 Speaker 1: breeder pigs or the sows have been placed in any 26 00:01:57,600 --> 00:02:00,800 Speaker 1: humane conditions. And most sweeting styles are kept in little 27 00:02:00,800 --> 00:02:04,200 Speaker 1: crates that can't even turn around. What California's law has 28 00:02:04,240 --> 00:02:08,280 Speaker 1: a huge impact outside of the state. Only about potent 29 00:02:08,560 --> 00:02:13,400 Speaker 1: of all pork in this country is raised in California, 30 00:02:13,720 --> 00:02:18,640 Speaker 1: and yet California consumes of pork in the nation. And 31 00:02:18,680 --> 00:02:21,880 Speaker 1: so with that kind of dramatic impact is that this 32 00:02:22,480 --> 00:02:26,520 Speaker 1: regulation will increase the price of pork across the country 33 00:02:26,639 --> 00:02:30,360 Speaker 1: because pork producers can't segregate their pigs, and they have 34 00:02:30,440 --> 00:02:34,040 Speaker 1: to have their pigs all usually together, and the products 35 00:02:34,080 --> 00:02:37,480 Speaker 1: are usually intermingled, and so therefore be very expensive to 36 00:02:37,560 --> 00:02:41,320 Speaker 1: segregate pig raising for just the California market as opposed 37 00:02:41,400 --> 00:02:43,480 Speaker 1: to the rest of the country. Now that's debated. We 38 00:02:43,520 --> 00:02:45,679 Speaker 1: haven't had any fact finding on is it going to 39 00:02:45,760 --> 00:02:49,360 Speaker 1: be a five percent raising prices three ten percent? But 40 00:02:49,440 --> 00:02:53,240 Speaker 1: there will be some increased expense across the country because 41 00:02:53,280 --> 00:02:58,000 Speaker 1: of this regulation. The pork producers claimed the law violates 42 00:02:58,120 --> 00:03:02,880 Speaker 1: the dormant commerce Tell me how that argument goes. So 43 00:03:03,160 --> 00:03:07,760 Speaker 1: the quote is very used to challenges that certain state 44 00:03:07,760 --> 00:03:10,440 Speaker 1: regulations thiolate the dormant commerce clause. They have been not 45 00:03:10,560 --> 00:03:13,800 Speaker 1: hospitable to those in the past because there's a tension 46 00:03:13,880 --> 00:03:17,880 Speaker 1: between states trying to help their own citizens but also 47 00:03:17,880 --> 00:03:21,000 Speaker 1: putting a damper on commerce out of the state, and 48 00:03:21,040 --> 00:03:25,040 Speaker 1: they traditionally have said that the state cannot enacted protectionist 49 00:03:25,080 --> 00:03:28,680 Speaker 1: measure and a state cannot discriminate explicitly against the commerce 50 00:03:28,720 --> 00:03:32,080 Speaker 1: from another state as long as it's good faith regulation 51 00:03:32,440 --> 00:03:35,400 Speaker 1: internally within the state, that that should survive any kind 52 00:03:35,400 --> 00:03:38,720 Speaker 1: of dormant commerce clause challenge. This case is a little different, 53 00:03:38,920 --> 00:03:40,640 Speaker 1: and so I think the court and struggled with it 54 00:03:40,720 --> 00:03:43,880 Speaker 1: because on the one hand, that you're trying to protect 55 00:03:43,880 --> 00:03:48,120 Speaker 1: the sensibilities of California by saying we only will allow 56 00:03:48,480 --> 00:03:52,720 Speaker 1: humanely slaughtered pigs to enter into the market, and that's 57 00:03:52,760 --> 00:03:55,640 Speaker 1: a different kind of claim than we've seen in the past, 58 00:03:55,880 --> 00:03:59,680 Speaker 1: and it clearly has some kind of significant burden on 59 00:04:00,040 --> 00:04:05,280 Speaker 1: out of state commerce because over of all pig farming 60 00:04:05,360 --> 00:04:08,960 Speaker 1: takes place outside of California. The pork producers say the 61 00:04:09,080 --> 00:04:13,680 Speaker 1: law unlawfully regulates farmers in other states, but those farmers 62 00:04:13,760 --> 00:04:16,799 Speaker 1: don't have to sell their pork in California. They don't. 63 00:04:16,920 --> 00:04:20,719 Speaker 1: But California, because of its size, has the market, and 64 00:04:20,800 --> 00:04:24,400 Speaker 1: so states like New York, California, and Texas have a 65 00:04:24,480 --> 00:04:28,400 Speaker 1: disproportionate impact upon commerce in the United States, and so 66 00:04:28,640 --> 00:04:30,880 Speaker 1: producers have to listen to what those three states in 67 00:04:31,000 --> 00:04:35,080 Speaker 1: particular say that they have an outsized impact on the market. 68 00:04:35,320 --> 00:04:39,320 Speaker 1: That being said, it is clear that if California banned 69 00:04:39,720 --> 00:04:44,240 Speaker 1: all the importation of pork because of perceived health reasons 70 00:04:44,320 --> 00:04:47,240 Speaker 1: into the state of California, that would survive any kind 71 00:04:47,240 --> 00:04:50,760 Speaker 1: of commerce Claus challenge. So the interesting issue here, and 72 00:04:50,800 --> 00:04:53,760 Speaker 1: I think one that we split the court, is if 73 00:04:53,800 --> 00:04:57,640 Speaker 1: a ban is okay under the constitution, why isn't the 74 00:04:57,720 --> 00:05:01,280 Speaker 1: lesser step of a certification that the pigs are slaughtered 75 00:05:01,360 --> 00:05:05,200 Speaker 1: under humane conditions. Why shouldn't that also be constitutional? And 76 00:05:05,400 --> 00:05:10,200 Speaker 1: explain why a ban works when this halfway measure might not, 77 00:05:10,880 --> 00:05:14,440 Speaker 1: because this ree Court has recognized that for legitimate health 78 00:05:14,480 --> 00:05:17,680 Speaker 1: reasons and safety reasons from states can take action to 79 00:05:17,760 --> 00:05:20,400 Speaker 1: protect their citizens. So as long as there is a 80 00:05:20,480 --> 00:05:24,159 Speaker 1: good faith belief that pig meat would be unhealthy for 81 00:05:24,880 --> 00:05:28,400 Speaker 1: reasons of whether it's cholesterol or reasons of disease, the 82 00:05:28,440 --> 00:05:32,320 Speaker 1: citizens of California, and that that kind of disease can 83 00:05:32,480 --> 00:05:35,719 Speaker 1: impact the material well being of its citizens, and California's 84 00:05:35,720 --> 00:05:39,400 Speaker 1: every right to ban the importation of port. Indeed, California 85 00:05:39,440 --> 00:05:43,160 Speaker 1: just recently has banned importation of several types of cosmetics 86 00:05:43,680 --> 00:05:47,440 Speaker 1: and other kinds of food additives for those very reasons. 87 00:05:47,440 --> 00:05:50,960 Speaker 1: So the outright ban, I think is clearly constitutional. It 88 00:05:51,040 --> 00:05:54,320 Speaker 1: can be over ruled by Congress. But until Congress does that, 89 00:05:54,640 --> 00:05:56,800 Speaker 1: a ban is fine. And so the question is whether 90 00:05:56,880 --> 00:06:00,880 Speaker 1: this lesser step, a certification based upon VA use, is 91 00:06:01,120 --> 00:06:05,440 Speaker 1: constitutional or in the alternative, does it open Pandora's box 92 00:06:05,880 --> 00:06:08,760 Speaker 1: of where Texas and California will have a feud on 93 00:06:08,839 --> 00:06:13,000 Speaker 1: morality and each enact laws, you know, suggesting that products 94 00:06:13,000 --> 00:06:16,360 Speaker 1: from the other state or immoral because of labor practices, 95 00:06:16,560 --> 00:06:19,320 Speaker 1: abortion practices or whatever. Yeah, that seemed to be a 96 00:06:19,320 --> 00:06:22,520 Speaker 1: concern of a lot of the justices. Here's Justice Amy 97 00:06:22,560 --> 00:06:26,800 Speaker 1: Coney Barrett. Could you have California pass a law that said, 98 00:06:26,839 --> 00:06:30,160 Speaker 1: We're not going to buy any pork from companies that 99 00:06:30,240 --> 00:06:33,240 Speaker 1: don't require all their employees to be vaccinated, or from 100 00:06:33,360 --> 00:06:37,720 Speaker 1: corporations that don't fund gender affirming surgery or that sort 101 00:06:37,760 --> 00:06:40,280 Speaker 1: of thing. So it was sort of the parade of horribles. 102 00:06:40,279 --> 00:06:42,520 Speaker 1: What could happen? And I think that's right, and I 103 00:06:42,520 --> 00:06:45,200 Speaker 1: think this case gives rise to that kind of parade 104 00:06:45,200 --> 00:06:47,880 Speaker 1: of horribles, as you suggest, far more so than any 105 00:06:47,920 --> 00:06:51,400 Speaker 1: case the Court has seen which gives rise to at 106 00:06:51,440 --> 00:06:53,359 Speaker 1: least if I had to make a prediction that the 107 00:06:53,400 --> 00:06:56,640 Speaker 1: Court is going to find some kind of narrow way 108 00:06:56,720 --> 00:07:01,599 Speaker 1: to reverse the Ninth Circuit holding in favor of California 109 00:07:01,839 --> 00:07:05,880 Speaker 1: and set it back for some additional proceedings, perhaps based 110 00:07:05,960 --> 00:07:09,080 Speaker 1: upon the strength of the showing that each party can 111 00:07:09,120 --> 00:07:11,640 Speaker 1: make about, on the one hand, what kind of health 112 00:07:11,680 --> 00:07:15,480 Speaker 1: benefits for California citizens may approve from this kind of 113 00:07:15,640 --> 00:07:18,640 Speaker 1: humane treatment measurements. On the other hand, what kind of 114 00:07:18,720 --> 00:07:23,240 Speaker 1: economic impact this California regulation may cause the pork producers. 115 00:07:23,640 --> 00:07:25,840 Speaker 1: In other words, it could be something like a trial 116 00:07:25,880 --> 00:07:29,400 Speaker 1: at a lower court level that that would be my guest, 117 00:07:29,440 --> 00:07:32,680 Speaker 1: and often in the Dorm mcconnerce class cases, there has 118 00:07:32,720 --> 00:07:35,240 Speaker 1: to be some kind of rough balancing test, and the 119 00:07:35,320 --> 00:07:38,320 Speaker 1: courts sometimes don't like these rough balancing tests, but it 120 00:07:38,400 --> 00:07:40,600 Speaker 1: has to do with some kind of comparison to the 121 00:07:41,360 --> 00:07:45,120 Speaker 1: strength of the states showing of health and safety measures 122 00:07:45,120 --> 00:07:49,120 Speaker 1: for their citizens as opposed to the impact economic impact 123 00:07:49,800 --> 00:07:53,720 Speaker 1: across the country of the regulation. But the whole, the 124 00:07:53,760 --> 00:07:57,000 Speaker 1: whole moral values component or overlay in this case is 125 00:07:57,040 --> 00:08:01,520 Speaker 1: something that the court um his ever confronted before. And 126 00:08:01,600 --> 00:08:04,560 Speaker 1: indeed that's why you know, just as Barren and others 127 00:08:04,920 --> 00:08:07,000 Speaker 1: um so to my hor where we're concerned about it 128 00:08:07,040 --> 00:08:11,000 Speaker 1: is that to have a one state legislate kind of 129 00:08:11,120 --> 00:08:15,440 Speaker 1: morals with respect to out of state residents does open 130 00:08:15,600 --> 00:08:18,080 Speaker 1: this can of worms. And the core I think is 131 00:08:18,720 --> 00:08:22,040 Speaker 1: may try to if if you can't avoid it, it 132 00:08:22,120 --> 00:08:24,320 Speaker 1: may just say that it has to be that the 133 00:08:24,440 --> 00:08:27,720 Speaker 1: state can take legitimate measures, but has to be based 134 00:08:27,760 --> 00:08:30,600 Speaker 1: on something else than sort of looking at scans at 135 00:08:30,640 --> 00:08:33,320 Speaker 1: the morals or values of what takes place in a 136 00:08:33,320 --> 00:08:37,000 Speaker 1: different state. So Chief Justice John Roberts said, but under 137 00:08:37,040 --> 00:08:40,960 Speaker 1: your analysis, it's California's view of morality that prevails over 138 00:08:41,000 --> 00:08:43,200 Speaker 1: the views of people in other states because of the 139 00:08:43,240 --> 00:08:46,920 Speaker 1: market power that they have. Well, that's what America is about, 140 00:08:47,000 --> 00:08:50,960 Speaker 1: isn't it market power? Well, it is. And it may 141 00:08:51,000 --> 00:08:54,160 Speaker 1: seem to be a fine wine to say that market 142 00:08:54,200 --> 00:09:00,760 Speaker 1: power can affect let's say, emissions of cars um as 143 00:09:00,760 --> 00:09:05,440 Speaker 1: opposed to humane treatment of pigs. UM. But I think 144 00:09:05,440 --> 00:09:08,800 Speaker 1: there is a line there, and that's where this issue 145 00:09:08,800 --> 00:09:13,320 Speaker 1: has been so controversial before. Is for California's regulation of 146 00:09:13,720 --> 00:09:17,840 Speaker 1: car emissions and other kinds of carbon emissions, because California 147 00:09:17,840 --> 00:09:19,760 Speaker 1: has been far more strict than the rest of the country, 148 00:09:19,760 --> 00:09:21,079 Speaker 1: and the rest of the country says, well, we want 149 00:09:21,080 --> 00:09:23,760 Speaker 1: to do business in California, therefore we have to adopt 150 00:09:24,040 --> 00:09:28,959 Speaker 1: stricter measures. Um. And there though the tie between those 151 00:09:29,080 --> 00:09:33,559 Speaker 1: kinds of pro environmental measures and the health and welfare 152 00:09:33,720 --> 00:09:37,880 Speaker 1: of California citizens is relatively clearly established. When you're just 153 00:09:37,960 --> 00:09:41,960 Speaker 1: talking about feeling better knowing that pigs were slaughtered in 154 00:09:42,000 --> 00:09:43,839 Speaker 1: a more humane fashion, or at least kept in a 155 00:09:43,880 --> 00:09:47,440 Speaker 1: more humane fashion, that's probably more difficult pill to swallow. 156 00:09:47,559 --> 00:09:50,560 Speaker 1: Thanks Hal. That's Professor Harold Crant of the Chicago Kent 157 00:09:50,679 --> 00:09:55,839 Speaker 1: College of Law. A copyright clash over Andy Warhol's silk 158 00:09:55,880 --> 00:09:59,520 Speaker 1: screen portraits of prints took the gentices into an area 159 00:09:59,559 --> 00:10:03,239 Speaker 1: that would reshape the fair use defense to copyright infringement 160 00:10:03,559 --> 00:10:07,520 Speaker 1: for follow on works affecting music, videos, and books, as 161 00:10:07,559 --> 00:10:11,319 Speaker 1: well as Warhol's pop art. In oral arguments, the justices 162 00:10:11,400 --> 00:10:15,520 Speaker 1: grapple with a photographer's claim that Warhol violated her copyright 163 00:10:15,720 --> 00:10:20,240 Speaker 1: by basing his images on her photograph of Prince. My 164 00:10:20,320 --> 00:10:23,320 Speaker 1: guest is Sean balgan Ish, a professor at Columbia Law 165 00:10:23,360 --> 00:10:26,760 Speaker 1: School and an expert on intellectual property law. Explain the 166 00:10:26,800 --> 00:10:29,599 Speaker 1: issue here. So at its most basic, the case is 167 00:10:29,640 --> 00:10:33,000 Speaker 1: about the question of the circumstance under which an artist 168 00:10:33,120 --> 00:10:35,920 Speaker 1: who relies on a copyrighted work to produce his own 169 00:10:35,920 --> 00:10:38,599 Speaker 1: work of art can invoke the fair used doctrine to 170 00:10:38,679 --> 00:10:41,920 Speaker 1: avoid copyright infringement. That, in the abstract, is what the 171 00:10:41,920 --> 00:10:46,040 Speaker 1: case was about, and specifically it involves the situation where 172 00:10:46,040 --> 00:10:51,360 Speaker 1: Andy Warhol had made, without authorization under the terms of license, 173 00:10:51,520 --> 00:10:55,360 Speaker 1: additional pieces of art from a photograph taken by Lynn 174 00:10:55,360 --> 00:10:58,280 Speaker 1: Goldsmith of the famous musician Prince. So the sequence of 175 00:10:58,360 --> 00:11:03,520 Speaker 1: events really begins in one when the famed photographer Lynn 176 00:11:03,600 --> 00:11:07,080 Speaker 1: Goldsmith makes the decision to take photographs of a of 177 00:11:07,120 --> 00:11:10,000 Speaker 1: an up and coming musician at the time, Prince, and 178 00:11:10,080 --> 00:11:13,400 Speaker 1: she does this for Newsweek, which eventually doesn't use her photographic, 179 00:11:13,520 --> 00:11:17,400 Speaker 1: uses another photograph of hers from Prince in concert, but 180 00:11:18,000 --> 00:11:20,720 Speaker 1: she takes a whole bunch of different photographs of Prince, 181 00:11:22,480 --> 00:11:28,240 Speaker 1: and then a few years later, after Prince and Purple 182 00:11:28,320 --> 00:11:33,360 Speaker 1: Rain have become this acclaimed piece of musical basically, Vanity 183 00:11:33,440 --> 00:11:37,440 Speaker 1: Fair decides to run a story on Prince and they 184 00:11:37,480 --> 00:11:41,880 Speaker 1: approach Goldsmith for what is called an artist reference, asking 185 00:11:41,920 --> 00:11:44,959 Speaker 1: for permission to use one of her photographs for an 186 00:11:45,080 --> 00:11:47,680 Speaker 1: artist to make an illustration that they will run in 187 00:11:47,720 --> 00:11:51,600 Speaker 1: their story. So they enter into a license with Goldsmith 188 00:11:51,840 --> 00:11:54,800 Speaker 1: for the use of one of her photograph for this story. 189 00:11:55,040 --> 00:11:57,520 Speaker 1: And unknown to her at the time, Vanity Fair has 190 00:11:57,559 --> 00:12:01,400 Speaker 1: already entered into an arrangement with a Warhole to do 191 00:12:01,480 --> 00:12:04,040 Speaker 1: this piece of illustration. Now, under the terms of the 192 00:12:04,120 --> 00:12:08,520 Speaker 1: license in four he was allowed to make one piece 193 00:12:08,559 --> 00:12:11,400 Speaker 1: of art or illustration for the story, which and under 194 00:12:11,480 --> 00:12:13,600 Speaker 1: the terms there's no other uses in a certain amount 195 00:12:13,600 --> 00:12:16,480 Speaker 1: of compensation was to be paid to her. But what 196 00:12:16,520 --> 00:12:20,000 Speaker 1: Andy Warhol did, which again doesn't become known until many 197 00:12:20,040 --> 00:12:25,120 Speaker 1: years after. He makes fifteen additional pieces of art, additional work. However, 198 00:12:25,440 --> 00:12:28,720 Speaker 1: only one of them is published in the November Vanity 199 00:12:28,760 --> 00:12:33,640 Speaker 1: Fair publication. Eventually, then what happens after Prince died in 200 00:12:34,120 --> 00:12:38,199 Speaker 1: six Vanity Fair decides to run another article and they 201 00:12:38,200 --> 00:12:41,120 Speaker 1: get in touch with the Andy Warhol Foundation, and they 202 00:12:41,200 --> 00:12:43,960 Speaker 1: learned that there are these additional prints, and they licensed 203 00:12:43,960 --> 00:12:48,320 Speaker 1: from the Andy Warhol Foundation another one of these pieces 204 00:12:48,360 --> 00:12:51,800 Speaker 1: that were made by Andy Warhole. And when Goldsmith learns 205 00:12:51,800 --> 00:12:53,840 Speaker 1: of that, she says, hold on, that's beyond the terms 206 00:12:53,840 --> 00:12:57,200 Speaker 1: of the original license. That's the copyright infringement. And the 207 00:12:57,240 --> 00:13:01,079 Speaker 1: Andy Warhol Foundation says no, in fact, it was fair use, 208 00:13:01,520 --> 00:13:05,319 Speaker 1: invoking the precedent of the Supreme Court, from which is 209 00:13:05,360 --> 00:13:09,599 Speaker 1: said that under certain circumstances, if a fair used injects 210 00:13:09,679 --> 00:13:13,400 Speaker 1: new meaning or new character and new purpose into the work, 211 00:13:13,440 --> 00:13:16,640 Speaker 1: it can qualify as something called the transformative use, and 212 00:13:16,679 --> 00:13:18,280 Speaker 1: that would take it out of the gamut of a 213 00:13:18,280 --> 00:13:23,000 Speaker 1: copyright infringement. The District Court finds for the Andy Warhol Foundation. 214 00:13:23,080 --> 00:13:26,080 Speaker 1: The second Circuit reverses, saying it wasn't a fair use 215 00:13:26,160 --> 00:13:28,880 Speaker 1: even under the transformative US doctrine, and the matter ends 216 00:13:28,920 --> 00:13:31,360 Speaker 1: up in the Supreme Court so the Supreme Court taking 217 00:13:31,400 --> 00:13:34,520 Speaker 1: the case is very much an attempt to interpret how 218 00:13:34,559 --> 00:13:38,240 Speaker 1: its precedent would apply to the circumstances of the Warhol 219 00:13:38,320 --> 00:13:41,840 Speaker 1: dispute with Goldsmith. I remember that the Second Circuit chided 220 00:13:41,960 --> 00:13:46,120 Speaker 1: the District Court and said judges shouldn't be art critics. 221 00:13:46,120 --> 00:13:49,120 Speaker 1: How will the Supreme Court decide this case without being 222 00:13:49,520 --> 00:13:52,560 Speaker 1: an art critic and looking at the two works? You know, 223 00:13:52,640 --> 00:13:54,760 Speaker 1: it's an interesting question because in some ways that was 224 00:13:54,840 --> 00:13:57,160 Speaker 1: front and center during the oral argument. One of the 225 00:13:57,240 --> 00:14:00,640 Speaker 1: questions that the justices were grappling with on both was 226 00:14:00,720 --> 00:14:05,600 Speaker 1: how exactly do you operationalize the standard that President the 227 00:14:05,640 --> 00:14:09,200 Speaker 1: opinion written by Justice Suitor had come up with, which 228 00:14:09,240 --> 00:14:12,760 Speaker 1: is a question of does the defendants work add new meaning? 229 00:14:12,880 --> 00:14:14,560 Speaker 1: Does it add a new purpose? Is it of a 230 00:14:14,600 --> 00:14:17,839 Speaker 1: different character? What does it mean to say that you're 231 00:14:17,840 --> 00:14:20,280 Speaker 1: adding new meaning in your youth? Should we just rely 232 00:14:20,400 --> 00:14:22,520 Speaker 1: on what the artist comes in and says new meanings? 233 00:14:22,520 --> 00:14:26,160 Speaker 1: Should we rely on experts? Should the judge do it themselves? 234 00:14:26,600 --> 00:14:29,960 Speaker 1: Now here's what Justice Suitor had intended in If you 235 00:14:29,960 --> 00:14:32,600 Speaker 1: look at the Campbell opinion carefully, he's very aware of 236 00:14:32,640 --> 00:14:35,720 Speaker 1: the fact that he doesn't want judges to sit as 237 00:14:35,840 --> 00:14:39,120 Speaker 1: art critics. This actually goes back to a proposition and 238 00:14:39,160 --> 00:14:42,840 Speaker 1: copyright law called aesthetic neutrality, which dates back to Justice Home, 239 00:14:43,120 --> 00:14:45,400 Speaker 1: where the idea is that judges should not be the 240 00:14:45,440 --> 00:14:47,880 Speaker 1: ones who are deciding on the quality of a work, 241 00:14:48,040 --> 00:14:50,320 Speaker 1: even when it's eligible for a copyright law, and Justice 242 00:14:50,360 --> 00:14:52,520 Speaker 1: Suitor says, look, I'm aware of that. I don't want 243 00:14:52,640 --> 00:14:56,040 Speaker 1: judges to sit in judgment over the quality of the work. 244 00:14:56,360 --> 00:14:59,480 Speaker 1: Under the test that I'm developing, however, I need to 245 00:14:59,520 --> 00:15:03,240 Speaker 1: have a objective standard to figure out whether there is 246 00:15:03,280 --> 00:15:06,080 Speaker 1: a new commentary or new meaning or new purpose in 247 00:15:06,200 --> 00:15:08,200 Speaker 1: terms of how we classify it, to give you a 248 00:15:08,240 --> 00:15:10,800 Speaker 1: clear example, so that doesn't sound too abstract. In Campbell 249 00:15:10,880 --> 00:15:14,960 Speaker 1: versus Actiga Rose, the question was was the defendants use 250 00:15:15,200 --> 00:15:17,880 Speaker 1: a legitimate parity? And Justice Suitor says, I'm not going 251 00:15:17,880 --> 00:15:20,240 Speaker 1: to delve into whether it's a good parody or a 252 00:15:20,280 --> 00:15:22,920 Speaker 1: bad parody, whether it makes me laugh, whether in fact 253 00:15:23,000 --> 00:15:25,520 Speaker 1: was accurate. All I need to assess in order to 254 00:15:25,560 --> 00:15:28,880 Speaker 1: come to the conclusion that it was capable of qualifying 255 00:15:28,920 --> 00:15:32,320 Speaker 1: as a transformative views under one component of the first factors, 256 00:15:32,440 --> 00:15:35,200 Speaker 1: whether it was indeed a parity. So it can just 257 00:15:35,280 --> 00:15:39,160 Speaker 1: be something that is not indeed invoking the parodic purpose 258 00:15:39,160 --> 00:15:42,360 Speaker 1: in anywhere form. That's different from judging the quality of 259 00:15:42,400 --> 00:15:44,560 Speaker 1: the work. I think it's a very very thin line. 260 00:15:44,600 --> 00:15:46,640 Speaker 1: It's it's a line that's hard to police as you 261 00:15:46,720 --> 00:15:50,880 Speaker 1: move away from established categories like parity. And that's really 262 00:15:50,920 --> 00:15:52,560 Speaker 1: what the court is going to grapple. What should we 263 00:15:52,880 --> 00:15:56,440 Speaker 1: defer to the artist about injecting new meaning and new style, 264 00:15:56,520 --> 00:15:59,800 Speaker 1: in which case every artist who makes minor modifications. And 265 00:16:00,320 --> 00:16:02,680 Speaker 1: that was some of the hypotheticals that I think it 266 00:16:02,720 --> 00:16:05,280 Speaker 1: was Chief Justice Roberts threw into the argument. He said, 267 00:16:05,280 --> 00:16:08,080 Speaker 1: what if I put a little smiley face on a photograph? 268 00:16:08,160 --> 00:16:11,120 Speaker 1: Would that qualify as new meaning? Is that what we 269 00:16:11,160 --> 00:16:13,800 Speaker 1: mean by new meaning? Under the transformative test? Whose words 270 00:16:13,800 --> 00:16:15,800 Speaker 1: should we take? I think it was another Justice to said, Okay, 271 00:16:15,800 --> 00:16:18,000 Speaker 1: if I just changed one of the colors from blue 272 00:16:18,040 --> 00:16:20,880 Speaker 1: to yellow, it may seem very minor, but you bring 273 00:16:20,920 --> 00:16:23,880 Speaker 1: in an art expert, they will tell you how yellow 274 00:16:24,000 --> 00:16:27,320 Speaker 1: and blue have very different meaning in the art world. 275 00:16:27,320 --> 00:16:29,240 Speaker 1: So whose word are we to rely on? And I 276 00:16:29,240 --> 00:16:30,920 Speaker 1: think that was front and center, and that's the reason 277 00:16:31,000 --> 00:16:33,400 Speaker 1: why this is a tough kise. I think Justice Kagan 278 00:16:33,440 --> 00:16:38,320 Speaker 1: made a reference to this. But Andy Warhol is known 279 00:16:38,720 --> 00:16:42,840 Speaker 1: for transformative art, for changing the meaning of you know, 280 00:16:43,360 --> 00:16:47,120 Speaker 1: a box of Brillo or Campbell's soup can into art. 281 00:16:47,480 --> 00:16:50,800 Speaker 1: So how do you judge that some people look at 282 00:16:50,840 --> 00:16:55,880 Speaker 1: this and say he really transformed that photo of Prince Well, 283 00:16:55,920 --> 00:16:58,320 Speaker 1: so I guess this gets down to the question of 284 00:16:58,400 --> 00:17:00,840 Speaker 1: So there are two things. First, I think it's important 285 00:17:00,840 --> 00:17:03,320 Speaker 1: to recognize that any standard that the court comes up 286 00:17:03,320 --> 00:17:06,520 Speaker 1: with has to apply beyond the Andy Warhols of the world, right, 287 00:17:06,800 --> 00:17:08,800 Speaker 1: So so we have to disaggregate the fact that we 288 00:17:08,960 --> 00:17:10,919 Speaker 1: now in hindsight. And this also came up at oral 289 00:17:11,000 --> 00:17:15,520 Speaker 1: argument many years later, after Andy Warhol has become known 290 00:17:15,600 --> 00:17:17,560 Speaker 1: for a certain style, we look back and say, oh, 291 00:17:17,600 --> 00:17:20,080 Speaker 1: Warhol left his imprint on this piece of art, But 292 00:17:20,119 --> 00:17:22,200 Speaker 1: at the time was it known in that way? And 293 00:17:22,280 --> 00:17:25,480 Speaker 1: should we defer to what every artist says their individual 294 00:17:25,520 --> 00:17:28,120 Speaker 1: style is. But I think there's a second components there, 295 00:17:28,119 --> 00:17:29,480 Speaker 1: which is, even if you look at it and you 296 00:17:29,560 --> 00:17:32,520 Speaker 1: say he has transformed it in some way or form, 297 00:17:32,840 --> 00:17:35,960 Speaker 1: I think it's important to recognize one component, which was 298 00:17:36,040 --> 00:17:38,680 Speaker 1: something that the justice had jumped into right away. One 299 00:17:38,720 --> 00:17:42,080 Speaker 1: of the rights that copyright grants a creator and author 300 00:17:42,280 --> 00:17:45,119 Speaker 1: is the right to make derivative work, and the definition 301 00:17:45,119 --> 00:17:47,920 Speaker 1: of a derivative in the Copyright Statute Section one oh 302 00:17:47,920 --> 00:17:51,840 Speaker 1: one uses the word transform, so it says a work 303 00:17:51,920 --> 00:17:55,040 Speaker 1: that transforms the underlying content is a derivative work, and 304 00:17:55,080 --> 00:17:58,040 Speaker 1: the exclusive right to make a derivative work is vested 305 00:17:58,080 --> 00:18:01,879 Speaker 1: with the author. So transformation us are not automatically as 306 00:18:01,880 --> 00:18:04,399 Speaker 1: a category to be treated as fair use. In fact, 307 00:18:04,440 --> 00:18:08,600 Speaker 1: Congress had intended that transformations of a certain kind are 308 00:18:08,680 --> 00:18:11,479 Speaker 1: to go to the copyright creator because that's the nature 309 00:18:11,600 --> 00:18:13,919 Speaker 1: of the derivative works right And and the Court in 310 00:18:13,960 --> 00:18:16,720 Speaker 1: its oral argument offered a whole set of examples that 311 00:18:16,720 --> 00:18:20,760 Speaker 1: would qualify as basic transformation. So, for example, transforming a 312 00:18:20,840 --> 00:18:24,240 Speaker 1: novel into a screenplay for a movie is a transformation, 313 00:18:24,480 --> 00:18:26,879 Speaker 1: but it's not the same as saying it's a transformative use. 314 00:18:26,960 --> 00:18:30,080 Speaker 1: And so that's exactly the debate in this case, which 315 00:18:30,119 --> 00:18:32,520 Speaker 1: is where do you draw the line between a simple 316 00:18:32,520 --> 00:18:37,119 Speaker 1: transformation that constitutes a derivative work and when is it 317 00:18:37,200 --> 00:18:39,840 Speaker 1: such that we might say it's so transformative as to 318 00:18:39,880 --> 00:18:43,560 Speaker 1: take it outside of the context of the original work, 319 00:18:43,640 --> 00:18:46,800 Speaker 1: such that it adds new meaning and new character and 320 00:18:46,840 --> 00:18:50,000 Speaker 1: a new purpose, such as to make it a transformative use. 321 00:18:50,119 --> 00:18:52,280 Speaker 1: And I think this is the reason why it's important 322 00:18:52,320 --> 00:18:55,080 Speaker 1: to see that the ramistications of this case are well 323 00:18:55,119 --> 00:18:58,960 Speaker 1: beyond Andy Warhol, who we now associate with a distinctive style. 324 00:18:59,200 --> 00:19:00,920 Speaker 1: Right tomorrow and our just comes in and says, I'm 325 00:19:00,920 --> 00:19:04,639 Speaker 1: making some minor modifications. That's my unique style. The test 326 00:19:04,680 --> 00:19:06,800 Speaker 1: has to, in theory, be able to accommodate in some 327 00:19:06,840 --> 00:19:10,359 Speaker 1: way or form, either for or again that particular claim. 328 00:19:10,560 --> 00:19:12,679 Speaker 1: So do you think the justices will be able to 329 00:19:12,800 --> 00:19:15,920 Speaker 1: come up with a test that lower courts can use 330 00:19:16,160 --> 00:19:20,320 Speaker 1: in every circumstance. I think they're going to very much try. 331 00:19:20,359 --> 00:19:23,480 Speaker 1: I think one of the messages during the entire course 332 00:19:23,520 --> 00:19:27,360 Speaker 1: of the oral argument was the problems in the workability 333 00:19:27,400 --> 00:19:30,280 Speaker 1: of the prior test, figuring out the contours and boundaries 334 00:19:30,280 --> 00:19:32,640 Speaker 1: of it if I had to read the tea leaves. 335 00:19:32,680 --> 00:19:34,600 Speaker 1: I think the justices are going to try and split 336 00:19:34,640 --> 00:19:37,800 Speaker 1: the different come up with a workable test that gives 337 00:19:37,800 --> 00:19:41,600 Speaker 1: a little bit more content contextually and expands on what 338 00:19:41,680 --> 00:19:45,280 Speaker 1: Campbell versus Aco Row said without getting rid of that 339 00:19:45,359 --> 00:19:48,280 Speaker 1: doctrine altogether, and at the same time thinking beyond just 340 00:19:48,320 --> 00:19:51,040 Speaker 1: the narrow category that was before the court in Campbell. 341 00:19:51,160 --> 00:19:52,520 Speaker 1: So I think the court is going to very much 342 00:19:52,520 --> 00:19:54,840 Speaker 1: try and come up with a workable test. In fact, 343 00:19:54,880 --> 00:19:56,760 Speaker 1: you know where we saw this during the oral argument, 344 00:19:56,920 --> 00:20:00,119 Speaker 1: the last few minutes of the Solicitor General's intervention on 345 00:20:00,119 --> 00:20:02,359 Speaker 1: behalf of the United States. The whole back and forth 346 00:20:02,600 --> 00:20:06,119 Speaker 1: was on what kind of language should we use to 347 00:20:06,280 --> 00:20:09,639 Speaker 1: delineate a test? And one of the questions that the 348 00:20:09,720 --> 00:20:13,520 Speaker 1: justices were grappling with was this question of should one 349 00:20:13,520 --> 00:20:17,040 Speaker 1: of the limitations on the invocation of this doctrine be 350 00:20:17,240 --> 00:20:20,800 Speaker 1: that the use of the original was necessary or essential 351 00:20:21,080 --> 00:20:24,480 Speaker 1: or useful to the creation of this secondary work? In 352 00:20:24,480 --> 00:20:26,960 Speaker 1: other words, should that be a limitation if, for instance, 353 00:20:26,960 --> 00:20:30,399 Speaker 1: Warhol could have used any other photograph of print, should 354 00:20:30,440 --> 00:20:32,800 Speaker 1: that matter or should the claim be that Warhol really 355 00:20:32,840 --> 00:20:36,639 Speaker 1: needed to use this particular photograph of prints, which is 356 00:20:36,680 --> 00:20:38,640 Speaker 1: one of the claims you know that that Goldsmith says 357 00:20:38,800 --> 00:20:41,920 Speaker 1: she was trying to portray Prince as being vulnerable and shy, 358 00:20:42,000 --> 00:20:44,960 Speaker 1: and Warhol was trying to capture something different in contrast 359 00:20:45,040 --> 00:20:48,359 Speaker 1: to that. So the question of necessity versus essential versus 360 00:20:48,440 --> 00:20:53,240 Speaker 1: useful was all around what specific language should an opinion use? 361 00:20:53,560 --> 00:20:55,600 Speaker 1: And I think a couple of the justices were pushing 362 00:20:55,840 --> 00:20:58,080 Speaker 1: the person arguing on behalf of the United States to 363 00:20:58,119 --> 00:21:00,040 Speaker 1: come up with workable language. So I think that's to 364 00:21:00,160 --> 00:21:02,359 Speaker 1: be very much front and center on how the Court 365 00:21:02,400 --> 00:21:05,520 Speaker 1: approaches its decision. Is So, do you think the court 366 00:21:05,640 --> 00:21:11,240 Speaker 1: will decide whether or not Warhol's work is copyright infringement 367 00:21:11,400 --> 00:21:14,640 Speaker 1: or they'll leave that to a lower court? I think 368 00:21:14,680 --> 00:21:16,520 Speaker 1: if I if I had to see what the focus 369 00:21:16,560 --> 00:21:19,760 Speaker 1: of the entire argument was, I think to a large extent, 370 00:21:19,920 --> 00:21:22,440 Speaker 1: the court and most of its time figuring out one 371 00:21:22,600 --> 00:21:24,959 Speaker 1: of the four fair use factor, which is the question 372 00:21:24,960 --> 00:21:28,159 Speaker 1: of transformative I think there was also a discussion of 373 00:21:28,240 --> 00:21:31,439 Speaker 1: whether there was a sufficiently well developed factual record on 374 00:21:31,520 --> 00:21:33,919 Speaker 1: the rest of the fair use factor so as to 375 00:21:33,960 --> 00:21:36,639 Speaker 1: allow the Court to decide, or whether, regardless of what 376 00:21:36,680 --> 00:21:38,800 Speaker 1: it does on the first factor, it should send it 377 00:21:38,840 --> 00:21:41,200 Speaker 1: back down to the lower court to develop the record 378 00:21:41,240 --> 00:21:43,560 Speaker 1: further on those factors. If I had to guess again 379 00:21:43,640 --> 00:21:46,000 Speaker 1: looking at the court's tendency from its oral argument, which 380 00:21:46,040 --> 00:21:48,480 Speaker 1: is always hard to discern any patterns, but if one 381 00:21:48,480 --> 00:21:51,120 Speaker 1: were to surmise the court wants to split the difference, 382 00:21:51,240 --> 00:21:53,480 Speaker 1: I think it's very likely that it will offer some 383 00:21:53,560 --> 00:21:58,359 Speaker 1: conclusions and clarity on the most controversial aspect of this case, 384 00:21:58,400 --> 00:22:01,000 Speaker 1: which is the first factor, which was really what the 385 00:22:01,040 --> 00:22:03,920 Speaker 1: petitioner had focused on, what does it mean for something 386 00:22:03,960 --> 00:22:06,680 Speaker 1: to be transformative? What tests should we use, and then 387 00:22:06,720 --> 00:22:09,520 Speaker 1: send it back to the lower court to actually decide 388 00:22:09,520 --> 00:22:12,800 Speaker 1: in accordance with its newly developed and potentially workable formulation. 389 00:22:13,000 --> 00:22:16,200 Speaker 1: So I know you filed an amicus brief. Which side 390 00:22:16,240 --> 00:22:18,600 Speaker 1: were you on? We were on the Goldsmith side. I 391 00:22:18,600 --> 00:22:21,840 Speaker 1: filed an amicus brief along with Professor Peter Monelle at 392 00:22:21,840 --> 00:22:25,000 Speaker 1: Berkeley and my colleague, Professor Jane Ginsburg here at Columbia, 393 00:22:25,400 --> 00:22:28,560 Speaker 1: and our amicus brief focused on talking a little bit 394 00:22:28,560 --> 00:22:31,879 Speaker 1: about the legislative history of the fair used doctrine and 395 00:22:31,920 --> 00:22:34,879 Speaker 1: the evolution of the specific language that is today in 396 00:22:34,920 --> 00:22:37,479 Speaker 1: the copyright statute. And then the other thing that our 397 00:22:37,480 --> 00:22:40,200 Speaker 1: amicus brief did was due to tell the courts to 398 00:22:40,640 --> 00:22:43,159 Speaker 1: not just focus on a couple of words from the 399 00:22:44,160 --> 00:22:46,399 Speaker 1: Campbell decision. The point that we make the court is 400 00:22:46,520 --> 00:22:50,119 Speaker 1: you should look at how Justice Suitor actually applied the 401 00:22:50,280 --> 00:22:53,280 Speaker 1: language that everyone quotes from to the facts of the 402 00:22:53,359 --> 00:22:55,920 Speaker 1: case before him. And when you do that, you see 403 00:22:55,920 --> 00:22:58,440 Speaker 1: a certain amount of nuance on how he makes these 404 00:22:58,480 --> 00:23:01,240 Speaker 1: precise judgment calls. The court is having a hard time 405 00:23:01,240 --> 00:23:04,480 Speaker 1: figuring out what kind of rubric and metric he applies 406 00:23:04,600 --> 00:23:07,480 Speaker 1: to avoid judging the quality of the work while at 407 00:23:07,480 --> 00:23:09,960 Speaker 1: the same time making sure it's not a sham that's 408 00:23:10,040 --> 00:23:12,480 Speaker 1: trying to pretend to add new meaning. So that's what 409 00:23:12,560 --> 00:23:15,440 Speaker 1: our amicus brief focused on, to really try and tell 410 00:23:15,440 --> 00:23:17,680 Speaker 1: the court that, look, there's a way of looking at 411 00:23:17,720 --> 00:23:22,200 Speaker 1: what Campbell did rather than just what Campbell said, thank 412 00:23:22,200 --> 00:23:26,280 Speaker 1: you so much. That's Professor Sean Balganesh of Columbia Law School. 413 00:23:27,760 --> 00:23:31,879 Speaker 1: Most users of the Judiciaries Pacer Electronic Court Records platform 414 00:23:32,119 --> 00:23:35,040 Speaker 1: will receive refunds for fees they incurred under a one 415 00:23:36,080 --> 00:23:40,200 Speaker 1: million dollar settlement agreement between nonprofits and the US government, 416 00:23:40,680 --> 00:23:44,120 Speaker 1: and there may be more changes ahead if Congress passes 417 00:23:44,200 --> 00:23:48,280 Speaker 1: legislation to eliminate all fees for access to court documents. 418 00:23:48,720 --> 00:23:52,800 Speaker 1: Joining me is Bloomberg Law reporter Madison Alder describe what 419 00:23:52,920 --> 00:23:57,120 Speaker 1: the PACER system is. So, PACER is the electronics system 420 00:23:57,200 --> 00:24:01,080 Speaker 1: that people use to access court records that could be attorneys, 421 00:24:01,560 --> 00:24:04,480 Speaker 1: that could be people interested in the litigation, and it 422 00:24:04,600 --> 00:24:08,880 Speaker 1: charges users for each page or each search that They 423 00:24:08,920 --> 00:24:10,960 Speaker 1: do kind of based on the amount of pages that 424 00:24:11,160 --> 00:24:14,199 Speaker 1: pulls up, so users have to pay after they hit 425 00:24:14,200 --> 00:24:17,639 Speaker 1: a certain amount. But it's it's generally the system that 426 00:24:17,840 --> 00:24:22,080 Speaker 1: the public uses to access court records. The judiciary makes 427 00:24:22,240 --> 00:24:24,720 Speaker 1: a lot of money off this system, about a hundred 428 00:24:24,760 --> 00:24:28,760 Speaker 1: fifty million in fees annually on average. So the Judiciary 429 00:24:28,920 --> 00:24:32,080 Speaker 1: has disclosed that it makes about a hundred and fifty 430 00:24:32,240 --> 00:24:36,040 Speaker 1: on this It says that's primarily from from larger corporate 431 00:24:36,119 --> 00:24:39,600 Speaker 1: users that use the system, but some of those these 432 00:24:39,640 --> 00:24:43,280 Speaker 1: do come from from the public, and those fees were 433 00:24:43,280 --> 00:24:46,480 Speaker 1: what was at stake in this lawsuits. Those were the 434 00:24:46,600 --> 00:24:49,920 Speaker 1: question in this lawsuit against BACER and what was the 435 00:24:50,000 --> 00:24:54,120 Speaker 1: judiciary using those fees? Four So some of the things 436 00:24:54,160 --> 00:24:57,720 Speaker 1: the judiciary was using this for was certain technology projects 437 00:24:57,760 --> 00:25:01,680 Speaker 1: that it wasn't supposed to and that was what the 438 00:25:01,720 --> 00:25:05,359 Speaker 1: district court found. And then the pelate court that they 439 00:25:05,400 --> 00:25:07,520 Speaker 1: got it right. Tell us what the district court found. 440 00:25:07,520 --> 00:25:10,040 Speaker 1: This has been going on for six years, right. So 441 00:25:10,119 --> 00:25:13,119 Speaker 1: the district court ruling found that judiciary had misused some 442 00:25:13,200 --> 00:25:17,080 Speaker 1: CASER funds from the fees they collect and it remanded 443 00:25:17,160 --> 00:25:20,840 Speaker 1: the case um. But the parties, so the nonprofits that 444 00:25:20,960 --> 00:25:25,000 Speaker 1: filed it, and the juiciary decided to not go forward. 445 00:25:25,040 --> 00:25:29,160 Speaker 1: What's continuing um litigation and that's where this sliminating settlement 446 00:25:29,160 --> 00:25:32,119 Speaker 1: agreement comes about. As someone you talked to said, you 447 00:25:32,160 --> 00:25:35,280 Speaker 1: had nonprofits suing the federal court system. In the federal 448 00:25:35,280 --> 00:25:39,080 Speaker 1: court system, to the nonprofits encounter any problems because of 449 00:25:39,119 --> 00:25:42,359 Speaker 1: that unique situation, I mean, I don't know exactly, but 450 00:25:42,400 --> 00:25:46,240 Speaker 1: I think you know. Depat Kopta, who was the attorney 451 00:25:46,359 --> 00:25:50,399 Speaker 1: for the nonprofits in this case, told me this was 452 00:25:50,440 --> 00:25:54,240 Speaker 1: just kind of an interesting scenario to have a case 453 00:25:54,320 --> 00:25:59,000 Speaker 1: about disease for for the electronic court record system going 454 00:25:59,080 --> 00:26:04,160 Speaker 1: through the court system. Just to to see the results 455 00:26:04,160 --> 00:26:06,480 Speaker 1: in this case, I I used pacer to to look 456 00:26:06,520 --> 00:26:09,520 Speaker 1: at it. So it is kind of an interesting scenario 457 00:26:09,880 --> 00:26:12,119 Speaker 1: to be challenging something that you're kind of using in 458 00:26:12,119 --> 00:26:15,080 Speaker 1: the process. And the refunds, most people are going to 459 00:26:15,080 --> 00:26:18,840 Speaker 1: get a hundred cents on the dollar. That's some refund. Correct. 460 00:26:19,520 --> 00:26:23,040 Speaker 1: The primary method of refunds would be automatic refunds for 461 00:26:23,359 --> 00:26:26,120 Speaker 1: up to three hundred and fifty dollars for for pay 462 00:26:26,160 --> 00:26:29,359 Speaker 1: surfees during a certain time period, and that's a hundred 463 00:26:29,520 --> 00:26:32,399 Speaker 1: cents on the dollar. And then after that any users 464 00:26:32,440 --> 00:26:35,840 Speaker 1: that paid more than that would get the proportional percentage 465 00:26:36,000 --> 00:26:40,719 Speaker 1: of the remaining settlement. Advocates and lawmakers have called for 466 00:26:40,920 --> 00:26:44,200 Speaker 1: pay ser fees to be totally eliminated. I mean, after all, 467 00:26:44,520 --> 00:26:48,240 Speaker 1: the public should be able to access these public records, 468 00:26:48,280 --> 00:26:52,720 Speaker 1: but the judiciary has resisted that. The judiciary has resisted 469 00:26:53,000 --> 00:26:57,200 Speaker 1: the legislation in Congress that would basically make PACER free 470 00:26:57,200 --> 00:26:59,199 Speaker 1: for the public to use. You know, they say that 471 00:26:59,359 --> 00:27:02,520 Speaker 1: it's not the to to be able to do that, 472 00:27:02,600 --> 00:27:06,679 Speaker 1: but lawmakers are really pushing for more public access on 473 00:27:06,800 --> 00:27:11,640 Speaker 1: the PACER system. And obviously this lawsuit only deals with 474 00:27:11,920 --> 00:27:14,480 Speaker 1: PACER fees that were already paid, so it's it's a 475 00:27:14,520 --> 00:27:17,919 Speaker 1: little retrospective. But while the litigation was going on, you know, 476 00:27:18,000 --> 00:27:22,400 Speaker 1: the judiciary did increase the threshold that people can access 477 00:27:22,440 --> 00:27:25,040 Speaker 1: documents for freeze. That was fifteen dollars before you had 478 00:27:25,080 --> 00:27:27,560 Speaker 1: to pay per quarter. Now it's thirty dollars before you 479 00:27:27,600 --> 00:27:31,399 Speaker 1: have to pay per quarter. And this litigation, um, you know, 480 00:27:31,440 --> 00:27:33,800 Speaker 1: made it out of the Spenate Judiciary Committee and the 481 00:27:33,880 --> 00:27:37,480 Speaker 1: House passed similar legislation. It hasn't passed this particular bill 482 00:27:37,520 --> 00:27:40,439 Speaker 1: this Congress, but it actually has passed this bill before, 483 00:27:40,560 --> 00:27:43,679 Speaker 1: so that seems to be moving along while this litigation 484 00:27:44,160 --> 00:27:46,960 Speaker 1: has been ongoing. I also want to ask you, so, 485 00:27:47,240 --> 00:27:50,840 Speaker 1: Circuit Judge Levinsky Smith, who's the first black jurist to 486 00:27:50,960 --> 00:27:54,400 Speaker 1: serve as the chief Judge of the Eighth Circuit Court 487 00:27:54,440 --> 00:27:58,359 Speaker 1: of Appeals. He was appointed by Chief Justice Roberts to 488 00:27:58,440 --> 00:28:02,119 Speaker 1: serve as the newest chair of the Udicial Conference's Executive Committee. 489 00:28:02,359 --> 00:28:05,840 Speaker 1: Is that a great honor or a lot of work? Well? 490 00:28:05,880 --> 00:28:08,240 Speaker 1: I think I think it could be both. The Executive 491 00:28:08,280 --> 00:28:12,120 Speaker 1: Committee is the senior most panel of the judiciaries policymaking body, 492 00:28:12,119 --> 00:28:16,720 Speaker 1: which is the Judicial Conference, and the Executive Committee chair 493 00:28:17,240 --> 00:28:20,320 Speaker 1: is the leader of that of that panel. So, um, 494 00:28:20,400 --> 00:28:24,119 Speaker 1: past chairs of that panel include Merrick Garland, who was 495 00:28:24,840 --> 00:28:27,080 Speaker 1: um the chair of the panel while he was on 496 00:28:27,280 --> 00:28:30,359 Speaker 1: the DC Circuit. So, I mean he'll he'll definitely have 497 00:28:30,440 --> 00:28:34,320 Speaker 1: a role in the judiciaries policy and the responses to 498 00:28:34,640 --> 00:28:37,880 Speaker 1: two emergencies to which is partially what the Executive Committee 499 00:28:37,920 --> 00:28:41,800 Speaker 1: deals with, and on judicial nominations. Okay, we're coming towards 500 00:28:41,840 --> 00:28:43,960 Speaker 1: the mid terms. We don't know what's going to happen 501 00:28:44,120 --> 00:28:46,360 Speaker 1: after the mid terms with the composition of the Senate. 502 00:28:46,600 --> 00:28:50,040 Speaker 1: Do you see the Judiciary chairman really pushing to get 503 00:28:50,360 --> 00:28:54,160 Speaker 1: as many nominees through as he can. Well, the Senate 504 00:28:54,200 --> 00:28:59,160 Speaker 1: Judiciary Committee just had a hearing during the Senate recess, 505 00:28:59,200 --> 00:29:02,600 Speaker 1: which is something that progressives have been calling for as 506 00:29:02,640 --> 00:29:06,560 Speaker 1: a response to the hearings that Republicans had under Trump 507 00:29:06,920 --> 00:29:10,440 Speaker 1: also during recess period. So that was for a ninth 508 00:29:10,440 --> 00:29:14,360 Speaker 1: Circuit nominee, several district court nominees. They've breathed through the 509 00:29:14,440 --> 00:29:17,200 Speaker 1: nomies pretty quickly, and I think there are calls for 510 00:29:17,400 --> 00:29:20,840 Speaker 1: more of those hearings to happen. Thanks Madison. That's Bloomberg 511 00:29:20,920 --> 00:29:24,040 Speaker 1: Law reporter Madison Alder, and that's it for this edition 512 00:29:24,040 --> 00:29:26,720 Speaker 1: of the Bloomberg Law Show. Remember you can always get 513 00:29:26,720 --> 00:29:29,880 Speaker 1: the latest legal news on our Bloomberg Law Podcast. You 514 00:29:29,920 --> 00:29:33,920 Speaker 1: can find them on Apple Podcasts, Spotify, and at www 515 00:29:34,160 --> 00:29:38,400 Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, and remember 516 00:29:38,440 --> 00:29:41,120 Speaker 1: to tune into The Bloomberg Law Show every week night 517 00:29:41,200 --> 00:29:44,680 Speaker 1: at ten pm Wall Street Time. I'm June Grosso, and 518 00:29:44,760 --> 00:29:46,200 Speaker 1: you're listening to Bloomberg