WEBVTT - Section 230 Challenge; Astley Sues Over Voice Theft 0:00:03.120 --> 0:00:07.960 This is Bloomberg Law, with June Brussel from Bloomberg Radio 0:00:10.880 --> 0:00:14.480 in two oral arguments this week the Supreme Court struggle 0:00:14.560 --> 0:00:18.560 to determine when social media companies can be held responsible 0:00:18.600 --> 0:00:22.159 for aiding terrorism At risk was section two thirty of 0:00:22.200 --> 0:00:26.880 the Communications Decency Act, the controversial law that protects online 0:00:26.920 --> 0:00:30.520 companies from being sued over the comments, ads, pictures, and 0:00:30.640 --> 0:00:34.960 videos on their platforms. Congress has been unsuccessful in efforts 0:00:34.960 --> 0:00:38.159 to reform section to thirty, and the Supreme Court is 0:00:38.200 --> 0:00:41.280 being asked to step into the controversy and change the 0:00:41.320 --> 0:00:46.040 status quo, something most of the justices seemed reluctant to do. 0:00:46.640 --> 0:00:50.239 Here are Justices Elena Kagan and Brett Kavanaugh. I mean, 0:00:50.240 --> 0:00:52.960 we're a court. We really don't know about these things. 0:00:54.280 --> 0:00:56.920 You know, these are not like the nine greatest experts 0:00:56.920 --> 0:01:04.960 on the internet. Congress draft today broad text, and that 0:01:05.040 --> 0:01:09.840 text has been unanimously read by courts of appeals over 0:01:09.880 --> 0:01:14.200 the years to provide protection in this sort of situation, 0:01:14.440 --> 0:01:20.840 and that you now want to challenge that consensus. In 0:01:20.880 --> 0:01:23.720 the first case argued on Wednesday, the family of a 0:01:23.880 --> 0:01:27.360 US citizen killed by Islamic State in a twenty fifteen 0:01:27.480 --> 0:01:30.679 Paris Attack argued that Google should be held liable for 0:01:30.840 --> 0:01:36.120 software algorithms that recommended terrorist videos to YouTube users, but 0:01:36.240 --> 0:01:40.399 in the first question, Justice Clarence Thomas suggested that companies 0:01:40.480 --> 0:01:44.520 can't be sued if their recommendation algorithms are neutral about 0:01:44.520 --> 0:01:48.160 the kind of content they promote. The same algorithm to 0:01:49.000 --> 0:01:53.200 present cooking videos to people who are interested in cooking, 0:01:54.240 --> 0:01:57.800 and isis videos to people who are interested in isis 0:01:58.960 --> 0:02:02.560 racing videos, So people who are interested in racing. Then 0:02:02.680 --> 0:02:05.080 I think you're going to have to explain more clearly 0:02:05.080 --> 0:02:09.840 if it's neutral in that way, how your claim is set. 0:02:09.840 --> 0:02:13.400 Apart from that. Joining me is Eric Goleman, a professor 0:02:13.440 --> 0:02:17.239 at Santa Clara University School of Law and co director 0:02:17.320 --> 0:02:21.119 of the High Tech Law Institute. Before the Oral arguments 0:02:21.160 --> 0:02:23.880 this week, there was a lot of gloom and doom 0:02:23.960 --> 0:02:27.840 concerns about the future of Section two thirty. Do you 0:02:27.880 --> 0:02:32.440 think the cases sort of fizzled out and the concerns 0:02:32.440 --> 0:02:34.840 are not as great anymore. I was certainly one of 0:02:34.880 --> 0:02:37.800 the people who was spreading doom and gloom. I was 0:02:38.040 --> 0:02:41.040 and remained fearful about the future of the Internet. I 0:02:41.080 --> 0:02:44.960 do think that the oral arguments exposed just how weak 0:02:45.120 --> 0:02:49.480 the cases are, that at the core they aren't meritorious, 0:02:49.560 --> 0:02:52.520 and they never were. And to be clear, lots of 0:02:52.560 --> 0:02:54.399 other courts that said that. It was only the Ninth 0:02:54.400 --> 0:02:56.920 Circuit that opened up the door to these cases that 0:02:57.120 --> 0:02:59.359 all the other judges had shut down. And I think 0:02:59.360 --> 0:03:02.080 that the justice is we're more on the side of 0:03:02.080 --> 0:03:04.760 the judges who had rejected these cases in the beginning 0:03:04.960 --> 0:03:07.919 than the end. So I think that seeing how weak 0:03:07.960 --> 0:03:10.919 the cases are gives us some comfort that the justices 0:03:10.919 --> 0:03:14.040 are going to reach a good conclusion. However, they're going 0:03:14.080 --> 0:03:15.519 to do so in a way that I still fear 0:03:15.639 --> 0:03:17.800 is going to be in strategic loss for the Internet. 0:03:18.000 --> 0:03:21.320 Before we get to that, let's discuss the plaintiff targeting 0:03:21.840 --> 0:03:26.320 the algorithms used by YouTube. The first question from Clarence 0:03:26.400 --> 0:03:30.000 Thomas was that the algorithm is neutral, so you know, 0:03:30.080 --> 0:03:32.920 show us your case here. Well, they definitely got the 0:03:32.960 --> 0:03:36.760 point that the plaintiffs are trying to ask social media 0:03:36.800 --> 0:03:39.880 services to perhaps be something that they're not, and that 0:03:40.000 --> 0:03:42.480 troubled them and that gave them some pause. They recognize 0:03:42.560 --> 0:03:47.760 both the speech implications of changing the social media services algorithms, 0:03:47.760 --> 0:03:51.320 and they also recognize the potential economic consequences, that there's 0:03:51.320 --> 0:03:54.160 a lot of businesses that are built on the premise 0:03:54.320 --> 0:03:56.760 that they can decide what's fit for their audience or not. 0:03:56.840 --> 0:03:59.880 So I think that the Justices recognized the big strategic 0:04:00.280 --> 0:04:02.360 issues in the case, and it was great to hear 0:04:02.440 --> 0:04:04.760 Justice Thomas bring that up as the very first question. 0:04:04.800 --> 0:04:07.200 It's set the tone for the rest of their arguments 0:04:07.240 --> 0:04:11.280 that we need the plaintifts to be very specific why 0:04:11.360 --> 0:04:14.120 they think liabilities should be post here and in the 0:04:14.120 --> 0:04:17.359 Gonzales case, I honestly think they never met that challenge. 0:04:17.760 --> 0:04:21.240 Across the ideological spectrum. They seem to have problems with 0:04:21.320 --> 0:04:25.200 the plaintiffs arguments, even saying, you know, I'm confused. I'm 0:04:25.240 --> 0:04:28.880 so confused. Several the Justices said that it should be 0:04:28.960 --> 0:04:33.320 Congress who changes Section two thirty. So I'm wondering why 0:04:33.360 --> 0:04:36.640 they even took the case. It's a great question and 0:04:36.720 --> 0:04:39.720 one that has vexed me and I think many others 0:04:39.720 --> 0:04:41.919 from the moment that Supreme Court agreed to hear it. 0:04:42.160 --> 0:04:44.640 This wasn't the right case for the Supreme Court to 0:04:44.640 --> 0:04:47.880 take to understand Section two thirty. I felt that was 0:04:47.920 --> 0:04:51.000 obvious even from the request to the Supreme court to 0:04:51.040 --> 0:04:54.360 hear it, and I have to feel like whoever voted 0:04:54.440 --> 0:04:57.919 in favor of hearing these cases kind of regretted it 0:04:58.080 --> 0:05:00.159 that they thought the cases were going to be a 0:05:00.200 --> 0:05:04.280 better vehicle for judicial analysis than they ended up being. 0:05:04.440 --> 0:05:07.000 So I don't exactly know why they took the cases. 0:05:07.080 --> 0:05:09.400 That was always a mystery, and I think that that 0:05:09.520 --> 0:05:12.880 got exposed during the oral arguments that this was not 0:05:13.040 --> 0:05:15.520 the right case for the court to really dig into 0:05:15.680 --> 0:05:19.080 some hard questions. Give us some background on these cases. 0:05:19.560 --> 0:05:23.800 These two cases were part of actually a larger litigation 0:05:24.240 --> 0:05:27.760 enterprise that was initiated. It was about twenty lasses filed 0:05:27.760 --> 0:05:31.039 across the country on behalf of victims of terrorist attacks, 0:05:31.200 --> 0:05:34.720 all claiming that social media services should be held accountable 0:05:34.920 --> 0:05:38.000 for their role in those terrorist attacks. Those lawsuits have 0:05:38.200 --> 0:05:41.800 uniformly failed across the country except for the one exception 0:05:41.839 --> 0:05:44.480 in the Ninth Circuit that led to this appeal. And 0:05:44.800 --> 0:05:47.760 it's so heartbreaking because on the one hand, everyone is 0:05:47.960 --> 0:05:50.880 sympathetic to the victims. All of them want to see 0:05:50.960 --> 0:05:55.080 justice for the victims and efforts taken to curb terrorism. 0:05:55.360 --> 0:05:58.600 But it was so fortunate that they chose these defendants. 0:05:59.040 --> 0:06:01.360 These are not the right defendants. This is not the 0:06:01.440 --> 0:06:04.720 right way to curb terrorism or to provide justice for 0:06:04.839 --> 0:06:07.880 the victims of terrorist attacks. And so the courts have 0:06:08.240 --> 0:06:12.480 been clear about that the plaintiffs reach too far in 0:06:12.520 --> 0:06:15.839 the list of possible defendants, and I felt like that 0:06:15.920 --> 0:06:18.960 message really came through at the Supreme Court. They understood 0:06:18.960 --> 0:06:21.000 that there are trade offs that need to be made 0:06:21.320 --> 0:06:25.080 in any decision about speech policy online, and that they're 0:06:25.120 --> 0:06:28.120 not the right ones to make that decision congresses, and 0:06:28.200 --> 0:06:30.920 that if they overweight the concerns and the victims here, 0:06:31.080 --> 0:06:33.200 they're going to create other problems for people who are 0:06:33.240 --> 0:06:35.480 not in court, and those people also have interests and 0:06:35.560 --> 0:06:37.840 need to be considered. So you said that even if 0:06:37.839 --> 0:06:41.800 the justices dismissed the plaintiff's claims here, you're worried about 0:06:41.839 --> 0:06:45.359 how they come to that decision. Yeah, I am. So. 0:06:45.600 --> 0:06:49.640 The court usually will write an opinion that says, here's 0:06:49.680 --> 0:06:53.400 who wins, and here's why they win. And in a 0:06:53.560 --> 0:06:57.640 clean opinion, they will say, in very few words, these 0:06:57.680 --> 0:07:00.280 are the elements of the test. The plaintiffs are the 0:07:00.320 --> 0:07:04.680 defense method right elements that resolves the case over. But 0:07:05.040 --> 0:07:07.599 the more modern trend in the Supreme Court has been 0:07:07.680 --> 0:07:11.080 to say more than they have to, and they start 0:07:11.360 --> 0:07:16.440 musing or speculating or caveating their statements. So it would 0:07:16.440 --> 0:07:19.040 be easy for them to say something like Google wins 0:07:19.440 --> 0:07:22.160 because of Section two thirty, and if they stop right there, 0:07:22.280 --> 0:07:24.600 that could actually be an okay opinion. But what they're 0:07:24.680 --> 0:07:28.280 likely to do is then say, because of the following facts, 0:07:28.360 --> 0:07:31.720 and if those facts were different, we might reach a 0:07:31.720 --> 0:07:34.800 different outcome. Well, as you can imagine, every single plaintiff 0:07:35.080 --> 0:07:38.200 is going to pick up on the caveat and say, well, 0:07:38.240 --> 0:07:40.600 I think I can make a claim where I can 0:07:40.680 --> 0:07:42.560 allege the facts that they said might make a difference. 0:07:42.800 --> 0:07:45.520 And so we're going to just initiate this huge ground 0:07:45.600 --> 0:07:50.440 swell of new litigation to explore any caveat or qualification 0:07:50.480 --> 0:07:52.600 of the Supreme Court puts in. And I don't think 0:07:52.600 --> 0:07:55.640 they can help themselves to do that. Let's talk about 0:07:55.640 --> 0:07:58.720 the Twitter case for a moment. That was not about 0:07:58.760 --> 0:08:02.160 Section two thirty. That was about the boundaries of the 0:08:02.200 --> 0:08:06.240 federal anti terrorism law. You heard a lot about aiding 0:08:06.280 --> 0:08:09.800 and abetting, as you did in the Google case. Correct, 0:08:10.240 --> 0:08:13.200 And just to be clear, so the Gonzals case involves 0:08:13.200 --> 0:08:17.080 Section two thirty, which is a defense immunity from liability 0:08:17.200 --> 0:08:21.760 that covers a wide range of potential claims. The Twitter 0:08:21.800 --> 0:08:25.200 case only evolved the Anti Terrorism Act one of the 0:08:25.400 --> 0:08:27.920 many possible claims I might be covered by Section two thirty. 0:08:28.040 --> 0:08:30.960 That's why there's been so much interest in the Gonzales 0:08:31.000 --> 0:08:33.559 case over the Twitter case, because of the fact that 0:08:33.720 --> 0:08:36.480 the Gonzals case could change the law across hundreds or 0:08:36.480 --> 0:08:40.280 thousands of other laws. Now in the Anti Terrorism Act, 0:08:40.559 --> 0:08:45.360 the question is what constitutes aiding and abetting a terrorist organization, 0:08:45.600 --> 0:08:48.520 and that kind of inquiries exactly the kind of thing 0:08:48.760 --> 0:08:51.800 that section two thirty has mooted. In the past, plaintiffs 0:08:51.800 --> 0:08:54.520 have alleged that they could get around Section two thirty 0:08:54.600 --> 0:08:57.559 in other legal doctrines by saying, I'm not suing them 0:08:57.559 --> 0:08:59.800 because they were the bad actor. I'm suing them because 0:08:59.800 --> 0:09:02.640 they helped the bad actor. And Section two thirty simply 0:09:02.679 --> 0:09:05.199 says you can't do that. So we haven't seen the 0:09:05.280 --> 0:09:07.960 kind of cases like the oral arguments we heard in 0:09:08.000 --> 0:09:10.640 the Twitter case because of the fact that Section two 0:09:10.640 --> 0:09:15.000 thirty has made those inquiries moot. So every plaintiff can 0:09:15.040 --> 0:09:19.720 allege that social media or other websites help some bad actor. 0:09:19.880 --> 0:09:22.079 That's the whole nature of talking to each other online, 0:09:22.120 --> 0:09:24.319 and section two there has taken away. When we open 0:09:24.480 --> 0:09:26.200 up that door and look at it like we did 0:09:26.240 --> 0:09:28.880 with a Twitter case, the justices don't know what to do. 0:09:29.000 --> 0:09:33.800 That's just judicial anarchy. Eric. So section two thirty is 0:09:33.840 --> 0:09:39.119 a defense that Google raised in the Gonzales case on Tuesday. 0:09:39.640 --> 0:09:42.800 Why didn't Twitter raise it in the case on Wednesday? 0:09:43.600 --> 0:09:45.920 So my understand is that the court shows to decide 0:09:45.960 --> 0:09:50.080 the case on the Anti Terrorism Act grounds only, which 0:09:50.160 --> 0:09:52.240 is of course prerogatives. They don't have to rule on 0:09:52.440 --> 0:09:56.400 every single basis on which the plaintiff might lose. And 0:09:56.440 --> 0:09:59.480 so my understanding is that section two therey could in 0:09:59.520 --> 0:10:02.440 fact be playing in the case if the case is 0:10:02.440 --> 0:10:05.199 still open. It's just that the judge put the Anti 0:10:05.280 --> 0:10:08.040 Terrorism Act in quired first. So in the Twitter case, 0:10:08.080 --> 0:10:13.920 there were lots of hypotheticals. Banks and restaurants that serve terrorists, 0:10:13.920 --> 0:10:17.200 people give guns to known criminals, and Justice Alito said, 0:10:17.480 --> 0:10:20.760 let's say j Edgar Hoover tells Bell Telephone Company that 0:10:20.880 --> 0:10:23.319 Dutch Schulz is a gangster and he's using his phone 0:10:23.360 --> 0:10:26.920 to carry out mob activities. The phone company says, we 0:10:26.920 --> 0:10:30.120 don't deprive people of service based on that that makes 0:10:30.160 --> 0:10:32.720 him an aider and a better he was expecting. I 0:10:32.720 --> 0:10:35.560 think a different response from the lawyer. The aidan embedding 0:10:35.679 --> 0:10:41.280 question is just a morass of confusion and ambiguity. And 0:10:41.520 --> 0:10:46.760 in particular, I didn't love the hypotheticals where law enforcement 0:10:47.160 --> 0:10:52.000 is telling a service that one of their customers is 0:10:52.120 --> 0:10:55.840 doing illegal activity, because as we know, law enforcement isn't 0:10:55.840 --> 0:10:59.040 always credible on that front, and sometimes they can use 0:10:59.160 --> 0:11:02.440 or weaponize their status to achieve things that the law 0:11:02.440 --> 0:11:05.560 wouldn't otherwise permit them. And while that happens sometime in 0:11:05.559 --> 0:11:09.199 the US, that happens all the time in some other countries, 0:11:09.559 --> 0:11:14.520 and so cheating the government source as an authoritative provider 0:11:14.600 --> 0:11:17.120 of identifying a criminal or a terrorist or a bad 0:11:17.120 --> 0:11:21.040 actor is actually just a road to ruin. And so 0:11:21.360 --> 0:11:24.640 I think the correct answer should be that we can't 0:11:24.720 --> 0:11:28.240 rely on the government's claims alone. However, if the court 0:11:28.240 --> 0:11:31.120 has adjudicated that someone is a criminal or terrorist, maybe 0:11:31.120 --> 0:11:34.240 we would feel differently. Did the more liberal justices seem 0:11:34.320 --> 0:11:38.120 to be more open to the idea that Twitter should 0:11:38.120 --> 0:11:44.040 bear some responsibility for indirectly supporting ISIS. I didn't get 0:11:44.320 --> 0:11:48.400 a clear partisan divide on any of the oral arguments. 0:11:48.440 --> 0:11:50.920 It really did seem that each justice was in their 0:11:50.960 --> 0:11:54.840 own space. And so I think that a lot of 0:11:54.880 --> 0:11:58.839 the speech related cases, basically put the partisan alignments in 0:11:58.920 --> 0:12:02.680 a blender, are a lot of conflicting considerations pointing in 0:12:02.720 --> 0:12:06.560 different directions. So I didn't see the partisan divide obviously. 0:12:07.880 --> 0:12:12.160 Could the justices use the Twitter case as a potential 0:12:12.400 --> 0:12:16.960 off ramp to sidestep any tricky Section two thirty issues? 0:12:17.679 --> 0:12:21.960 Justice Amy Coney Barrett suggested that in the Google arguments 0:12:21.960 --> 0:12:25.600 on Tuesday. So they're both relying on the same aiding 0:12:25.640 --> 0:12:28.680 and ebtting theory. So if you lose tomorrow, do we 0:12:28.679 --> 0:12:30.959 even have to reach the Section two thirty question here? 0:12:31.000 --> 0:12:32.600 Would you can see that you would lose on that 0:12:32.679 --> 0:12:36.480 ground here? So if the Supreme Court decides that social 0:12:36.520 --> 0:12:40.720 media companies can't be held responsible for aiding and abetting 0:12:40.920 --> 0:12:44.160 terrorism in the Twitter case, the justices could up not 0:12:44.240 --> 0:12:47.640 to decide whether Section to thirty protects the online companies 0:12:47.679 --> 0:12:51.560 from those claims. Yeah, that is a possibility for the 0:12:51.640 --> 0:12:55.280 Court to decide that the decision and Twitter could affect 0:12:55.320 --> 0:12:58.520 the decision in the Gozzals case. I don't know if 0:12:58.559 --> 0:13:01.240 they want to do that. They've geared up to hear 0:13:01.440 --> 0:13:04.280 the cases and do all the analysis, and then they 0:13:04.280 --> 0:13:08.559 would be basically putting all that work into the garbage. 0:13:08.600 --> 0:13:10.720 So I would be surprised if they want to go 0:13:10.800 --> 0:13:12.760 that route. But on the other hand, I could see 0:13:12.760 --> 0:13:15.160 why they would choose through that because in the end, 0:13:15.640 --> 0:13:17.560 they know that whatever they say about sexually too there 0:13:17.640 --> 0:13:19.559 is going to have huge consequences, and if they feel 0:13:19.559 --> 0:13:22.040 like they're not ready to pine upon it, they do 0:13:22.160 --> 0:13:25.360 have that potential eggs around. So listening to the arguments, 0:13:25.400 --> 0:13:28.160 your best guess is that the justices are going to 0:13:28.240 --> 0:13:32.080 rule against both the plaintiffs. No, I don't really have 0:13:32.120 --> 0:13:34.959 a prediction about the Twitter case. It was just too 0:13:35.000 --> 0:13:39.199 confusing to see where all the justices stood, and I 0:13:39.640 --> 0:13:42.640 don't have a prediction. And especially in cases like that 0:13:42.679 --> 0:13:45.439 where they're trying to figure out what is the culpable 0:13:45.600 --> 0:13:50.199 mental state of a defendant, there's so many considerations that 0:13:50.720 --> 0:13:54.199 I don't know that the oral argument questions really preview 0:13:54.200 --> 0:13:58.520 where the justices stand. They may be stress testing alternative arguments, 0:13:58.559 --> 0:14:01.960 they may be making statements to their peers, they may 0:14:02.000 --> 0:14:03.920 be trying to figure out how they're going to keep 0:14:03.920 --> 0:14:07.440 a coherent line the next time the coupable mental state 0:14:07.480 --> 0:14:10.160 issue comes up. Because it comes up all the time 0:14:10.200 --> 0:14:12.600 in the Supreme Court, that's like a standard issue for 0:14:12.600 --> 0:14:14.000 them to deal with, and they want to try and 0:14:14.040 --> 0:14:17.160 be coherent. I do think that Google is likely to 0:14:17.160 --> 0:14:19.600 prevail on the Gonzales case. I just did not hear 0:14:19.920 --> 0:14:24.280 enough support for the plaintiff's arguments. But even in that case, 0:14:24.320 --> 0:14:27.120 depending on how the court phrases opinion, I still am 0:14:27.160 --> 0:14:29.920 not sure that Google will get a net strategic win. 0:14:30.320 --> 0:14:32.880 They might get the votes, but the opinion might take 0:14:32.880 --> 0:14:36.320 it all back. And just to be clear, these cases 0:14:36.360 --> 0:14:38.960 are just about whether or not the suits can go forward. 0:14:39.360 --> 0:14:41.880 So even if the court, let's say said okay, the 0:14:41.880 --> 0:14:44.480 Twitter suit can go forward, that would still have to 0:14:44.520 --> 0:14:46.440 go to trial and they would still have to prove 0:14:46.560 --> 0:14:51.160 that yes. But that actually sidesteps one of the primary 0:14:51.240 --> 0:14:54.480 battles taking place in these cases, whether a judge can 0:14:54.560 --> 0:14:57.520 provide the early off ramp that Section two thirty is 0:14:57.560 --> 0:15:00.480 best known for, or if they have to spend more 0:15:00.520 --> 0:15:04.280 money to persuade a judge that they should prevail, and 0:15:04.320 --> 0:15:07.920 so having to defend a case in court over the 0:15:07.960 --> 0:15:12.400 course of the standard litigation process is a strategic loss 0:15:12.640 --> 0:15:16.080 in many circumstances for defendants, they simply don't want to 0:15:16.120 --> 0:15:18.600 spend the time or money that way, and they'll do 0:15:18.680 --> 0:15:22.200 a lot to avoid having to do that. So even 0:15:22.240 --> 0:15:25.320 if Google or Twitter could prevail at some later stage 0:15:25.320 --> 0:15:28.880 in the case, if they can't prevail early, it might 0:15:28.960 --> 0:15:31.920 not matter. They might it might change their decision making 0:15:32.360 --> 0:15:34.800 just having to defend the case that far. Thanks so 0:15:34.880 --> 0:15:38.400 much for those insights, Eric, that's Professor Eric Goleman of 0:15:38.440 --> 0:16:00.720 the Santa Clara University School of Law. Never Gonna Give 0:16:00.760 --> 0:16:03.320 You Up was not only a huge hit for Rick 0:16:03.360 --> 0:16:07.480 Astley in nineteen eighty seven, its popularity has been revived 0:16:07.560 --> 0:16:11.000 with the Rick Roll Internet memes. So it's no surprise 0:16:11.080 --> 0:16:14.000 that rapper Young Gravy used part of that song in 0:16:14.080 --> 0:16:28.880 his twenty twenty two breakout hit Betty Get Money. Did 0:16:28.920 --> 0:16:31.280 that sound to you like it was Rick Astley who 0:16:31.360 --> 0:16:34.920 was singing well. Astley says it's a deliberate and nearly 0:16:35.120 --> 0:16:39.400 indistinguishable imitation of his voice, and he's suing Young Gravy 0:16:39.600 --> 0:16:43.800 for stealing his voice. Joining me as intellectual property litigator 0:16:44.000 --> 0:16:47.840 Terrence Ross, a partner at Captain Yuchen Rosenman. So Terry 0:16:48.200 --> 0:16:51.720 Young Gravy, whose real name is Matthew Warie, did get 0:16:51.760 --> 0:16:55.080 the rights to use the music and lyrics from Never 0:16:55.120 --> 0:16:57.520 Going to Give You Up? So what's the problem here. 0:16:58.080 --> 0:17:01.560 So the problem with the egal approach Young Gravy or 0:17:01.600 --> 0:17:05.280 his lawyers took is that they obtained what is known 0:17:05.320 --> 0:17:09.040 as a mechanical rights license, which is a license with 0:17:09.160 --> 0:17:13.240 respect to the copyright in the music and the lyrics. 0:17:13.600 --> 0:17:17.880 What they did not do was obtain a master license, 0:17:18.160 --> 0:17:22.560 which is a license to the copyright in the actual 0:17:22.760 --> 0:17:26.480 recording of the song. So they were licensed up to 0:17:26.600 --> 0:17:29.960 go out and do a cover using the music and 0:17:30.080 --> 0:17:34.160 lyrics of the nineteen eighty seventh song, but they were 0:17:34.200 --> 0:17:38.720 not licensed to actually play the nineteen eighty seven recording. 0:17:39.280 --> 0:17:44.360 And the mistake, arguably made by Young Gravy is to 0:17:44.560 --> 0:17:50.520 set out to purposefully imitate the voice of Rick Astley 0:17:50.840 --> 0:17:54.040 from the song Never Going to Give You Up? And 0:17:54.400 --> 0:17:57.399 that is what this lawsuit is all about, not about 0:17:57.440 --> 0:18:00.560 the copyrights, but about what cal point is known as 0:18:00.560 --> 0:18:04.520 a violational right of publicity for using somebody else's identity. 0:18:04.760 --> 0:18:07.280 Have you heard this kind of you stole my voice 0:18:07.560 --> 0:18:10.720 claim before believe it? Or not June. This is not 0:18:10.880 --> 0:18:14.679 an unusual cause of action in the courts. There are 0:18:14.680 --> 0:18:18.640 at least two cases I know of in the Ninth Circuit. 0:18:18.760 --> 0:18:22.720 There's a nineteen eighty eight case by Bette Midler. There's 0:18:22.720 --> 0:18:25.840 a nineteen ninety two case by Tom Waits. Going back 0:18:25.920 --> 0:18:31.480 further in time, Nancy Sinatra sued Goodyear in nineteen seventy 0:18:31.520 --> 0:18:35.080 over her these boots are made for walking song, And 0:18:35.280 --> 0:18:38.240 even further back in time, nineteen sixty two. Bert Lair, 0:18:38.480 --> 0:18:42.000 the actor who portrayed the Cowardly Lion and the Wizard 0:18:42.000 --> 0:18:44.680 of Oz and did a lot of other great acting work, 0:18:44.960 --> 0:18:47.960 sued for the use of his voice back in nineteen 0:18:48.000 --> 0:18:50.320 sixty two. So, believe it or not, this is not 0:18:50.359 --> 0:18:53.320 the first time someone has dreamed up a cause of 0:18:53.359 --> 0:18:58.239 action relating to the imitation of someone else's voice. I 0:18:58.280 --> 0:19:01.639 wonder if young Gravy knew what the limits of the 0:19:01.760 --> 0:19:05.760 rights he had purchased, because he said, at one point 0:19:05.880 --> 0:19:08.720 we had a different singer and instruments, but it was 0:19:08.800 --> 0:19:12.600 all really close because it makes it easier legally. So 0:19:13.200 --> 0:19:16.080 I don't know what advice he got from his lawyers. 0:19:16.520 --> 0:19:19.240 I don't even know to what extent that he consulted 0:19:19.320 --> 0:19:22.720 his lawyers. The problem practiced lawyers like myself face in 0:19:22.720 --> 0:19:26.800 this area with artists that often they don't explain the 0:19:27.040 --> 0:19:30.280 entirety of the project that they're setting out upon. They 0:19:30.320 --> 0:19:32.640 will say, oh, I want to do a cover of 0:19:33.000 --> 0:19:35.480 Rick Astley's song never going to give you Up, but 0:19:35.560 --> 0:19:38.000 don't give you any other information. So I'm not in 0:19:38.000 --> 0:19:41.200 a position to criticize the lawyers or to even criticize 0:19:41.240 --> 0:19:43.800 Young Gravy here. The problem with a project like this 0:19:43.920 --> 0:19:46.719 is both the lawyers and the artists and the producers 0:19:46.880 --> 0:19:51.359 have to sit down and really explore all the possible outcomes. 0:19:51.400 --> 0:19:54.400 And it doesn't seem like that happened here. So does 0:19:54.520 --> 0:19:58.880 Astley have a good case? So, June, We've talked enough 0:19:58.920 --> 0:20:02.880 about different laws see Seed, that I'm reluctant to ever 0:20:03.040 --> 0:20:07.199 say one party score win or lose, or give odds. 0:20:07.480 --> 0:20:11.480 I'm reminded of the famous episode back during the Apollo 0:20:11.520 --> 0:20:15.600 program when Apollo thirteen had its disastrous incident and was 0:20:15.640 --> 0:20:19.119 on the way back to Earth and President Nixon called 0:20:19.280 --> 0:20:22.320 the flight director and asked him, one are the chances 0:20:22.359 --> 0:20:25.240 of these guys getting back alive and demanded that he 0:20:25.280 --> 0:20:28.040 actually put odds on it. You just can't do that 0:20:28.119 --> 0:20:31.640 either in space missions or lossess. And so I'm going 0:20:31.680 --> 0:20:33.920 to refrain from giving you some sort of a set 0:20:33.920 --> 0:20:36.400 of odds here. Maybe Las Vegas can do that for you. 0:20:36.560 --> 0:20:39.240 But I will say this, on its face, this is 0:20:39.240 --> 0:20:43.399 a colorable claim that Rick Astley has brought. On the 0:20:43.400 --> 0:20:46.480 other side of the ledger, there are some strong defenses 0:20:46.560 --> 0:20:50.000 to be made here by Young Gravy, and so to 0:20:50.040 --> 0:20:53.240 a certain extent, this will be an interesting case to 0:20:53.400 --> 0:20:56.840 follow to see how the court works out both a 0:20:56.880 --> 0:21:00.720 strong and interesting cause of action versus some pretty strong defenses. 0:21:01.040 --> 0:21:04.120 So let's talk about some of the defenses that Young 0:21:04.160 --> 0:21:07.359 Gravy may have fair use, which we've discussed a lot. 0:21:07.800 --> 0:21:11.600 So a couple of years ago, the Supreme Court of California, 0:21:11.640 --> 0:21:14.800 and remember this lawsuit is brought in the California state 0:21:14.880 --> 0:21:17.840 court system. It's not a federal lawsuit, and so the 0:21:18.200 --> 0:21:21.560 decisions from the California Supreme Court apply. And back in 0:21:21.600 --> 0:21:25.080 two thousand and one, the California Supreme Court, in a 0:21:25.160 --> 0:21:28.359 case that involved the same sort of right of publicity claim, 0:21:28.560 --> 0:21:33.639 incorporate it into California state law. Right of publicity a 0:21:33.920 --> 0:21:39.960 transformative use defense, which it stole out of the copyright cases. 0:21:40.520 --> 0:21:44.399 And transformative use is an element of a fair use defense, 0:21:44.440 --> 0:21:47.159 but it's not the complete fair used defense, and the 0:21:47.240 --> 0:21:49.720 Supreme Court California soft it just to pull out this 0:21:49.920 --> 0:21:53.520 one part of the copyright fair used defense, the transformative 0:21:53.640 --> 0:21:57.080 use element, and that is available to Young Gravy here 0:21:57.440 --> 0:22:00.600 in this lawsuit. The problem might have with that defense 0:22:00.760 --> 0:22:05.600 is not quite sure how the song that Young Gravy 0:22:05.760 --> 0:22:12.760 did Betty Get Money transforms the Rick Astley song Never 0:22:12.800 --> 0:22:15.159 Going to Give You Up. I don't consider it to 0:22:15.240 --> 0:22:19.760 be a parody. Indeed, Young Gravy said a number of 0:22:19.800 --> 0:22:23.280 things prior to the lawsuit in which he praised the 0:22:23.359 --> 0:22:28.080 song and referred to as being think iconic or just famous, 0:22:28.119 --> 0:22:32.000 and generally was positive about it. Whereas a parody is 0:22:32.000 --> 0:22:35.520 a criticism. It makes fun of a work by way 0:22:35.600 --> 0:22:39.160 of criticizing it, typically to make some sort of social commentary. 0:22:39.240 --> 0:22:41.479 And I don't think that's what's going on here. And 0:22:41.520 --> 0:22:44.800 so that's going to be a challenging defense for Young 0:22:44.840 --> 0:22:48.800 Gravy to make in this lawsuit. So what defenses might 0:22:48.840 --> 0:22:53.240 he have? So amongst the other defenses are just a 0:22:53.359 --> 0:22:57.000 straight up sort of First Amendment freedom of speech defense. 0:22:57.359 --> 0:23:01.800 The Ninth Circuit has said, if use has some sort 0:23:01.800 --> 0:23:07.840 of informative or cultural usefulness, then it's immune from this 0:23:07.920 --> 0:23:12.720 sort of state court challenge. Not sure that the informative 0:23:12.760 --> 0:23:15.400 prong has anything to do with it, but I think 0:23:15.440 --> 0:23:18.959 an argument could be made that they're using this in 0:23:19.080 --> 0:23:22.840 purely an entertainment manner, So they're not trying to sell 0:23:22.960 --> 0:23:27.520 a product using Rick Astley saw. They're simply trying to 0:23:27.640 --> 0:23:30.640 entertain the public. And this is a really important distinction 0:23:30.720 --> 0:23:34.119 here because in the Bette Midler case, Ford Motor Company 0:23:34.160 --> 0:23:38.080 had used a person imitating her voice to sell Forward cars, 0:23:38.119 --> 0:23:41.679 and she brought a lawsuit and claimed that they couldn't 0:23:41.680 --> 0:23:43.760 do that, that it was a violation of her right 0:23:43.800 --> 0:23:47.360 of publicity, and the Ninth Circuit said, yeah, she's right. 0:23:47.800 --> 0:23:50.200 They are trying to sell a product, a motor car, 0:23:50.680 --> 0:23:55.960 using her iconic and recognizable voice. And so here this 0:23:56.040 --> 0:23:59.840 is not being used by young gravy in the sense 0:24:00.119 --> 0:24:03.880 of trying to sell a product, whether it's entertainment. Most 0:24:03.920 --> 0:24:07.760 of the successful right of publicity cases come in the 0:24:07.800 --> 0:24:11.000