1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio. 2 00:00:08,800 --> 00:00:12,960 Speaker 2: The music industry faced off against internet providers at the 3 00:00:12,960 --> 00:00:17,880 Speaker 2: Supreme Court this week. At stake billions of dollars and 4 00:00:18,040 --> 00:00:23,160 Speaker 2: specifically a one billion dollar jury verdict against Cox Communications 5 00:00:23,560 --> 00:00:27,080 Speaker 2: for not shutting down the accounts of customers who pirated 6 00:00:27,160 --> 00:00:31,360 Speaker 2: more than ten thousand copyrighted songs by artists like Beyonce 7 00:00:31,560 --> 00:00:37,280 Speaker 2: and Justin Timberlake. The lawyers painted pictures of extreme consequences 8 00:00:37,320 --> 00:00:40,879 Speaker 2: if the court ruled against their client. Here are Joshua 9 00:00:41,000 --> 00:00:45,440 Speaker 2: Rosenkrantz for the internet provider Cox, and Paul Clement for 10 00:00:45,520 --> 00:00:47,480 Speaker 2: the music labels and publishers. 11 00:00:47,960 --> 00:00:54,080 Speaker 3: The consequences of plaintiff's position are cataclysmic. There is no 12 00:00:54,240 --> 00:00:59,400 Speaker 3: shortfire way for an ISP to avoid liability, and the 13 00:00:59,440 --> 00:01:02,800 Speaker 3: only way it can is to cut off the Internet, 14 00:01:03,240 --> 00:01:07,679 Speaker 3: not just for the accused infringer, but for anyone else 15 00:01:08,000 --> 00:01:11,319 Speaker 3: who happens to use the same connection. That could be 16 00:01:11,560 --> 00:01:14,560 Speaker 3: entire towns, universities, or hospitals. 17 00:01:15,640 --> 00:01:17,880 Speaker 4: If Cox is right on the law, then Cox could 18 00:01:17,920 --> 00:01:21,479 Speaker 4: take tens of thousands of copyright notices and throw them 19 00:01:21,520 --> 00:01:24,080 Speaker 4: in the trash, and they could have its employees say 20 00:01:24,200 --> 00:01:27,080 Speaker 4: f the DMCA. That is, in fact what the record says, 21 00:01:27,120 --> 00:01:29,440 Speaker 4: which is why they're asking you for an extreme rule. 22 00:01:29,880 --> 00:01:33,880 Speaker 2: The issue is whether Internet providers should be held responsible 23 00:01:34,000 --> 00:01:38,280 Speaker 2: for contributing to copyright infringement when they know their customers 24 00:01:38,319 --> 00:01:43,600 Speaker 2: are pirating music but don't terminate their Internet access. Some justices, 25 00:01:43,760 --> 00:01:49,200 Speaker 2: like Samuel Alito, questioned whether forcing Internet service providers to 26 00:01:49,320 --> 00:01:54,840 Speaker 2: cut off infringers could affect institutions like hospitals or universities. 27 00:01:55,280 --> 00:01:59,240 Speaker 1: What is an I supposed to do with a university 28 00:01:59,280 --> 00:02:03,760 Speaker 1: account that as let's say, seventy thousand users? What is 29 00:02:03,800 --> 00:02:05,200 Speaker 1: the university supposed to do? 30 00:02:05,600 --> 00:02:09,680 Speaker 2: But other justices seem skeptical that Cox had done enough 31 00:02:09,760 --> 00:02:13,639 Speaker 2: to stop the piracy, and questioned whether a ruling too 32 00:02:13,800 --> 00:02:18,160 Speaker 2: favorable to Internet service providers would allow them to ignore 33 00:02:18,360 --> 00:02:23,320 Speaker 2: clear copyright infringement by their users. Here are Justices Sonya, 34 00:02:23,360 --> 00:02:26,880 Speaker 2: So to Mayor and Amy Cony Barrett, you did. 35 00:02:26,760 --> 00:02:32,440 Speaker 5: Nothing and in fact, counselor your clients sort of lais 36 00:02:32,480 --> 00:02:38,040 Speaker 5: a fair attitude towards the respondents is probably what got 37 00:02:38,080 --> 00:02:39,160 Speaker 5: the jury upset. 38 00:02:40,240 --> 00:02:43,079 Speaker 6: What incentive would you have to do anything if you won? 39 00:02:43,960 --> 00:02:46,760 Speaker 6: You if you win? And mere knowledge isn't enough? Why 40 00:02:46,760 --> 00:02:49,799 Speaker 6: would you bother to send out any notices in the future, Well, 41 00:02:49,800 --> 00:02:51,320 Speaker 6: your abligation. 42 00:02:50,760 --> 00:02:55,240 Speaker 2: B my guest is intellectual property litigator Terrence Ross, a 43 00:02:55,360 --> 00:02:59,680 Speaker 2: partner at Katin Yutchen Rosenman. Terry explained the issue here. 44 00:03:00,320 --> 00:03:05,640 Speaker 7: The issue in the case involves process by which music companies, 45 00:03:06,080 --> 00:03:10,600 Speaker 7: by music companies don't really mean recording companies track online 46 00:03:10,720 --> 00:03:14,760 Speaker 7: that I'm sharing of musical compositions that they owned. The 47 00:03:14,800 --> 00:03:19,919 Speaker 7: copyright in the process allows them to identify the IP 48 00:03:20,200 --> 00:03:25,400 Speaker 7: address and the ISP that is providing the service to 49 00:03:25,440 --> 00:03:29,600 Speaker 7: that IP address, and so the music companies recording companies 50 00:03:29,840 --> 00:03:36,160 Speaker 7: regularly a daily basis, in fact, send notices of infringement 51 00:03:36,320 --> 00:03:40,920 Speaker 7: to the ISPs that are providing the internet service to 52 00:03:41,040 --> 00:03:44,360 Speaker 7: these infringers. And there are days in which they're sending 53 00:03:44,400 --> 00:03:49,880 Speaker 7: out ten thousand notices to each individual ISP service, and 54 00:03:50,320 --> 00:03:53,960 Speaker 7: the recording companies finally became fed up that the ISPs 55 00:03:54,000 --> 00:03:56,920 Speaker 7: were not doing something. They wanted the ISPs to cut 56 00:03:56,960 --> 00:04:03,480 Speaker 7: off service to these identified infringers, and the ISP's dragged 57 00:04:03,520 --> 00:04:07,840 Speaker 7: their heels doing anything taking any real concrete action to 58 00:04:07,880 --> 00:04:12,680 Speaker 7: stop it. And so the Recording got me finally sued 59 00:04:13,200 --> 00:04:17,560 Speaker 7: Cox Cable Company, which is one of the largest ISPs 60 00:04:17,560 --> 00:04:21,799 Speaker 7: in the nation, alleging that they had engaged in contributory 61 00:04:21,880 --> 00:04:23,080 Speaker 7: copyright infringement. 62 00:04:23,480 --> 00:04:27,200 Speaker 2: In its papers, Cox had argued that Grandma will be 63 00:04:27,279 --> 00:04:32,880 Speaker 2: thrown off the Internet because Junior visited and illegally downloaded songs. 64 00:04:33,320 --> 00:04:35,640 Speaker 2: Did some of the justices seem to pick up on 65 00:04:35,760 --> 00:04:36,560 Speaker 2: that concern. 66 00:04:37,080 --> 00:04:40,240 Speaker 7: There was only one justice who seemed to give some 67 00:04:40,320 --> 00:04:42,280 Speaker 7: credence that, and that was just as the lead up. 68 00:04:42,480 --> 00:04:45,880 Speaker 7: He was the only justice who really seemed to buy 69 00:04:46,040 --> 00:04:51,200 Speaker 7: into the position by Cox that it was hesitant to 70 00:04:51,279 --> 00:04:54,200 Speaker 7: kick people off because of and then you can fill 71 00:04:54,240 --> 00:04:56,719 Speaker 7: in the blank as to what the reason is their grandmother, 72 00:04:56,800 --> 00:05:01,080 Speaker 7: their university, their hospital. In fact, the hypothetic posed at 73 00:05:01,320 --> 00:05:04,400 Speaker 7: oral argument in the Supreme Court was what happens when 74 00:05:04,760 --> 00:05:07,760 Speaker 7: all you can do is identify that the IP address 75 00:05:07,800 --> 00:05:10,320 Speaker 7: belongs to university or you were going to shut down 76 00:05:10,360 --> 00:05:14,880 Speaker 7: the entire university. One of those odd hypotheticals that takes 77 00:05:15,000 --> 00:05:19,040 Speaker 7: the case the extreme. The facts are actually contrast to that, 78 00:05:19,600 --> 00:05:22,360 Speaker 7: and indeed none of the other justices seemed to buy 79 00:05:22,480 --> 00:05:26,279 Speaker 7: into that argument. The reality is that over a period 80 00:05:26,279 --> 00:05:30,040 Speaker 7: of time and issue, Cox had received one hundred and 81 00:05:30,080 --> 00:05:35,400 Speaker 7: sixty three thousand notices of infringement and had kicked off 82 00:05:35,640 --> 00:05:41,279 Speaker 7: of its service only thirty two customers. The policy of 83 00:05:41,880 --> 00:05:46,600 Speaker 7: compliance used by Cox was described in some detail both 84 00:05:46,600 --> 00:05:49,480 Speaker 7: of the Supreme Court and in the Lower Court, and 85 00:05:49,960 --> 00:05:55,080 Speaker 7: it was subw wha they fare to use the word 86 00:05:55,200 --> 00:05:57,640 Speaker 7: that one of the justices used to describe it. They 87 00:05:57,680 --> 00:05:59,760 Speaker 7: had originally started off to say, well, if we get 88 00:05:59,800 --> 00:06:03,840 Speaker 7: three notices about a particular user, we're going to tell 89 00:06:03,880 --> 00:06:07,279 Speaker 7: them we're cutting off their service. That rose gradually over 90 00:06:07,360 --> 00:06:09,839 Speaker 7: time from being a three strikes you're out policy to 91 00:06:09,920 --> 00:06:13,680 Speaker 7: being a thirteen strikes and you're aut policy, and the 92 00:06:13,720 --> 00:06:17,080 Speaker 7: thirteen strikes to reset every six months, so if you 93 00:06:17,120 --> 00:06:20,159 Speaker 7: didn't get to thirteen within the six month period, you 94 00:06:20,240 --> 00:06:22,560 Speaker 7: went back to zero, or if you got kicked off 95 00:06:22,600 --> 00:06:25,000 Speaker 7: after six months off, you got put back on. They 96 00:06:25,120 --> 00:06:29,000 Speaker 7: also capped the number of notices that they were accepting 97 00:06:29,200 --> 00:06:32,400 Speaker 7: from recording companies at three hundred a day. And then 98 00:06:32,480 --> 00:06:35,919 Speaker 7: probably the worst fact of all in which got brought 99 00:06:36,000 --> 00:06:38,840 Speaker 7: up at the Supreme Court, if you could believe it, 100 00:06:39,000 --> 00:06:42,760 Speaker 7: was the head of a copyright compliance at Cox sent 101 00:06:42,880 --> 00:06:46,640 Speaker 7: out an email to the people in charge of enforcing 102 00:06:46,880 --> 00:06:52,440 Speaker 7: copyright policy in which he said f the DMCA f 103 00:06:52,600 --> 00:06:57,240 Speaker 7: the DMCA. Now, the DMCA refers to the Digital Millennium 104 00:06:57,240 --> 00:07:00,719 Speaker 7: Copyright Act, which is one of the key statutes that 105 00:07:00,920 --> 00:07:06,400 Speaker 7: shoe here and which requires ISPs to set up a 106 00:07:06,480 --> 00:07:11,240 Speaker 7: policing mechanism against copyright infringement if they want to claim 107 00:07:11,280 --> 00:07:14,880 Speaker 7: the safe harbor that is embedded in the Digital Millennium 108 00:07:14,920 --> 00:07:18,880 Speaker 7: Copyright Act. In response to that, one of the minions 109 00:07:18,920 --> 00:07:21,080 Speaker 7: for the head of Compliance wrote back saying, but we're 110 00:07:21,120 --> 00:07:25,320 Speaker 7: helping law breaking customers, And there were dozens of emails 111 00:07:25,360 --> 00:07:28,120 Speaker 7: like this amongst the compliance group of Cocks. That just 112 00:07:28,320 --> 00:07:34,080 Speaker 7: manifested a complete disdain for copyright laws, which obviously impacted 113 00:07:34,080 --> 00:07:37,040 Speaker 7: the jury because the jury below had awarded a billion 114 00:07:37,080 --> 00:07:40,600 Speaker 7: dollars in damages against Cox. And in the Supreme Court 115 00:07:40,720 --> 00:07:44,320 Speaker 7: argument it was clear that outside of Justice Alito, none 116 00:07:44,360 --> 00:07:48,200 Speaker 7: of the eight other justices were buying what Cox was 117 00:07:48,280 --> 00:07:52,240 Speaker 7: trying to claim was their reason for not cutting off people, 118 00:07:52,280 --> 00:07:55,920 Speaker 7: that you'd kick Grandma's off of the Internet. The other 119 00:07:55,960 --> 00:07:58,120 Speaker 7: eight justices just didn't buy it, and it was a 120 00:07:58,160 --> 00:07:59,480 Speaker 7: loser argument for Cock. 121 00:08:00,040 --> 00:08:02,800 Speaker 2: So then can you tell where most of the justices 122 00:08:03,160 --> 00:08:03,840 Speaker 2: do stand? 123 00:08:04,320 --> 00:08:06,680 Speaker 7: That's always a tough question. In this case, I think 124 00:08:06,720 --> 00:08:09,560 Speaker 7: it's covered the most, I think, outside of Justice Alito, 125 00:08:09,600 --> 00:08:13,640 Speaker 7: the other eight judges were just incredibly skeptical of Cox's 126 00:08:13,760 --> 00:08:18,520 Speaker 7: excuses for allowing this widespread infringement to go on. In 127 00:08:18,640 --> 00:08:22,360 Speaker 7: the record below, there's apparently one period of time at 128 00:08:22,360 --> 00:08:26,360 Speaker 7: which twenty one percent of all traffic on the COXS 129 00:08:26,400 --> 00:08:30,200 Speaker 7: internet connections twenty one percent involved copyright in fringe. And 130 00:08:30,440 --> 00:08:34,920 Speaker 7: the lawsuit below didn't go after every single mom and 131 00:08:35,000 --> 00:08:39,960 Speaker 7: pop business or every single college student. It was targeted 132 00:08:40,240 --> 00:08:45,000 Speaker 7: only at distributors, not people who were downloading the occasional song, 133 00:08:45,280 --> 00:08:49,560 Speaker 7: but people who were copying music digitally and distributing it 134 00:08:49,600 --> 00:08:54,720 Speaker 7: on a mass scale. So there was this enormous skepticism 135 00:08:55,160 --> 00:08:59,240 Speaker 7: expressed by the justice except for Justice Alita, that Cox 136 00:08:59,360 --> 00:09:03,960 Speaker 7: really was and fulfilling it its obligation and needed to 137 00:09:03,960 --> 00:09:07,120 Speaker 7: do something differently now. On the other hand, there also 138 00:09:07,200 --> 00:09:10,760 Speaker 7: seemed to be some concern about the size of the 139 00:09:10,840 --> 00:09:16,720 Speaker 7: jury verdict and whether or not the actions of Cox 140 00:09:17,400 --> 00:09:22,960 Speaker 7: were sufficient to constitute willful contributory infringement, which is what 141 00:09:23,160 --> 00:09:27,320 Speaker 7: set them up for much larger scale of damages than 142 00:09:27,360 --> 00:09:30,280 Speaker 7: if they had been found to be just ordinary copyright infringement. 143 00:09:30,640 --> 00:09:34,280 Speaker 2: So what's the standard that the justices would use here. 144 00:09:34,840 --> 00:09:39,160 Speaker 2: Cox contends that under a two thousand and five Supreme 145 00:09:39,240 --> 00:09:43,319 Speaker 2: Court ruling, it can't be held liable for contributory infringement 146 00:09:43,760 --> 00:09:49,280 Speaker 2: unless it affirmatively fostered piracy or clearly intended to promote it. 147 00:09:49,600 --> 00:09:53,360 Speaker 2: The music companies say it's enough that Cox's new subscribers 148 00:09:53,480 --> 00:09:57,160 Speaker 2: were using its service to download songs illegally. 149 00:09:58,520 --> 00:10:01,679 Speaker 7: The case on appeal is the Supreme Court present it 150 00:10:01,760 --> 00:10:06,440 Speaker 7: to pretty crisp issues for decision. The first issue, which 151 00:10:06,440 --> 00:10:07,960 Speaker 7: I think is where the real fight is going to be, 152 00:10:08,679 --> 00:10:13,960 Speaker 7: is whether or not contributory copyright infringement required some sort 153 00:10:14,000 --> 00:10:18,160 Speaker 7: of affirmative action by the defendant. The second question presented 154 00:10:18,240 --> 00:10:23,960 Speaker 7: for review was whether or not wilfulness required some sort 155 00:10:24,000 --> 00:10:28,480 Speaker 7: of knowledge of customer infringement. Now, the problem with that 156 00:10:28,640 --> 00:10:33,760 Speaker 7: second question, the Wilfes standard, is that cops had failed 157 00:10:34,200 --> 00:10:39,079 Speaker 7: to object in the trial court to the instruction that 158 00:10:39,240 --> 00:10:43,160 Speaker 7: the judge gave to the jury about how to find wilfulness. 159 00:10:43,600 --> 00:10:46,560 Speaker 7: So after the case has finished, all the evidence has submitted, 160 00:10:47,000 --> 00:10:50,559 Speaker 7: and the attorneys have beda closing argument, and just before 161 00:10:50,600 --> 00:10:52,640 Speaker 7: the jury goes into the jury room to make a decision, 162 00:10:52,960 --> 00:10:55,600 Speaker 7: the judge reads to them a series of instructions as 163 00:10:55,640 --> 00:10:58,040 Speaker 7: to what the law is, and one of those instructions 164 00:10:58,080 --> 00:11:01,559 Speaker 7: will go something like Sony Music Corporation. Here is alleged 165 00:11:01,600 --> 00:11:05,240 Speaker 7: that the contributor copyright infringement was wilful on the part 166 00:11:05,400 --> 00:11:09,400 Speaker 7: of costs. In order for you to find wilfulness you 167 00:11:09,520 --> 00:11:14,000 Speaker 7: must consider the falling factors. And typically if a party 168 00:11:14,600 --> 00:11:17,320 Speaker 7: doesn't believe the judge has stayed at the law correctly 169 00:11:17,360 --> 00:11:20,520 Speaker 7: to the jury, they get up and they object, and 170 00:11:20,600 --> 00:11:22,120 Speaker 7: indeed they don't even have to do it at the 171 00:11:22,160 --> 00:11:25,000 Speaker 7: time of trial. These during instructions are sent out to 172 00:11:25,040 --> 00:11:28,280 Speaker 7: the lawyers while advance, and you file the objection with 173 00:11:28,360 --> 00:11:30,480 Speaker 7: courts saying, well, objected this, and give the court a 174 00:11:30,600 --> 00:11:33,480 Speaker 7: chance to refine it, improve it so that there's no 175 00:11:33,559 --> 00:11:37,600 Speaker 7: objection here. The Cox folks, for whatever reason, failed to 176 00:11:37,640 --> 00:11:40,880 Speaker 7: object to the wilfulness instruction, and that means they waived 177 00:11:40,960 --> 00:11:46,120 Speaker 7: any objection to wilfulness and had really no excuse in 178 00:11:46,200 --> 00:11:49,560 Speaker 7: their briefing as to why they did that or why 179 00:11:49,600 --> 00:11:52,240 Speaker 7: they should be excused from that. They pointed to a 180 00:11:52,280 --> 00:11:55,840 Speaker 7: prior case. This is a series of litigations. Here a 181 00:11:55,880 --> 00:12:00,319 Speaker 7: prior case that was styled bmg Urtus from US it 182 00:12:00,400 --> 00:12:04,920 Speaker 7: Group versus Cox, also coming out of the same Virginia court, 183 00:12:05,600 --> 00:12:08,520 Speaker 7: and in that case they had objected to wilfulness and 184 00:12:08,520 --> 00:12:11,240 Speaker 7: it had been overruled by the Fourth Circuit, but that 185 00:12:11,320 --> 00:12:13,560 Speaker 7: case was not on appeal. Here, the case that was 186 00:12:13,640 --> 00:12:16,360 Speaker 7: on appeal, they failed to object to the wilfulness instruction, 187 00:12:16,440 --> 00:12:18,240 Speaker 7: and in fact, the fact that they'd done so the 188 00:12:18,240 --> 00:12:20,040 Speaker 7: first trial but not in the second trial, so want 189 00:12:20,080 --> 00:12:22,160 Speaker 7: to suggest that they knew they were supposed to do 190 00:12:22,200 --> 00:12:24,760 Speaker 7: that and then failed to do it. So I just 191 00:12:24,800 --> 00:12:29,600 Speaker 7: don't see question number two as being resolved in any 192 00:12:29,600 --> 00:12:33,000 Speaker 7: way in favor of Cox, and indeed I suspect the 193 00:12:33,040 --> 00:12:35,480 Speaker 7: court won't reach it so that we will get no 194 00:12:35,640 --> 00:12:40,040 Speaker 7: further instruction from the Supreme Court on what constitutes wilfulness. 195 00:12:40,040 --> 00:12:43,520 Speaker 7: I think the court is focused really on the position 196 00:12:44,360 --> 00:12:49,760 Speaker 7: that Cox is arguing that contributory infring for infringement required 197 00:12:49,800 --> 00:12:53,400 Speaker 7: some sort of affirmative act and that, as they phrased it, 198 00:12:53,880 --> 00:12:58,280 Speaker 7: they can't be a contributory infringer by providing internet service 199 00:12:58,800 --> 00:13:01,000 Speaker 7: to one of their custom commercial. 200 00:13:01,480 --> 00:13:04,040 Speaker 8: So then do you think that they'll send it back 201 00:13:04,160 --> 00:13:07,160 Speaker 8: to the lower court with an instruction. 202 00:13:08,160 --> 00:13:11,480 Speaker 7: I just don't know what they're going to do here. 203 00:13:11,880 --> 00:13:13,600 Speaker 7: I have to be frank this is one of the 204 00:13:13,640 --> 00:13:18,960 Speaker 7: more opaque oral arguments I've listened to. The other commentators 205 00:13:19,360 --> 00:13:24,760 Speaker 7: have argued that the Court might be looking for some 206 00:13:24,800 --> 00:13:27,439 Speaker 7: sort of middle ground. Indeed, I think it was Justice 207 00:13:27,480 --> 00:13:30,280 Speaker 7: so Too my Or commented at one point during the 208 00:13:30,400 --> 00:13:34,960 Speaker 7: argument that the Court was being forced to choose between 209 00:13:35,040 --> 00:13:38,640 Speaker 7: two extreme positions, and in particular Justice so my Or, 210 00:13:38,720 --> 00:13:43,440 Speaker 7: who was very skeptical of Cox's position but also didn't 211 00:13:43,480 --> 00:13:48,439 Speaker 7: quite like the extreme argument being made by Sony Music Corp. 212 00:13:48,480 --> 00:13:51,280 Speaker 7: In the recording company, seems really perplexed as to what 213 00:13:51,360 --> 00:13:54,920 Speaker 7: to do. Genuinely perplexed. The problem the Supreme Court faces 214 00:13:54,960 --> 00:14:00,840 Speaker 7: here is that the standard for contributory copyright infringement has 215 00:14:00,960 --> 00:14:04,240 Speaker 7: been pretty well settled in this court for more than 216 00:14:04,280 --> 00:14:09,080 Speaker 7: a century. As early as nineteen twelve, there was a 217 00:14:09,120 --> 00:14:13,160 Speaker 7: case that involved mimeograph machines. If you remember those, they 218 00:14:13,160 --> 00:14:17,720 Speaker 7: were a pre xerox machines way of doing sort of 219 00:14:17,760 --> 00:14:21,200 Speaker 7: a mass production, mass production, you know, a couple hundred 220 00:14:21,440 --> 00:14:24,480 Speaker 7: and there was a case in which a publisher sued 221 00:14:24,480 --> 00:14:30,840 Speaker 7: a mimeograph company for knowingly selling mimeograph materials to a 222 00:14:30,880 --> 00:14:36,720 Speaker 7: company that it knew was engaged in infringing copyright works 223 00:14:36,920 --> 00:14:40,480 Speaker 7: by using the mimiograph machine. And the standard was set 224 00:14:40,520 --> 00:14:44,520 Speaker 7: out there and has been repeated over and over since 225 00:14:44,600 --> 00:14:48,400 Speaker 7: that time nineteen twelve. And the standard is pretty simple. 226 00:14:48,440 --> 00:14:51,080 Speaker 7: If you provide something that you know is going to 227 00:14:51,160 --> 00:14:54,920 Speaker 7: be used by a person to commit copyright infringement, you've 228 00:14:54,960 --> 00:14:59,280 Speaker 7: engaged in contributory infringement. And the path cases haven't spoken 229 00:14:59,280 --> 00:15:02,320 Speaker 7: in terms of detail an affirmative act, although one could 230 00:15:02,440 --> 00:15:04,320 Speaker 7: argue this did not come up. With the Supreme Court 231 00:15:04,360 --> 00:15:08,040 Speaker 7: hearing that providing the Internet service is an affirmative act. 232 00:15:08,560 --> 00:15:12,560 Speaker 7: The Cox Company argued the Supre Court that that's not 233 00:15:12,640 --> 00:15:15,360 Speaker 7: an affirmative act, but that's sort of a stretch in 234 00:15:15,480 --> 00:15:18,120 Speaker 7: order to try to get around that line cases, the 235 00:15:18,600 --> 00:15:23,760 Speaker 7: Cox Company argued that contributory infringement is really akin to 236 00:15:23,880 --> 00:15:28,520 Speaker 7: aiding and a betting liability in the context of torts 237 00:15:28,560 --> 00:15:31,440 Speaker 7: and criminal laws. And that's a real stretch that I 238 00:15:31,480 --> 00:15:34,600 Speaker 7: think is just dead wrong. It would give the court 239 00:15:35,080 --> 00:15:37,040 Speaker 7: a way to get out of this dilemma, but it 240 00:15:37,080 --> 00:15:39,520 Speaker 7: would mean the Court would have to overturn half a 241 00:15:39,560 --> 00:15:42,840 Speaker 7: dozen cases going back to nineteen twelve for over a 242 00:15:42,880 --> 00:15:45,480 Speaker 7: century and say now they're not good law anymore. I 243 00:15:45,480 --> 00:15:48,400 Speaker 7: don't see the Court doing that here. So I just 244 00:15:48,440 --> 00:15:53,240 Speaker 7: don't see question number two as being resolved in any 245 00:15:53,240 --> 00:15:56,680 Speaker 7: way in favor of Cox, and indeed, I suspect the 246 00:15:56,680 --> 00:15:59,120 Speaker 7: Court won't reach it so that we will get no 247 00:15:59,320 --> 00:16:03,680 Speaker 7: further instruction from the Supreme Court on what constitutes wilfulness. 248 00:16:03,720 --> 00:16:07,160 Speaker 7: I think the Court is focused really on the position 249 00:16:08,000 --> 00:16:12,920 Speaker 7: that Cox is arguing that contributory in infringement required some 250 00:16:13,000 --> 00:16:16,520 Speaker 7: sort of affirmative act, and that, as they phrased it, 251 00:16:16,920 --> 00:16:21,320 Speaker 7: they can't be a contributory infringer by providing internet service 252 00:16:21,480 --> 00:16:23,080 Speaker 7: to one of their customers. 253 00:16:23,760 --> 00:16:26,360 Speaker 8: So then do you think that they'll send it back 254 00:16:26,440 --> 00:16:29,440 Speaker 8: to the lower court with an instruction. 255 00:16:30,800 --> 00:16:34,120 Speaker 7: I just don't know what they're going to do here. 256 00:16:34,520 --> 00:16:36,240 Speaker 7: I have to be frank. This is one of the 257 00:16:36,240 --> 00:16:40,600 Speaker 7: more opaque oral arguments I have listened to. The other 258 00:16:40,720 --> 00:16:47,120 Speaker 7: commentators have argued that the Court might be looking for 259 00:16:47,240 --> 00:16:49,640 Speaker 7: some sort of middle ground. Indeed, I think it was 260 00:16:49,800 --> 00:16:53,440 Speaker 7: Justice sodomy Or commented at one point during the argument 261 00:16:54,280 --> 00:16:57,880 Speaker 7: that the Court was being forced to choose between two 262 00:16:57,960 --> 00:17:01,880 Speaker 7: extreme positions and ticlar Justice somai Or, who was very 263 00:17:01,920 --> 00:17:07,480 Speaker 7: skeptical of Cox's position but also didn't quite like the 264 00:17:07,880 --> 00:17:11,280 Speaker 7: extreme argument being made by Sony Music corpor In. The 265 00:17:11,320 --> 00:17:14,159 Speaker 7: recording company seems really perplexed as to what to do, 266 00:17:14,359 --> 00:17:18,199 Speaker 7: genuinely perplexed. The problem the Supreme Court faces here is 267 00:17:18,240 --> 00:17:24,199 Speaker 7: that the standard for contributory copyright infringement has been pretty 268 00:17:24,200 --> 00:17:27,679 Speaker 7: well settled in this court for more than a century. 269 00:17:28,080 --> 00:17:32,280 Speaker 7: As early as nineteen twelve, there was a case that 270 00:17:32,480 --> 00:17:36,280 Speaker 7: involved minograph machines. If you remember those, they were a 271 00:17:36,320 --> 00:17:41,400 Speaker 7: pre xerox machines way of doing sort of a mass production, 272 00:17:41,800 --> 00:17:44,680 Speaker 7: mass production, you know, a couple hundred and there was 273 00:17:44,720 --> 00:17:48,280 Speaker 7: a case in which a publisher sued a mimeograph company 274 00:17:48,880 --> 00:17:54,960 Speaker 7: for knowingly selling mimeograph materials to a company that it 275 00:17:55,080 --> 00:18:00,159 Speaker 7: knew was engaged in infringing copyright works by using the 276 00:18:00,160 --> 00:18:04,240 Speaker 7: miniograph machine. And the standard was set out there and 277 00:18:04,600 --> 00:18:08,719 Speaker 7: has been repeated over and over since that time nineteen twelve. 278 00:18:08,880 --> 00:18:12,360 Speaker 7: And the standard is pretty simple. If you provide something 279 00:18:12,440 --> 00:18:15,119 Speaker 7: that you know is going to be used by a 280 00:18:15,160 --> 00:18:19,560 Speaker 7: person to commit copyright infringement, you've engaged in contributory infringement. 281 00:18:20,480 --> 00:18:23,320 Speaker 7: And the past cases haven't spoken in terms of needing 282 00:18:23,320 --> 00:18:26,480 Speaker 7: an affirmative Act, although one could argue this did not 283 00:18:26,560 --> 00:18:29,080 Speaker 7: come up with the Supreme Court hearing that providing the 284 00:18:29,119 --> 00:18:34,240 Speaker 7: internet service is an affirmative act. The COTS company argued 285 00:18:34,600 --> 00:18:37,720 Speaker 7: court that that's not an affirmative act. But that's sort 286 00:18:37,760 --> 00:18:39,840 Speaker 7: of a stretch in order to try to get around 287 00:18:39,880 --> 00:18:45,679 Speaker 7: that line cases. The co's company argued that contributory infringement 288 00:18:45,960 --> 00:18:49,160 Speaker 7: is really a kin to aiding and a betting liability 289 00:18:49,760 --> 00:18:53,400 Speaker 7: in the context of torts and criminal laws. And that's 290 00:18:53,400 --> 00:18:56,160 Speaker 7: a real stretch that I think is just dead wrong. 291 00:18:56,480 --> 00:18:59,320 Speaker 7: It would give the Court a way to get out 292 00:18:59,359 --> 00:19:01,400 Speaker 7: of this dilemma, but it would mean the Court would 293 00:19:01,440 --> 00:19:04,840 Speaker 7: have to overturn half a dozen cases going back to 294 00:19:04,920 --> 00:19:07,640 Speaker 7: nineteen twelve for over a century and say now they're 295 00:19:07,680 --> 00:19:09,840 Speaker 7: not good law anymore. I don't see the Court doing 296 00:19:09,880 --> 00:19:10,359 Speaker 7: that here. 297 00:19:10,760 --> 00:19:13,000 Speaker 2: Do you think we'll see that Justice is coming up 298 00:19:13,040 --> 00:19:14,879 Speaker 2: with some sort of middle ground. 299 00:19:15,480 --> 00:19:18,639 Speaker 7: Oh, it's a shame that Justice Ginsburg is no longer 300 00:19:18,680 --> 00:19:23,080 Speaker 7: on the Court, as we've had many conversations about our 301 00:19:23,480 --> 00:19:27,119 Speaker 7: knowledge of copyright law and her ability to copy together 302 00:19:27,200 --> 00:19:32,320 Speaker 7: coalitions or positions under the Copyright Act that we're actually 303 00:19:32,400 --> 00:19:36,119 Speaker 7: quite pragmatic and useful. And I just don't see anybody 304 00:19:36,680 --> 00:19:39,560 Speaker 7: either with that depth of knowledge to copyright law or 305 00:19:39,600 --> 00:19:41,840 Speaker 7: the ability to do that sort of log rolling on 306 00:19:41,840 --> 00:19:43,840 Speaker 7: this court. And so I think it's going to be 307 00:19:43,880 --> 00:19:46,000 Speaker 7: real struggle for this Court to come up with some 308 00:19:46,119 --> 00:19:49,080 Speaker 7: sort of middle ground, particularly in light of the fact 309 00:19:49,119 --> 00:19:52,359 Speaker 7: that the law here is just so set for such 310 00:19:52,359 --> 00:19:56,359 Speaker 7: a long period time and fits exactly into the past 311 00:19:56,400 --> 00:19:59,800 Speaker 7: case law, and these sort of odd cases that co 312 00:20:00,119 --> 00:20:03,840 Speaker 7: cited to the Supreme Court, including this recent gun distribution 313 00:20:04,000 --> 00:20:06,840 Speaker 7: case in the case Supreme Court to site recently where 314 00:20:07,040 --> 00:20:10,800 Speaker 7: the gun companies were being sued for deaths in Mexico, 315 00:20:11,359 --> 00:20:15,360 Speaker 7: and the argument was they were aiding embedding this criminal activity. 316 00:20:15,760 --> 00:20:18,320 Speaker 7: And the gun company said, well, we sold the guns 317 00:20:18,359 --> 00:20:22,480 Speaker 7: to dealers in Texas, not knowing what they were going 318 00:20:22,520 --> 00:20:25,280 Speaker 7: to do with them, and if anybody's contributed to them, 319 00:20:25,280 --> 00:20:27,280 Speaker 7: but it's not us. We had no knowledge of it. 320 00:20:28,080 --> 00:20:33,280 Speaker 7: And that case just doesn't fit here, either legally or factually. 321 00:20:33,920 --> 00:20:36,800 Speaker 7: And yet cops sort of did a lot on that. 322 00:20:36,880 --> 00:20:38,920 Speaker 7: I mean, it was almost as if there's a oh, hey, 323 00:20:39,119 --> 00:20:42,760 Speaker 7: we believe we cite to some case in which the 324 00:20:42,800 --> 00:20:45,480 Speaker 7: second Circuit, which everybody believes in on the Supreme Court, 325 00:20:45,960 --> 00:20:47,879 Speaker 7: that'll get us over the humpire it's just such a 326 00:20:47,920 --> 00:20:52,200 Speaker 7: stretch that in fact backfires. One starts to think, well, 327 00:20:52,240 --> 00:20:54,880 Speaker 7: what's wrong with their case? That that's the best they've got. 328 00:20:55,160 --> 00:20:58,040 Speaker 2: And that's a question they didn't ask during two hours 329 00:20:58,119 --> 00:21:02,400 Speaker 2: of Supreme Court oral argument. Thanks so much, Terry, as always, 330 00:21:02,800 --> 00:21:07,000 Speaker 2: that's Terrence Ross of Catain Mutchen Rosenman. Turning now to 331 00:21:07,080 --> 00:21:10,879 Speaker 2: another Supreme Court case this week, the Court considered the 332 00:21:10,920 --> 00:21:16,000 Speaker 2: federal judiciary's role in asylum cases, and the justices appeared 333 00:21:16,119 --> 00:21:20,800 Speaker 2: open to allowing courts to defer to administrative decisions on 334 00:21:20,880 --> 00:21:24,399 Speaker 2: whether immigrants have shown they face harm serious enough to 335 00:21:24,560 --> 00:21:29,280 Speaker 2: qualify for asylum. Joining me is immigration law expert Leon Fresco, 336 00:21:29,520 --> 00:21:33,560 Speaker 2: a partner at hollanden Knight. So asylum seekers can ask 337 00:21:33,640 --> 00:21:36,639 Speaker 2: a federal appeals court to review their case if the 338 00:21:36,680 --> 00:21:40,639 Speaker 2: Board of Immigration Appeals denies their asylum claim. This case 339 00:21:40,720 --> 00:21:43,800 Speaker 2: is about the role of the federal appeals court versus 340 00:21:44,000 --> 00:21:47,200 Speaker 2: the role of the Board of Immigration Appeals. 341 00:21:47,200 --> 00:21:52,320 Speaker 1: Correct. Basically, here's the issue. What a person asks for asylum. 342 00:21:52,600 --> 00:21:54,600 Speaker 1: They have to prove, at the end of the day 343 00:21:55,280 --> 00:21:58,639 Speaker 1: that they have what's called a well founded fear of 344 00:21:59,200 --> 00:22:02,920 Speaker 1: future person acution on the basis of their race, religion, 345 00:22:03,000 --> 00:22:07,639 Speaker 1: political origin, social group, things like that. One of the 346 00:22:07,800 --> 00:22:11,960 Speaker 1: main parts of such a case. There's a presumption that 347 00:22:12,080 --> 00:22:16,359 Speaker 1: if you have experienced what's called past persecution, there's a 348 00:22:16,640 --> 00:22:20,600 Speaker 1: presumption that you will then have a well founded fear 349 00:22:20,720 --> 00:22:24,800 Speaker 1: of future persecution. So what does that mean. That means 350 00:22:24,800 --> 00:22:28,119 Speaker 1: that people go into immigration court and they explain what 351 00:22:28,280 --> 00:22:31,240 Speaker 1: happened in their country that caused them to leave, and 352 00:22:31,320 --> 00:22:35,080 Speaker 1: there's cross examination and the judge can ask questions. At 353 00:22:35,080 --> 00:22:38,240 Speaker 1: the end of all of this, there's two determinations. One 354 00:22:38,840 --> 00:22:43,800 Speaker 1: did the person experience past persecution? And number two was 355 00:22:43,840 --> 00:22:46,440 Speaker 1: it on the basis of one of the protected grounds. 356 00:22:47,000 --> 00:22:51,320 Speaker 1: So in this Supreme Court case, what happened was there 357 00:22:51,440 --> 00:22:56,680 Speaker 1: literally was no dispute about the credibility of the facts 358 00:22:56,760 --> 00:23:02,240 Speaker 1: raised by the foreign national in this case, Douglas Umberto Oriana, 359 00:23:02,600 --> 00:23:06,359 Speaker 1: who said that he fled El Salvador after repeated threats 360 00:23:06,359 --> 00:23:09,440 Speaker 1: and violence from a hitman linked to a drug lord, 361 00:23:09,920 --> 00:23:12,080 Speaker 1: and he said that the drug lord shot his hot 362 00:23:12,160 --> 00:23:15,240 Speaker 1: brothers and tracked and thread in his family. And so 363 00:23:15,920 --> 00:23:18,600 Speaker 1: since there was no dispute about the facts, there was 364 00:23:18,640 --> 00:23:23,640 Speaker 1: not a factual issue that was being raised on appeal. Instead, 365 00:23:24,040 --> 00:23:25,800 Speaker 1: the court said I'm going to take all of the 366 00:23:25,840 --> 00:23:29,240 Speaker 1: facts that you've presented today as true, and I'm going 367 00:23:29,320 --> 00:23:31,879 Speaker 1: to say that they still do not rise to the 368 00:23:31,960 --> 00:23:36,200 Speaker 1: level of the high level of this word persecution such 369 00:23:36,240 --> 00:23:41,600 Speaker 1: that we can say that you experienced past persecution such 370 00:23:41,640 --> 00:23:45,399 Speaker 1: that you would get the presumption of future persecution. So 371 00:23:45,520 --> 00:23:50,360 Speaker 1: now mister Orias Oriana then says, well, how is that possible. 372 00:23:50,760 --> 00:23:53,520 Speaker 1: I would like to get review of that. And so 373 00:23:53,640 --> 00:23:56,560 Speaker 1: when it gets to the First Circuit Court of Appeals, 374 00:23:57,080 --> 00:24:00,439 Speaker 1: the first Circuit says, We're going to defer to the 375 00:24:00,480 --> 00:24:04,120 Speaker 1: Board of Immigration Appeals, which is the administrative court that 376 00:24:04,200 --> 00:24:06,920 Speaker 1: decides this issue at the end of the day. We're 377 00:24:06,920 --> 00:24:10,840 Speaker 1: gonna defer to them and say that even though the 378 00:24:10,880 --> 00:24:15,720 Speaker 1: facts are not in dispute, we still have to give 379 00:24:15,800 --> 00:24:19,639 Speaker 1: some difference to their decision in terms of let's say 380 00:24:19,680 --> 00:24:23,120 Speaker 1: there's a scale and you're weighing it, how many pebbles 381 00:24:23,160 --> 00:24:25,600 Speaker 1: go on one scale, how many pebbles go on the 382 00:24:25,640 --> 00:24:31,600 Speaker 1: other scale, that even that determination gets some difference. That 383 00:24:31,680 --> 00:24:36,960 Speaker 1: the federal courts can't just reweigh the evidence on their 384 00:24:37,080 --> 00:24:41,040 Speaker 1: ends and decide whether the facts that were undisputed in 385 00:24:41,119 --> 00:24:46,760 Speaker 1: a particular case constituted persecution such that the person should 386 00:24:46,760 --> 00:24:49,800 Speaker 1: win their asylum case. So that creates sort of a 387 00:24:49,840 --> 00:24:50,560 Speaker 1: circuit split. 388 00:24:51,480 --> 00:24:54,600 Speaker 2: So the case goes to the Supreme Court. What are 389 00:24:54,640 --> 00:24:57,120 Speaker 2: the justices going to decide? 390 00:24:57,800 --> 00:25:01,800 Speaker 1: The Supreme Court then has to decide, Okay, what happens 391 00:25:01,800 --> 00:25:05,120 Speaker 1: in a case like this where there's not a dispute 392 00:25:05,200 --> 00:25:08,480 Speaker 1: about the actual facts, but there's a dispute about whether 393 00:25:08,600 --> 00:25:12,760 Speaker 1: the facts when you weigh them, there's quote unquote significant 394 00:25:12,880 --> 00:25:17,160 Speaker 1: enough pebbles on the scale. Does the foreign national win 395 00:25:17,520 --> 00:25:20,000 Speaker 1: or do they lose? Can we reweigh that on our 396 00:25:20,040 --> 00:25:23,560 Speaker 1: own or do we have to give some different under 397 00:25:23,680 --> 00:25:29,760 Speaker 1: some standard of deferential review? And so the foreign nationals 398 00:25:29,760 --> 00:25:32,320 Speaker 1: obviously claiming there should be the Novo review. The Court 399 00:25:32,320 --> 00:25:35,040 Speaker 1: should look at this and say, okay, we're the threads 400 00:25:35,080 --> 00:25:38,679 Speaker 1: here that were undisputed sufficient to say that that was 401 00:25:39,080 --> 00:25:42,720 Speaker 1: past persecution. And the government says no, no, no, the 402 00:25:42,880 --> 00:25:47,120 Speaker 1: standard is actually much different and that this is actually 403 00:25:47,840 --> 00:25:51,679 Speaker 1: a mixed question of law and fact, and so you 404 00:25:51,800 --> 00:25:56,800 Speaker 1: have to treat that with some type of deferential review. 405 00:25:56,960 --> 00:26:00,760 Speaker 1: And so you had justices like Justice Go It's saying 406 00:26:01,160 --> 00:26:04,520 Speaker 1: a reasonable fact find their standard as opposed to the 407 00:26:04,600 --> 00:26:09,520 Speaker 1: Novo review, and others wanted to weigh it even more 408 00:26:10,040 --> 00:26:15,360 Speaker 1: deferentially potentially than even that and say that basically, if 409 00:26:15,359 --> 00:26:20,440 Speaker 1: there's substantial evidence to support the determination of the lower 410 00:26:20,560 --> 00:26:23,359 Speaker 1: administrative court, that's enough. So that would be even a 411 00:26:23,400 --> 00:26:29,240 Speaker 1: broader deferential standard. And it appears as if really there's 412 00:26:29,280 --> 00:26:31,359 Speaker 1: not a lot of excitement in the Supreme Court for 413 00:26:31,440 --> 00:26:34,439 Speaker 1: having a complete the novo review of this process. So 414 00:26:34,480 --> 00:26:36,960 Speaker 1: the issue is really going to be how much difference 415 00:26:37,080 --> 00:26:41,040 Speaker 1: is given in these types of cases moving forward. 416 00:26:41,200 --> 00:26:44,959 Speaker 2: So leon just to clarify, everyone accepts that the facts 417 00:26:44,960 --> 00:26:48,800 Speaker 2: of the asylum claim are determined by the court below, 418 00:26:48,880 --> 00:26:52,560 Speaker 2: the immigration court, So the only question is how the 419 00:26:52,600 --> 00:26:56,840 Speaker 2: federal appellate court is going to weigh those facts. 420 00:26:56,880 --> 00:27:02,320 Speaker 1: Correct. So what the lower court said in this case was, yes, 421 00:27:02,680 --> 00:27:05,240 Speaker 1: all these very bad and serious things happened to you, 422 00:27:05,840 --> 00:27:08,080 Speaker 1: but when we put all those pebbles on the stone, 423 00:27:08,080 --> 00:27:12,359 Speaker 1: they're not sufficiently weighty enough on the scale to actually 424 00:27:12,400 --> 00:27:17,800 Speaker 1: constitute persecution for the purposes of winning your case. And 425 00:27:17,880 --> 00:27:20,080 Speaker 1: then the question is, Okay, when this gets to the 426 00:27:20,080 --> 00:27:23,439 Speaker 1: federal court, can they literally reweigh all of that exact 427 00:27:23,440 --> 00:27:26,480 Speaker 1: evidence and say no, no, no, those stones do weigh enough 428 00:27:26,760 --> 00:27:30,760 Speaker 1: to tip the scales in favor of the foreign national 429 00:27:31,280 --> 00:27:34,199 Speaker 1: or are they stuck with Hey, if this is in 430 00:27:34,280 --> 00:27:37,399 Speaker 1: any way defensible, we have to keep this decision the 431 00:27:37,440 --> 00:27:40,440 Speaker 1: way it is. And it seemed like the Supreme Court 432 00:27:40,480 --> 00:27:44,959 Speaker 1: did want to give more difference than rather reweighing all 433 00:27:45,040 --> 00:27:48,320 Speaker 1: of the facts in the case, even if they're undisputed, 434 00:27:48,400 --> 00:27:52,880 Speaker 1: to decide if they need the legal standard of past persecution. 435 00:27:53,480 --> 00:27:58,159 Speaker 2: If the appeals court can't reweigh what the lower court decided, 436 00:27:58,840 --> 00:28:01,640 Speaker 2: it's not much of a you, is it correct? 437 00:28:01,680 --> 00:28:04,960 Speaker 1: I mean, there would only be a review if essentially 438 00:28:05,000 --> 00:28:11,040 Speaker 1: what happened was somebody goes into immigration court and they say, 439 00:28:11,520 --> 00:28:14,639 Speaker 1: the government came in and shot me one time in 440 00:28:14,680 --> 00:28:18,000 Speaker 1: the left arm because I'm a dissident, and then they left, 441 00:28:18,280 --> 00:28:20,199 Speaker 1: and then two weeks later they shot me in the 442 00:28:20,280 --> 00:28:23,159 Speaker 1: right arm, and then three weeks later they shot me 443 00:28:23,200 --> 00:28:25,600 Speaker 1: in the left leg, and they said, you want this 444 00:28:25,680 --> 00:28:27,560 Speaker 1: to keep going or are you're going to stop being 445 00:28:27,560 --> 00:28:31,359 Speaker 1: a dissident? And then the immigration judge says, well, that 446 00:28:31,400 --> 00:28:35,120 Speaker 1: doesn't seem like sufficient persecution. You only got shot three times. 447 00:28:35,680 --> 00:28:39,040 Speaker 1: Maybe in a case like that, then the court would say, well, 448 00:28:39,160 --> 00:28:42,720 Speaker 1: there's no way a reasonable fact finder could come to 449 00:28:42,840 --> 00:28:46,600 Speaker 1: that determination that that wasn't persecution, because then you'd have 450 00:28:46,640 --> 00:28:50,080 Speaker 1: this sort of reasonable fact finder deference or some other 451 00:28:50,200 --> 00:28:54,040 Speaker 1: standard like that. But it's not, it's not never will 452 00:28:54,080 --> 00:28:56,960 Speaker 1: we review it. So they're not saying never, but as 453 00:28:56,960 --> 00:29:00,720 Speaker 1: opposed to a case like this, where they're saying, okay, threats, 454 00:29:01,240 --> 00:29:04,480 Speaker 1: how serious are the threats? Or the threats very serious? 455 00:29:04,800 --> 00:29:06,680 Speaker 1: They might say, look, this is the kind of case 456 00:29:06,720 --> 00:29:08,640 Speaker 1: that falls into gray zone. And when you're in the 457 00:29:08,640 --> 00:29:10,560 Speaker 1: gray zone, the government wins. 458 00:29:11,160 --> 00:29:13,840 Speaker 2: I'm curious, what do you think about the threats in 459 00:29:13,880 --> 00:29:16,680 Speaker 2: this case? Do you think they were serious enough for 460 00:29:16,720 --> 00:29:17,960 Speaker 2: an asylum claim? 461 00:29:18,440 --> 00:29:20,800 Speaker 1: I think it's really in the gray zone. I think 462 00:29:20,880 --> 00:29:22,640 Speaker 1: this is the problem when they talk about sort of 463 00:29:22,640 --> 00:29:26,880 Speaker 1: bad facts make bad law, is this is the exact 464 00:29:26,920 --> 00:29:30,520 Speaker 1: type of case where one judge would definitely grant asylum 465 00:29:30,920 --> 00:29:33,840 Speaker 1: one hundred out of one hundred times and another judge 466 00:29:33,880 --> 00:29:36,800 Speaker 1: would never grant the asylum zero out of one hundred times, 467 00:29:36,880 --> 00:29:40,520 Speaker 1: because people just approach these cases with different levels of 468 00:29:40,600 --> 00:29:45,480 Speaker 1: sympathy and different levels of concern and different standards in 469 00:29:45,520 --> 00:29:50,200 Speaker 1: their mind of what constitutes persecution. And so the problem 470 00:29:50,360 --> 00:29:54,600 Speaker 1: is when you have such subjective it's not ai deciding 471 00:29:54,640 --> 00:29:58,520 Speaker 1: this case of people with their various levels of subjectiveness, 472 00:29:58,560 --> 00:30:03,840 Speaker 1: and unfortunately they bring their life experiences and preferences into 473 00:30:03,880 --> 00:30:06,920 Speaker 1: the court system and things that they've seen and perhaps 474 00:30:07,040 --> 00:30:10,920 Speaker 1: other cases that they've heard in similar context, which they're 475 00:30:10,920 --> 00:30:14,240 Speaker 1: not technically supposed to do. But you know, they're sitting 476 00:30:14,280 --> 00:30:16,680 Speaker 1: there in Immigration court and they're listening to hundreds of 477 00:30:16,720 --> 00:30:19,240 Speaker 1: these cases a year, and so some of them start 478 00:30:19,280 --> 00:30:23,000 Speaker 1: sounding similar, and they start then either sounding more sympathetic 479 00:30:23,160 --> 00:30:25,280 Speaker 1: or less, depending on how many of these you hear 480 00:30:25,760 --> 00:30:28,680 Speaker 1: and what you're hearing on different days. And so because 481 00:30:28,680 --> 00:30:33,239 Speaker 1: all of that's happening, it really does become problematic in 482 00:30:33,400 --> 00:30:37,080 Speaker 1: terms of the subjectiveness of the process. But what the 483 00:30:37,120 --> 00:30:40,080 Speaker 1: Supreme Court's trying to figure out is where does the 484 00:30:40,120 --> 00:30:43,320 Speaker 1: subjectiveness stop. Does it stop at the Court of Appeals 485 00:30:43,400 --> 00:30:46,640 Speaker 1: or does it stop at the administrative level. And it 486 00:30:46,720 --> 00:30:49,320 Speaker 1: seems like they're going to stop it at the administrative 487 00:30:49,400 --> 00:30:52,840 Speaker 1: level for the most part, and not bring in sort 488 00:30:52,880 --> 00:30:56,600 Speaker 1: of a new antiseptic Court of Appeals who's just reading 489 00:30:56,640 --> 00:31:00,600 Speaker 1: a transcript without any other context than decide is this 490 00:31:00,680 --> 00:31:04,040 Speaker 1: sufficient persecution. It did really seem like any of the 491 00:31:04,080 --> 00:31:06,840 Speaker 1: Supreme Court justices wanted to do that the NOVO. 492 00:31:07,360 --> 00:31:11,160 Speaker 2: What's happening as far as the Trump administration's position on 493 00:31:11,400 --> 00:31:13,320 Speaker 2: granting asylum. 494 00:31:13,040 --> 00:31:16,880 Speaker 1: Well, after this horrible attack on the National Guard where 495 00:31:16,880 --> 00:31:18,920 Speaker 1: one of them has passed away and the other is 496 00:31:19,120 --> 00:31:22,800 Speaker 1: clinging to their life. The Afghan foreign national who had 497 00:31:22,800 --> 00:31:26,400 Speaker 1: come in during the withdrawal from Afghanistan, and then he 498 00:31:26,480 --> 00:31:31,200 Speaker 1: subsequently got asylum because he wasn't able to get what's 499 00:31:31,240 --> 00:31:34,920 Speaker 1: called a special immigrant visa due to various timing issues. 500 00:31:34,960 --> 00:31:39,360 Speaker 1: So this individual ends up getting asylum. And so because 501 00:31:39,360 --> 00:31:43,200 Speaker 1: of that, the Trump administration has said that the asylum 502 00:31:43,360 --> 00:31:48,080 Speaker 1: system needs an overhaul in terms of the way in 503 00:31:48,120 --> 00:31:51,760 Speaker 1: which people applying for asylum are being scrutinized. So at 504 00:31:51,760 --> 00:31:55,680 Speaker 1: the moment, there's currently a pause, meaning the entire country, 505 00:31:56,240 --> 00:31:59,920 Speaker 1: nobody who's applied for asylum is going to get a decision. Now, 506 00:32:00,680 --> 00:32:05,800 Speaker 1: interestingly about that is that is also a nothing in 507 00:32:05,880 --> 00:32:09,080 Speaker 1: immigration is simple, because somebody might say, oh, well, that's 508 00:32:09,080 --> 00:32:12,120 Speaker 1: a simple solution. Just hold all these cases in abeyance 509 00:32:12,160 --> 00:32:14,360 Speaker 1: and no one will get asylum and we won't have 510 00:32:14,440 --> 00:32:17,920 Speaker 1: this problem. But you know, nothing is simple like that. 511 00:32:17,960 --> 00:32:20,760 Speaker 1: There's always two sides to every coin. And the point 512 00:32:20,800 --> 00:32:23,280 Speaker 1: is these human beings are here, so it's not like 513 00:32:23,320 --> 00:32:25,680 Speaker 1: they're sitting in some other country and you're holding these 514 00:32:25,720 --> 00:32:29,080 Speaker 1: cases in abeyance. When someone applies for asylum, the number 515 00:32:29,160 --> 00:32:32,400 Speaker 1: one criteria of being able to get asylum is that 516 00:32:32,440 --> 00:32:35,600 Speaker 1: your body is here in America. So they're here already 517 00:32:35,600 --> 00:32:38,200 Speaker 1: and they're applying, and so if you hold their case 518 00:32:38,240 --> 00:32:41,840 Speaker 1: in abeyance, sure there's some people who won't get the 519 00:32:42,280 --> 00:32:46,000 Speaker 1: protection of asylum. That's certainly better than not having it, 520 00:32:46,280 --> 00:32:48,080 Speaker 1: but there's a lot of other people who you might 521 00:32:48,080 --> 00:32:51,320 Speaker 1: have wanted to deport and get them out faster, who 522 00:32:51,320 --> 00:32:54,000 Speaker 1: you're not doing that because you're holding all the cases 523 00:32:54,240 --> 00:32:58,040 Speaker 1: in abeyance and you're not making any decisions. So from 524 00:32:58,080 --> 00:33:01,880 Speaker 1: that standpoint, I don't think this is a long term 525 00:33:02,000 --> 00:33:05,720 Speaker 1: or durable solution. Now, they may do something else, and 526 00:33:05,800 --> 00:33:07,560 Speaker 1: they may try to figure out some way to have 527 00:33:07,600 --> 00:33:10,760 Speaker 1: a blanket denial of all asylum planes, but I don't 528 00:33:10,760 --> 00:33:13,080 Speaker 1: think the courts are going to let them do that, 529 00:33:13,680 --> 00:33:15,720 Speaker 1: and so I think this is just an effort to 530 00:33:15,760 --> 00:33:19,440 Speaker 1: sort of count this for as long as possible until 531 00:33:19,560 --> 00:33:23,400 Speaker 1: some other solution can be done to limit the way 532 00:33:23,640 --> 00:33:27,520 Speaker 1: a number of people getting asylum, But just a pause 533 00:33:27,720 --> 00:33:33,720 Speaker 1: in and of itself definitely has these conflicting outcomes because yes, 534 00:33:34,080 --> 00:33:36,680 Speaker 1: people don't get asylum when you have a pause, but 535 00:33:36,840 --> 00:33:40,240 Speaker 1: also people who have no business staying in the country 536 00:33:40,480 --> 00:33:43,400 Speaker 1: get to stay longer because their cases remain pending. 537 00:33:44,280 --> 00:33:49,840 Speaker 2: Let's turn now to these arrests that immigration officials are making. 538 00:33:50,200 --> 00:33:55,280 Speaker 2: So DC federal Judge Beryl Howell ruled that US officials 539 00:33:55,640 --> 00:34:00,800 Speaker 2: have to stop enforcing this policy of conducting warrantless immigration 540 00:34:01,000 --> 00:34:05,040 Speaker 2: arrests without probable cause to believe in arrestee is likely 541 00:34:05,120 --> 00:34:09,120 Speaker 2: to escape before officials can obtain an administrative warrant. I mean, 542 00:34:09,160 --> 00:34:12,279 Speaker 2: that's basic law, isn't it that you can only make 543 00:34:12,320 --> 00:34:15,719 Speaker 2: an immigration arrest without a warrant if the individual is 544 00:34:15,840 --> 00:34:20,280 Speaker 2: violating an immigration law or is likely to escape before 545 00:34:20,440 --> 00:34:21,920 Speaker 2: agents can get a warrant. 546 00:34:22,320 --> 00:34:25,560 Speaker 1: So this is a very tricky issue because this is 547 00:34:25,640 --> 00:34:29,400 Speaker 1: about a policy as opposed to an actual police officer 548 00:34:29,800 --> 00:34:32,279 Speaker 1: doing something. So what do I mean by that? What 549 00:34:32,320 --> 00:34:36,560 Speaker 1: I mean is if a police officer is just observing 550 00:34:37,520 --> 00:34:40,000 Speaker 1: in the middle of there, or an ice officer. Let's 551 00:34:40,040 --> 00:34:42,839 Speaker 1: be more precise about this, If an ice officer is 552 00:34:43,040 --> 00:34:46,400 Speaker 1: just observing in the middle of their daily operations of 553 00:34:46,440 --> 00:34:48,720 Speaker 1: what they're doing at ice the war. You know, they're 554 00:34:48,760 --> 00:34:52,799 Speaker 1: serving a warrantyer, they're looking at an investigation here, and 555 00:34:52,840 --> 00:34:57,560 Speaker 1: they happen to see somebody crossing the border illegally or 556 00:34:57,600 --> 00:35:00,560 Speaker 1: something like that happening right in front of and they 557 00:35:00,560 --> 00:35:03,359 Speaker 1: can arrest that person. They don't need a warrant, they 558 00:35:03,360 --> 00:35:08,000 Speaker 1: don't need probable cause of escape risk or anything like that. 559 00:35:08,280 --> 00:35:11,239 Speaker 1: They're allowed to make that arrest because they're observing an 560 00:35:11,239 --> 00:35:14,960 Speaker 1: immigration violation in front of them. What's complicated about this 561 00:35:15,080 --> 00:35:20,520 Speaker 1: DC District Court case is they're saying that's different than 562 00:35:20,600 --> 00:35:24,680 Speaker 1: having a policy in place that is saying, hey, Ice, 563 00:35:25,360 --> 00:35:31,359 Speaker 1: go around and create a mass enforcement effort that does 564 00:35:31,440 --> 00:35:36,480 Speaker 1: not require warrants. Just go around and start basically asking 565 00:35:36,560 --> 00:35:40,760 Speaker 1: people about their immigration status and start arresting people anytime 566 00:35:40,800 --> 00:35:44,080 Speaker 1: you see anyone that looks suspicious to you. So the 567 00:35:44,160 --> 00:35:46,640 Speaker 1: issue in this case is whether a policy like that 568 00:35:47,200 --> 00:35:50,279 Speaker 1: can be put in place. Now the administration would say 569 00:35:50,320 --> 00:35:52,680 Speaker 1: doesn't have a policy like that, And then there's the 570 00:35:52,760 --> 00:35:56,880 Speaker 1: words about the arguments about well, that's what the leaders 571 00:35:56,920 --> 00:36:00,239 Speaker 1: are articulating is the policy, so that it becomes the 572 00:36:00,280 --> 00:36:03,920 Speaker 1: fact though policy that that's what that you're trying to accomplish. 573 00:36:04,080 --> 00:36:07,040 Speaker 1: So the court says, fine, that is a policy that 574 00:36:07,160 --> 00:36:11,040 Speaker 1: has had where the administration, whether there's a piece of 575 00:36:11,080 --> 00:36:14,600 Speaker 1: paper or not, that says it has this policy of 576 00:36:14,760 --> 00:36:18,759 Speaker 1: saying civil immigration arrest can be done without having a 577 00:36:18,800 --> 00:36:24,200 Speaker 1: probable cause determination of escape risk, and so is that 578 00:36:24,320 --> 00:36:27,640 Speaker 1: legal or not? And this has actually come up in 579 00:36:27,680 --> 00:36:30,080 Speaker 1: other places. It's come up in LA, it's come up 580 00:36:30,080 --> 00:36:33,200 Speaker 1: in Chicago, and in all these places, the district courts 581 00:36:33,200 --> 00:36:36,279 Speaker 1: have held that what ICE needs to be doing is 582 00:36:36,400 --> 00:36:39,319 Speaker 1: every day going through a list of people that it 583 00:36:39,400 --> 00:36:43,280 Speaker 1: knows has undocumented status and going and finding those people, 584 00:36:43,320 --> 00:36:46,600 Speaker 1: whether it's at their work or at their home or wherever, 585 00:36:47,120 --> 00:36:51,719 Speaker 1: but not just sweeping around looking around saying, oh, this 586 00:36:51,800 --> 00:36:56,080 Speaker 1: person looks weird, go find them. Now. The complication is oh, 587 00:36:56,080 --> 00:36:58,520 Speaker 1: and so, by the way, So what happens is in 588 00:36:58,600 --> 00:37:03,960 Speaker 1: the district court here December second issues a injunction saying, no, 589 00:37:04,120 --> 00:37:07,600 Speaker 1: you can't do this anymore. You now need to have 590 00:37:07,760 --> 00:37:11,239 Speaker 1: probable cause that the person is both unlawfully present and 591 00:37:11,560 --> 00:37:15,160 Speaker 1: likely to escape, and you need a warrant to do 592 00:37:15,440 --> 00:37:18,920 Speaker 1: these arrests. So it's basically back to what the Los 593 00:37:19,000 --> 00:37:22,800 Speaker 1: Angeles Court held and the Chicago court held is you 594 00:37:23,280 --> 00:37:25,920 Speaker 1: need to have a list every day of undocumented people 595 00:37:25,960 --> 00:37:28,920 Speaker 1: that you go and apprehend, or you need to have 596 00:37:29,080 --> 00:37:33,080 Speaker 1: a police officer who's actually looking at something, not pursued 597 00:37:33,160 --> 00:37:36,520 Speaker 1: to a policy, but just as doing their job and 598 00:37:36,640 --> 00:37:40,640 Speaker 1: observing some immigration crime happening. Yes, they can make an arrest. 599 00:37:40,920 --> 00:37:42,839 Speaker 1: They don't need to go get a warrant to do it. 600 00:37:43,120 --> 00:37:46,000 Speaker 1: But otherwise you can't just have these sweeping patrols. The 601 00:37:46,080 --> 00:37:49,840 Speaker 1: problem is, just as Cavanagh has already held in a 602 00:37:50,040 --> 00:37:55,640 Speaker 1: case involving the Los Angeles issue, that there can be 603 00:37:55,680 --> 00:37:59,120 Speaker 1: these arrests, you know, they're sort of called now Cavanah stops, 604 00:37:59,560 --> 00:38:03,520 Speaker 1: where you you can have these sort of inquiries that 605 00:38:03,680 --> 00:38:06,279 Speaker 1: ICE is making if they feel like this is the 606 00:38:06,400 --> 00:38:11,239 Speaker 1: kind of situation where normally undocumented people are in a 607 00:38:11,239 --> 00:38:15,000 Speaker 1: particular location, or there's some intelligence that they hang out 608 00:38:15,040 --> 00:38:18,200 Speaker 1: at a particular place or do a particular thing, you 609 00:38:18,239 --> 00:38:21,720 Speaker 1: could make these quote unquote Kavanaugh stop. So I think 610 00:38:21,760 --> 00:38:24,200 Speaker 1: that as this case goes up to the DC Circuit 611 00:38:24,200 --> 00:38:27,120 Speaker 1: and back to the Supreme Court, it will probably run 612 00:38:27,239 --> 00:38:31,239 Speaker 1: up against the same problem where the Supreme Court has 613 00:38:31,280 --> 00:38:36,120 Speaker 1: already said that they can, with reasonable suspicion start asking 614 00:38:36,160 --> 00:38:38,640 Speaker 1: people about their immigration stutus and. 615 00:38:38,600 --> 00:38:43,879 Speaker 2: That decision was made on the emergency docket without full 616 00:38:43,960 --> 00:38:49,400 Speaker 2: briefing or oral arguments. Thanks so much, Leon. That's Leon Fresco, 617 00:38:49,680 --> 00:38:52,319 Speaker 2: a partner at Hollanden Knight. And that's it for this 618 00:38:52,480 --> 00:38:55,200 Speaker 2: edition of The Bloomberg Law Show. Remember you can always 619 00:38:55,200 --> 00:38:58,160 Speaker 2: get the latest legal news on our Bloomberg Law Podcast. 620 00:38:58,440 --> 00:39:01,439 Speaker 2: You can find them on Apple podcast, Spotify, and at 621 00:39:01,600 --> 00:39:06,640 Speaker 2: www dot Bloomberg dot com, slash podcast, Slash Law, and 622 00:39:06,719 --> 00:39:09,759 Speaker 2: remember to tune into The Bloomberg Law Show every weeknight 623 00:39:09,880 --> 00:39:13,319 Speaker 2: at ten pm Wall Street Time. I'm June Grosso and 624 00:39:13,360 --> 00:39:14,840 Speaker 2: you're listening to Bloomberg