WEBVTT - SCOTUS on Music Piracy & Asylum 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.800 --> 0:00:12.960 The music industry faced off against internet providers at the 0:00:12.960 --> 0:00:17.880 Supreme Court this week. At stake billions of dollars and 0:00:18.040 --> 0:00:23.160 specifically a one billion dollar jury verdict against Cox Communications 0:00:23.560 --> 0:00:27.080 for not shutting down the accounts of customers who pirated 0:00:27.160 --> 0:00:31.360 more than ten thousand copyrighted songs by artists like Beyonce 0:00:31.560 --> 0:00:37.280 and Justin Timberlake. The lawyers painted pictures of extreme consequences 0:00:37.320 --> 0:00:40.879 if the court ruled against their client. Here are Joshua 0:00:41.000 --> 0:00:45.440 Rosenkrantz for the internet provider Cox, and Paul Clement for 0:00:45.520 --> 0:00:47.480 the music labels and publishers. 0:00:47.960 --> 0:00:54.080 The consequences of plaintiff's position are cataclysmic. There is no 0:00:54.240 --> 0:00:59.400 shortfire way for an ISP to avoid liability, and the 0:00:59.440 --> 0:01:02.800 only way it can is to cut off the Internet, 0:01:03.240 --> 0:01:07.679 not just for the accused infringer, but for anyone else 0:01:08.000 --> 0:01:11.319 who happens to use the same connection. That could be 0:01:11.560 --> 0:01:14.560 entire towns, universities, or hospitals. 0:01:15.640 --> 0:01:17.880 If Cox is right on the law, then Cox could 0:01:17.920 --> 0:01:21.479 take tens of thousands of copyright notices and throw them 0:01:21.520 --> 0:01:24.080 in the trash, and they could have its employees say 0:01:24.200 --> 0:01:27.080 f the DMCA. That is, in fact what the record says, 0:01:27.120 --> 0:01:29.440 which is why they're asking you for an extreme rule. 0:01:29.880 --> 0:01:33.880 The issue is whether Internet providers should be held responsible 0:01:34.000 --> 0:01:38.280 for contributing to copyright infringement when they know their customers 0:01:38.319 --> 0:01:43.600 are pirating music but don't terminate their Internet access. Some justices, 0:01:43.760 --> 0:01:49.200 like Samuel Alito, questioned whether forcing Internet service providers to 0:01:49.320 --> 0:01:54.840 cut off infringers could affect institutions like hospitals or universities. 0:01:55.280 --> 0:01:59.240 What is an I supposed to do with a university 0:01:59.280 --> 0:02:03.760 account that as let's say, seventy thousand users? What is 0:02:03.800 --> 0:02:05.200 the university supposed to do? 0:02:05.600 --> 0:02:09.680 But other justices seem skeptical that Cox had done enough 0:02:09.760 --> 0:02:13.639 to stop the piracy, and questioned whether a ruling too 0:02:13.800 --> 0:02:18.160 favorable to Internet service providers would allow them to ignore 0:02:18.360 --> 0:02:23.320 clear copyright infringement by their users. Here are Justices Sonya, 0:02:23.360 --> 0:02:26.880 So to Mayor and Amy Cony Barrett, you did. 0:02:26.760 --> 0:02:32.440 Nothing and in fact, counselor your clients sort of lais 0:02:32.480 --> 0:02:38.040 a fair attitude towards the respondents is probably what got 0:02:38.080 --> 0:02:39.160 the jury upset. 0:02:40.240 --> 0:02:43.079 What incentive would you have to do anything if you won? 0:02:43.960 --> 0:02:46.760 You if you win? And mere knowledge isn't enough? Why 0:02:46.760 --> 0:02:49.799 would you bother to send out any notices in the future, Well, 0:02:49.800 --> 0:02:51.320 your abligation. 0:02:50.760 --> 0:02:55.240 B my guest is intellectual property litigator Terrence Ross, a 0:02:55.360 --> 0:02:59.680 partner at Katin Yutchen Rosenman. Terry explained the issue here. 0:03:00.320 --> 0:03:05.640 The issue in the case involves process by which music companies, 0:03:06.080 --> 0:03:10.600 by music companies don't really mean recording companies track online 0:03:10.720 --> 0:03:14.760 that I'm sharing of musical compositions that they owned. The 0:03:14.800 --> 0:03:19.919 copyright in the process allows them to identify the IP 0:03:20.200 --> 0:03:25.400 address and the ISP that is providing the service to 0:03:25.440 --> 0:03:29.600 that IP address, and so the music companies recording companies 0:03:29.840 --> 0:03:36.160 regularly a daily basis, in fact, send notices of infringement 0:03:36.320 --> 0:03:40.920 to the ISPs that are providing the internet service to 0:03:41.040 --> 0:03:44.360 these infringers. And there are days in which they're sending 0:03:44.400 --> 0:03:49.880 out ten thousand notices to each individual ISP service, and 0:03:50.320 --> 0:03:53.960 the recording companies finally became fed up that the ISPs 0:03:54.000 --> 0:03:56.920 were not doing something. They wanted the ISPs to cut 0:03:56.960 --> 0:04:03.480 off service to these identified infringers, and the ISP's dragged 0:04:03.520 --> 0:04:07.840 their heels doing anything taking any real concrete action to 0:04:07.880 --> 0:04:12.680 stop it. And so the Recording got me finally sued 0:04:13.200 --> 0:04:17.560 Cox Cable Company, which is one of the largest ISPs 0:04:17.560 --> 0:04:21.799 in the nation, alleging that they had engaged in contributory 0:04:21.880 --> 0:04:23.080 copyright infringement. 0:04:23.480 --> 0:04:27.200 In its papers, Cox had argued that Grandma will be 0:04:27.279 --> 0:04:32.880 thrown off the Internet because Junior visited and illegally downloaded songs. 0:04:33.320 --> 0:04:35.640 Did some of the justices seem to pick up on 0:04:35.760 --> 0:04:36.560 that concern. 0:04:37.080 --> 0:04:40.240 There was only one justice who seemed to give some 0:04:40.320 --> 0:04:42.280 credence that, and that was just as the lead up. 0:04:42.480 --> 0:04:45.880 He was the only justice who really seemed to buy 0:04:46.040 --> 0:04:51.200 into the position by Cox that it was hesitant to 0:04:51.279 --> 0:04:54.200 kick people off because of and then you can fill 0:04:54.240 --> 0:04:56.719 in the blank as to what the reason is their grandmother, 0:04:56.800 --> 0:05:01.080 their university, their hospital. In fact, the hypothetic posed at 0:05:01.320 --> 0:05:04.400 oral argument in the Supreme Court was what happens when 0:05:04.760 --> 0:05:07.760 all you can do is identify that the IP address 0:05:07.800 --> 0:05:10.320 belongs to university or you were going to shut down 0:05:10.360 --> 0:05:14.880 the entire university. One of those odd hypotheticals that takes 0:05:15.000 --> 0:05:19.040 the case the extreme. The facts are actually contrast to that, 0:05:19.600 --> 0:05:22.360 and indeed none of the other justices seemed to buy 0:05:22.480 --> 0:05:26.279 into that argument. The reality is that over a period 0:05:26.279 --> 0:05:30.040 of time and issue, Cox had received one hundred and 0:05:30.080 --> 0:05:35.400 sixty three thousand notices of infringement and had kicked off 0:05:35.640 --> 0:05:41.279 of its service only thirty two customers. The policy of 0:05:41.880 --> 0:05:46.600 compliance used by Cox was described in some detail both 0:05:46.600 --> 0:05:49.480 of the Supreme Court and in the Lower Court, and 0:05:49.960 --> 0:05:55.080 it was subw wha they fare to use the word 0:05:55.200 --> 0:05:57.640 that one of the justices used to describe it. They 0:05:57.680 --> 0:05:59.760 had originally started off to say, well, if we get 0:05:59.800 --> 0:06:03.840 three notices about a particular user, we're going to tell 0:06:03.880 --> 0:06:07.279 them we're cutting off their service. That rose gradually over 0:06:07.360 --> 0:06:09.839 time from being a three strikes you're out policy to 0:06:09.920 --> 0:06:13.680 being a thirteen strikes and you're aut policy, and the 0:06:13.720 --> 0:06:17.080 thirteen strikes to reset every six months, so if you 0:06:17.120 --> 0:06:20.159 didn't get to thirteen within the six month period, you 0:06:20.240 --> 0:06:22.560 went back to zero, or if you got kicked off 0:06:22.600 --> 0:06:25.000 after six months off, you got put back on. They 0:06:25.120 --> 0:06:29.000 also capped the number of notices that they were accepting 0:06:29.200 --> 0:06:32.400 from recording companies at three hundred a day. And then 0:06:32.480 --> 0:06:35.919 probably the worst fact of all in which got brought 0:06:36.000 --> 0:06:38.840 up at the Supreme Court, if you could believe it, 0:06:39.000 --> 0:06:42.760 was the head of a copyright compliance at Cox sent 0:06:42.880 --> 0:06:46.640 out an email to the people in charge of enforcing 0:06:46.880 --> 0:06:52.440 copyright policy in which he said f the DMCA f 0:06:52.600 --> 0:06:57.240 the DMCA. Now, the DMCA refers to the Digital Millennium 0:06:57.240 --> 0:07:00.719 Copyright Act, which is one of the key statutes that 0:07:00.920 --> 0:07:06.400 shoe here and which requires ISPs to set up a 0:07:06.480 --> 0:07:11.240 policing mechanism against copyright infringement if they want to claim 0:07:11.280 --> 0:07:14.880 the safe harbor that is embedded in the Digital Millennium 0:07:14.920 --> 0:07:18.880 Copyright Act. In response to that, one of the minions 0:07:18.920 --> 0:07:21.080 for the head of Compliance wrote back saying, but we're 0:07:21.120 --> 0:07:25.320 helping law breaking customers, And there were dozens of emails 0:07:25.360 --> 0:07:28.120 like this amongst the compliance group of Cocks. That just 0:07:28.320 --> 0:07:34.080 manifested a complete disdain for copyright laws, which obviously impacted 0:07:34.080 --> 0:07:37.040 the jury because the jury below had awarded a billion 0:07:37.080 --> 0:07:40.600 dollars in damages against Cox. And in the Supreme Court 0:07:40.720 --> 0:07:44.320 argument it was clear that outside of Justice Alito, none 0:07:44.360 --> 0:07:48.200 of the eight other justices were buying what Cox was 0:07:48.280 --> 0:07:52.240 trying to claim was their reason for not cutting off people, 0:07:52.280 --> 0:07:55.920 that you'd kick Grandma's off of the Internet. The other 0:07:55.960 --> 0:07:58.120 eight justices just didn't buy it, and it was a 0:07:58.160 --> 0:07:59.480 loser argument for Cock. 0:08:00.040 --> 0:08:02.800 So then can you tell where most of the justices 0:08:03.160 --> 0:08:03.840 do stand? 0:08:04.320 --> 0:08:06.680 That's always a tough question. In this case, I think 0:08:06.720 --> 0:08:09.560 it's covered the most, I think, outside of Justice Alito, 0:08:09.600 --> 0:08:13.640 the other eight judges were just incredibly skeptical of Cox's 0:08:13.760 --> 0:08:18.520 excuses for allowing this widespread infringement to go on. In 0:08:18.640 --> 0:08:22.360 the record below, there's apparently one period of time at 0:08:22.360 --> 0:08:26.360 which twenty one percent of all traffic on the COXS 0:08:26.400 --> 0:08:30.200 internet connections twenty one percent involved copyright in fringe. And 0:08:30.440 --> 0:08:34.920 the lawsuit below didn't go after every single mom and 0:08:35.000 --> 0:08:39.960 pop business or every single college student. It was targeted 0:08:40.240 --> 0:08:45.000 only at distributors, not people who were downloading the occasional song, 0:08:45.280 --> 0:08:49.560 but people who were copying music digitally and distributing it 0:08:49.600 --> 0:08:54.720 on a mass scale. So there was this enormous skepticism 0:08:55.160 --> 0:08:59.240 expressed by the justice except for Justice Alita, that Cox 0:08:59.360 --> 0:09:03.960 really was and fulfilling it its obligation and needed to 0:09:03.960 --> 0:09:07.120 do something differently now. On the other hand, there also 0:09:07.200 --> 0:09:10.760 seemed to be some concern about the size of the 0:09:10.840 --> 0:09:16.720 jury verdict and whether or not the actions of Cox 0:09:17.400 --> 0:09:22.960 were sufficient to constitute willful contributory infringement, which is what 0:09:23.160 --> 0:09:27.320 set them up for much larger scale of damages than 0:09:27.360 --> 0:09:30.280 if they had been found to be just ordinary copyright infringement. 0:09:30.640 --> 0:09:34.280 So what's the standard that the justices would use here. 0:09:34.840 --> 0:09:39.160 Cox contends that under a two thousand and five Supreme 0:09:39.240 --> 0:09:43.319 Court ruling, it can't be held liable for contributory infringement 0:09:43.760 --> 0:09:49.280 unless it affirmatively fostered piracy or clearly intended to promote it. 0:09:49.600 --> 0:09:53.360 The music companies say it's enough that Cox's new subscribers 0:09:53.480 --> 0:09:57.160 were using its service to download songs illegally. 0:09:58.520 --> 0:10:01.679 The case on appeal is the Supreme Court present it 0:10:01.760 --> 0:10:06.440 to pretty crisp issues for decision. The first issue, which 0:10:06.440 --> 0:10:07.960 I think is where the real fight is going to be, 0:10:08.679 --> 0:10:13.960 is whether or not contributory copyright infringement required some sort 0:10:14.000 --> 0:10:18.160 of affirmative action by the defendant. The second question presented 0:10:18.240 --> 0:10:23.960 for review was whether or not wilfulness required some sort 0:10:24.000 --> 0:10:28.480 of knowledge of customer infringement. Now, the problem with that 0:10:28.640 --> 0:10:33.760 second question, the Wilfes standard, is that cops had failed 0:10:34.200 --> 0:10:39.079 to object in the trial court to the instruction that 0:10:39.240 --> 0:10:43.160 the judge gave to the jury about how to find wilfulness. 0:10:43.600 --> 0:10:46.560 So after the case has finished, all the evidence has submitted, 0:10:47.000 --> 0:10:50.559 and the attorneys have beda closing argument, and just before 0:10:50.600 --> 0:10:52.640 the jury goes into the jury room to make a decision, 0:10:52.960 --> 0:10:55.600 the judge reads to them a series of instructions as 0:10:55.640 --> 0:10:58.040 to what the law is, and one of those instructions 0:10:58.080 --> 0:11:01.559 will go something like Sony Music Corporation. Here is alleged 0:11:01.600 --> 0:11:05.240 that the contributor copyright infringement was wilful on the part 0:11:05.400 --> 0:11:09.400 of costs. In order for you to find wilfulness you 0:11:09.520 --> 0:11:14.000 must consider the falling factors. And typically if a party 0:11:14.600 --> 0:11:17.320 doesn't believe the judge has stayed at the law correctly 0:11:17.360 --> 0:11:20.520 to the jury, they get up and they object, and 0:11:20.600 --> 0:11:22.120 indeed they don't even have to do it at the 0:11:22.160 --> 0:11:25.000 time of trial. These during instructions are sent out to 0:11:25.040 --> 0:11:28.280 the lawyers while advance, and you file the objection with 0:11:28.360 --> 0:11:30.480 courts saying, well, objected this, and give the court a 0:11:30.600 --> 0:11:33.480 chance to refine it, improve it so that there's no 0:11:33.559 --> 0:11:37.600 objection here. The Cox folks, for whatever reason, failed to 0:11:37.640 --> 0:11:40.880 object to the wilfulness instruction, and that means they waived 0:11:40.960 --> 0:11:46.120 any objection to wilfulness and had really no excuse in 0:11:46.200 --> 0:11:49.560 their briefing as to why they did that or why 0:11:49.600 --> 0:11:52.240 they should be excused from that. They pointed to a 0:11:52.280 --> 0:11:55.840 prior case. This is a series of litigations. Here a 0:11:55.880 --> 0:12:00.319 prior case that was styled bmg Urtus from US it 0:12:00.400 --> 0:12:04.920 Group versus Cox, also coming out of the same Virginia court, 0:12:05.600 --> 0:12:08.520 and in that case they had objected to wilfulness and 0:12:08.520 --> 0:12:11.240 it had been overruled by the Fourth Circuit, but that 0:12:11.320 --> 0:12:13.560 case was not on appeal. Here, the case that was 0:12:13.640 --> 0:12:16.360 on appeal, they failed to object to the wilfulness instruction, 0:12:16.440 --> 0:12:18.240 and in fact, the fact that they'd done so the 0:12:18.240 --> 0:12:20.040 first trial but not in the second trial, so want 0:12:20.080 --> 0:12:22.160 to suggest that they knew they were supposed to do 0:12:22.200 --> 0:12:24.760 that and then failed to do it. So I just 0:12:24.800 --> 0:12:29.600 don't see question number two as being resolved in any 0:12:29.600 --> 0:12:33.000 way in favor of Cox, and indeed I suspect the 0:12:33.040 --> 0:12:35.480 court won't reach it so that we will get no 0:12:35.640 --> 0:12:40.040 further instruction from the Supreme Court on what constitutes wilfulness. 0:12:40.040 --> 0:12:43.520 I think the court is focused really on the position 0:12:44.360 --> 0:12:49.760 that Cox is arguing that contributory infring for infringement required 0:12:49.800 --> 0:12:53.400 some sort of affirmative act and that, as they phrased it, 0:12:53.880 --> 0:12:58.280 they can't be a contributory infringer by providing internet service 0:12:58.800 --> 0:13:01.000 to one of their custom commercial. 0:13:01.480 --> 0:13:04.040 So then do you think that they'll send it back 0:13:04.160 --> 0:13:07.160 to the lower court with an instruction. 0:13:08.160 --> 0:13:11.480 I just don't know what they're going to do here. 0:13:11.880 --> 0:13:13.600 I have to be frank this is one of the 0:13:13.640 --> 0:13:18.960 more opaque oral arguments I've listened to. The other commentators 0:13:19.360 --> 0:13:24.760 have argued that the Court might be looking for some 0:13:24.800 --> 0:13:27.439 sort of middle ground. Indeed, I think it was Justice 0:13:27.480 --> 0:13:30.280 so Too my Or commented at one point during the 0:13:30.400 --> 0:13:34.960 argument that the Court was being forced to choose between 0:13:35.040 --> 0:13:38.640 two extreme positions, and in particular Justice so my Or, 0:13:38.720 --> 0:13:43.440 who was very skeptical of Cox's position but also didn't 0:13:43.480 --> 0:13:48.439 quite like the extreme argument being made by Sony Music Corp. 0:13:48.480 --> 0:13:51.280 In the recording company, seems really perplexed as to what 0:13:51.360 --> 0:13:54.920 to do. Genuinely perplexed. The problem the Supreme Court faces 0:13:54.960 --> 0:14:00.840 here is that the standard for contributory copyright infringement has 0:14:00.960 --> 0:14:04.240 been pretty well settled in this court for more than 0:14:04.280 --> 0:14:09.080 a century. As early as nineteen twelve, there was a 0:14:09.120 --> 0:14:13.160 case that involved mimeograph machines. If you remember those, they 0:14:13.160 --> 0:14:17.720 were a pre xerox machines way of doing sort of 0:14:17.760 --> 0:14:21.200 a mass production, mass production, you know, a couple hundred 0:14:21.440 --> 0:14:24.480 and there was a case in which a publisher sued 0:14:24.480 --> 0:14:30.840 a mimeograph company for knowingly selling mimeograph materials to a 0:14:30.880 --> 0:14:36.720 company that it knew was engaged in infringing copyright works 0:14:36.920 --> 0:14:40.480 by using the mimiograph machine. And the standard was set 0:14:40.520 --> 0:14:44.520 out there and has been repeated over and over since 0:14:44.600 --> 0:14:48.400 that time nineteen twelve. And the standard is pretty simple. 0:14:48.440 --> 0:14:51.080 If you provide something that you know is going to 0:14:51.160 --> 0:14:54.920 be used by a person to commit copyright infringement, you've 0:14:54.960 --> 0:14:59.280 engaged in contributory infringement. And the path cases haven't spoken 0:14:59.280 --> 0:15:02.320 in terms of detail an affirmative act, although one could 0:15:02.440 --> 0:15:04.320 argue this did not come up. With the Supreme Court 0:15:04.360 --> 0:15:08.040 hearing that providing the Internet service is an affirmative act. 0:15:08.560 --> 0:15:12.560 The Cox Company argued the Supre Court that that's not 0:15:12.640 --> 0:15:15.360 an affirmative act, but that's sort of a stretch in 0:15:15.480 --> 0:15:18.120 order to try to get around that line cases, the 0:15:18.600 --> 0:15:23.760 Cox Company argued that contributory infringement is really akin to 0:15:23.880 --> 0:15:28.520 aiding and a betting liability in the context of torts 0:15:28.560 --> 0:15:31.440 and criminal laws. And that's a real stretch that I 0:15:31.480 --> 0:15:34.600 think is just dead wrong. It would give the court 0:15:35.080 --> 0:15:37.040 a way to get out of this dilemma, but it 0:15:37.080 --> 0:15:39.520 would mean the Court would have to overturn half a 0:15:39.560 --> 0:15:42.840 dozen cases going back to nineteen twelve for over a 0:15:42.880 --> 0:15:45.480 century and say now they're not good law anymore. I 0:15:45.480 --> 0:15:48.400 don't see the Court doing that here. So I just 0:15:48.440 --> 0:15:53.240 don't see question number two as being resolved in any 0:15:53.240 --> 0:15:56.680 way in favor of Cox, and indeed, I suspect the 0:15:56.680 --> 0:15:59.120 Court won't reach it so that we will get no 0:15:59.320 --> 0:16:03.680 further instruction from the Supreme Court on what constitutes wilfulness. 0:16:03.720 --> 0:16:07.160 I think the Court is focused really on the position 0:16:08.000 --> 0:16:12.920 that Cox is arguing that contributory in infringement required some 0:16:13.000 --> 0:16:16.520 sort of affirmative act, and that, as they phrased it, 0:16:16.920 --> 0:16:21.320 they can't be a contributory infringer by providing internet service 0:16:21.480 --> 0:16:23.080 to one of their customers. 0:16:23.760 --> 0:16:26.360 So then do you think that they'll send it back 0:16:26.440 --> 0:16:29.440 to the lower court with an instruction. 0:16:30.800 --> 0:16:34.120 I just don't know what they're going to do here. 0:16:34.520 --> 0:16:36.240 I have to be frank. This is one of the 0:16:36.240 --> 0:16:40.600 more opaque oral arguments I have listened to. The other 0:16:40.720 --> 0:16:47.120 commentators have argued that the Court might be looking for 0:16:47.240 --> 0:16:49.640 some sort of middle ground. Indeed, I think it was 0:16:49.800 --> 0:16:53.440 Justice sodomy Or commented at one point during the argument 0:16:54.280 --> 0:16:57.880 that the Court was being forced to choose between two 0:16:57.960 --> 0:17:01.880 extreme positions and ticlar Justice somai Or, who was very 0:17:01.920 --> 0:17:07.480 skeptical of Cox's position but also didn't quite like the 0:17:07.880 --> 0:17:11.280 extreme argument being made by Sony Music corpor In. The 0:17:11.320 --> 0:17:14.159 recording company seems really perplexed as to what to do, 0:17:14.359 --> 0:17:18.199 genuinely perplexed. The problem the Supreme Court faces here is 0:17:18.240 --> 0:17:24.199 that the standard for contributory copyright infringement has been pretty 0:17:24.200 --> 0:17:27.679 well settled in this court for more than a century. 0:17:28.080 --> 0:17:32.280 As early as nineteen twelve, there was a case that 0:17:32.480 --> 0:17:36.280 involved minograph machines. If you remember those, they were a 0:17:36.320 --> 0:17:41.400 pre xerox machines way of doing sort of a mass production, 0:17:41.800 --> 0:17:44.680 mass production, you know, a couple hundred and there was 0:17:44.720 --> 0:17:48.280 a case in which a publisher sued a mimeograph company 0:17:48.880 --> 0:17:54.960 for knowingly selling mimeograph materials to a company that it 0:17:55.080 --> 0:18:00.159 knew was engaged in infringing copyright works by using the 0:18:00.160 --> 0:18:04.240 miniograph machine. And the standard was set out there and 0:18:04.600 --> 0:18:08.719 has been repeated over and over since that time nineteen twelve. 0:18:08.880 --> 0:18:12.360 And the standard is pretty simple. If you provide something 0:18:12.440 --> 0:18:15.119 that you know is going to be used by a 0:18:15.160 --> 0:18:19.560 person to commit copyright infringement, you've engaged in contributory infringement. 0:18:20.480 --> 0:18:23.320 And the past cases haven't spoken in terms of needing 0:18:23.320 --> 0:18:26.480 an affirmative Act, although one could argue this did not 0:18:26.560 --> 0:18:29.080 come up with the Supreme Court hearing that providing the 0:18:29.119 --> 0:18:34.240 internet service is an affirmative act. The COTS company argued 0:18:34.600 --> 0:18:37.720 court that that's not an affirmative act. But that's sort 0:18:37.760 --> 0:18:39.840 of a stretch in order to try to get around 0:18:39.880 --> 0:18:45.679 that line cases. The co's company argued that contributory infringement 0:18:45.960 --> 0:18:49.160 is really a kin to aiding and a betting liability 0:18:49.760 --> 0:18:53.400 in the context of torts and criminal laws. And that's 0:18:53.400 --> 0:18:56.160 a real stretch that I think is just dead wrong. 0:18:56.480 --> 0:18:59.320 It would give the Court a way to get out 0:18:59.359 --> 0:19:01.400 of this dilemma, but it would mean the Court would 0:19:01.440 --> 0:19:04.840 have to overturn half a dozen cases going back to 0:19:04.920 --> 0:19:07.640 nineteen twelve for over a century and say now they're 0:19:07.680 --> 0:19:09.840 not good law anymore. I don't see the Court doing 0:19:09.880 --> 0:19:10.359 that here. 0:19:10.760 --> 0:19:13.000 Do you think we'll see that Justice is coming up 0:19:13.040 --> 0:19:14.879 with some sort of middle ground. 0:19:15.480 --> 0:19:18.639 Oh, it's a shame that Justice Ginsburg is no longer 0:19:18.680 --> 0:19:23.080 on the Court, as we've had many conversations about our 0:19:23.480 --> 0:19:27.119 knowledge of copyright law and her ability to copy together 0:19:27.200 --> 0:19:32.320 coalitions or positions under the Copyright Act that we're actually 0:19:32.400 --> 0:19:36.119 quite pragmatic and useful. And I just don't see anybody 0:19:36.680 --> 0:19:39.560 either with that depth of knowledge to copyright law or 0:19:39.600 --> 0:19:41.840 the ability to do that sort of log rolling on 0:19:41.840 --> 0:19:43.840 this court. And so I think it's going to be 0:19:43.880 --> 0:19:46.000 real struggle for this Court to come up with some 0:19:46.119 --> 0:19:49.080 sort of middle ground, particularly in light of the fact 0:19:49.119 --> 0:19:52.359 that the law here is just so set for such 0:19:52.359 --> 0:19:56.359 a long period time and fits exactly into the past 0:19:56.400 --> 0:19:59.800 case law, and these sort of odd cases that co 0:20:00.119 --> 0:20:03.840 cited to the Supreme Court, including this recent gun distribution 0:20:04.000 --> 0:20:06.840 case in the case Supreme Court to site recently where 0:20:07.040 --> 0:20:10.800 the gun companies were being sued for deaths in Mexico, 0:20:11.359 --> 0:20:15.360 and the argument was they were aiding embedding this criminal activity. 0:20:15.760 --> 0:20:18.320 And the gun company said, well, we sold the guns 0:20:18.359 --> 0:20:22.480 to dealers in Texas, not knowing what they were going 0:20:22.520 --> 0:20:25.280 to do with them, and if anybody's contributed to them, 0:20:25.280 --> 0:20:27.280 but it's not us. We had no knowledge of it. 0:20:28.080 --> 0:20:33.280 And that case just doesn't fit here, either legally or factually. 0:20:33.920 --> 0:20:36.800 And yet cops sort of did a lot on that. 0:20:36.880 --> 0:20:38.920 I mean, it was almost as if there's a oh, hey, 0:20:39.119 --> 0:20:42.760 we believe we cite to some case in which the 0:20:42.800 --> 0:20:45.480 second Circuit, which everybody believes in on the Supreme Court, 0:20:45.960 --> 0:20:47.879 that'll get us over the humpire it's just such a 0:20:47.920 --> 0:20:52.200 stretch that in fact backfires. One starts to think, well, 0:20:52.240 --> 0:20:54.880 what's wrong with their case? That that's the best they've got. 0:20:55.160 --> 0:20:58.040 And that's a question they didn't ask during two hours 0:20:58.119 --> 0:21:02.400 of Supreme Court oral argument. Thanks so much, Terry, as always, 0:21:02.800 --> 0:21:07.000 that's Terrence Ross of Catain Mutchen Rosenman. Turning now to 0:21:07.080 --> 0:21:10.879 another Supreme Court case this week, the Court considered the 0:21:10.920 --> 0:21:16.000 federal judiciary's role in asylum cases, and the justices appeared 0:21:16.119 --> 0:21:20.800 open to allowing courts to defer to administrative decisions on 0:21:20.880 --> 0:21:24.399 whether immigrants have shown they face harm serious enough to 0:21:24.560 --> 0:21:29.280 qualify for asylum. Joining me is immigration law expert Leon Fresco, 0:21:29.520 --> 0:21:33.560 a partner at hollanden Knight. So asylum seekers can ask 0:21:33.640 --> 0:21:36.639 a federal appeals court to review their case if the 0:21:36.680 --> 0:21:40.639 Board of Immigration Appeals denies their asylum claim. This case 0:21:40.720 --> 0:21:43.800 is about the role of the federal appeals court versus 0:21:44.000 --> 0:21:47.200 the role of the Board of Immigration Appeals. 0:21:47.200 --> 0:21:52.320 Correct. Basically, here's the issue. What a person asks for asylum. 0:21:52.600 --> 0:21:54.600 They have to prove, at the end of the day 0:21:55.280 --> 0:21:58.639 that they have what's called a well founded fear of 0:21:59.200 --> 0:22:02.920 future person acution on the basis of their race, religion, 0:22:03.000 --> 0:22:07.639 political origin, social group, things like that. One of the 0:22:07.800 --> 0:22:11.960 main parts of such a case. There's a presumption that 0:22:12.080 --> 0:22:16.359 if you have experienced what's called past persecution, there's a 0:22:16.640 --> 0:22:20.600 presumption that you will then have a well founded fear 0:22:20.720 --> 0:22:24.800 of future persecution. So what does that mean. That means 0:22:24.800 --> 0:22:28.119 that people go into immigration court and they explain what 0:22:28.280 --> 0:22:31.240 happened in their country that caused them to leave, and 0:22:31.320 --> 0:22:35.080 there's cross examination and the judge can ask questions. At 0:22:35.080 --> 0:22:38.240 the end of all of this, there's two determinations. One 0:22:38.840 --> 0:22:43.800 did the person experience past persecution? And number two was 0:22:43.840 --> 0:22:46.440 it on the basis of one of the protected grounds. 0:22:47.000 --> 0:22:51.320 So in this Supreme Court case, what happened was there 0:22:51.440 --> 0:22:56.680 literally was no dispute about the credibility of the facts 0:22:56.760 --> 0:23:02.240 raised by the foreign national in this case, Douglas Umberto Oriana, 0:23:02.600 --> 0:23:06.359 who said that he fled El Salvador after repeated threats 0:23:06.359 --> 0:23:09.440 and violence from a hitman linked to a drug lord, 0:23:09.920 --> 0:23:12.080 and he said that the drug lord shot his hot 0:23:12.160 --> 0:23:15.240 brothers and tracked and thread in his family. And so 0:23:15.920 --> 0:23:18.600 since there was no dispute about the facts, there was 0:23:18.640 --> 0:23:23.640 not a factual issue that was being raised on appeal. Instead, 0:23:24.040 --> 0:23:25.800 the court said I'm going to take all of the 0:23:25.840 --> 0:23:29.240 facts that you've presented today as true, and I'm going 0:23:29.320 --> 0:23:31.879 to say that they still do not rise to the 0:23:31.960 --> 0:23:36.200 level of the high level of this word persecution such 0:23:36.240 --> 0:23:41.600 that we can say that you experienced past persecution such 0:23:41.640 --> 0:23:45.399 that you would get the presumption of future persecution. So 0:23:45.520 --> 0:23:50.360 now mister Orias Oriana then says, well, how is that possible. 0:23:50.760 --> 0:23:53.520 I would like to get review of that. And so 0:23:53.640 --> 0:23:56.560 when it gets to the First Circuit Court of Appeals, 0:23:57.080 --> 0:24:00.439 the first Circuit says, We're going to defer to the 0:24:00.480 --> 0:24:04.120 Board of Immigration Appeals, which is the administrative court that 0:24:04.200 --> 0:24:06.920 decides this issue at the end of the day. We're 0:24:06.920 --> 0:24:10.840 gonna defer to them and say that even though the 0:24:10.880 --> 0:24:15.720 facts are not in dispute, we still have to give 0:24:15.800 --> 0:24:19.639 some difference to their decision in terms of let's say 0:24:19.680 --> 0:24:23.120 there's a scale and you're weighing it, how many pebbles 0:24:23.160 --> 0:24:25.600 go on one scale, how many pebbles go on the 0:24:25.640 --> 0:24:31.600 other scale, that even that determination gets some difference. That 0:24:31.680 --> 0:24:36.960 the federal courts can't just reweigh the evidence on their 0:24:37.080 --> 0:24:41.040 ends and decide whether the facts that were undisputed in 0:24:41.119 --> 0:24:46.760 a particular case constituted persecution such that the person should 0:24:46.760 --> 0:24:49.800 win their asylum case. So that creates sort of a 0:24:49.840 --> 0:24:50.560 circuit split. 0:24:51.480 --> 0:24:54.600 So the case goes to the Supreme Court. What are 0:24:54.640 --> 0:24:57.120 the justices going to decide? 0:24:57.800 --> 0:25:01.800 The Supreme Court then has to decide, Okay, what happens 0:25:01.800 --> 0:25:05.120 in a case like this where there's not a dispute 0:25:05.200 --> 0:25:08.480 about the actual facts, but there's a dispute about whether 0:25:08.600 --> 0:25:12.760 the facts when you weigh them, there's quote unquote significant 0:25:12.880 --> 0:25:17.160 enough pebbles on the scale. Does the foreign national win 0:25:17.520 --> 0:25:20.000 or do they lose? Can we reweigh that on our 0:25:20.040 --> 0:25:23.560 own or do we have to give some different under 0:25:23.680 --> 0:25:29.760 some standard of deferential review? And so the foreign nationals 0:25:29.760 --> 0:25:32.320 obviously claiming there should be the Novo review. The Court 0:25:32.320 --> 0:25:35.040 should look at this and say, okay, we're the threads 0:25:35.080 --> 0:25:38.679 here that were undisputed sufficient to say that that was 0:25:39.080 --> 0:25:42.720