1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:07,040 --> 00:00:14,600 Speaker 1: You can't always get what you want. You can't always 3 00:00:14,680 --> 00:00:25,840 Speaker 1: get what you want Travel the Rolling Stones, Elton John 4 00:00:25,840 --> 00:00:28,280 Speaker 1: and Phil Collins are just some of the rock stars 5 00:00:28,320 --> 00:00:31,480 Speaker 1: who have complained about the Trump campaign using their hit 6 00:00:31,560 --> 00:00:34,839 Speaker 1: songs at campaign events. Neil Young is even suing the 7 00:00:34,880 --> 00:00:38,200 Speaker 1: campaign over it. But Eddie Grant has a more unusual 8 00:00:38,280 --> 00:00:52,280 Speaker 1: complaint about the use of his signature hit Electric Avenue. 9 00:00:54,720 --> 00:00:58,160 Speaker 1: In August, President Trump tweeted an animated ad that shows 10 00:00:58,200 --> 00:01:00,840 Speaker 1: a high speed Trump train ray sing through a town 11 00:01:01,120 --> 00:01:04,720 Speaker 1: while now President elect Joe Biden follows along slowly in 12 00:01:04,720 --> 00:01:08,759 Speaker 1: a railroad hand car. Electric Avenue plays in the background 13 00:01:08,800 --> 00:01:12,400 Speaker 1: with random odd snippets from Biden. Grant says he never 14 00:01:12,560 --> 00:01:15,160 Speaker 1: licensed the song to Trump or his campaign, and he's 15 00:01:15,160 --> 00:01:19,600 Speaker 1: suing for copyright infringement. My guest is intellectual property litigator 16 00:01:19,760 --> 00:01:24,280 Speaker 1: Terence ross A partner captn Uten Rosenman. What would normally happen. 17 00:01:24,360 --> 00:01:27,039 Speaker 1: Let's say I want to do a video and I 18 00:01:27,080 --> 00:01:29,960 Speaker 1: want to use someone's music. Could I use small parts 19 00:01:30,040 --> 00:01:32,600 Speaker 1: of it? Or do I have to get permission no 20 00:01:32,640 --> 00:01:35,080 Speaker 1: matter what I use it for? So the way This 21 00:01:35,080 --> 00:01:38,880 Speaker 1: would normally work is that the creator of the video 22 00:01:38,959 --> 00:01:42,800 Speaker 1: would take it to a lawyer and a pain pre clearance, 23 00:01:43,280 --> 00:01:46,280 Speaker 1: and the lawyer would analyze the video to determine whether 24 00:01:46,360 --> 00:01:50,200 Speaker 1: or not a license for the music was required or not. 25 00:01:50,640 --> 00:01:54,000 Speaker 1: In a very large number of cases, that determined that 26 00:01:54,440 --> 00:01:58,000 Speaker 1: no license is required because the use being made in 27 00:01:58,040 --> 00:02:00,760 Speaker 1: the video is a fair use after the copyright law 28 00:02:01,120 --> 00:02:04,200 Speaker 1: therefore does not constant copyright infringement. Why do you think 29 00:02:04,240 --> 00:02:08,240 Speaker 1: the Trump campaign just didn't get a license. I assume 30 00:02:08,280 --> 00:02:11,760 Speaker 1: they obtained legal advice that they didn't have to. Quite frankly, 31 00:02:11,800 --> 00:02:14,440 Speaker 1: that would be pretty good legal advice. Really, So what 32 00:02:14,520 --> 00:02:18,320 Speaker 1: has the Trump campaign come back with in its response 33 00:02:18,400 --> 00:02:21,800 Speaker 1: to the complaint? So the Trump campaign moves to dismiss 34 00:02:21,840 --> 00:02:24,520 Speaker 1: the lawsuit, which in the federal court system is a 35 00:02:24,560 --> 00:02:28,280 Speaker 1: mechanism for an early termination with prejudice based on a 36 00:02:28,520 --> 00:02:32,560 Speaker 1: failure of the complaint to state a legal claim for relief. 37 00:02:32,840 --> 00:02:34,880 Speaker 1: You know, the basis of the motion to dismiss on 38 00:02:34,960 --> 00:02:39,200 Speaker 1: the Trump campaigns part is exclusively the fair use doctrine. 39 00:02:39,320 --> 00:02:44,720 Speaker 1: The fair use doctrine is a well established legal principle 40 00:02:45,240 --> 00:02:48,480 Speaker 1: under copyright law that's codified in the Copyright Act of 41 00:02:48,560 --> 00:02:52,440 Speaker 1: nine that says there are instances in which a person 42 00:02:52,520 --> 00:02:56,880 Speaker 1: may use a copyright at work without permission because there 43 00:02:56,880 --> 00:03:01,639 Speaker 1: are public policy reasons why we as a society need 44 00:03:01,760 --> 00:03:05,240 Speaker 1: to allow such use. Here, it strikes me that the 45 00:03:05,280 --> 00:03:08,240 Speaker 1: fair used doctor and his tailor made or the defense 46 00:03:08,400 --> 00:03:11,119 Speaker 1: of this lawsuit by the Trump campaign, if you look 47 00:03:11,160 --> 00:03:14,040 Speaker 1: at the statute and the case law that is evolved 48 00:03:14,080 --> 00:03:16,800 Speaker 1: around the fair use doctrine in the United States, a 49 00:03:16,880 --> 00:03:20,600 Speaker 1: defendant would have to show four items are established to 50 00:03:21,240 --> 00:03:25,040 Speaker 1: obtain a dismissal based on fair use, and those are 51 00:03:25,440 --> 00:03:28,280 Speaker 1: that somehow the use of the copyright at work was 52 00:03:28,320 --> 00:03:32,960 Speaker 1: transformed by their own use. Second, that somehow the nature 53 00:03:33,120 --> 00:03:36,440 Speaker 1: of the copyright at work deserve less protection, Third, that 54 00:03:36,720 --> 00:03:40,160 Speaker 1: very little of the copyright at work was actually used, 55 00:03:40,480 --> 00:03:43,080 Speaker 1: and force that there is no impact or very little 56 00:03:43,280 --> 00:03:47,000 Speaker 1: impact upon the market for the copyright at work. And 57 00:03:47,280 --> 00:03:51,040 Speaker 1: the Trump campaign here as filed emotion in which it 58 00:03:51,200 --> 00:03:54,560 Speaker 1: has argued that three of those four requirements for fair 59 00:03:54,640 --> 00:03:57,720 Speaker 1: use are met under these facts and their forts entitled 60 00:03:57,720 --> 00:04:00,960 Speaker 1: to have the lawsuit dismissed with prejudice. R. Cavenue I 61 00:04:01,000 --> 00:04:04,320 Speaker 1: believe was forty seconds out of a fifty second video. 62 00:04:04,720 --> 00:04:07,800 Speaker 1: Does that matter. It matters a lot. The measurement you 63 00:04:08,000 --> 00:04:11,080 Speaker 1: use for that prong of the fair use test is 64 00:04:11,360 --> 00:04:15,280 Speaker 1: how much was used Visa v. The copyright at work. 65 00:04:15,560 --> 00:04:18,719 Speaker 1: The copyright at work was over three minutes long and 66 00:04:18,839 --> 00:04:22,560 Speaker 1: about forty seconds were used in this animated video by 67 00:04:22,600 --> 00:04:27,359 Speaker 1: the Trump campaign, and in past cases that level of 68 00:04:27,520 --> 00:04:29,960 Speaker 1: usage has been held as a matter of law to 69 00:04:30,480 --> 00:04:35,960 Speaker 1: be sufficiently limited to justify invocation and fair use. Doctor Grants, Attorney, 70 00:04:36,000 --> 00:04:39,480 Speaker 1: says that the Trump campaign should have gotten a synchronization 71 00:04:39,680 --> 00:04:42,680 Speaker 1: license to sink the music to the video. Is that 72 00:04:42,720 --> 00:04:46,120 Speaker 1: a separate question? Now not necessarily. You only need a 73 00:04:46,200 --> 00:04:50,719 Speaker 1: license if there is copyright infringement going on. So the 74 00:04:50,760 --> 00:04:53,919 Speaker 1: fair use doctrine here, if the court finds it to 75 00:04:53,960 --> 00:04:57,200 Speaker 1: be applicable, would give the Trump campaign a complete pass 76 00:04:57,240 --> 00:05:00,080 Speaker 1: on this lawsuit. This lawsuit would go away, and the 77 00:05:00,800 --> 00:05:04,880 Speaker 1: synchronization license issue, whether or not it's required or not required, 78 00:05:05,240 --> 00:05:08,880 Speaker 1: probably would be required if there was copyright infringement. That 79 00:05:08,880 --> 00:05:11,560 Speaker 1: would only come up if the plaintiff can get passed 80 00:05:11,720 --> 00:05:15,120 Speaker 1: this fair use defense. Cherry explain why the Trump campaign 81 00:05:15,279 --> 00:05:19,839 Speaker 1: says this video was a transformative use of electric avenue 82 00:05:20,320 --> 00:05:22,880 Speaker 1: So June in the second Circuit. That element of a 83 00:05:22,920 --> 00:05:26,520 Speaker 1: fair use doctrine is often regarded as the most important element, 84 00:05:26,839 --> 00:05:29,560 Speaker 1: and the Trump campaign takes it on in its motion 85 00:05:29,600 --> 00:05:32,880 Speaker 1: to dismiss right up front, knowing what the law in 86 00:05:32,880 --> 00:05:35,800 Speaker 1: the second circuit, which includes New York City is, and 87 00:05:35,839 --> 00:05:38,760 Speaker 1: they say that what they've done here with the song 88 00:05:39,080 --> 00:05:42,520 Speaker 1: is taking a tiny portion of it and repurposed it 89 00:05:42,680 --> 00:05:47,440 Speaker 1: for political purposes in an animated video that attacks the 90 00:05:47,520 --> 00:05:52,520 Speaker 1: Biden candidacy. And the case for this being a transformedive 91 00:05:52,640 --> 00:05:56,520 Speaker 1: use as a legal matter is very strong. There are 92 00:05:56,720 --> 00:06:00,479 Speaker 1: past instances in this court in which small portions of 93 00:06:00,560 --> 00:06:04,159 Speaker 1: songs have been used in this way with pictures or video, 94 00:06:04,279 --> 00:06:07,280 Speaker 1: and the court is how that that does indeed constitute 95 00:06:07,520 --> 00:06:11,640 Speaker 1: transformedtive use. Of particular importance here is the repurposing of 96 00:06:11,680 --> 00:06:17,080 Speaker 1: the song from a popular entertainment media to a political 97 00:06:17,320 --> 00:06:20,520 Speaker 1: use in the context of a specific campaign, and that 98 00:06:20,680 --> 00:06:23,479 Speaker 1: is going to be a very strong argument for the 99 00:06:23,480 --> 00:06:26,240 Speaker 1: Trump campaign that the fair use doctrine should apply here. 100 00:06:26,680 --> 00:06:30,800 Speaker 1: It must frustrate the artists to have their work used, 101 00:06:31,279 --> 00:06:34,560 Speaker 1: even if it's transformed, to have it used in ways 102 00:06:34,640 --> 00:06:37,360 Speaker 1: that they don't agree with or by people they don't 103 00:06:37,400 --> 00:06:42,320 Speaker 1: agree with. Yes, It really does have represented many artists 104 00:06:42,360 --> 00:06:45,120 Speaker 1: who come to me with that complaint, and it is 105 00:06:45,160 --> 00:06:49,839 Speaker 1: a genuine line, heart felt concerned that they expressed and 106 00:06:49,839 --> 00:06:54,240 Speaker 1: should be respected. But you have to understand that in 107 00:06:54,360 --> 00:06:58,200 Speaker 1: order to prevent the copyright hack from being turned into 108 00:06:58,279 --> 00:07:04,080 Speaker 1: some sort of mechanism for censoring speech, we have to 109 00:07:04,200 --> 00:07:08,000 Speaker 1: allow at the margins for this sort of fair use. 110 00:07:08,360 --> 00:07:12,960 Speaker 1: We cannot judge the fair use based on our politics, 111 00:07:13,080 --> 00:07:17,840 Speaker 1: or our morality or any other subjective criteria. We have 112 00:07:18,040 --> 00:07:21,120 Speaker 1: to really focus on the fact that this Further's First 113 00:07:21,160 --> 00:07:37,640 Speaker 1: Amendment right by allowing such fair you heely Young is 114 00:07:37,680 --> 00:07:41,040 Speaker 1: also sue Trump's campaign for playing his songs Roughing in 115 00:07:41,080 --> 00:07:44,520 Speaker 1: the Free World and Devil's Sidewalk at rallies, saying he 116 00:07:44,600 --> 00:07:47,040 Speaker 1: can't allow his music to be used as a theme 117 00:07:47,120 --> 00:07:50,840 Speaker 1: song for a divisive un American campaign. Is this also 118 00:07:50,880 --> 00:07:54,560 Speaker 1: a copyright infringement lawsuit? So at its core, it is 119 00:07:54,560 --> 00:07:59,000 Speaker 1: a copyright lawsuit, but it's really based on licensing law. 120 00:07:59,520 --> 00:08:03,960 Speaker 1: This is not something that's new to this particular campaign cycle. 121 00:08:04,320 --> 00:08:08,280 Speaker 1: Recording artists have complained about the use of their music 122 00:08:08,640 --> 00:08:13,239 Speaker 1: for several decades now, specifically the use at rallies, live 123 00:08:13,600 --> 00:08:17,640 Speaker 1: appearances by candidate as well as in political commercials, and 124 00:08:17,680 --> 00:08:21,160 Speaker 1: so it's not really something new. So Neil Young contends 125 00:08:21,200 --> 00:08:25,480 Speaker 1: that at a Trump rally in June in Tulsa, Oklahoma, 126 00:08:25,680 --> 00:08:29,200 Speaker 1: two of his song were played apparently in their hole 127 00:08:30,080 --> 00:08:33,640 Speaker 1: at the rally as part of hyping up the crowd, 128 00:08:33,880 --> 00:08:37,960 Speaker 1: and that the Trump campaign in doing that did not 129 00:08:38,240 --> 00:08:41,840 Speaker 1: have a license to play the songs and did not 130 00:08:42,040 --> 00:08:46,000 Speaker 1: have Neil Young's authorization to play the songs. Could the 131 00:08:46,000 --> 00:08:48,920 Speaker 1: Trump campaign to be operating under the theory that they 132 00:08:49,000 --> 00:08:52,319 Speaker 1: have an ask cap a general license from as CAP 133 00:08:52,480 --> 00:08:56,920 Speaker 1: or b m I. So when Donald Trump first announced 134 00:08:56,960 --> 00:08:59,960 Speaker 1: that he was running for president in two thousands fifteen, 135 00:09:00,440 --> 00:09:02,800 Speaker 1: this campaign but to the license on the song that 136 00:09:02,920 --> 00:09:07,360 Speaker 1: was played as he famously descended the escalator Trump Power 137 00:09:07,440 --> 00:09:11,200 Speaker 1: to make the announcement, and the performer of that song complained, 138 00:09:11,440 --> 00:09:13,920 Speaker 1: but the fact remained that it was not copyright in 139 00:09:13,960 --> 00:09:17,680 Speaker 1: French because the Trump campaign had obtained a license to 140 00:09:17,960 --> 00:09:21,280 Speaker 1: perform the song in public and was therefore entitled to 141 00:09:21,280 --> 00:09:24,920 Speaker 1: do so. And that's the problem typically with all of 142 00:09:24,960 --> 00:09:30,439 Speaker 1: these recording artists bringing lawsuits against politicians. The way the 143 00:09:30,520 --> 00:09:35,400 Speaker 1: business has worked since is that recording artists, in order 144 00:09:35,440 --> 00:09:39,400 Speaker 1: to obtain licensing revenues, give the licensing rights to one 145 00:09:39,440 --> 00:09:44,120 Speaker 1: of several large licensing organizations, and they then go out 146 00:09:44,200 --> 00:09:49,199 Speaker 1: and vigorously enforced the copyright laws against anybody playing that 147 00:09:49,400 --> 00:09:53,080 Speaker 1: artists music in public and generate quite a lot of revenue. 148 00:09:53,480 --> 00:09:56,840 Speaker 1: What they will tell the world is that you don't 149 00:09:56,880 --> 00:09:58,800 Speaker 1: need to get in trouble with us. You can come 150 00:09:58,800 --> 00:10:01,920 Speaker 1: and get a blanket license to perform the music of 151 00:10:01,960 --> 00:10:05,720 Speaker 1: all of our artists in our stable and in that 152 00:10:05,760 --> 00:10:10,720 Speaker 1: way have protection from any copyright infringement lawsuits. And so 153 00:10:11,360 --> 00:10:16,640 Speaker 1: many advertising agencies, many venues, particularly stadiums, will go out 154 00:10:16,720 --> 00:10:20,559 Speaker 1: and obtain these blanket licenses. And in the complaint that 155 00:10:20,640 --> 00:10:23,160 Speaker 1: Neil Young has brought against the Trump campaign, he goes 156 00:10:23,200 --> 00:10:25,360 Speaker 1: out of his way to point app that although the 157 00:10:25,520 --> 00:10:28,720 Speaker 1: venue where this Trump rally and post local helmet took 158 00:10:28,720 --> 00:10:31,760 Speaker 1: place did have a license, that under the terms of 159 00:10:31,760 --> 00:10:34,760 Speaker 1: that license, a third party coming in and using the 160 00:10:34,880 --> 00:10:38,480 Speaker 1: venue could not take advantage of the license, and therefore 161 00:10:38,559 --> 00:10:41,640 Speaker 1: the Trump campaign was unlicensed. And this is a common 162 00:10:41,679 --> 00:10:45,440 Speaker 1: mistake that organizations coming in and renting a venue make, 163 00:10:45,520 --> 00:10:49,640 Speaker 1: thinking that they're entitled to piggyback on the ASCAP license 164 00:10:49,720 --> 00:10:52,840 Speaker 1: that the venue has. The venue has that license in 165 00:10:52,920 --> 00:10:55,600 Speaker 1: order to play music during intermissions and as the crowds 166 00:10:55,640 --> 00:10:58,079 Speaker 1: coming in, But that does not give the third party 167 00:10:58,160 --> 00:11:01,280 Speaker 1: organization in this case Trump organs as the right piggieback 168 00:11:01,280 --> 00:11:04,319 Speaker 1: on it. They needed, arguably to take their own license 169 00:11:04,400 --> 00:11:07,160 Speaker 1: to play the Neelly Young music, and Neil Young contends 170 00:11:07,200 --> 00:11:09,679 Speaker 1: that they did not have such a license. Can an 171 00:11:09,800 --> 00:11:14,559 Speaker 1: artist like Neil Young instruct as CAP or b m 172 00:11:14,640 --> 00:11:18,599 Speaker 1: I that he doesn't want his music licensed to the 173 00:11:18,640 --> 00:11:22,560 Speaker 1: Trump campaign, So June, that's a great question, um, and 174 00:11:22,600 --> 00:11:25,120 Speaker 1: the one and one that has not been resolved yet 175 00:11:25,160 --> 00:11:27,360 Speaker 1: by the courts and has to be at some point. 176 00:11:28,080 --> 00:11:31,280 Speaker 1: In the nineteen forties, UM, the United States government brought 177 00:11:31,320 --> 00:11:35,600 Speaker 1: antitrust lawsuits against a SCAP and b m I, saying 178 00:11:35,640 --> 00:11:39,160 Speaker 1: that in effect that they were monopolizing the business of 179 00:11:39,240 --> 00:11:42,960 Speaker 1: music because they would pick and choose who they wanted 180 00:11:43,000 --> 00:11:45,840 Speaker 1: to license to and in that way be able to 181 00:11:45,920 --> 00:11:51,240 Speaker 1: drive up UM the prices for the licensing. UM. The 182 00:11:51,679 --> 00:11:55,760 Speaker 1: Rather than take that lawsuit through the courts, UMSCOT b 183 00:11:55,920 --> 00:11:59,760 Speaker 1: m I entered into what it called antitrust consent decrees, 184 00:12:00,559 --> 00:12:02,960 Speaker 1: and under the terms of those decrees, which are still 185 00:12:02,960 --> 00:12:07,440 Speaker 1: in effect, eight years later, the both of them are 186 00:12:07,520 --> 00:12:15,239 Speaker 1: required to license any song or portfolio songs upon request. 187 00:12:16,080 --> 00:12:19,960 Speaker 1: They do not get to pick and choose. And therefore, 188 00:12:20,600 --> 00:12:25,640 Speaker 1: if and artists took that position, it may very well 189 00:12:25,679 --> 00:12:27,959 Speaker 1: expose a scap or b am I too ant I 190 00:12:28,000 --> 00:12:32,480 Speaker 1: trust considerations. There are artists who are now trying to 191 00:12:32,520 --> 00:12:37,920 Speaker 1: do exactly that, and they will probably in the long 192 00:12:38,040 --> 00:12:41,000 Speaker 1: run face some sort of legal consequences as they continue 193 00:12:41,000 --> 00:12:43,520 Speaker 1: insist on doing this, and it does threaten the very 194 00:12:43,600 --> 00:12:47,440 Speaker 1: nature of these consent decrees. An artists who wants to 195 00:12:47,559 --> 00:12:50,160 Speaker 1: UM be able to pick and choose who can license 196 00:12:50,200 --> 00:12:54,280 Speaker 1: their works, and in particular to discriminate amongst political candidates 197 00:12:54,360 --> 00:12:59,760 Speaker 1: or political campaigns, probably needs to take their songs out 198 00:12:59,800 --> 00:13:03,520 Speaker 1: of a step and be a mindset their own licensing 199 00:13:04,240 --> 00:13:08,520 Speaker 1: UM organizations. So the artists, by the way, a very 200 00:13:08,640 --> 00:13:13,120 Speaker 1: good defense here to the for the Trump campaign UM 201 00:13:13,160 --> 00:13:17,240 Speaker 1: to argue that UH that Neil Young was not free 202 00:13:17,559 --> 00:13:21,640 Speaker 1: under the antitrust laws and under that consent degree too 203 00:13:22,160 --> 00:13:27,679 Speaker 1: UM deny them UM a license and could have limiting 204 00:13:27,920 --> 00:13:34,000 Speaker 1: effect upon any damages or injunction that gets issued. Is 205 00:13:34,000 --> 00:13:37,760 Speaker 1: there any case to be made that this implies a 206 00:13:37,840 --> 00:13:43,319 Speaker 1: false endorsement by the artist to have their music played 207 00:13:43,360 --> 00:13:46,320 Speaker 1: at a Trump rally. So that's an argument that you 208 00:13:46,360 --> 00:13:49,000 Speaker 1: hear recording artists make all the time in this context, 209 00:13:49,040 --> 00:13:55,199 Speaker 1: that somehow they are being pegged at supporting this candidate. 210 00:13:55,600 --> 00:13:58,880 Speaker 1: It is a cause of action that only exists in 211 00:13:59,640 --> 00:14:04,120 Speaker 1: hands full of states, and it would be difficult one 212 00:14:04,200 --> 00:14:08,440 Speaker 1: to make in this context. I think the American public 213 00:14:09,080 --> 00:14:13,319 Speaker 1: is arguably sophisticated and not to understand that music gets 214 00:14:13,600 --> 00:14:18,040 Speaker 1: used to sell all sorts of products, including candidates for office, 215 00:14:18,440 --> 00:14:22,360 Speaker 1: and that does not necessarily imply an endorsement by the 216 00:14:22,400 --> 00:14:26,760 Speaker 1: performing artist of whatever that product is, or in this 217 00:14:26,800 --> 00:14:31,200 Speaker 1: case a candidate um So it would be a difficult 218 00:14:31,240 --> 00:14:34,640 Speaker 1: cause of action to make, even in those states in 219 00:14:34,640 --> 00:14:38,080 Speaker 1: which it is available as a cause of action. So 220 00:14:38,160 --> 00:14:42,400 Speaker 1: it appears that the Eddie Grant lawsuit might be dismissed 221 00:14:42,520 --> 00:14:46,040 Speaker 1: on a motion to dismiss before you really get into 222 00:14:46,320 --> 00:14:50,240 Speaker 1: discovery and any kind of heavy litigation. But what about 223 00:14:50,400 --> 00:14:54,240 Speaker 1: the Neily Young lawsuit? So June the motion is smiss 224 00:14:54,240 --> 00:14:57,000 Speaker 1: brought in the Eddie Grant case by the Trump Organization 225 00:14:57,160 --> 00:15:00,360 Speaker 1: has a long pedigree in the in that federal court. 226 00:15:00,880 --> 00:15:03,360 Speaker 1: It is regularly allowed because all you do is look 227 00:15:03,400 --> 00:15:06,120 Speaker 1: at the face the complaint and the facts as alleged 228 00:15:06,120 --> 00:15:09,840 Speaker 1: by the copyright owner, and it's relatively easy to determine 229 00:15:09,840 --> 00:15:13,920 Speaker 1: whether or not the fair use doctrine has the factual 230 00:15:14,000 --> 00:15:18,040 Speaker 1: predicates on the face of complaint um to be considered 231 00:15:18,160 --> 00:15:20,960 Speaker 1: at an early point in case. And that's probably a 232 00:15:20,960 --> 00:15:23,560 Speaker 1: good thing here for the Trump organization. I think that 233 00:15:23,640 --> 00:15:29,160 Speaker 1: lawsuits likely to be resolved relatively quickly without discovery. In contrast, 234 00:15:29,240 --> 00:15:32,960 Speaker 1: the Nenal Young lawsuit will turn on a lot of 235 00:15:33,840 --> 00:15:37,560 Speaker 1: details in the facts that are not evident on the 236 00:15:37,600 --> 00:15:42,120 Speaker 1: face of the complaint and therefore going to require factual 237 00:15:42,160 --> 00:15:47,240 Speaker 1: discovery and likely to be um long and dragged out, 238 00:15:47,920 --> 00:15:51,520 Speaker 1: and may take as much as a few years to 239 00:15:51,520 --> 00:15:55,480 Speaker 1: to decide if it isn't dropped in the interim given 240 00:15:55,520 --> 00:15:59,320 Speaker 1: the results of the election. Thanks Terry. That's Terence Ross, 241 00:15:59,400 --> 00:16:05,000 Speaker 1: a partner Caton Uchen Rosenman. The United States versus Google, 242 00:16:05,280 --> 00:16:08,160 Speaker 1: it will be an epic antitrust court battle as the 243 00:16:08,200 --> 00:16:12,360 Speaker 1: government tries to prove that Google illegally monopolized Internet search. 244 00:16:12,920 --> 00:16:15,040 Speaker 1: It's just the beginning of what's expected to be a 245 00:16:15,120 --> 00:16:17,920 Speaker 1: long battle, with the government having the burden of proving 246 00:16:18,040 --> 00:16:20,760 Speaker 1: several elements to make at its case. Joining me is 247 00:16:20,840 --> 00:16:24,120 Speaker 1: Sam Weinstein, a professor Cardozo Law School and a former 248 00:16:24,160 --> 00:16:28,080 Speaker 1: official in the Justice Department's antitrust Division. First, the government 249 00:16:28,080 --> 00:16:30,960 Speaker 1: has to prove that Google has monopoly power in the market. 250 00:16:31,000 --> 00:16:34,200 Speaker 1: And it's laid out three markets, that's right. So the 251 00:16:34,240 --> 00:16:37,480 Speaker 1: government's alleging three markets, right. So one is general search services, 252 00:16:37,520 --> 00:16:39,680 Speaker 1: which is what we think of when we enter a 253 00:16:39,680 --> 00:16:43,360 Speaker 1: search term into Google. And then a search advertising market, 254 00:16:43,400 --> 00:16:46,640 Speaker 1: which is a general market for search advertising. And something 255 00:16:46,680 --> 00:16:50,000 Speaker 1: they call general search text advertising, which is the ads 256 00:16:50,000 --> 00:16:52,000 Speaker 1: that show up on the top of your Google results page, 257 00:16:52,080 --> 00:16:56,240 Speaker 1: right of sponsored ads above the organic so called organic peoples. Right. So, 258 00:16:56,320 --> 00:16:58,880 Speaker 1: in the way these cases work, as the government has 259 00:16:58,880 --> 00:17:02,400 Speaker 1: to allege these markets and then shows they are indeed markets, right, 260 00:17:02,400 --> 00:17:05,119 Speaker 1: and then that Google has monopoly power in these markets, 261 00:17:05,160 --> 00:17:08,119 Speaker 1: right WHI would be something about a seven share, And 262 00:17:08,200 --> 00:17:10,879 Speaker 1: you know, Google will contest these market definitions. They will 263 00:17:10,920 --> 00:17:13,840 Speaker 1: say that the markets are broader then the government is alleging, 264 00:17:13,960 --> 00:17:15,960 Speaker 1: and Google wants them to be broader because then their 265 00:17:16,000 --> 00:17:20,119 Speaker 1: share drops, and you know, in particular and search advertising 266 00:17:20,119 --> 00:17:23,120 Speaker 1: and general search text advertising, I imagine Google will push 267 00:17:23,200 --> 00:17:25,880 Speaker 1: back hard that those are relevant markets. Right, Google will 268 00:17:25,880 --> 00:17:29,760 Speaker 1: say advertising dollars are distributing amongst things like billboards and 269 00:17:30,240 --> 00:17:34,280 Speaker 1: podcasts and television, right, And that's the market general advertising, 270 00:17:34,359 --> 00:17:37,480 Speaker 1: not not an internet not a search based advertising market. 271 00:17:38,119 --> 00:17:41,480 Speaker 1: So then is it just the judge's decision what the 272 00:17:41,560 --> 00:17:45,600 Speaker 1: market is? And for Google's monopoly share? Is that easy 273 00:17:45,680 --> 00:17:48,760 Speaker 1: to figure out? I mean the numbers? So right, it's 274 00:17:48,760 --> 00:17:51,520 Speaker 1: a good question. Right, So the fact finder, it's in 275 00:17:51,520 --> 00:17:53,399 Speaker 1: front of the judge and tromp. The jury will determine 276 00:17:53,440 --> 00:17:55,720 Speaker 1: in the end what the market is. And you know, 277 00:17:55,720 --> 00:17:57,560 Speaker 1: if you say, for instance, let's say the market is 278 00:17:57,600 --> 00:17:59,600 Speaker 1: general search, and I think that's an easier market for 279 00:17:59,680 --> 00:18:02,040 Speaker 1: the god want to prove, there's going to be data 280 00:18:02,040 --> 00:18:04,160 Speaker 1: out there that economists will put together to say how 281 00:18:04,160 --> 00:18:06,679 Speaker 1: many searches are done a year in the United States 282 00:18:06,800 --> 00:18:08,880 Speaker 1: and how many of those go to Google. Um, that's 283 00:18:08,880 --> 00:18:13,000 Speaker 1: Google's percentage of general search. So that's pretty straightforward advertising. 284 00:18:13,040 --> 00:18:16,000 Speaker 1: I think. Also, if in fact the finders fact in 285 00:18:16,040 --> 00:18:19,359 Speaker 1: the case agrees that the market is search advertising, an 286 00:18:19,359 --> 00:18:21,640 Speaker 1: economist will come along and say, well, the next number 287 00:18:21,680 --> 00:18:23,760 Speaker 1: of dollars are spent on search advertising this year, and 288 00:18:24,040 --> 00:18:26,359 Speaker 1: these are how many dollars want to Google, and here's 289 00:18:26,359 --> 00:18:29,320 Speaker 1: Google's percentage, and that's how they would determine Google's percentage 290 00:18:29,320 --> 00:18:32,679 Speaker 1: of you above or below seven sever five percent not 291 00:18:32,720 --> 00:18:35,320 Speaker 1: a magic number, but the case will suggests you have 292 00:18:35,400 --> 00:18:37,520 Speaker 1: to be above sent five percent, so you know that. 293 00:18:37,560 --> 00:18:39,680 Speaker 1: The steps would be defining the role that market first 294 00:18:39,760 --> 00:18:43,320 Speaker 1: and then proving Google share that levant market. Google earned 295 00:18:43,320 --> 00:18:47,480 Speaker 1: se of search advertising revenue in the US, according to 296 00:18:47,520 --> 00:18:51,440 Speaker 1: a report by E Markett. If that number holds, does 297 00:18:51,480 --> 00:18:54,159 Speaker 1: that mean that Google is not a monopoly in that market? 298 00:18:54,800 --> 00:18:56,639 Speaker 1: The parties would fight about this, right, So there's no 299 00:18:56,760 --> 00:18:58,840 Speaker 1: hard and fast number. I used. Seven percent is a 300 00:18:58,840 --> 00:19:02,000 Speaker 1: shorthand be because there is some case law saying you 301 00:19:02,040 --> 00:19:04,440 Speaker 1: know above stating his pipercent probably is a monopoly share. 302 00:19:04,720 --> 00:19:07,520 Speaker 1: But that's a moving target, right, so a judge or 303 00:19:07,680 --> 00:19:09,800 Speaker 1: the journy will decide what the Probably the judge will 304 00:19:09,800 --> 00:19:12,800 Speaker 1: decide what the appropriate legal standard is. But I think 305 00:19:13,520 --> 00:19:16,639 Speaker 1: is a good shorthand for monopoly power. So if the 306 00:19:16,680 --> 00:19:19,440 Speaker 1: government can prove Google is a monopoly and at least 307 00:19:19,440 --> 00:19:22,680 Speaker 1: one market, then it has to show that Google illegally 308 00:19:22,800 --> 00:19:26,359 Speaker 1: keeps control of that market. And the suit focuses on 309 00:19:26,400 --> 00:19:29,040 Speaker 1: the billions of dollars that Google pays each year to 310 00:19:29,160 --> 00:19:33,040 Speaker 1: make sure it's search engine is the default on mobile 311 00:19:33,040 --> 00:19:37,240 Speaker 1: phones and web browsers. So, any monopolization case, what we 312 00:19:37,240 --> 00:19:39,879 Speaker 1: call Section to at the Sherman Act, has two parts. 313 00:19:40,000 --> 00:19:42,280 Speaker 1: The plainests. In this case, the government has a burden 314 00:19:42,320 --> 00:19:44,919 Speaker 1: to prove two things. One is monopoly power. Let's we 315 00:19:45,000 --> 00:19:47,080 Speaker 1: just talked about, right, so a certain share of a 316 00:19:47,119 --> 00:19:50,119 Speaker 1: relevant market. And the second is some bad acts, some 317 00:19:50,320 --> 00:19:53,880 Speaker 1: bad conduct that either allowed to defend it, to acquire 318 00:19:54,040 --> 00:19:56,480 Speaker 1: or to maintain the monopoly share. And this is a 319 00:19:56,520 --> 00:19:59,760 Speaker 1: monopoly maintenance case. So the alleged bad conduct is a 320 00:19:59,800 --> 00:20:02,480 Speaker 1: few ease of agreements that the government is saying Google 321 00:20:02,560 --> 00:20:05,800 Speaker 1: uses to maintain its monopoly shia and it does so unlawfully. 322 00:20:06,400 --> 00:20:08,960 Speaker 1: On their face, when you hear about those agreements, they 323 00:20:09,040 --> 00:20:12,880 Speaker 1: sound like Google's locking in the market. So what could 324 00:20:12,880 --> 00:20:16,439 Speaker 1: Google come back with as a legitimate reason for those 325 00:20:17,240 --> 00:20:19,159 Speaker 1: So I mean, I think if I'm Google, let me 326 00:20:19,359 --> 00:20:20,720 Speaker 1: just lay out a little bit what will happen on 327 00:20:20,760 --> 00:20:22,159 Speaker 1: the on the context side of the case. Right, the 328 00:20:22,240 --> 00:20:24,760 Speaker 1: government has a burden to come forward with an allegation 329 00:20:24,760 --> 00:20:27,600 Speaker 1: of anti competitive conduct. And here we'll just say for 330 00:20:27,640 --> 00:20:31,359 Speaker 1: shorthand is these various agreements like preinstallation agreements for the 331 00:20:31,359 --> 00:20:34,480 Speaker 1: search engine, revenue sharing agreements right with the big phone manufacturers. 332 00:20:35,040 --> 00:20:36,600 Speaker 1: So the government's going to allege that those are anti 333 00:20:36,600 --> 00:20:40,240 Speaker 1: competitive agreements, and Google can then attack the governments of 334 00:20:40,280 --> 00:20:42,080 Speaker 1: the anti competitive theory, and Google will come back with 335 00:20:42,119 --> 00:20:45,440 Speaker 1: its own pro competitive explanations. Right, So let's first talk 336 00:20:45,440 --> 00:20:48,240 Speaker 1: about the government's theory. The government's theory is that these 337 00:20:48,280 --> 00:20:52,359 Speaker 1: agreements lock in distribution for Google, lockout distribution for the 338 00:20:52,400 --> 00:20:55,000 Speaker 1: Google's rivals, right, raised rivals costs to try to get 339 00:20:55,080 --> 00:20:58,440 Speaker 1: their search engines to consumers. So if I'm Google, I 340 00:20:58,440 --> 00:21:00,200 Speaker 1: think the first thing I'm going to argue is, well, 341 00:21:00,200 --> 00:21:02,800 Speaker 1: that's not really what's happening, right, That's not how consumers 342 00:21:02,800 --> 00:21:06,320 Speaker 1: actually choose search engines. So to me, this case many 343 00:21:06,320 --> 00:21:08,679 Speaker 1: people have made this observation harkens back to the Microsoft came. 344 00:21:08,720 --> 00:21:11,399 Speaker 1: In the Microsoft case, one of the allegations among many 345 00:21:11,720 --> 00:21:15,320 Speaker 1: was that Microsoft ups for closed distribution of rival Internet 346 00:21:15,359 --> 00:21:17,480 Speaker 1: browsers by locking up space on the hard drive the 347 00:21:17,520 --> 00:21:20,840 Speaker 1: ali apps. Right, people making this has looked similar. Right, 348 00:21:20,880 --> 00:21:24,159 Speaker 1: these agreements allegedly locked up space on the phone or 349 00:21:24,200 --> 00:21:26,400 Speaker 1: on your computer. From what you see as a default 350 00:21:26,440 --> 00:21:29,800 Speaker 1: is Google search engine. But Google is pretty straightforward. Counter 351 00:21:29,840 --> 00:21:32,520 Speaker 1: argument is you can switch anytime if you don't like Google. 352 00:21:32,720 --> 00:21:34,920 Speaker 1: It's a clicker way to do DUC dot go, which 353 00:21:34,960 --> 00:21:37,400 Speaker 1: I think it's a pretty powerful argument. Now, it could 354 00:21:37,400 --> 00:21:39,920 Speaker 1: be the government has alleged facts here when we don't 355 00:21:39,920 --> 00:21:42,679 Speaker 1: see the backup for it, that consumers don't switch right 356 00:21:42,760 --> 00:21:44,640 Speaker 1: that once you see on your phone Google is the default, 357 00:21:44,720 --> 00:21:46,240 Speaker 1: that you're not going to switch over to DUC dot go. 358 00:21:46,440 --> 00:21:48,520 Speaker 1: But it does seem pretty easy, a lot easier than 359 00:21:48,520 --> 00:21:50,880 Speaker 1: it was in the Microsoft case to switch. So that's 360 00:21:50,920 --> 00:21:52,760 Speaker 1: one thing I'm going to say if I'm Google. Those 361 00:21:52,760 --> 00:21:53,960 Speaker 1: thing I'm going to say if I'm Google, and this 362 00:21:54,040 --> 00:21:56,080 Speaker 1: is before I even get to my pro competitive justifications, 363 00:21:56,119 --> 00:21:59,119 Speaker 1: is so you know the reason why consumers use Google, 364 00:21:59,480 --> 00:22:01,600 Speaker 1: it's because we're really really good. It's true we have 365 00:22:01,640 --> 00:22:03,960 Speaker 1: these agreements in place, but even if we didn't have them, 366 00:22:04,080 --> 00:22:07,639 Speaker 1: consumers prefer us. That's probably pretty persuasive argument, you know, 367 00:22:07,680 --> 00:22:09,760 Speaker 1: need to feel plays out right, But the government has 368 00:22:09,800 --> 00:22:11,760 Speaker 1: to draw a link between these agreements and Google's monopoly, 369 00:22:11,760 --> 00:22:14,120 Speaker 1: share them and Google to try to break that causation 370 00:22:14,359 --> 00:22:17,680 Speaker 1: link by saying we're just really good. So that's if 371 00:22:17,720 --> 00:22:20,440 Speaker 1: I'm Google. That's why I'm arguing to sort of overcome 372 00:22:20,520 --> 00:22:23,720 Speaker 1: the government's prema facial case, right, their initial assertion that 373 00:22:24,160 --> 00:22:27,120 Speaker 1: these agreements are any competitive. And then I'm going to say, okay, course, 374 00:22:27,119 --> 00:22:29,600 Speaker 1: if you don't buy that, I have pro competitive justifications 375 00:22:29,600 --> 00:22:31,879 Speaker 1: to agreement. Right, So what could that be? You know, 376 00:22:31,920 --> 00:22:33,719 Speaker 1: it's a little unclear, right, So this is I think 377 00:22:33,760 --> 00:22:36,080 Speaker 1: a little harder for Google. What is pro competitive about 378 00:22:36,080 --> 00:22:39,840 Speaker 1: these agreements? Well, maybe it produces some certainty for them. 379 00:22:39,880 --> 00:22:43,320 Speaker 1: Maybe it protects the Android operating system from being broken 380 00:22:43,359 --> 00:22:46,399 Speaker 1: by third party apps. Right, you can imagine some explanation. 381 00:22:46,720 --> 00:22:49,280 Speaker 1: It's a little harder for me to get there. We'll 382 00:22:49,320 --> 00:22:51,800 Speaker 1: let to see what Google does explain with the rule 383 00:22:51,880 --> 00:22:54,520 Speaker 1: of reason analysis is that the judge is going to 384 00:22:54,720 --> 00:22:58,040 Speaker 1: use sure the great question. Right, So the rule of reason. 385 00:22:58,320 --> 00:23:00,199 Speaker 1: You know, you can think of this a balancing test, right, 386 00:23:00,240 --> 00:23:03,040 Speaker 1: And but it's it's done step by step. So first step, 387 00:23:03,080 --> 00:23:06,200 Speaker 1: as the government says, hey, this conduct you're doing, defendant 388 00:23:06,240 --> 00:23:08,960 Speaker 1: is anti competitive. Here's why we think it's any competitive. 389 00:23:09,440 --> 00:23:11,359 Speaker 1: And then the defending gets to come back and say, no, 390 00:23:11,680 --> 00:23:13,920 Speaker 1: first of all, we're gonna attack your assertions government that 391 00:23:14,080 --> 00:23:15,760 Speaker 1: this is anti competitive. Second, we're going to show that's 392 00:23:15,760 --> 00:23:18,320 Speaker 1: actually permpetitive. And then if if the defendant can come 393 00:23:18,400 --> 00:23:21,480 Speaker 1: forth to some plausible pro competitive justifications that in the 394 00:23:21,520 --> 00:23:24,840 Speaker 1: third steps the judge will determine will weigh the anti 395 00:23:24,840 --> 00:23:28,200 Speaker 1: competitive conduct against the pro competitive justifications and come out 396 00:23:28,240 --> 00:23:30,200 Speaker 1: one way or the other. So that's the theory behind 397 00:23:30,240 --> 00:23:32,160 Speaker 1: the rule of reason. Why we're weighing what's bad about 398 00:23:32,200 --> 00:23:35,480 Speaker 1: the conduct against what's good about the conduct. In reality, 399 00:23:35,480 --> 00:23:39,160 Speaker 1: that hardly ever happens. In most cases, the judge will 400 00:23:39,200 --> 00:23:42,800 Speaker 1: say something like, all I see here is any competitive conduct. 401 00:23:42,800 --> 00:23:45,439 Speaker 1: I don't see any po competive justification or vice versa. Right, 402 00:23:45,480 --> 00:23:47,960 Speaker 1: All I see here is pro competitive good here, And 403 00:23:47,960 --> 00:23:50,320 Speaker 1: I don't really say anything negative? Right? And why because 404 00:23:50,359 --> 00:23:52,080 Speaker 1: it's very hard to weigh, right, how do you weigh? 405 00:23:52,400 --> 00:23:55,440 Speaker 1: But essentially are apples? Are these are not measurable things? 406 00:23:55,480 --> 00:23:58,399 Speaker 1: How much anti competitive harm versus pro competitive benefit of right? 407 00:23:58,440 --> 00:23:59,920 Speaker 1: But that's the theory that it's a it's a way 408 00:24:00,080 --> 00:24:03,359 Speaker 1: tests for the judge. It seems like the implication would 409 00:24:03,359 --> 00:24:05,560 Speaker 1: be that it harmed competition there, but the government also 410 00:24:05,600 --> 00:24:08,600 Speaker 1: has to show that it harmed consumers. Thank you raised. 411 00:24:08,640 --> 00:24:10,480 Speaker 1: An interesting is on a good point. Right, So it's 412 00:24:10,520 --> 00:24:13,600 Speaker 1: not enough for the government to allege that these distribution 413 00:24:13,640 --> 00:24:16,960 Speaker 1: agreements harmed Google's rivals. Andre's law doesn't care about that. 414 00:24:17,280 --> 00:24:20,679 Speaker 1: Andel's law only cares about consumers. So the government has 415 00:24:20,680 --> 00:24:22,760 Speaker 1: to have a theory for why even if Google's rivals 416 00:24:22,800 --> 00:24:26,119 Speaker 1: are being harmed. But that's bad for us, bad for consumers, right, 417 00:24:26,800 --> 00:24:29,320 Speaker 1: And and there are a couple of theories in the 418 00:24:29,400 --> 00:24:32,919 Speaker 1: case going to this point. Right, So when we think 419 00:24:32,960 --> 00:24:35,680 Speaker 1: about end users like you and me, what is harmful 420 00:24:35,680 --> 00:24:39,080 Speaker 1: to us about these distribution agreements. Well, maybe we're getting 421 00:24:39,160 --> 00:24:41,879 Speaker 1: less innovation. Right, Maybe if these distribution agreements were in place, 422 00:24:42,080 --> 00:24:44,959 Speaker 1: we'd see more duck dot goes who might protect our 423 00:24:44,960 --> 00:24:47,840 Speaker 1: privacy better, we have more choice. Right, that's the theory 424 00:24:47,960 --> 00:24:51,680 Speaker 1: for consumer harms on the search side. On the advertising side, 425 00:24:51,800 --> 00:24:53,919 Speaker 1: the consumer harm is clearer. Right if if the government 426 00:24:53,960 --> 00:24:58,520 Speaker 1: can prove that Google is unlawfully maintainance monopoly in search 427 00:24:58,800 --> 00:25:03,000 Speaker 1: advertising or general search text advertising. If I'm an advertising 428 00:25:03,000 --> 00:25:04,840 Speaker 1: on my rates are going up and I'm getting less 429 00:25:04,840 --> 00:25:06,920 Speaker 1: good service, right, that's just like you know, a classic 430 00:25:06,920 --> 00:25:09,760 Speaker 1: monopoly problem. Right, If there are more competitors out there 431 00:25:10,040 --> 00:25:12,639 Speaker 1: advertising rates with fall, I pay less I get better service. Right. 432 00:25:12,760 --> 00:25:14,880 Speaker 1: But but in both cases, the government has to show 433 00:25:14,920 --> 00:25:18,720 Speaker 1: not only that the rivals are being harmed, but that consumers, 434 00:25:18,720 --> 00:25:20,919 Speaker 1: either end users like you and me or advertisers are 435 00:25:20,920 --> 00:25:24,439 Speaker 1: being hard How do they do that when Google is 436 00:25:24,840 --> 00:25:28,040 Speaker 1: free to consumers? So how do they proved that consumers 437 00:25:28,080 --> 00:25:30,760 Speaker 1: are harmed? Yeah, so end users like you and me? 438 00:25:31,200 --> 00:25:33,240 Speaker 1: It's hard, right for those those reasons that you say, 439 00:25:33,280 --> 00:25:36,080 Speaker 1: we it's it's I'll put quotes around free. It's a 440 00:25:36,160 --> 00:25:38,479 Speaker 1: quote free product that's not really free, right because you 441 00:25:38,480 --> 00:25:42,280 Speaker 1: give Google your data. Um, but we're not paying cash, right, 442 00:25:42,320 --> 00:25:45,680 Speaker 1: so it's difficult to prove that we're you know, we're 443 00:25:45,680 --> 00:25:48,320 Speaker 1: paying the monopoly price for this service. So it's tricky, right. 444 00:25:48,359 --> 00:25:49,840 Speaker 1: The government has to make a nuanced argument, and you 445 00:25:49,840 --> 00:25:52,159 Speaker 1: can see and their claims that they're claiming is you 446 00:25:52,200 --> 00:25:54,800 Speaker 1: and I are getting less good service essentially a quality 447 00:25:54,800 --> 00:25:57,600 Speaker 1: adjusted price that's lower than if there was more competition. Right, 448 00:25:58,000 --> 00:26:00,920 Speaker 1: So I'm not making this cognimer specsticulately. Theoretically Google doesn't 449 00:26:00,920 --> 00:26:03,160 Speaker 1: do a good job protecting our class right solve their data. 450 00:26:03,720 --> 00:26:05,480 Speaker 1: If there was more competition, that would be less of that, 451 00:26:05,680 --> 00:26:07,360 Speaker 1: or our data would be buying more highly to get 452 00:26:07,400 --> 00:26:10,040 Speaker 1: money for it. That's the kind of nuanced argument have 453 00:26:10,040 --> 00:26:12,680 Speaker 1: to make for an end user. Again, for advertisers, it's 454 00:26:12,680 --> 00:26:14,360 Speaker 1: a much clearer argument, right if Google is the only 455 00:26:14,359 --> 00:26:17,959 Speaker 1: game in town and search advertising on paying more if 456 00:26:17,960 --> 00:26:21,400 Speaker 1: I'm an advertiser than I would if there were by competitors. 457 00:26:21,920 --> 00:26:25,480 Speaker 1: Is Google's response just we're better or is there a 458 00:26:25,480 --> 00:26:28,480 Speaker 1: different response? Yeah, I mean, so Google got a bunch 459 00:26:28,520 --> 00:26:30,840 Speaker 1: of entry points here for their argument. One is we're 460 00:26:30,880 --> 00:26:34,360 Speaker 1: just better, So the distribution agreements, there's no causation here 461 00:26:34,480 --> 00:26:37,160 Speaker 1: with our monopoly position. We have a monopoly position because 462 00:26:37,160 --> 00:26:39,240 Speaker 1: we have the best product, not that argument, And I 463 00:26:39,280 --> 00:26:41,240 Speaker 1: think a lot of people would agree right that they 464 00:26:41,240 --> 00:26:43,959 Speaker 1: have the best search engine. So that's that's one argument. 465 00:26:44,119 --> 00:26:46,520 Speaker 1: Another argument that if I'm Google, I'm making is that 466 00:26:46,680 --> 00:26:49,119 Speaker 1: two consumers like you and me end users, we're not 467 00:26:49,160 --> 00:26:51,919 Speaker 1: really being harmed, that there is choice. You and I 468 00:26:51,960 --> 00:26:54,600 Speaker 1: could easily switch to duct Tecto or to being You 469 00:26:54,640 --> 00:26:56,119 Speaker 1: and I aren't tired of by any agreements. We can 470 00:26:56,119 --> 00:26:58,160 Speaker 1: do whatever we want, So if we really like those 471 00:26:58,160 --> 00:27:01,560 Speaker 1: other search engines, we could easily swem. That's two arguments 472 00:27:01,560 --> 00:27:03,439 Speaker 1: I'm making up on Google. It's a little tougher in 473 00:27:03,480 --> 00:27:06,520 Speaker 1: the in the advertising side right where the advertisers are 474 00:27:06,560 --> 00:27:09,280 Speaker 1: paying in money, And if you know, we haven't seen 475 00:27:09,280 --> 00:27:11,359 Speaker 1: the evidence yet, but I'm sure the government will have 476 00:27:11,359 --> 00:27:13,960 Speaker 1: an economist come and say, look, advertisers paying a lot 477 00:27:13,960 --> 00:27:16,080 Speaker 1: more money thybel in the competitive market, right, That's that's 478 00:27:16,119 --> 00:27:18,640 Speaker 1: harder to attack. So if I'm Google, my argument there's 479 00:27:18,640 --> 00:27:20,880 Speaker 1: gonna be based on, hey, you've you've defined the market wrong. 480 00:27:21,400 --> 00:27:24,919 Speaker 1: That In fact, advertising is a market that includes television 481 00:27:24,960 --> 00:27:27,520 Speaker 1: and billboards and you know what's on the subway and 482 00:27:28,040 --> 00:27:30,440 Speaker 1: podcasts right and and in that market we have a 483 00:27:30,520 --> 00:27:33,000 Speaker 1: very small ship. Do you see one side or the 484 00:27:33,080 --> 00:27:36,520 Speaker 1: other having an advantage here where it looks like their 485 00:27:36,680 --> 00:27:40,000 Speaker 1: side is stronger. So it's a little bit hard to 486 00:27:40,040 --> 00:27:43,520 Speaker 1: say without seeing more evidence. Good government, I think has 487 00:27:43,160 --> 00:27:47,199 Speaker 1: a certainly a plausible theory here, particularly in search. So 488 00:27:47,240 --> 00:27:49,240 Speaker 1: I think it's we're playing out the government's case here 489 00:27:49,440 --> 00:27:53,640 Speaker 1: in search. It's pretty clear or maybe not that difficult 490 00:27:53,640 --> 00:27:56,080 Speaker 1: to prove that Google has an opplipition in search, and 491 00:27:56,119 --> 00:27:58,320 Speaker 1: these agreements, as you said, sort of on their faith 492 00:27:58,320 --> 00:28:00,800 Speaker 1: and look bad. Google's paying a lot of money to 493 00:28:01,840 --> 00:28:06,320 Speaker 1: Apple and to Android manufacturers to make them the exclusive 494 00:28:06,680 --> 00:28:08,600 Speaker 1: search engine, and you asked, why are they paying all 495 00:28:08,640 --> 00:28:10,639 Speaker 1: that money? What are they getting for that? So I 496 00:28:10,680 --> 00:28:12,920 Speaker 1: think that the government has put together, you know, sort 497 00:28:12,920 --> 00:28:16,320 Speaker 1: of a plausible case on search. Search advertising is a 498 00:28:16,400 --> 00:28:19,639 Speaker 1: little harder, I think, just because of the market definition issue. 499 00:28:19,880 --> 00:28:21,359 Speaker 1: You know, what is the market there? What is what 500 00:28:21,440 --> 00:28:23,199 Speaker 1: is Google share? But if the government could prove that 501 00:28:23,240 --> 00:28:25,800 Speaker 1: the shares is big and that the market is narrow, 502 00:28:26,000 --> 00:28:27,879 Speaker 1: then the government have a strong case there too. So 503 00:28:27,880 --> 00:28:30,240 Speaker 1: I would say that the government's case is certainly plausible. Right. 504 00:28:30,400 --> 00:28:33,160 Speaker 1: Google has some arrows and square though, And I think 505 00:28:33,160 --> 00:28:35,080 Speaker 1: what we were talking about before that there will will 506 00:28:35,080 --> 00:28:38,360 Speaker 1: fight on market desfinition as to advertising, but you know, 507 00:28:38,440 --> 00:28:42,320 Speaker 1: as to search, they're going to fight about our consumers haunt. Right, 508 00:28:42,320 --> 00:28:43,760 Speaker 1: And again I would come back to this argument that 509 00:28:43,800 --> 00:28:46,280 Speaker 1: they will certainly make which is you and I can 510 00:28:46,320 --> 00:28:48,960 Speaker 1: choose whatever search engine we want. We're not being harmed. 511 00:28:49,280 --> 00:28:51,200 Speaker 1: We choose Google for the most part because we like 512 00:28:51,240 --> 00:28:54,920 Speaker 1: it better. What remedies is the government seeking if it 513 00:28:54,960 --> 00:28:58,000 Speaker 1: wins the case, it does speak speak remedies right at 514 00:28:58,040 --> 00:29:00,480 Speaker 1: the end of the complaint. So the government says that 515 00:29:00,560 --> 00:29:04,200 Speaker 1: it wants to enjoin these practices, these alleged any competitive practices, 516 00:29:04,200 --> 00:29:06,640 Speaker 1: which are the distribution agreements and pre installation agreements and 517 00:29:06,720 --> 00:29:09,800 Speaker 1: revenue sharing agreements. And then they ask for this catch 518 00:29:09,840 --> 00:29:12,200 Speaker 1: all what you often see or maybe always seen interested 519 00:29:12,280 --> 00:29:16,600 Speaker 1: which please enter any other preliminary relief or permanent relief 520 00:29:16,960 --> 00:29:19,800 Speaker 1: that's appropriate to restore competition in these markets. Right, So 521 00:29:20,160 --> 00:29:24,480 Speaker 1: we're asking for the government are asking for injunctions on 522 00:29:24,600 --> 00:29:27,360 Speaker 1: the conduct that we've laid out here that's bad, and 523 00:29:27,400 --> 00:29:29,280 Speaker 1: then we want anything else you can give us that 524 00:29:29,320 --> 00:29:32,240 Speaker 1: will restore competition. And they also say, the government does 525 00:29:32,640 --> 00:29:35,040 Speaker 1: we ask you court to enter structural relief as needed 526 00:29:35,080 --> 00:29:38,080 Speaker 1: to curinate in a competitive talks. So structural relief is 527 00:29:38,560 --> 00:29:41,120 Speaker 1: generally breaking up a company in some way or another, right, 528 00:29:41,200 --> 00:29:44,120 Speaker 1: So spinning off a portion of the company. Now, that's 529 00:29:44,160 --> 00:29:47,480 Speaker 1: interesting that that that's in there, this prayer for structural relief. 530 00:29:47,840 --> 00:29:49,160 Speaker 1: And there's a couple of ways you can look at that. 531 00:29:49,200 --> 00:29:50,920 Speaker 1: One is they have it the government has in their 532 00:29:51,280 --> 00:29:52,960 Speaker 1: just in case, right and just in case that the 533 00:29:53,040 --> 00:29:55,480 Speaker 1: judge is so inclined, or that they have some other 534 00:29:55,520 --> 00:29:58,520 Speaker 1: theory coming where they're going to tie the bad conduct 535 00:29:58,600 --> 00:30:00,440 Speaker 1: to a theory in which the a way to fix 536 00:30:00,480 --> 00:30:02,400 Speaker 1: that bad connected to break up Google. Now, I don't 537 00:30:02,400 --> 00:30:04,760 Speaker 1: see anything in this complaint that gets you from A 538 00:30:04,920 --> 00:30:07,120 Speaker 1: to B R get you from the bad acts to 539 00:30:07,160 --> 00:30:10,080 Speaker 1: breaking up Google. Nonetheless, it's there in the in the 540 00:30:10,080 --> 00:30:12,520 Speaker 1: request for release, but that's probably wouldn't take that too seriously, 541 00:30:12,880 --> 00:30:16,040 Speaker 1: you know. I think the standard response to a case 542 00:30:16,080 --> 00:30:17,920 Speaker 1: of remedial response to a case like this is to 543 00:30:18,040 --> 00:30:21,360 Speaker 1: enjoy the practices right to say stop. The court will 544 00:30:21,480 --> 00:30:24,360 Speaker 1: order the defendant to stop doing what they were doing. Now, 545 00:30:24,520 --> 00:30:26,400 Speaker 1: I should just point out here that the government can't 546 00:30:26,400 --> 00:30:28,600 Speaker 1: ask for money in an answers case brought by the 547 00:30:28,640 --> 00:30:31,880 Speaker 1: governments a civil case. What all the government can get 548 00:30:32,000 --> 00:30:35,480 Speaker 1: is some kind of injunctive relief or structure relief or 549 00:30:35,560 --> 00:30:38,680 Speaker 1: conduct relief right. Essentially, stop what you're doing, or we're 550 00:30:38,680 --> 00:30:41,120 Speaker 1: gonna break you up something like that. They can't get money. 551 00:30:41,480 --> 00:30:43,680 Speaker 1: But what can happen is this, For instance, the government 552 00:30:43,680 --> 00:30:46,440 Speaker 1: wins the course of the believe your theory, we can 553 00:30:46,440 --> 00:30:48,560 Speaker 1: get the government's right that private parties will follow on 554 00:30:48,640 --> 00:30:51,760 Speaker 1: and bring their own lossters asking for monetary relief right, 555 00:30:51,760 --> 00:30:53,560 Speaker 1: but in this case there will be no monetary relief. 556 00:30:53,960 --> 00:30:57,000 Speaker 1: So in the government's case, the standard is we want 557 00:30:57,000 --> 00:30:59,360 Speaker 1: an injunction. You want an injunction against the bad conduct, 558 00:30:59,360 --> 00:31:01,520 Speaker 1: and that that was seemed to me here to be 559 00:31:02,080 --> 00:31:04,160 Speaker 1: the appropriate relief of the government table to its kids. 560 00:31:05,000 --> 00:31:07,760 Speaker 1: I mean, settlement is always a possibility, but is it 561 00:31:08,000 --> 00:31:10,680 Speaker 1: likely here a settlement as this case goes on and on, 562 00:31:11,360 --> 00:31:13,440 Speaker 1: So it's always hard to say it right what the 563 00:31:13,440 --> 00:31:16,000 Speaker 1: parties are thinking, And you know, often it depends on 564 00:31:16,040 --> 00:31:18,760 Speaker 1: how the case appears to be going, right. But sure, 565 00:31:18,840 --> 00:31:22,280 Speaker 1: you know many many ancest cases settle, very very few 566 00:31:22,360 --> 00:31:25,440 Speaker 1: of the trial, right, So you know it's Google decides 567 00:31:25,480 --> 00:31:27,640 Speaker 1: at some point this isn't worth it to us, We're 568 00:31:27,680 --> 00:31:30,560 Speaker 1: getting too much bad pr We'll just end these practices. 569 00:31:30,640 --> 00:31:32,959 Speaker 1: We we believe in our product. I can see that happening, right, 570 00:31:33,040 --> 00:31:35,320 Speaker 1: We believe we'll keep sharing because we're so good. You 571 00:31:35,360 --> 00:31:37,080 Speaker 1: could see that happening. That would be a settlement here, 572 00:31:37,160 --> 00:31:40,360 Speaker 1: that might end the case. But I just don't think 573 00:31:40,360 --> 00:31:42,840 Speaker 1: we'll know for some time why the whether the party 574 00:31:42,880 --> 00:31:45,200 Speaker 1: of going to settle. Thanks for being in the Bloomberg 575 00:31:45,280 --> 00:31:49,480 Speaker 1: Law Show. That's Sam Winstein, professor at Cardozo Law School. 576 00:31:49,920 --> 00:31:52,040 Speaker 1: That's it for this edition of the Bloomberg Law Show. 577 00:31:52,320 --> 00:31:54,360 Speaker 1: Remember you can always hit the latest legal news on 578 00:31:54,360 --> 00:31:58,160 Speaker 1: our Bloomberg Lawn podcast. You can find them on iTunes, SoundCloud, 579 00:31:58,280 --> 00:32:02,160 Speaker 1: or at bloomberg dot com slash podcast, Slash Law. I'm 580 00:32:02,240 --> 00:32:05,280 Speaker 1: June Grasso. Thanks so much for listening, and remember to 581 00:32:05,360 --> 00:32:07,560 Speaker 1: tune to The Bloomberg Law Show every weeknight at ten 582 00:32:07,600 --> 00:32:09,960 Speaker 1: pm Eastern, right here on Bloomberg Radio