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Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.

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Speaker 2: We have a right, like every country in the world

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Speaker 2: has a right to remove you from our country. So

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Speaker 2: it's just that simple.

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Speaker 3: And Secretary of State Marco Rubio said that under his direction,

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Speaker 3: at least three hundred visas, primarily student visas and some

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Speaker 3: visitor visas have been revoked.

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Speaker 2: Why would any country in the world allow people to

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Speaker 2: come and disrupt We gave you a visa to come

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Speaker 2: and study and get a degree, not to become a

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Speaker 2: social activist that tears up our university campuses.

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Speaker 3: Rubio acknowledge that he revoked the student visa of a

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Speaker 3: toughs PhD student due to her views on the Israel

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Speaker 3: Hamas War. My guest is immigration law expertly on Fresco,

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Speaker 3: a partner at Hollanden Knight. Leon Rubio said, if they're

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Speaker 3: taking activities that our counter to our national interest, to

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Speaker 3: our foreign policy, will revoke the visa. Are most of

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Speaker 3: the student arrests that we've been here about due to

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Speaker 3: revoking their visas due to a revocation of their visas well?

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Speaker 4: Yes, So there's two steps in the visa revocation process.

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Speaker 4: There's a first step, where what can happen is you

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Speaker 4: have a visa, you enter the United States, you're here legally,

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Speaker 4: and you get an email from the State Department. And

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Speaker 4: this actually is quite common. It's not just about this issue.

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Speaker 4: It happens if someone gets arrested or for other issues.

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Speaker 4: You'll get an email from the State Department that says

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Speaker 4: your visa has been canceled. And what that means is

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Speaker 4: that if you leave the United States, even though you

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Speaker 4: have this thing in your passport which says you can

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Speaker 4: travel let's say through twenty twenty eight or twenty twenty nine,

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Speaker 4: when it actually gets sweite, it won't work. It's canceled.

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Speaker 4: That doesn't mean just because your visa has been canceled

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Speaker 4: that you have to leave at that moment. It just

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Speaker 4: means that you are subject to being told you have

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Speaker 4: to leave. So then there's a second step, which is

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Speaker 4: if the government actually wants you to leave, then ICE

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Speaker 4: has to actually come and place you in deportation proceedings

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Speaker 4: to say, because your visa was canceled and we don't

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Speaker 4: think you have a right to remain in the United States,

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Speaker 4: we're going to place you in deportation proceedings. That's the

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Speaker 4: new one that's happening more often now than ever happened before.

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Speaker 4: Before you were just told if you left, you couldn't

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Speaker 4: come back. But now people are actually being affirmatively placed

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Speaker 4: into removal proceedings that are trying to get an outcome

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Speaker 4: where they actually are forced to leave the United States.

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Speaker 3: Now, the Palestinian student at Columbia who was arrested had

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Speaker 3: a Green card. Do we know if there are a

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Speaker 3: lot of arrests involving green card holders?

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Speaker 4: We now know of a handful of those of students

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Speaker 4: who have green cards. There was a South Korean student

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Speaker 4: who also was at Columbia who also had a green card,

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Speaker 4: and there are a couple others where what's happened is

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Speaker 4: for those individos that have green cards, it's much harder.

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Speaker 4: You can't just give them an email canceling their visa

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Speaker 4: because there is nothing to cancel. At that point. You

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Speaker 4: actually have to say that one of the grounds of

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Speaker 4: removal in section two thirty seven of the Immigration and

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Speaker 4: Nationality Act actually applies to this person. And so usually

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Speaker 4: what you would want to say is that they did

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Speaker 4: something where they supported terrorist organizations and that's why they

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Speaker 4: were going to be placed in removal proceedings, but here

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Speaker 4: they're trying to skip that step because they don't want

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Speaker 4: to actually have a trial in immigration court about whether

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Speaker 4: you supported terrorists or not. They want to try to

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Speaker 4: rely on the provision that says that if Secretary Rubio

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Speaker 4: says that your very existence and presence here in the

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Speaker 4: United States is bad for American foreign policy, then he

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Speaker 4: can just order you deported. He doesn't actually need to

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Speaker 4: prove anything in that situation. And so that was the

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Speaker 4: ground that was originally used for Mahmoud Khalia, the Colombian student,

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Speaker 4: and supposedly they've added some others. Now we'll have to

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Speaker 4: wait and see how that plays out. And it's unclear

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Speaker 4: because all of these are private documents. Unless the foreign

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Speaker 4: nationals want to release them to the press, then nobody

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Speaker 4: sees them. So it's unclear with some of these other

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Speaker 4: students are being given. But if they are being given

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Speaker 4: this category where Secretary Rubio is saying that it's against

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Speaker 4: the foreign policy interests of the United States, well in

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Speaker 4: that situation, then theoretically there's going to be a lot

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Speaker 4: of litigation about whether you even get a trial here

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Speaker 4: or not. And that's where the courts have really not

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Speaker 4: given us any idea yet. I mean, there was a

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Speaker 4: case where when President Trump's sister was alive, she said

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Speaker 4: that was an unconstitutional provision that couldn't be applied, but

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Speaker 4: that ultimately didn't make its way into an appellate court

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Speaker 4: legal president, and so we just don't know how that's

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Speaker 4: going to be resolved when it gets to the courts.

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Speaker 3: Well, let's talk about Khalil for a minute. The New

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Speaker 3: York federal judge ordered that his case be transferred to

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Speaker 3: New Jersey, but it hasn't been transferred yet.

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Speaker 4: Well, what happened was the New York judge, Jesse Furman, said,

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Speaker 4: I'm ordering the case be transferred to New Jersey, and

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Speaker 4: he actually, oddly enough, still claims to have an injunction

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Speaker 4: even though he's transferred the case. So unclear who enforces

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Speaker 4: this injunction that prevents the removal of mister Khalil while

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Speaker 4: his case is pending. So he put that injunction in

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Speaker 4: and then transferred the case. But then there was a

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Speaker 4: hearing in the New Jersey courts. And so there's a

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Speaker 4: judge there, Michael Farbiars, who had a hearing in New Jersey,

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Speaker 4: and there there was a dispute between the Department of

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Speaker 4: Justice and mister Khalil's attorneys. Mister Khalil's attorneys want him

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Speaker 4: to have that jurisdiction in New Jersey, and the federal

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Speaker 4: government wants them to have that jersey in Louisiana, and

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Speaker 4: so that issue has not yet been decided by Judge

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Speaker 4: Farbars in New Jersey.

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Speaker 3: It seems like in a lot of these cases where

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Speaker 3: students are being detained by ice, there's very little or

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Speaker 3: no information about why they're being detained. So, for example,

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Speaker 3: in the case of a University of Minnesota graduate student

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Speaker 3: being detained, officials in Minnesota, including the governor, are asking why.

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Speaker 4: So here's what happens. So the foreign national who's detained

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Speaker 4: is supposed to be served at that moment with a

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Speaker 4: warrant and with a document called a Notice to Appear

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Speaker 4: that explains why they're being apprehended and what the ground

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Speaker 4: is that they're being placed in removal proceedings for now.

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Speaker 4: How that document then gets transmitted to the rest of

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Speaker 4: the world becomes a problem because if the person then

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Speaker 4: gets put in a detention facility, they would need to

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Speaker 4: have access to a fax machine or a lawyer would

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Speaker 4: need to come down and make copy of that document

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Speaker 4: in order for anyone else to find out what is

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Speaker 4: in it. And so that's why people don't know because

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Speaker 4: until finally that person who is detained ends up making

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Speaker 4: human contact with an attorney or someone else, no one

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Speaker 4: will know anything about this person's case.

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Speaker 3: And can a person even get a hearing for cancelation

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Speaker 3: of a visa.

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Speaker 4: It's going to depend what the grounds were for removals.

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Speaker 4: There's a thing called INA section two fourteen B. It's

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Speaker 4: like a catch all provision that says, if we don't

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Speaker 4: think you're doing the things you're supposed to be doing

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Speaker 4: here on your visa, you can cancel your visa. So

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Speaker 4: if the Secretary Ruvio is canceling visas, pursue it to

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Speaker 4: two fourteen B, then what can happen in those visitor

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Speaker 4: visa cases is that the reason for the removal is

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Speaker 4: just that you have a canceled visa and that's it.

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Speaker 4: So then you would just have a case about whether

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Speaker 4: your visa was canceled in the entry would be yes.

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Speaker 4: So in those situations, there's not really anything to have

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Speaker 4: a hearing about for those people, and they will lose.

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Speaker 4: But that cannot be done to the Green card holders.

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Speaker 4: So for the Green card holders, an actual ground of

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Speaker 4: removability is going to need to be asserted, and so

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Speaker 4: for that, if it's terrorism, then there will need to

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Speaker 4: be a trial and immigration court about terrorism, or if

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Speaker 4: it's some other ground of crime, and there will need

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Speaker 4: to be a trial inst of that. The only one

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Speaker 4: where there will be an argument about whether a trial

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Speaker 4: is valid is this issue of whether the Secretary thinks

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Speaker 4: your presence is contrary to the interest of US foreign policy,

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Speaker 4: And that's where there are these habeases being filed saying, Look,

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Speaker 4: they're trying to pre ent this argument, say you can't

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Speaker 4: put me in a process where I don't get to

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Speaker 4: have some sort of due process and trial, or that

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Speaker 4: that statue in and of itself is unconstitutional because it

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Speaker 4: can be used without any guard rails of any kind,

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Speaker 4: meaning it could just be used on anybody for any reason.

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Speaker 4: And if that's true, is that really what Congress intended there?

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Speaker 3: And so their best bet is then challenging the constitutionality

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Speaker 3: of a statute.

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Speaker 4: Because really, at the end of the day, it's hard

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Speaker 4: to have a trial on whether the Secretary of State

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Speaker 4: should think or shouldn't think that your presence is contrary

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Speaker 4: to the interest of foreign policy. That's a tougher one,

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Speaker 4: because how are the courts going to substitute their judgment

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Speaker 4: for the secretary. It seems like the more promising argument

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Speaker 4: there is just that that statute is unconstitutional because it's

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Speaker 4: too vague and it's basically a violation of someone's due

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Speaker 4: process right because there's no way to get yourself out

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Speaker 4: from under such a thing. The only thing there will

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Speaker 4: be hot is one challenge that can one challenge that prehmptively,

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Speaker 4: like the people are trying to challenge, which I think

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Speaker 4: they're finding sympathetic judges right now, but most likely that's

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Speaker 4: going to be viewed as not valid. What's probably going

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Speaker 4: to have to happen is they're going to have to

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Speaker 4: go through the removal process and then challenge it at

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Speaker 4: the end as what's called the petition for review of

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Speaker 4: a final Order of removal, and then the courts will

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Speaker 4: get to these cases and decide whether those statutes are

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Speaker 4: constitutional or not.

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Speaker 3: There's been a lot of litigation over the hundreds of

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Speaker 3: Venezuelan's alleged gang members deported to prison in El Salvador.

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Speaker 3: Where does that stand?

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Speaker 4: So there's currently an injunction that was issued by the

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Speaker 4: District Court in DC Judge Bozburg, and that's actually been

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Speaker 4: affirmed two to one by the Court of Appeals of

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Speaker 4: the DC Circuits that says that you can't deport anyone

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Speaker 4: using the Alien Enemies Act. And there's actually a different

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Speaker 4: injunction issued by a different court which says you can't

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Speaker 4: do these third country deportations, meaning you can't send people

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Speaker 4: to a third country just willy nilly without giving them

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Speaker 4: some ability and due process to challenge that removal to

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Speaker 4: a different country. Those two injunctions should operate theoretically to

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Speaker 4: prevent deportations to Alsovodor right now, Venezuelan, But there was

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Speaker 4: just a deportation today of seventeen people to Alsavodor who

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Speaker 4: were claimed to be Venezuelan gang members. The interesting question

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Speaker 4: would be whether those people all had findal orders of

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Speaker 4: removal and were not Alien Enemies Act deportations, whether they

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Speaker 4: were people who could have been deported.

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Speaker 1: And then the.

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Speaker 4: Question also is did this deportation violate this third country

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Speaker 4: removal injunction that was issued, And so that's going to

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Speaker 4: be an issue that's going to be scrutinized as Well,

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Speaker 4: but we're gonna have to see where these new seventeen

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Speaker 4: people who were deported fit into this puzzle and whether

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Speaker 4: an injunction was actually violated.

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Speaker 3: There coming up panic about traveling among Green card holders.

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Speaker 3: This is Bloomberg. There's a lot of litigation concerning the

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Speaker 3: deportations of alleged Venezuelan gang members to prison in El Salvador.

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Speaker 3: A federal district court judge has put a temporary halt

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Speaker 3: on the deportations, and a federal appeals court has upheld

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Speaker 3: that order. And now the Trump administration is asking the

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Speaker 3: Supreme Court to allow it to resume deportations of the

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Speaker 3: alleged gang members without hearings. I've been talking to Leon

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Speaker 3: Fresco of Honda Knight. So Judge Bosburg ruled that the

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Speaker 3: Trump administration can't deport the five Venezuelan plaintiffs in the case.

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Speaker 3: What about the Venezuelans who are already.

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Speaker 4: There, Well, that's going to be an issue for later

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Speaker 4: this week. The court is going to have to decide

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Speaker 4: the fate of those individuals and whether those individuals can

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Speaker 4: be brought back to the United States. And also the

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Speaker 4: Supreme Court is also being oustd the way in on

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Speaker 4: this injunction, and they're being asked to say his injunctions

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Speaker 4: so that more deportations can happen in El Salvador. So

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Speaker 4: we're going to have court rule ins coming from both directions,

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Speaker 4: both from the Supreme Court and from the District Court.

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Speaker 4: The District Court on whether it's injunction means that it

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Speaker 4: should bring people back to the United States, and the

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Speaker 4: Supreme Court on whether all of this was improvidently done

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Speaker 4: and the Trump administration can continue just as it started,

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Speaker 4: the porting whoever it says is an alien enemy into

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Speaker 4: these prisons in El Salvador.

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Speaker 3: And also attorneys hired by the Venezuelan government have filed

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Speaker 3: an action in El Salvador to get the imprisoned Venezuelans

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Speaker 3: released or transferred and repatriated. The question is whether there's

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Speaker 3: a basis for holding them even under El Salvador law.

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Speaker 4: The issue here is the following. Both Al Salvador and

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Speaker 4: the United States have similar laws which say that at

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Speaker 4: the end of the day, you can't have people in

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Speaker 4: detention if they didn't actually commit a crime and were

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Speaker 4: punished for detention, unless the purpose is to create some

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Speaker 4: sort of very minimal backstop in order to secure the

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Speaker 4: removal of individuals. And so the question is for Alsavador,

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Speaker 4: why are these individuals being detained in Alsavador If they

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Speaker 4: can be moved quickly to Venezuela, then the point from

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Speaker 4: the Venezuelan standpoint is these individuals should be moved because

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Speaker 4: there's no basis for Alsavador to be detaining these individuals.

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Speaker 4: They were not punished for any crimes they committed in Alsavador,

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Speaker 4: and they did not actually commit any crimes. There's no

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Speaker 4: reason legally that the Asavador government would be detaining them,

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Speaker 4: and so that's the issue that the Venezuelan government is

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Speaker 4: going to try to get to. But then the issue

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Speaker 4: is does that mean that Venezuela is going to agree

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Speaker 4: to start taking these individuals. And if it does, then

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Speaker 4: it'll have a much stronger case. But if it doesn't

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Speaker 4: agree to start taking these individ visuals, then what Alsavador

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Speaker 4: would say is we can't have these violent gang members

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Speaker 4: free in Alsavador. They will create instability in Alsavador. So

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Speaker 4: we have no choice that they're going to be deported here.

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Speaker 4: We have to have them detained until Nzuela agreed to

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Speaker 4: accept them.

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Speaker 3: There are about twelve point eight million Green card holders

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Speaker 3: living in the United States, and there are a lot

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Speaker 3: of concerns with these high profile arrests of some Green

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Speaker 3: card holders, including at least one who was returning to

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Speaker 3: the United States and arrested at Logan International. And there

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Speaker 3: are reports of shall we say, stepped up activity at

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Speaker 3: the airports by customs and border patrol.

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Speaker 4: There is much more press scrutiny, for sure, being given

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Speaker 4: to airport actions. Statistically, the numbers are still pretty low,

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Speaker 4: just because there's only so much capacity at these airports

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Speaker 4: to be doing this. The airports aren't taking in tens

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Speaker 4: of thousands of people a day on these flights, and

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Speaker 4: they're debating at the end of the day a handful

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Speaker 4: maybe ten or twenty individuals per day. But these ten

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Speaker 4: or twenty individuals per day, some of them have become

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Speaker 4: very high profile cases recently French scientists coming for conventions,

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Speaker 4: British tourists, Canadian tourists, German tourists who aren't people typically

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Speaker 4: detained at these facilities and moreover, the problem is it's

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Speaker 4: very typical for the border patrol when they detain someone

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Speaker 4: to take their phone and to basically find what's in

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Speaker 4: their phone and see if there's something in their phone

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Speaker 4: that's incriminating. And so there's much more this sort of

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Speaker 4: stuff coming out in the news where they say that

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Speaker 4: the CBP found something on the phone, and this is

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Speaker 4: creating a lot of nervousness from people traveling into the

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Speaker 4: United States. What I would say is this, which is

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Speaker 4: statistically traveling into the United States is still ninety nine

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Speaker 4: percent of the time not going to be a problem

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Speaker 4: for most people. But if you are traveling in, for instance,

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Speaker 4: one of these visa waiver program situations, which is that

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Speaker 4: you don't need a visa, many people have used these

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Speaker 4: programs who may have done something slightly questionable. They've worn't

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Speaker 4: or they're married and they're traveling they're married to a

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Speaker 4: US citizen. If there's anything questionable like that, and it's

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Speaker 4: not a truly normal visit where someone is just going

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Speaker 4: to Disney World, or they're going for a brief trip

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Speaker 4: of a business convention or conference or something like that,

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Speaker 4: if there's something more to it, where there's a work

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Speaker 4: component involved, or the person is somehow trying to skirt

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Speaker 4: just the normal travel, those are the people that need

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Speaker 4: to start being a little bit more careful about what

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Speaker 4: they're doing, because the CBP is letting a lot less

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Speaker 4: of that slide than previously.

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Speaker 3: Residents are they questioning them at the airports too.

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Speaker 4: If you're a lawful permanent resident of the United States,

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Speaker 4: you are entitled to be admitted into the United States.

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Speaker 4: The only times where this gets a little bit tricky

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Speaker 4: is there are people who have had convictions from maybe

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Speaker 4: twenty or thirty years ago that don't realize that those

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Speaker 4: convictions are deportable offenses, and when they're traveling in they're

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Speaker 4: now being told, hey, you have this deportable offense in

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Speaker 4: your background, we're going to be placed into deportation proceedings.

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Speaker 4: There's some of that, but also, look, if you are

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Speaker 4: one of these people that's subject to a random inspection

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Speaker 4: and then they find on your phone all kinds of

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Speaker 4: stuff that's very questionable for the purposes of what the

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Speaker 4: government is finding questionable these days, then they could potentially say, look,

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Speaker 4: this is a person who is someone that Secretary Rubio

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Speaker 4: wants to then say is subject to the foreign policy

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Speaker 4: Exception and be deported. Now, that person might be detained

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Speaker 4: for a while before such an exemption is made, and

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Speaker 4: so that is theoretically possible in those situations, And so

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Speaker 4: what does that mean. It means that it's a different

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Speaker 4: environment for travelers now, and travelers need to start assessing

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Speaker 4: are they at high risk based on things they've said

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Speaker 4: or done in terms of the priorities of this administration.

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Speaker 4: And that's definitely a new frontier that didn't exist previously.

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Speaker 3: It's a lot to take in. Thanks so much. Leon.

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Speaker 3: That's Leon Fresco, a partner at Holland and Knightay with

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Speaker 3: me and.

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Speaker 4: I had a premission with them with the.

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Speaker 3: Pop singer Dua Lipa has won a second copyright infringement

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Speaker 3: lawsuit over her mega hit Levitating, which became a viral

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Speaker 3: sensation used on millions of TikTok videos. The plaintiffs accused

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Speaker 3: her of copying two disco songs, their nineteen seventy nine

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Speaker 3: song Wiggle and Giggle All Night and their nineteen eighty

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Speaker 3: song Don Diablo, but a judge tossed the lawsuit, granting

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Speaker 3: summary judgment after finding that the plaintiffs failed to back

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Speaker 3: up their allegations that Levitating was substantially similar to the

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Speaker 3: protectable aspects of their works. Joining me is entertainment attorney

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Speaker 3: Ronald Beinstock, a partner at Scarrency hollinbeck Ron start by

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Speaker 3: telling us about the first copyright infringement lawsuit Dua LiPo

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Speaker 3: one involving a reggae group.

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Speaker 1: Always my favorite topics, because you know, these are relatives

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Speaker 1: calling you, sending you texts, hey man, what do you

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Speaker 1: think about this kind of stuff. Everybody has all the

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Speaker 1: layman's versions of these things, but there's some you know,

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Speaker 1: there's some deep dive on some law and also fast

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Speaker 1: there's a twenty seventeen song by a relatively and I

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Speaker 1: don't want to result anybody, it's relatively unknown reggae group

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Speaker 1: in Florida. And this first case of person fingering case

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Speaker 1: was that you got to prove access. As you know

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Speaker 1: on all of these cases, two step process. The giant

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Speaker 1: hurdle is access. Then you've got substantial similarity. If you

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Speaker 1: don't have access and you can't really prove it, you

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Speaker 1: can't say somebody heard of this, or it was a hit,

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Speaker 1: someone should have heard of it, or you're on touris them,

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Speaker 1: or you shared the same manager, or you shared the

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Speaker 1: same producers or all those different check the box for access.

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Speaker 1: Then you've got to have some striking similarity to go further,

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Speaker 1: and that's where the subtle chords usually go. Okay, there's

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Speaker 1: your bar right, and this doesn't strike similar So back

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Speaker 1: to our reggae claim. So you've got effectively a four

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Speaker 1: chord pattern that is in minor key. The song levitatings

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Speaker 1: and B minor and the chord sort of match up.

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Speaker 1: But that's not how this works musically. If you don't

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Speaker 1: mind me singing, I hope I don't ruin. Everybody's still ahead.

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Speaker 1: But there are two things that are very clear in

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Speaker 1: both cases involving the song levitating. It's this pattern data

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Speaker 1: da da da da da da da da da da

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Speaker 1: da da data descending chromatic across the four chords. Here

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Speaker 1: you go da da da da da da da da

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Speaker 1: da da da da da da. And that's going to

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Speaker 1: be what somebody's got to hang their legal hat on

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Speaker 1: and say that is not a common element. You don't

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Speaker 1: hear that very often. And these things match up when

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Speaker 1: you do this analysis the way we do with courts.

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Speaker 1: When we take these melodies and we put them into

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Speaker 1: the TSC or you match them up in the relative key,

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Speaker 1: those notes are in a match up, and then they

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Speaker 1: talk about harmonic you know, styling and all these well,

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Speaker 1: that's staying alive. Dada da da da da da da

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Speaker 1: da da da da da da da da. Right, we've

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Speaker 1: heard that before. So immediately when you start seeing the

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Speaker 1: judge saying Mozart and Gilbert and Sullivan, Gilbert and Sullivan

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Speaker 1: and mentions the begs, you know, starting with both starts,

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00:22:47,760 --> 00:22:51,960
Speaker 1: that's a pretty common element. So when people say, hey,

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Speaker 1: I've heard that before, Sure you did. You heard it

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Speaker 1: probably six centuries ago. And the dgs da da da

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Speaker 1: da da da da da da da statalized, you know,

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Speaker 1: these are sort of common elements. So the first part

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Speaker 1: is that the planets in the first case involving the

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Speaker 1: reggae event couldn't prove access. And then it really fell

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Speaker 1: apart once you start talking about common elements. These two

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Speaker 1: things sounds so much alike and they're strikingly similar, and

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Speaker 1: it got dismissed and that was the end. And if

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Speaker 1: I'm going to give you one more pop culture reference,

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Speaker 1: the chords are the same things to ELO's Evil Women.

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Speaker 1: These are common and four chord patterns and songs. We

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Speaker 1: could be here all day. I mean, they're really common.

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Speaker 1: So the first case really rested upon if you will

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Speaker 1: and dismissal rested upon the idea that you had no

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00:23:43,160 --> 00:23:44,800
Speaker 1: access and they're not strikingly similar.

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Speaker 3: So we go from reggae to the second case, which

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Speaker 3: involves two disco songs.

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Speaker 1: The second case is interesting because I think this was

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Speaker 1: a slightly more sophisticated approach to it, right they still

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Speaker 1: it kind of didn't work on the first matter that

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00:23:59,760 --> 00:24:01,720
Speaker 1: they that precedence, So now you can kind of roll

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Speaker 1: into what what should we do that's different? Here, still

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00:24:04,560 --> 00:24:07,199
Speaker 1: the same issues. It's in B minor, and now you

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Speaker 1: have this nineteen seventy nine wiggle and giggle in E

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Speaker 1: flat major, and then this Don Diablo only in Spanish,

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Speaker 1: stung in Spanish, also in a major case B flat major.

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Speaker 1: So you already start with some variations right right. Getting started.

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Speaker 1: The other thing that the lay person generally, and they

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Speaker 1: discussed this with me, and I'm sure discussed this with you,

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Speaker 1: is it's about publishers. This is not about dualalipa. This

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Speaker 1: is about the publishers, the lawsuits involved, who controls the copyright.

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Speaker 1: So these are major publishers, you know, Warners, Sony, Universal Music.

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Speaker 1: So they're going to get some really powerful teams of

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Speaker 1: really experienced copyright lawyers. I know some of these people.

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Speaker 1: They're great at what they do. They've enters before. So

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Speaker 1: you start already with the concept of all right, where's

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Speaker 1: our access. Where's that giant hurdle you've got to get

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Speaker 1: over a nineteen seventy nine disco tunes called Wiggle and Giggle.

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Speaker 1: And then you have the Spanish only Don Diablo. When

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Speaker 1: would these writers which is for writers, it's not just

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Speaker 1: Stu Aliva, when would these people have access to that song?

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Speaker 1: So that's a huge hurtle. If you don't prove fa,

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Speaker 1: you're right back to this, what's strikingly similar? So the

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Speaker 1: plaintiff said the opening melody was duplicated throughout the song

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00:25:23,240 --> 00:25:26,119
Speaker 1: and gave a retro field. Well, okay, that doesn't count.

435
00:25:26,600 --> 00:25:31,320
Speaker 1: Retro feel is not substantive. Again, we're not talking about

436
00:25:31,320 --> 00:25:34,040
Speaker 1: the copyright and the sound recording. This is where the

437
00:25:34,240 --> 00:25:36,760
Speaker 1: average lay person pulls off the cliff on this. We're

438
00:25:36,800 --> 00:25:39,880
Speaker 1: talking only about the composition, the idea that things may

439
00:25:40,119 --> 00:25:42,600
Speaker 1: sound similar because they are of the same beat and

440
00:25:42,680 --> 00:25:46,720
Speaker 1: other elements not controlling here, it's the song. So you

441
00:25:46,800 --> 00:25:49,760
Speaker 1: had this claim that the opening melody was duplicated, and

442
00:25:49,800 --> 00:25:52,119
Speaker 1: then the defense was well, wait a second, these are

443
00:25:52,240 --> 00:25:57,080
Speaker 1: non copyrightable elements, just like our last case, right, common elements,

444
00:25:57,280 --> 00:26:00,959
Speaker 1: common flour chords and that common descent pattern of da

445
00:26:01,000 --> 00:26:02,280
Speaker 1: da da da da da da da da da da

446
00:26:02,320 --> 00:26:04,560
Speaker 1: da da da da da, And so these are not

447
00:26:04,920 --> 00:26:08,880
Speaker 1: enough to prove it strikingly similar. And the judge dismissed

448
00:26:09,040 --> 00:26:12,280
Speaker 1: and said, no, I'm giving you some rejudgment to defendant.

449
00:26:12,680 --> 00:26:15,480
Speaker 1: And I took a look at the experts, and we

450
00:26:15,520 --> 00:26:18,200
Speaker 1: had the delbert claims about whether they were acting as

451
00:26:18,200 --> 00:26:21,000
Speaker 1: experts in their opinion. You know, all the infighting will

452
00:26:21,040 --> 00:26:23,840
Speaker 1: go on in federal court about experts and copyright. But

453
00:26:23,920 --> 00:26:26,760
Speaker 1: ultimately the judge said, hey, these are common elements. I

454
00:26:26,760 --> 00:26:29,760
Speaker 1: can't let this case proceed and using some rejudgment.

455
00:26:30,240 --> 00:26:33,800
Speaker 3: Some are saying that this case benefited from the precedent

456
00:26:33,960 --> 00:26:35,600
Speaker 3: set in the ed Seering case.

457
00:26:35,800 --> 00:26:39,280
Speaker 1: All right, So the ed Scheering case it went a verdict, right,

458
00:26:39,440 --> 00:26:43,560
Speaker 1: It was not decided in a summary rejudgment or dismissal.

459
00:26:43,800 --> 00:26:48,200
Speaker 1: The jury got to hear Ed Sheeran play his song

460
00:26:48,280 --> 00:26:51,960
Speaker 1: in his version live. That to me was an error

461
00:26:52,080 --> 00:26:55,560
Speaker 1: by the plinker because then he got to interpret any

462
00:26:55,560 --> 00:26:58,480
Speaker 1: way he wanted in front of this court how he

463
00:26:58,840 --> 00:27:01,760
Speaker 1: would present that song. So that's a problem with just

464
00:27:01,800 --> 00:27:04,919
Speaker 1: the presentation of evidence in control of that. The second

465
00:27:04,920 --> 00:27:08,440
Speaker 1: part was throughout his case they said there are some

466
00:27:08,480 --> 00:27:12,119
Speaker 1: common elements in music, right, there are common patterns and

467
00:27:12,280 --> 00:27:15,879
Speaker 1: common things. You don't own an idea for a song,

468
00:27:16,240 --> 00:27:20,600
Speaker 1: and that runs two ways. One it's the sound recording,

469
00:27:20,720 --> 00:27:24,440
Speaker 1: which is the problematic. Cases always have the idea that

470
00:27:24,480 --> 00:27:26,920
Speaker 1: someone got to hear it. That's not what we're talking about,

471
00:27:26,920 --> 00:27:29,760
Speaker 1: big X through that only talking about the songs. So

472
00:27:29,920 --> 00:27:33,520
Speaker 1: if you have a song that has common elements, we're

473
00:27:33,520 --> 00:27:36,920
Speaker 1: not talking about other audio similarities. We're just talking about

474
00:27:36,920 --> 00:27:41,000
Speaker 1: the common elements in the composition. And yet you can't

475
00:27:41,800 --> 00:27:46,880
Speaker 1: prove that these common elements are listed right, they're not protectable.

476
00:27:47,240 --> 00:27:49,160
Speaker 1: Then that you get the same results that you had

477
00:27:49,160 --> 00:27:51,280
Speaker 1: with as Sharon right, they're not protectable. He has his

478
00:27:51,320 --> 00:27:54,320
Speaker 1: own he has his own interpretation of that does not

479
00:27:54,960 --> 00:27:58,600
Speaker 1: match up to your claims. And so eventually that case

480
00:27:58,640 --> 00:28:01,440
Speaker 1: went its way. An element scene comes to play in

481
00:28:01,520 --> 00:28:03,680
Speaker 1: all free of these to some extent. The first one

482
00:28:04,119 --> 00:28:07,160
Speaker 1: really is just based upon no access at all. So

483
00:28:07,440 --> 00:28:10,280
Speaker 1: we kind of get that running through all these cases.

484
00:28:10,400 --> 00:28:13,119
Speaker 1: Those are all Southern districts are all here in New

485
00:28:13,200 --> 00:28:16,000
Speaker 1: York season you can get the same circus decisions to

486
00:28:16,040 --> 00:28:19,160
Speaker 1: get some unanimity as to the decision making.

487
00:28:19,680 --> 00:28:21,800
Speaker 3: What does it say about the song if you have

488
00:28:22,119 --> 00:28:24,560
Speaker 3: two different copyright suits.

489
00:28:24,200 --> 00:28:26,639
Speaker 1: It says that the song made a lot of money,

490
00:28:28,400 --> 00:28:31,720
Speaker 1: and no one would care unless it's made a lot

491
00:28:31,720 --> 00:28:36,800
Speaker 1: of money. So this is a popular artist, and everybody

492
00:28:36,840 --> 00:28:40,440
Speaker 1: wants a piece of what is to be a hit.

493
00:28:40,960 --> 00:28:42,880
Speaker 1: And you know, all we got to do is talk

494
00:28:42,880 --> 00:28:45,360
Speaker 1: about the Mariah Carry lawsuit and we're right into rolling

495
00:28:45,400 --> 00:28:49,000
Speaker 1: right into that series. But everybody wants a piece of

496
00:28:49,080 --> 00:28:52,280
Speaker 1: something that's been popular or stay popular or has some

497
00:28:52,480 --> 00:28:54,680
Speaker 1: type of longevity as a hit. I don't know if

498
00:28:54,680 --> 00:28:57,480
Speaker 1: the song stays in the world of longevity it hits

499
00:28:57,600 --> 00:28:59,800
Speaker 1: or not. That magic a ball answer I don't have.

500
00:29:00,320 --> 00:29:04,040
Speaker 1: But these lawsites just don't happen unless there's money, and

501
00:29:04,200 --> 00:29:08,280
Speaker 1: real money involved. And every time there's a hit, you're

502
00:29:08,320 --> 00:29:11,040
Speaker 1: gonna have a couple of different issues here in incomes

503
00:29:11,160 --> 00:29:14,760
Speaker 1: in music, publishers still be performance for OLP income to

504
00:29:14,880 --> 00:29:18,840
Speaker 1: the writers and publishers. You're gonna have synchronization licenses for

505
00:29:18,880 --> 00:29:22,280
Speaker 1: a successful song that gets onto TV and film. You

506
00:29:22,320 --> 00:29:24,280
Speaker 1: can have sect, so you start with radio. Now you're

507
00:29:24,280 --> 00:29:26,600
Speaker 1: down to film and TV. You're gonna have that song

508
00:29:26,760 --> 00:29:30,880
Speaker 1: placed in songs in movies and TV shows. There's mechanical

509
00:29:30,920 --> 00:29:34,640
Speaker 1: income from downloading, if you sell the physical vinyl or

510
00:29:34,720 --> 00:29:36,480
Speaker 1: if they're still selling TVs. I don't know if he

511
00:29:36,520 --> 00:29:39,080
Speaker 1: does that anymore, but if they did, you have mechanical incomes,

512
00:29:39,200 --> 00:29:42,160
Speaker 1: and then you could get the covers for a successful song.

513
00:29:42,440 --> 00:29:46,080
Speaker 1: The party payments of their mechanical income. If there's a

514
00:29:46,080 --> 00:29:49,120
Speaker 1: sheet music world here that still buys sheet songbooks for

515
00:29:49,240 --> 00:29:51,880
Speaker 1: dua lipa, that means money. And if it makes its

516
00:29:51,920 --> 00:29:55,280
Speaker 1: way to a Broadway production, that's a grand right. That's

517
00:29:55,280 --> 00:29:56,640
Speaker 1: why people still oversease.

518
00:29:57,280 --> 00:29:59,880
Speaker 3: Let's turn to Mariah Carey, who beat a twenty million

519
00:30:00,080 --> 00:30:04,120
Speaker 3: dollar copyright case over her Christmas hit All I Want

520
00:30:04,200 --> 00:30:08,480
Speaker 3: for Christmas Is You? Was this lawsuit not based on

521
00:30:08,560 --> 00:30:11,480
Speaker 3: the music but on the words of the songs?

522
00:30:11,520 --> 00:30:14,320
Speaker 1: Probably the best question anyone's asked about that, because everybody

523
00:30:14,400 --> 00:30:16,960
Speaker 1: kind of lifts the wrong page in that result. So

524
00:30:17,040 --> 00:30:19,479
Speaker 1: let's go back to your question, because it's just right

525
00:30:19,560 --> 00:30:22,840
Speaker 1: on point. First. I don't often get to say someone's

526
00:30:22,840 --> 00:30:26,000
Speaker 1: taking a hit, had an evergreen hit? Evergreen hit my

527
00:30:26,160 --> 00:30:30,760
Speaker 1: pun there meets me. It's a Christmas it's and you

528
00:30:30,800 --> 00:30:34,000
Speaker 1: can't protect the title. First level of analysis. I'm not

529
00:30:34,040 --> 00:30:37,160
Speaker 1: sure what people were thinking. We have the same title. Okay,

530
00:30:37,800 --> 00:30:41,000
Speaker 1: that's not protectable. So they were to really start and

531
00:30:41,040 --> 00:30:44,920
Speaker 1: then the common element melody and other, we're not here

532
00:30:45,440 --> 00:30:47,640
Speaker 1: back to your lyric question. Want to hear it's the

533
00:30:47,640 --> 00:30:50,120
Speaker 1: common lyrics flurry at the bust out laugh and on this.

534
00:30:50,200 --> 00:30:53,440
Speaker 1: I'm sorry, I'm insulting any attorneys on this, but get ready,

535
00:30:53,640 --> 00:31:00,160
Speaker 1: here the common lyrics this wiletoe, Santa Stocking, snow and Christmas.

536
00:31:00,640 --> 00:31:05,400
Speaker 1: Oh ooh when you put it like that, ooh, that's

537
00:31:05,440 --> 00:31:09,600
Speaker 1: not going very far. That is just just not going

538
00:31:09,680 --> 00:31:12,440
Speaker 1: to carry the day. You can't protect the title. You've

539
00:31:12,440 --> 00:31:15,720
Speaker 1: got common elements and lyrics. You've got no question that

540
00:31:15,760 --> 00:31:19,400
Speaker 1: you're claiming with the melodies are exactly the same. And

541
00:31:19,600 --> 00:31:23,560
Speaker 1: here's sort of a sidebar moment. They claimed access and

542
00:31:23,680 --> 00:31:26,440
Speaker 1: got the case rolling through the process in the closest

543
00:31:26,720 --> 00:31:29,800
Speaker 1: because they claimed access that it had been a big

544
00:31:29,880 --> 00:31:32,840
Speaker 1: hit in the country chart, a kid or not. Their

545
00:31:33,160 --> 00:31:35,920
Speaker 1: song called Well I Went for Christmas View was a

546
00:31:35,960 --> 00:31:39,320
Speaker 1: country hit roughly the same time, so their access was

547
00:31:39,320 --> 00:31:42,920
Speaker 1: based upon yeah, it was a charting song, whether a

548
00:31:43,000 --> 00:31:46,560
Speaker 1: country hit yet listened to by a pop star and

549
00:31:46,600 --> 00:31:51,480
Speaker 1: her co writer, whilst says and don't know, but this

550
00:31:51,520 --> 00:31:54,560
Speaker 1: one fell down the stairs pretty quickly in the ninth

551
00:31:54,560 --> 00:31:59,240
Speaker 1: circuits in California because it wasn't provable. And I want

552
00:31:59,240 --> 00:32:02,880
Speaker 1: to add also get sanctions and partial attorney fees were

553
00:32:02,880 --> 00:32:05,680
Speaker 1: granted against the flankiffs on.

554
00:32:05,720 --> 00:32:08,280
Speaker 3: The back to do Aleapa from for a minute. It

555
00:32:08,400 --> 00:32:12,440
Speaker 3: sort of always surprises me that that judges, and I

556
00:32:12,520 --> 00:32:15,479
Speaker 3: don't know if this judge has any musical background or not,

557
00:32:16,000 --> 00:32:19,600
Speaker 3: are able to come to these decisions, you know, to

558
00:32:19,640 --> 00:32:21,960
Speaker 3: figure out really the musical notes.

559
00:32:21,840 --> 00:32:25,040
Speaker 1: You're going to rely on. You're going to rely on

560
00:32:25,920 --> 00:32:29,680
Speaker 1: the musicologists, right because the judges are going to make

561
00:32:29,720 --> 00:32:33,960
Speaker 1: the decision based upon their own Even though judges in

562
00:32:34,000 --> 00:32:37,880
Speaker 1: the past, go back to the George Harrison case with

563
00:32:38,000 --> 00:32:40,240
Speaker 1: Pisa find my Street Lord, way way way way back,

564
00:32:40,280 --> 00:32:42,360
Speaker 1: the judge kind of said, hey, I'm a musician, I

565
00:32:42,400 --> 00:32:45,280
Speaker 1: get this. That is actually a little bit of that case.

566
00:32:45,480 --> 00:32:49,520
Speaker 1: And I've had judges in federal court who, you know,

567
00:32:49,800 --> 00:32:51,920
Speaker 1: kind of made reference to the fact that they played

568
00:32:51,920 --> 00:32:54,800
Speaker 1: an instrument. Me as a musician, I don't get to testify.

569
00:32:54,960 --> 00:32:58,240
Speaker 1: I'm the lawyer, so I can only use my musicologist,

570
00:32:58,560 --> 00:33:01,160
Speaker 1: which I hope never gets that far and it seldom does,

571
00:33:01,280 --> 00:33:04,400
Speaker 1: should say even more than seldom does rarely if it

572
00:33:04,440 --> 00:33:08,160
Speaker 1: ever does, to get that far. Because there's always this

573
00:33:08,280 --> 00:33:13,440
Speaker 1: idea that what the judge is listening to are battling experts, right,

574
00:33:13,480 --> 00:33:16,160
Speaker 1: and the judge gave in this particular case, the judge

575
00:33:16,160 --> 00:33:19,360
Speaker 1: gave credence to both sides and waited and said, look,

576
00:33:19,640 --> 00:33:22,120
Speaker 1: I don't really find the access here, so it's got

577
00:33:22,120 --> 00:33:27,160
Speaker 1: to be strikingly similar your your plaintiffs experts. They're making

578
00:33:27,200 --> 00:33:29,560
Speaker 1: some good points here, but not carrying the day that

579
00:33:30,000 --> 00:33:32,360
Speaker 1: they didn't get over the common elements of these two things.

580
00:33:32,920 --> 00:33:35,120
Speaker 1: And the expert on the other side has said, look,

581
00:33:35,120 --> 00:33:37,680
Speaker 1: these are really common and with pointing because most are

582
00:33:37,840 --> 00:33:41,200
Speaker 1: going forward, and I have in my amazing singing voice

583
00:33:41,280 --> 00:33:44,200
Speaker 1: for you that it's data da da da da da

584
00:33:44,280 --> 00:33:46,920
Speaker 1: da da da da da data data, right. And you

585
00:33:46,960 --> 00:33:49,640
Speaker 1: know that's ultimately what it came down to, is that

586
00:33:49,640 --> 00:33:52,440
Speaker 1: these of common elements and thank you for playing, but no,

587
00:33:52,560 --> 00:33:55,160
Speaker 1: I'm going to dismiss it. You get to somebody judgment

588
00:33:55,440 --> 00:33:59,160
Speaker 1: and they rely on the musicologists to get there. But

589
00:33:59,480 --> 00:34:01,640
Speaker 1: between you and I and anyone who might be listening

590
00:34:01,680 --> 00:34:04,800
Speaker 1: to this, I think some of the judges quietly don't

591
00:34:04,920 --> 00:34:07,680
Speaker 1: stay it out loud, but they say, you know, I

592
00:34:07,680 --> 00:34:10,439
Speaker 1: have an opinion on this, you know, I think there's

593
00:34:10,440 --> 00:34:13,560
Speaker 1: something I want to probably I have a position I'm

594
00:34:13,560 --> 00:34:15,320
Speaker 1: going to take, maybe on some of my own knowledge,

595
00:34:15,360 --> 00:34:16,960
Speaker 1: if but they generally don't say that.

596
00:34:18,440 --> 00:34:21,480
Speaker 3: I expected more singing. Ron you did da da da

597
00:34:21,560 --> 00:34:23,200
Speaker 3: da da da. That's not singing, you know.

598
00:34:23,480 --> 00:34:26,080
Speaker 1: But you and that's that's the melody, right and right.

599
00:34:26,640 --> 00:34:28,520
Speaker 1: The do a leaf apart. And this is the thing

600
00:34:28,560 --> 00:34:30,920
Speaker 1: about any time they're sort of hip hop oriented or

601
00:34:30,960 --> 00:34:33,319
Speaker 1: spoken work things, because the melodies can be you know,

602
00:34:33,520 --> 00:34:36,120
Speaker 1: just the rhythmic. So in here a lot of what

603
00:34:36,239 --> 00:34:41,239
Speaker 1: the issues were. We're rhythmics, right da da da. The lyrics,

604
00:34:41,600 --> 00:34:45,480
Speaker 1: the lyrics really were not matching up. I mean that

605
00:34:45,560 --> 00:34:48,440
Speaker 1: you just didn't have these common elements of lyrics like

606
00:34:48,840 --> 00:34:51,760
Speaker 1: and and then it fell really short on the Mariah carry.

607
00:34:51,840 --> 00:34:53,560
Speaker 1: I mean, they just didn't mind up. And I think

608
00:34:53,600 --> 00:34:56,680
Speaker 1: that's that judge clearly said, wait a second, you're not

609
00:34:57,120 --> 00:35:00,279
Speaker 1: You should never approbably a broster. Maybe one day will

610
00:35:00,320 --> 00:35:04,400
Speaker 1: have professional juries like they do in some other countries

611
00:35:04,440 --> 00:35:07,480
Speaker 1: with commercial works like this where they are earning income,

612
00:35:08,000 --> 00:35:10,759
Speaker 1: and there'll be a professional jury where we have not

613
00:35:11,200 --> 00:35:14,840
Speaker 1: had that proposed yet. So here we are going to

614
00:35:14,840 --> 00:35:18,640
Speaker 1: be generally in jurisdiction where these cases pop up more

615
00:35:18,680 --> 00:35:21,719
Speaker 1: often than others. Southern District of New York, you know,

616
00:35:21,880 --> 00:35:24,880
Speaker 1: Middle District, California, and the ninth speak of judges that

617
00:35:24,880 --> 00:35:29,400
Speaker 1: have seen these, heard these experience in them, and I

618
00:35:29,400 --> 00:35:32,880
Speaker 1: think you're getting a reasoned opinion on all of these capes.

619
00:35:33,200 --> 00:35:37,040
Speaker 3: Thanks so much for your analysis and your singing. That's entertainment.

620
00:35:37,040 --> 00:35:41,200
Speaker 3: Attorney Ron Beanstock, Obscurency Hollindbeck, and that's it for this

621
00:35:41,360 --> 00:35:44,080
Speaker 3: edition of The Bloomberg Law Show. Remember you can always

622
00:35:44,120 --> 00:35:47,040
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.

623
00:35:47,320 --> 00:35:50,359
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

624
00:35:50,520 --> 00:35:55,520
Speaker 3: www dot Bloomberg dot com, slash podcast Slash Law, And

625
00:35:55,600 --> 00:35:58,680
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

626
00:35:58,760 --> 00:36:02,200
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and

627
00:36:02,280 --> 00:36:08,440
Speaker 3: you're listening to Bloomberg m