Speaker 1: This is Bloomberg Law with June Brossel from Bloomberg Radio.
Speaker 2: We have a right, like every country in the world
Speaker 2: has a right to remove you from our country. So
Speaker 2: it's just that simple.
Speaker 3: And Secretary of State Marco Rubio said that under his direction,
Speaker 3: at least three hundred visas, primarily student visas and some
Speaker 3: visitor visas have been revoked.
Speaker 2: Why would any country in the world allow people to
Speaker 2: come and disrupt We gave you a visa to come
Speaker 2: and study and get a degree, not to become a
Speaker 2: social activist that tears up our university campuses.
Speaker 3: Rubio acknowledge that he revoked the student visa of a
Speaker 3: toughs PhD student due to her views on the Israel
Speaker 3: Hamas War. My guest is immigration law expertly on Fresco,
Speaker 3: a partner at Hollanden Knight. Leon Rubio said, if they're
Speaker 3: taking activities that our counter to our national interest, to
Speaker 3: our foreign policy, will revoke the visa. Are most of
Speaker 3: the student arrests that we've been here about due to
Speaker 3: revoking their visas due to a revocation of their visas well?
Speaker 4: Yes, So there's two steps in the visa revocation process.
Speaker 4: There's a first step, where what can happen is you
Speaker 4: have a visa, you enter the United States, you're here legally,
Speaker 4: and you get an email from the State Department. And
Speaker 4: this actually is quite common. It's not just about this issue.
Speaker 4: It happens if someone gets arrested or for other issues.
Speaker 4: You'll get an email from the State Department that says
Speaker 4: your visa has been canceled. And what that means is
Speaker 4: that if you leave the United States, even though you
Speaker 4: have this thing in your passport which says you can
Speaker 4: travel let's say through twenty twenty eight or twenty twenty nine,
Speaker 4: when it actually gets sweite, it won't work. It's canceled.
Speaker 4: That doesn't mean just because your visa has been canceled
Speaker 4: that you have to leave at that moment. It just
Speaker 4: means that you are subject to being told you have
Speaker 4: to leave. So then there's a second step, which is
Speaker 4: if the government actually wants you to leave, then ICE
Speaker 4: has to actually come and place you in deportation proceedings
Speaker 4: to say, because your visa was canceled and we don't
Speaker 4: think you have a right to remain in the United States,
Speaker 4: we're going to place you in deportation proceedings. That's the
Speaker 4: new one that's happening more often now than ever happened before.
Speaker 4: Before you were just told if you left, you couldn't
Speaker 4: come back. But now people are actually being affirmatively placed
Speaker 4: into removal proceedings that are trying to get an outcome
Speaker 4: where they actually are forced to leave the United States.
Speaker 3: Now, the Palestinian student at Columbia who was arrested had
Speaker 3: a Green card. Do we know if there are a
Speaker 3: lot of arrests involving green card holders?
Speaker 4: We now know of a handful of those of students
Speaker 4: who have green cards. There was a South Korean student
Speaker 4: who also was at Columbia who also had a green card,
Speaker 4: and there are a couple others where what's happened is
Speaker 4: for those individos that have green cards, it's much harder.
Speaker 4: You can't just give them an email canceling their visa
Speaker 4: because there is nothing to cancel. At that point. You
Speaker 4: actually have to say that one of the grounds of
Speaker 4: removal in section two thirty seven of the Immigration and
Speaker 4: Nationality Act actually applies to this person. And so usually
Speaker 4: what you would want to say is that they did
Speaker 4: something where they supported terrorist organizations and that's why they
Speaker 4: were going to be placed in removal proceedings, but here
Speaker 4: they're trying to skip that step because they don't want
Speaker 4: to actually have a trial in immigration court about whether
Speaker 4: you supported terrorists or not. They want to try to
Speaker 4: rely on the provision that says that if Secretary Rubio
Speaker 4: says that your very existence and presence here in the
Speaker 4: United States is bad for American foreign policy, then he
Speaker 4: can just order you deported. He doesn't actually need to
Speaker 4: prove anything in that situation. And so that was the
Speaker 4: ground that was originally used for Mahmoud Khalia, the Colombian student,
Speaker 4: and supposedly they've added some others. Now we'll have to
Speaker 4: wait and see how that plays out. And it's unclear
Speaker 4: because all of these are private documents. Unless the foreign
Speaker 4: nationals want to release them to the press, then nobody
Speaker 4: sees them. So it's unclear with some of these other
Speaker 4: students are being given. But if they are being given
Speaker 4: this category where Secretary Rubio is saying that it's against
Speaker 4: the foreign policy interests of the United States, well in
Speaker 4: that situation, then theoretically there's going to be a lot
Speaker 4: of litigation about whether you even get a trial here
Speaker 4: or not. And that's where the courts have really not
Speaker 4: given us any idea yet. I mean, there was a
Speaker 4: case where when President Trump's sister was alive, she said
Speaker 4: that was an unconstitutional provision that couldn't be applied, but
Speaker 4: that ultimately didn't make its way into an appellate court
Speaker 4: legal president, and so we just don't know how that's
Speaker 4: going to be resolved when it gets to the courts.
Speaker 3: Well, let's talk about Khalil for a minute. The New
Speaker 3: York federal judge ordered that his case be transferred to
Speaker 3: New Jersey, but it hasn't been transferred yet.
Speaker 4: Well, what happened was the New York judge, Jesse Furman, said,
Speaker 4: I'm ordering the case be transferred to New Jersey, and
Speaker 4: he actually, oddly enough, still claims to have an injunction
Speaker 4: even though he's transferred the case. So unclear who enforces
Speaker 4: this injunction that prevents the removal of mister Khalil while
Speaker 4: his case is pending. So he put that injunction in
Speaker 4: and then transferred the case. But then there was a
Speaker 4: hearing in the New Jersey courts. And so there's a
Speaker 4: judge there, Michael Farbiars, who had a hearing in New Jersey,
Speaker 4: and there there was a dispute between the Department of
Speaker 4: Justice and mister Khalil's attorneys. Mister Khalil's attorneys want him
Speaker 4: to have that jurisdiction in New Jersey, and the federal
Speaker 4: government wants them to have that jersey in Louisiana, and
Speaker 4: so that issue has not yet been decided by Judge
Speaker 4: Farbars in New Jersey.
Speaker 3: It seems like in a lot of these cases where
Speaker 3: students are being detained by ice, there's very little or
Speaker 3: no information about why they're being detained. So, for example,
Speaker 3: in the case of a University of Minnesota graduate student
Speaker 3: being detained, officials in Minnesota, including the governor, are asking why.
Speaker 4: So here's what happens. So the foreign national who's detained
Speaker 4: is supposed to be served at that moment with a
Speaker 4: warrant and with a document called a Notice to Appear
Speaker 4: that explains why they're being apprehended and what the ground
Speaker 4: is that they're being placed in removal proceedings for now.
Speaker 4: How that document then gets transmitted to the rest of
Speaker 4: the world becomes a problem because if the person then
Speaker 4: gets put in a detention facility, they would need to
Speaker 4: have access to a fax machine or a lawyer would
Speaker 4: need to come down and make copy of that document
Speaker 4: in order for anyone else to find out what is
Speaker 4: in it. And so that's why people don't know because
Speaker 4: until finally that person who is detained ends up making
Speaker 4: human contact with an attorney or someone else, no one
Speaker 4: will know anything about this person's case.
Speaker 3: And can a person even get a hearing for cancelation
Speaker 3: of a visa.
Speaker 4: It's going to depend what the grounds were for removals.
Speaker 4: There's a thing called INA section two fourteen B. It's
Speaker 4: like a catch all provision that says, if we don't
Speaker 4: think you're doing the things you're supposed to be doing
Speaker 4: here on your visa, you can cancel your visa. So
Speaker 4: if the Secretary Ruvio is canceling visas, pursue it to
Speaker 4: two fourteen B, then what can happen in those visitor
Speaker 4: visa cases is that the reason for the removal is
Speaker 4: just that you have a canceled visa and that's it.
Speaker 4: So then you would just have a case about whether
Speaker 4: your visa was canceled in the entry would be yes.
Speaker 4: So in those situations, there's not really anything to have
Speaker 4: a hearing about for those people, and they will lose.
Speaker 4: But that cannot be done to the Green card holders.
Speaker 4: So for the Green card holders, an actual ground of
Speaker 4: removability is going to need to be asserted, and so
Speaker 4: for that, if it's terrorism, then there will need to
Speaker 4: be a trial and immigration court about terrorism, or if
Speaker 4: it's some other ground of crime, and there will need
Speaker 4: to be a trial inst of that. The only one
Speaker 4: where there will be an argument about whether a trial
Speaker 4: is valid is this issue of whether the Secretary thinks
Speaker 4: your presence is contrary to the interest of US foreign policy,
Speaker 4: And that's where there are these habeases being filed saying, Look,
Speaker 4: they're trying to pre ent this argument, say you can't
Speaker 4: put me in a process where I don't get to
Speaker 4: have some sort of due process and trial, or that
Speaker 4: that statue in and of itself is unconstitutional because it
Speaker 4: can be used without any guard rails of any kind,
Speaker 4: meaning it could just be used on anybody for any reason.
Speaker 4: And if that's true, is that really what Congress intended there?
Speaker 3: And so their best bet is then challenging the constitutionality
Speaker 3: of a statute.
Speaker 4: Because really, at the end of the day, it's hard
Speaker 4: to have a trial on whether the Secretary of State
Speaker 4: should think or shouldn't think that your presence is contrary
Speaker 4: to the interest of foreign policy. That's a tougher one,
Speaker 4: because how are the courts going to substitute their judgment
Speaker 4: for the secretary. It seems like the more promising argument
Speaker 4: there is just that that statute is unconstitutional because it's
Speaker 4: too vague and it's basically a violation of someone's due
Speaker 4: process right because there's no way to get yourself out
Speaker 4: from under such a thing. The only thing there will
Speaker 4: be hot is one challenge that can one challenge that prehmptively,
Speaker 4: like the people are trying to challenge, which I think
Speaker 4: they're finding sympathetic judges right now, but most likely that's
Speaker 4: going to be viewed as not valid. What's probably going
Speaker 4: to have to happen is they're going to have to
Speaker 4: go through the removal process and then challenge it at
Speaker 4: the end as what's called the petition for review of
Speaker 4: a final Order of removal, and then the courts will
Speaker 4: get to these cases and decide whether those statutes are
Speaker 4: constitutional or not.
Speaker 3: There's been a lot of litigation over the hundreds of
Speaker 3: Venezuelan's alleged gang members deported to prison in El Salvador.
Speaker 3: Where does that stand?
Speaker 4: So there's currently an injunction that was issued by the
Speaker 4: District Court in DC Judge Bozburg, and that's actually been
Speaker 4: affirmed two to one by the Court of Appeals of
Speaker 4: the DC Circuits that says that you can't deport anyone
Speaker 4: using the Alien Enemies Act. And there's actually a different
Speaker 4: injunction issued by a different court which says you can't
Speaker 4: do these third country deportations, meaning you can't send people
Speaker 4: to a third country just willy nilly without giving them
Speaker 4: some ability and due process to challenge that removal to
Speaker 4: a different country. Those two injunctions should operate theoretically to
Speaker 4: prevent deportations to Alsovodor right now, Venezuelan, But there was
Speaker 4: just a deportation today of seventeen people to Alsavodor who
Speaker 4: were claimed to be Venezuelan gang members. The interesting question
Speaker 4: would be whether those people all had findal orders of
Speaker 4: removal and were not Alien Enemies Act deportations, whether they
Speaker 4: were people who could have been deported.
Speaker 1: And then the.
Speaker 4: Question also is did this deportation violate this third country
Speaker 4: removal injunction that was issued, And so that's going to
Speaker 4: be an issue that's going to be scrutinized as Well,
Speaker 4: but we're gonna have to see where these new seventeen
Speaker 4: people who were deported fit into this puzzle and whether
Speaker 4: an injunction was actually violated.
Speaker 3: There coming up panic about traveling among Green card holders.
Speaker 3: This is Bloomberg. There's a lot of litigation concerning the
Speaker 3: deportations of alleged Venezuelan gang members to prison in El Salvador.
Speaker 3: A federal district court judge has put a temporary halt
Speaker 3: on the deportations, and a federal appeals court has upheld
Speaker 3: that order. And now the Trump administration is asking the
Speaker 3: Supreme Court to allow it to resume deportations of the
Speaker 3: alleged gang members without hearings. I've been talking to Leon
Speaker 3: Fresco of Honda Knight. So Judge Bosburg ruled that the
Speaker 3: Trump administration can't deport the five Venezuelan plaintiffs in the case.
Speaker 3: What about the Venezuelans who are already.
Speaker 4: There, Well, that's going to be an issue for later
Speaker 4: this week. The court is going to have to decide
Speaker 4: the fate of those individuals and whether those individuals can
Speaker 4: be brought back to the United States. And also the
Speaker 4: Supreme Court is also being oustd the way in on
Speaker 4: this injunction, and they're being asked to say his injunctions
Speaker 4: so that more deportations can happen in El Salvador. So
Speaker 4: we're going to have court rule ins coming from both directions,
Speaker 4: both from the Supreme Court and from the District Court.
Speaker 4: The District Court on whether it's injunction means that it
Speaker 4: should bring people back to the United States, and the
Speaker 4: Supreme Court on whether all of this was improvidently done
Speaker 4: and the Trump administration can continue just as it started,
Speaker 4: the porting whoever it says is an alien enemy into
Speaker 4: these prisons in El Salvador.
Speaker 3: And also attorneys hired by the Venezuelan government have filed
Speaker 3: an action in El Salvador to get the imprisoned Venezuelans
Speaker 3: released or transferred and repatriated. The question is whether there's
Speaker 3: a basis for holding them even under El Salvador law.
Speaker 4: The issue here is the following. Both Al Salvador and
Speaker 4: the United States have similar laws which say that at
Speaker 4: the end of the day, you can't have people in
Speaker 4: detention if they didn't actually commit a crime and were
Speaker 4: punished for detention, unless the purpose is to create some
Speaker 4: sort of very minimal backstop in order to secure the
Speaker 4: removal of individuals. And so the question is for Alsavador,
Speaker 4: why are these individuals being detained in Alsavador If they
Speaker 4: can be moved quickly to Venezuela, then the point from
Speaker 4: the Venezuelan standpoint is these individuals should be moved because
Speaker 4: there's no basis for Alsavador to be detaining these individuals.
Speaker 4: They were not punished for any crimes they committed in Alsavador,
Speaker 4: and they did not actually commit any crimes. There's no
Speaker 4: reason legally that the Asavador government would be detaining them,
Speaker 4: and so that's the issue that the Venezuelan government is
Speaker 4: going to try to get to. But then the issue
Speaker 4: is does that mean that Venezuela is going to agree
Speaker 4: to start taking these individuals. And if it does, then
Speaker 4: it'll have a much stronger case. But if it doesn't
Speaker 4: agree to start taking these individ visuals, then what Alsavador
Speaker 4: would say is we can't have these violent gang members
Speaker 4: free in Alsavador. They will create instability in Alsavador. So
Speaker 4: we have no choice that they're going to be deported here.
Speaker 4: We have to have them detained until Nzuela agreed to
Speaker 4: accept them.
Speaker 3: There are about twelve point eight million Green card holders
Speaker 3: living in the United States, and there are a lot
Speaker 3: of concerns with these high profile arrests of some Green
Speaker 3: card holders, including at least one who was returning to
Speaker 3: the United States and arrested at Logan International. And there
Speaker 3: are reports of shall we say, stepped up activity at
Speaker 3: the airports by customs and border patrol.
Speaker 4: There is much more press scrutiny, for sure, being given
Speaker 4: to airport actions. Statistically, the numbers are still pretty low,
Speaker 4: just because there's only so much capacity at these airports
Speaker 4: to be doing this. The airports aren't taking in tens
Speaker 4: of thousands of people a day on these flights, and
Speaker 4: they're debating at the end of the day a handful
Speaker 4: maybe ten or twenty individuals per day. But these ten
Speaker 4: or twenty individuals per day, some of them have become
Speaker 4: very high profile cases recently French scientists coming for conventions,
Speaker 4: British tourists, Canadian tourists, German tourists who aren't people typically
Speaker 4: detained at these facilities and moreover, the problem is it's
Speaker 4: very typical for the border patrol when they detain someone
Speaker 4: to take their phone and to basically find what's in
Speaker 4: their phone and see if there's something in their phone
Speaker 4: that's incriminating. And so there's much more this sort of
Speaker 4: stuff coming out in the news where they say that
Speaker 4: the CBP found something on the phone, and this is
Speaker 4: creating a lot of nervousness from people traveling into the
Speaker 4: United States. What I would say is this, which is
Speaker 4: statistically traveling into the United States is still ninety nine
Speaker 4: percent of the time not going to be a problem
Speaker 4: for most people. But if you are traveling in, for instance,
Speaker 4: one of these visa waiver program situations, which is that
Speaker 4: you don't need a visa, many people have used these
Speaker 4: programs who may have done something slightly questionable. They've worn't
Speaker 4: or they're married and they're traveling they're married to a
Speaker 4: US citizen. If there's anything questionable like that, and it's
Speaker 4: not a truly normal visit where someone is just going
Speaker 4: to Disney World, or they're going for a brief trip
Speaker 4: of a business convention or conference or something like that,
Speaker 4: if there's something more to it, where there's a work
Speaker 4: component involved, or the person is somehow trying to skirt
Speaker 4: just the normal travel, those are the people that need
Speaker 4: to start being a little bit more careful about what
Speaker 4: they're doing, because the CBP is letting a lot less
Speaker 4: of that slide than previously.
Speaker 3: Residents are they questioning them at the airports too.
Speaker 4: If you're a lawful permanent resident of the United States,
Speaker 4: you are entitled to be admitted into the United States.
Speaker 4: The only times where this gets a little bit tricky
Speaker 4: is there are people who have had convictions from maybe
Speaker 4: twenty or thirty years ago that don't realize that those
Speaker 4: convictions are deportable offenses, and when they're traveling in they're
Speaker 4: now being told, hey, you have this deportable offense in
Speaker 4: your background, we're going to be placed into deportation proceedings.
Speaker 4: There's some of that, but also, look, if you are
Speaker 4: one of these people that's subject to a random inspection
Speaker 4: and then they find on your phone all kinds of
Speaker 4: stuff that's very questionable for the purposes of what the
Speaker 4: government is finding questionable these days, then they could potentially say, look,
Speaker 4: this is a person who is someone that Secretary Rubio
Speaker 4: wants to then say is subject to the foreign policy
Speaker 4: Exception and be deported. Now, that person might be detained
Speaker 4: for a while before such an exemption is made, and
Speaker 4: so that is theoretically possible in those situations, And so
Speaker 4: what does that mean. It means that it's a different
Speaker 4: environment for travelers now, and travelers need to start assessing
Speaker 4: are they at high risk based on things they've said
Speaker 4: or done in terms of the priorities of this administration.
Speaker 4: And that's definitely a new frontier that didn't exist previously.
Speaker 3: It's a lot to take in. Thanks so much. Leon.
Speaker 3: That's Leon Fresco, a partner at Holland and Knightay with
Speaker 3: me and.
Speaker 4: I had a premission with them with the.
Speaker 3: Pop singer Dua Lipa has won a second copyright infringement
Speaker 3: lawsuit over her mega hit Levitating, which became a viral
Speaker 3: sensation used on millions of TikTok videos. The plaintiffs accused
Speaker 3: her of copying two disco songs, their nineteen seventy nine
Speaker 3: song Wiggle and Giggle All Night and their nineteen eighty
Speaker 3: song Don Diablo, but a judge tossed the lawsuit, granting
Speaker 3: summary judgment after finding that the plaintiffs failed to back
Speaker 3: up their allegations that Levitating was substantially similar to the
Speaker 3: protectable aspects of their works. Joining me is entertainment attorney
Speaker 3: Ronald Beinstock, a partner at Scarrency hollinbeck Ron start by
Speaker 3: telling us about the first copyright infringement lawsuit Dua LiPo
Speaker 3: one involving a reggae group.
Speaker 1: Always my favorite topics, because you know, these are relatives
Speaker 1: calling you, sending you texts, hey man, what do you
Speaker 1: think about this kind of stuff. Everybody has all the
Speaker 1: layman's versions of these things, but there's some you know,
Speaker 1: there's some deep dive on some law and also fast
Speaker 1: there's a twenty seventeen song by a relatively and I
Speaker 1: don't want to result anybody, it's relatively unknown reggae group
Speaker 1: in Florida. And this first case of person fingering case
Speaker 1: was that you got to prove access. As you know
Speaker 1: on all of these cases, two step process. The giant
Speaker 1: hurdle is access. Then you've got substantial similarity. If you
Speaker 1: don't have access and you can't really prove it, you
Speaker 1: can't say somebody heard of this, or it was a hit,
Speaker 1: someone should have heard of it, or you're on touris them,
Speaker 1: or you shared the same manager, or you shared the
Speaker 1: same producers or all those different check the box for access.
Speaker 1: Then you've got to have some striking similarity to go further,
Speaker 1: and that's where the subtle chords usually go. Okay, there's
Speaker 1: your bar right, and this doesn't strike similar So back
Speaker 1: to our reggae claim. So you've got effectively a four
Speaker 1: chord pattern that is in minor key. The song levitatings
Speaker 1: and B minor and the chord sort of match up.
Speaker 1: But that's not how this works musically. If you don't
Speaker 1: mind me singing, I hope I don't ruin. Everybody's still ahead.
Speaker 1: But there are two things that are very clear in
Speaker 1: both cases involving the song levitating. It's this pattern data
Speaker 1: da da da da da da da da da da
Speaker 1: da da data descending chromatic across the four chords. Here
Speaker 1: you go da da da da da da da da
Speaker 1: da da da da da da. And that's going to
Speaker 1: be what somebody's got to hang their legal hat on
Speaker 1: and say that is not a common element. You don't
Speaker 1: hear that very often. And these things match up when
Speaker 1: you do this analysis the way we do with courts.
Speaker 1: When we take these melodies and we put them into
Speaker 1: the TSC or you match them up in the relative key,
Speaker 1: those notes are in a match up, and then they
Speaker 1: talk about harmonic you know, styling and all these well,
Speaker 1: that's staying alive. Dada da da da da da da
Speaker 1: da da da da da da da da. Right, we've
Speaker 1: heard that before. So immediately when you start seeing the
Speaker 1: judge saying Mozart and Gilbert and Sullivan, Gilbert and Sullivan
Speaker 1: and mentions the begs, you know, starting with both starts,
Speaker 1: that's a pretty common element. So when people say, hey,
Speaker 1: I've heard that before, Sure you did. You heard it
Speaker 1: probably six centuries ago. And the dgs da da da
Speaker 1: da da da da da da da statalized, you know,
Speaker 1: these are sort of common elements. So the first part
Speaker 1: is that the planets in the first case involving the
Speaker 1: reggae event couldn't prove access. And then it really fell
Speaker 1: apart once you start talking about common elements. These two
Speaker 1: things sounds so much alike and they're strikingly similar, and
Speaker 1: it got dismissed and that was the end. And if
Speaker 1: I'm going to give you one more pop culture reference,
Speaker 1: the chords are the same things to ELO's Evil Women.
Speaker 1: These are common and four chord patterns and songs. We
Speaker 1: could be here all day. I mean, they're really common.
Speaker 1: So the first case really rested upon if you will
Speaker 1: and dismissal rested upon the idea that you had no
Speaker 1: access and they're not strikingly similar.
Speaker 3: So we go from reggae to the second case, which
Speaker 3: involves two disco songs.
Speaker 1: The second case is interesting because I think this was
Speaker 1: a slightly more sophisticated approach to it, right they still
Speaker 1: it kind of didn't work on the first matter that
Speaker 1: they that precedence, So now you can kind of roll
Speaker 1: into what what should we do that's different? Here, still
Speaker 1: the same issues. It's in B minor, and now you
Speaker 1: have this nineteen seventy nine wiggle and giggle in E
Speaker 1: flat major, and then this Don Diablo only in Spanish,
Speaker 1: stung in Spanish, also in a major case B flat major.
Speaker 1: So you already start with some variations right right. Getting started.
Speaker 1: The other thing that the lay person generally, and they
Speaker 1: discussed this with me, and I'm sure discussed this with you,
Speaker 1: is it's about publishers. This is not about dualalipa. This
Speaker 1: is about the publishers, the lawsuits involved, who controls the copyright.
Speaker 1: So these are major publishers, you know, Warners, Sony, Universal Music.
Speaker 1: So they're going to get some really powerful teams of
Speaker 1: really experienced copyright lawyers. I know some of these people.
Speaker 1: They're great at what they do. They've enters before. So
Speaker 1: you start already with the concept of all right, where's
Speaker 1: our access. Where's that giant hurdle you've got to get
Speaker 1: over a nineteen seventy nine disco tunes called Wiggle and Giggle.
Speaker 1: And then you have the Spanish only Don Diablo. When
Speaker 1: would these writers which is for writers, it's not just
Speaker 1: Stu Aliva, when would these people have access to that song?
Speaker 1: So that's a huge hurtle. If you don't prove fa,
Speaker 1: you're right back to this, what's strikingly similar? So the
Speaker 1: plaintiff said the opening melody was duplicated throughout the song
Speaker 1: and gave a retro field. Well, okay, that doesn't count.
Speaker 1: Retro feel is not substantive. Again, we're not talking about
Speaker 1: the copyright and the sound recording. This is where the
Speaker 1: average lay person pulls off the cliff on this. We're
Speaker 1: talking only about the composition, the idea that things may
Speaker 1: sound similar because they are of the same beat and
Speaker 1: other elements not controlling here, it's the song. So you
Speaker 1: had this claim that the opening melody was duplicated, and
Speaker 1: then the defense was well, wait a second, these are
Speaker 1: non copyrightable elements, just like our last case, right, common elements,
Speaker 1: common flour chords and that common descent pattern of da
Speaker 1: da da da da da da da da da da
Speaker 1: da da da da da, And so these are not
Speaker 1: enough to prove it strikingly similar. And the judge dismissed
Speaker 1: and said, no, I'm giving you some rejudgment to defendant.
Speaker 1: And I took a look at the experts, and we
Speaker 1: had the delbert claims about whether they were acting as
Speaker 1: experts in their opinion. You know, all the infighting will
Speaker 1: go on in federal court about experts and copyright. But
Speaker 1: ultimately the judge said, hey, these are common elements. I
Speaker 1: can't let this case proceed and using some rejudgment.
Speaker 3: Some are saying that this case benefited from the precedent
Speaker 3: set in the ed Seering case.
Speaker 1: All right, So the ed Scheering case it went a verdict, right,
Speaker 1: It was not decided in a summary rejudgment or dismissal.
Speaker 1: The jury got to hear Ed Sheeran play his song
Speaker 1: in his version live. That to me was an error
Speaker 1: by the plinker because then he got to interpret any
Speaker 1: way he wanted in front of this court how he
Speaker 1: would present that song. So that's a problem with just
Speaker 1: the presentation of evidence in control of that. The second
Speaker 1: part was throughout his case they said there are some
Speaker 1: common elements in music, right, there are common patterns and
Speaker 1: common things. You don't own an idea for a song,
Speaker 1: and that runs two ways. One it's the sound recording,
Speaker 1: which is the problematic. Cases always have the idea that
Speaker 1: someone got to hear it. That's not what we're talking about,
Speaker 1: big X through that only talking about the songs. So
Speaker 1: if you have a song that has common elements, we're
Speaker 1: not talking about other audio similarities. We're just talking about
Speaker 1: the common elements in the composition. And yet you can't
Speaker 1: prove that these common elements are listed right, they're not protectable.
Speaker 1: Then that you get the same results that you had
Speaker 1: with as Sharon right, they're not protectable. He has his
Speaker 1: own he has his own interpretation of that does not
Speaker 1: match up to your claims. And so eventually that case
Speaker 1: went its way. An element scene comes to play in
Speaker 1: all free of these to some extent. The first one
Speaker 1: really is just based upon no access at all. So
Speaker 1: we kind of get that running through all these cases.
Speaker 1: Those are all Southern districts are all here in New
Speaker 1: York season you can get the same circus decisions to
Speaker 1: get some unanimity as to the decision making.
Speaker 3: What does it say about the song if you have
Speaker 3: two different copyright suits.
Speaker 1: It says that the song made a lot of money,
Speaker 1: and no one would care unless it's made a lot
Speaker 1: of money. So this is a popular artist, and everybody
Speaker 1: wants a piece of what is to be a hit.
Speaker 1: And you know, all we got to do is talk
Speaker 1: about the Mariah Carry lawsuit and we're right into rolling
Speaker 1: right into that series. But everybody wants a piece of
Speaker 1: something that's been popular or stay popular or has some
Speaker 1: type of longevity as a hit. I don't know if
Speaker 1: the song stays in the world of longevity it hits
Speaker 1: or not. That magic a ball answer I don't have.
Speaker 1: But these lawsites just don't happen unless there's money, and
Speaker 1: real money involved. And every time there's a hit, you're
Speaker 1: gonna have a couple of different issues here in incomes
Speaker 1: in music, publishers still be performance for OLP income to
Speaker 1: the writers and publishers. You're gonna have synchronization licenses for
Speaker 1: a successful song that gets onto TV and film. You
Speaker 1: can have sect, so you start with radio. Now you're
Speaker 1: down to film and TV. You're gonna have that song
Speaker 1: placed in songs in movies and TV shows. There's mechanical
Speaker 1: income from downloading, if you sell the physical vinyl or
Speaker 1: if they're still selling TVs. I don't know if he
Speaker 1: does that anymore, but if they did, you have mechanical incomes,
Speaker 1: and then you could get the covers for a successful song.
Speaker 1: The party payments of their mechanical income. If there's a
Speaker 1: sheet music world here that still buys sheet songbooks for
Speaker 1: dua lipa, that means money. And if it makes its
Speaker 1: way to a Broadway production, that's a grand right. That's
Speaker 1: why people still oversease.
Speaker 3: Let's turn to Mariah Carey, who beat a twenty million
Speaker 3: dollar copyright case over her Christmas hit All I Want
Speaker 3: for Christmas Is You? Was this lawsuit not based on
Speaker 3: the music but on the words of the songs?
Speaker 1: Probably the best question anyone's asked about that, because everybody
Speaker 1: kind of lifts the wrong page in that result. So
Speaker 1: let's go back to your question, because it's just right
Speaker 1: on point. First. I don't often get to say someone's
Speaker 1: taking a hit, had an evergreen hit? Evergreen hit my
Speaker 1: pun there meets me. It's a Christmas it's and you
Speaker 1: can't protect the title. First level of analysis. I'm not
Speaker 1: sure what people were thinking. We have the same title. Okay,
Speaker 1: that's not protectable. So they were to really start and
Speaker 1: then the common element melody and other, we're not here
Speaker 1: back to your lyric question. Want to hear it's the
Speaker 1: common lyrics flurry at the bust out laugh and on this.
Speaker 1: I'm sorry, I'm insulting any attorneys on this, but get ready,
Speaker 1: here the common lyrics this wiletoe, Santa Stocking, snow and Christmas.
Speaker 1: Oh ooh when you put it like that, ooh, that's
Speaker 1: not going very far. That is just just not going
Speaker 1: to carry the day. You can't protect the title. You've
Speaker 1: got common elements and lyrics. You've got no question that
Speaker 1: you're claiming with the melodies are exactly the same. And
Speaker 1: here's sort of a sidebar moment. They claimed access and
Speaker 1: got the case rolling through the process in the closest
Speaker 1: because they claimed access that it had been a big
Speaker 1: hit in the country chart, a kid or not. Their
Speaker 1: song called Well I Went for Christmas View was a
Speaker 1: country hit roughly the same time, so their access was
Speaker 1: based upon yeah, it was a charting song, whether a
Speaker 1: country hit yet listened to by a pop star and
Speaker 1: her co writer, whilst says and don't know, but this
Speaker 1: one fell down the stairs pretty quickly in the ninth
Speaker 1: circuits in California because it wasn't provable. And I want
Speaker 1: to add also get sanctions and partial attorney fees were
Speaker 1: granted against the flankiffs on.
Speaker 3: The back to do Aleapa from for a minute. It
Speaker 3: sort of always surprises me that that judges, and I
Speaker 3: don't know if this judge has any musical background or not,
Speaker 3: are able to come to these decisions, you know, to
Speaker 3: figure out really the musical notes.
Speaker 1: You're going to rely on. You're going to rely on
Speaker 1: the musicologists, right because the judges are going to make
Speaker 1: the decision based upon their own Even though judges in
Speaker 1: the past, go back to the George Harrison case with
Speaker 1: Pisa find my Street Lord, way way way way back,
Speaker 1: the judge kind of said, hey, I'm a musician, I
Speaker 1: get this. That is actually a little bit of that case.
Speaker 1: And I've had judges in federal court who, you know,
Speaker 1: kind of made reference to the fact that they played
Speaker 1: an instrument. Me as a musician, I don't get to testify.
Speaker 1: I'm the lawyer, so I can only use my musicologist,
Speaker 1: which I hope never gets that far and it seldom does,
Speaker 1: should say even more than seldom does rarely if it
Speaker 1: ever does, to get that far. Because there's always this
Speaker 1: idea that what the judge is listening to are battling experts, right,
Speaker 1: and the judge gave in this particular case, the judge
Speaker 1: gave credence to both sides and waited and said, look,
Speaker 1: I don't really find the access here, so it's got
Speaker 1: to be strikingly similar your your plaintiffs experts. They're making
Speaker 1: some good points here, but not carrying the day that
Speaker 1: they didn't get over the common elements of these two things.
Speaker 1: And the expert on the other side has said, look,
Speaker 1: these are really common and with pointing because most are
Speaker 1: going forward, and I have in my amazing singing voice
Speaker 1: for you that it's data da da da da da
Speaker 1: da da da da da data data, right. And you
Speaker 1: know that's ultimately what it came down to, is that
Speaker 1: these of common elements and thank you for playing, but no,
Speaker 1: I'm going to dismiss it. You get to somebody judgment
Speaker 1: and they rely on the musicologists to get there. But
Speaker 1: between you and I and anyone who might be listening
Speaker 1: to this, I think some of the judges quietly don't
Speaker 1: stay it out loud, but they say, you know, I
Speaker 1: have an opinion on this, you know, I think there's
Speaker 1: something I want to probably I have a position I'm
Speaker 1: going to take, maybe on some of my own knowledge,
Speaker 1: if but they generally don't say that.
Speaker 3: I expected more singing. Ron you did da da da
Speaker 3: da da da. That's not singing, you know.
Speaker 1: But you and that's that's the melody, right and right.
Speaker 1: The do a leaf apart. And this is the thing
Speaker 1: about any time they're sort of hip hop oriented or
Speaker 1: spoken work things, because the melodies can be you know,
Speaker 1: just the rhythmic. So in here a lot of what
Speaker 1: the issues were. We're rhythmics, right da da da. The lyrics,
Speaker 1: the lyrics really were not matching up. I mean that
Speaker 1: you just didn't have these common elements of lyrics like
Speaker 1: and and then it fell really short on the Mariah carry.
Speaker 1: I mean, they just didn't mind up. And I think
Speaker 1: that's that judge clearly said, wait a second, you're not
Speaker 1: You should never approbably a broster. Maybe one day will
Speaker 1: have professional juries like they do in some other countries
Speaker 1: with commercial works like this where they are earning income,
Speaker 1: and there'll be a professional jury where we have not
Speaker 1: had that proposed yet. So here we are going to
Speaker 1: be generally in jurisdiction where these cases pop up more
Speaker 1: often than others. Southern District of New York, you know,
Speaker 1: Middle District, California, and the ninth speak of judges that
Speaker 1: have seen these, heard these experience in them, and I
Speaker 1: think you're getting a reasoned opinion on all of these capes.
Speaker 3: Thanks so much for your analysis and your singing. That's entertainment.
Speaker 3: Attorney Ron Beanstock, Obscurency Hollindbeck, and that's it for this
Speaker 3: edition of The Bloomberg Law Show. Remember you can always
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.
Speaker 3: You can find them on Apple Podcasts, Spotify, and at
Speaker 3: www dot Bloomberg dot com, slash podcast Slash Law, And
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight
Speaker 3: at ten pm Wall Street Time. I'm June Grosso and
Speaker 3: you're listening to Bloomberg m