1 00:00:02,759 --> 00:00:07,480 Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio. 2 00:00:08,720 --> 00:00:13,400 Speaker 2: My fellow Americans, this is Liberation Day Wednesday. 3 00:00:13,440 --> 00:00:17,600 Speaker 3: On so called Liberation Day, President Donald Trump announced the 4 00:00:17,680 --> 00:00:21,200 Speaker 3: steepest American tariffs in more than a century. 5 00:00:21,680 --> 00:00:24,279 Speaker 2: So sixty seven percent. So we're going to be charging 6 00:00:24,720 --> 00:00:28,040 Speaker 2: a discounted reciprocal tariff of thirty four percent. I think, 7 00:00:28,520 --> 00:00:30,720 Speaker 2: in other words, they charge us, we charge them, we 8 00:00:30,800 --> 00:00:32,920 Speaker 2: charge them lest So how can anybody be upset? 9 00:00:33,120 --> 00:00:37,440 Speaker 3: But obviously plenty of people were upset. In every corner 10 00:00:37,479 --> 00:00:41,280 Speaker 3: of the financial markets, from stocks to bonds to commodities, 11 00:00:41,560 --> 00:00:45,440 Speaker 3: investors were sending Trump a message about the trade war 12 00:00:45,520 --> 00:00:49,240 Speaker 3: he unleashed. Trump imposed the tariffs by invoking a law 13 00:00:49,280 --> 00:00:53,880 Speaker 3: that gives presidents sweeping powers during an economic emergency. But 14 00:00:54,040 --> 00:00:57,800 Speaker 3: no president has ever used that law to impose tariffs 15 00:00:58,120 --> 00:01:00,800 Speaker 3: until now. And now the first law lawsuit has been 16 00:01:00,880 --> 00:01:05,360 Speaker 3: filed saying that the president overstepped his authority and challenging 17 00:01:05,400 --> 00:01:08,759 Speaker 3: the legal justification he used. Joining me is an expert 18 00:01:08,760 --> 00:01:12,880 Speaker 3: in international trade, David Townsend, a partner at Dorsey and Whitney. 19 00:01:13,240 --> 00:01:16,119 Speaker 3: Dave tell us about the law President Trump is using 20 00:01:16,360 --> 00:01:18,320 Speaker 3: to impose these tariffs. 21 00:01:18,200 --> 00:01:22,120 Speaker 1: So these tariffs are imposed under the International Emergency Economic 22 00:01:22,160 --> 00:01:27,080 Speaker 1: Powers Act, or AIPA. AEPA allows the President to declare 23 00:01:27,440 --> 00:01:31,160 Speaker 1: a national emergency with respect to a variety of things 24 00:01:31,200 --> 00:01:35,039 Speaker 1: that the president believes undermine US national security and has 25 00:01:35,080 --> 00:01:38,839 Speaker 1: its basis and origin outside of the United States. Once 26 00:01:39,160 --> 00:01:42,680 Speaker 1: the President declares that national emergency, it provides a legal 27 00:01:42,720 --> 00:01:45,839 Speaker 1: basis for the President to take a number of restrictive 28 00:01:45,880 --> 00:01:49,240 Speaker 1: actions with respect to commerce between the United States and 29 00:01:49,280 --> 00:01:52,680 Speaker 1: the target of the AIPA Executive Order. 30 00:01:53,000 --> 00:01:56,880 Speaker 3: Trump says the emergency is the US trade deficit with 31 00:01:57,000 --> 00:02:00,880 Speaker 3: other nations, which the order describes as an unusual and 32 00:02:01,000 --> 00:02:04,520 Speaker 3: extraordinary threat to the national security and economy of the 33 00:02:04,640 --> 00:02:09,079 Speaker 3: United States. Many, perhaps most people wouldn't see the deficit 34 00:02:09,160 --> 00:02:11,640 Speaker 3: that way. Is it Trump's decision alone? 35 00:02:11,880 --> 00:02:16,680 Speaker 1: Well, Under AEPA, the President is provided by Congress broad 36 00:02:16,720 --> 00:02:20,880 Speaker 1: authority to define what is or is not a national emergency. 37 00:02:21,360 --> 00:02:25,800 Speaker 1: Under AEPA, presidents have declared a wide variety of topics 38 00:02:25,840 --> 00:02:30,200 Speaker 1: to constitute a national emergency, and today there's not been 39 00:02:30,240 --> 00:02:34,880 Speaker 1: any judicial decisions that have reversed a president in how 40 00:02:34,919 --> 00:02:38,840 Speaker 1: they define a national emergency under AEPA, But the use 41 00:02:38,880 --> 00:02:43,720 Speaker 1: of AEPA to impose tariffs is a new use of AEPA. 42 00:02:44,000 --> 00:02:47,040 Speaker 1: President Trump is the first president to use IEPA as 43 00:02:47,080 --> 00:02:51,399 Speaker 1: a basis for increasing tariffs. Previously, IEPA has been used 44 00:02:51,400 --> 00:02:56,240 Speaker 1: for targeting terrorist organizations or foreign countries that are deemed 45 00:02:56,280 --> 00:03:00,360 Speaker 1: to be taking actions to undermine US national security. Trump 46 00:03:00,400 --> 00:03:03,400 Speaker 1: is using IEPA as a basis to change teri frates 47 00:03:03,440 --> 00:03:05,040 Speaker 1: on imports into the United States. 48 00:03:05,400 --> 00:03:08,680 Speaker 3: On Thursday, what appears to be the first legal challenge 49 00:03:08,760 --> 00:03:12,280 Speaker 3: to the tariffs was found by a conservative backed legal 50 00:03:12,320 --> 00:03:14,800 Speaker 3: group in Florida. Tell us about the suit. 51 00:03:15,160 --> 00:03:19,000 Speaker 1: The lawsuit is on behalf of a US importer of 52 00:03:19,040 --> 00:03:23,520 Speaker 1: merchandise from China. The plaintiff in the case alleges that 53 00:03:23,960 --> 00:03:28,280 Speaker 1: the first round of Trump administration tariffs that were imposed 54 00:03:28,360 --> 00:03:32,960 Speaker 1: under AEPA are illegal, that AEPA doesn't authorize the imposition 55 00:03:33,000 --> 00:03:36,800 Speaker 1: of tariffs, and even if it does, that tariffs aren't 56 00:03:36,840 --> 00:03:41,760 Speaker 1: necessary for addressing the national emergency that President Trump declared 57 00:03:41,960 --> 00:03:45,080 Speaker 1: with respect to China, which relates to drug trafficking and 58 00:03:45,160 --> 00:03:47,400 Speaker 1: fentanyl imports into the United States. 59 00:03:47,760 --> 00:03:50,240 Speaker 3: So this suit is about the first set of tariffs 60 00:03:50,280 --> 00:03:55,200 Speaker 3: Trump imposed on Chinese goods leading up to the sweeping 61 00:03:55,240 --> 00:03:56,760 Speaker 3: tariffs announced on Wednesday. 62 00:03:57,120 --> 00:03:59,960 Speaker 1: To use IEPA as a basis to impose ten percent 63 00:04:00,200 --> 00:04:03,600 Speaker 1: tariffs on goods from China and subsequently bumped that up 64 00:04:03,600 --> 00:04:06,760 Speaker 1: to twenty percent tariffs on goods from China. Under AEPA 65 00:04:06,800 --> 00:04:10,440 Speaker 1: also declared national emergencies with respect to Canada and Mexico 66 00:04:10,760 --> 00:04:14,760 Speaker 1: and deferred tariffs, and then ultimately allowed Canadian and Mexican 67 00:04:14,800 --> 00:04:17,680 Speaker 1: goods to be imported into the United States without tariffs 68 00:04:17,680 --> 00:04:22,120 Speaker 1: if they qualify under the US Mexico Canada Agreement USMCA. 69 00:04:22,240 --> 00:04:25,600 Speaker 3: Yeah, the tariff on and off situation has been confusing, 70 00:04:26,120 --> 00:04:28,920 Speaker 3: But then the same theory would work for the so 71 00:04:29,040 --> 00:04:30,640 Speaker 3: called Liberation Day tariffs. 72 00:04:31,240 --> 00:04:37,240 Speaker 1: Well, yes, because the lawsuit alleges that AEPA doesn't authorize 73 00:04:37,240 --> 00:04:40,800 Speaker 1: the president to impose tariffs, and so these reciprocal tariffs 74 00:04:40,800 --> 00:04:44,240 Speaker 1: that were announced on Wednesday would be likewise invalid if 75 00:04:44,279 --> 00:04:46,039 Speaker 1: the plaintiff's theory is correct. 76 00:04:46,520 --> 00:04:49,760 Speaker 3: Is this an uphill battle? Have courts given deference to 77 00:04:49,800 --> 00:04:51,840 Speaker 3: the president in these situations? 78 00:04:52,360 --> 00:04:57,040 Speaker 1: There have been lawsuits under AEPA, But because President Trump 79 00:04:57,080 --> 00:05:00,279 Speaker 1: is the first to use AIPA to impose tariff, there's 80 00:05:00,440 --> 00:05:03,479 Speaker 1: never been a question before a court as to whether 81 00:05:03,800 --> 00:05:09,279 Speaker 1: AEPA authorizes tariffs and so I think it remains to 82 00:05:09,320 --> 00:05:13,039 Speaker 1: be seen how a court would handle the issue. It's 83 00:05:13,080 --> 00:05:16,839 Speaker 1: really one of statutory interpretation and whether the EYEPA statute 84 00:05:16,880 --> 00:05:19,760 Speaker 1: actually permits the president imposed tariff. 85 00:05:20,400 --> 00:05:24,120 Speaker 3: Another thing this lawsuit argues is that Trump is usurping 86 00:05:24,360 --> 00:05:28,920 Speaker 3: Congress's right to control tariffs. I mean, the Constitution does 87 00:05:28,960 --> 00:05:32,279 Speaker 3: give Congress the power to levy tariffs and to regulate 88 00:05:32,320 --> 00:05:36,200 Speaker 3: commerce with foreign nations, not the president right. 89 00:05:36,240 --> 00:05:42,680 Speaker 1: AIPA is a statutory authority that Congress created to delegate 90 00:05:43,200 --> 00:05:47,560 Speaker 1: their constitutional authority to regulate foreign commerce and impose tariff 91 00:05:47,960 --> 00:05:52,400 Speaker 1: to the President. Now, one legal question that remains and 92 00:05:52,520 --> 00:05:55,479 Speaker 1: is unknown at this time is whether APA was ever 93 00:05:55,520 --> 00:05:58,719 Speaker 1: intended to allow the president and does allow the president 94 00:05:58,880 --> 00:06:02,760 Speaker 1: to increase tariff rates. As I noted before, traditionally I 95 00:06:02,800 --> 00:06:06,039 Speaker 1: was used as a basis for economic sanctions against the 96 00:06:06,080 --> 00:06:08,960 Speaker 1: target organizations, individuals, and foreign governments. 97 00:06:09,160 --> 00:06:13,359 Speaker 3: Four Republican senators voted alongside all forty four Democrats and 98 00:06:13,440 --> 00:06:17,040 Speaker 3: two independents on Wednesday to pass a measure that would 99 00:06:17,040 --> 00:06:21,719 Speaker 3: block Trump's tariffs on Canadian imports, and on Thursday, a 100 00:06:21,800 --> 00:06:26,080 Speaker 3: bipartisan Senate bill was introduced that would give Congress final 101 00:06:26,120 --> 00:06:29,800 Speaker 3: approval on tariffs imposed by a president. I don't know. 102 00:06:29,839 --> 00:06:31,760 Speaker 3: It seems like too little, too late. 103 00:06:32,240 --> 00:06:34,919 Speaker 1: I think that's a new development that there is some 104 00:06:35,000 --> 00:06:40,440 Speaker 1: momentum in Congress, including on a bipartisan basis, to reassert 105 00:06:40,480 --> 00:06:45,760 Speaker 1: congressional authority and their constitutional authority to establish tariffs. Congress, 106 00:06:45,960 --> 00:06:48,560 Speaker 1: because they have that constitutional authority, can step in at 107 00:06:48,600 --> 00:06:51,920 Speaker 1: any time. They could reverse the reciprocal tariffs that President 108 00:06:51,920 --> 00:06:54,880 Speaker 1: Trump announced, and they could reverse the Section three one 109 00:06:54,920 --> 00:06:58,080 Speaker 1: tariffs that have been in place since twenty eighteen. They've 110 00:06:58,160 --> 00:07:01,160 Speaker 1: chosen thus far not to do that, but I do 111 00:07:01,240 --> 00:07:05,000 Speaker 1: think what you're seeing now is because these tariffs are 112 00:07:05,040 --> 00:07:09,920 Speaker 1: reaching new countries, including our neighbors such as Canada and Mexico, 113 00:07:10,040 --> 00:07:13,560 Speaker 1: there is some momentum in Congress to re examine and 114 00:07:13,640 --> 00:07:17,040 Speaker 1: potentially check what the president is doing in the tariff space. 115 00:07:17,600 --> 00:07:20,240 Speaker 3: Explain specifically what Congress could do. 116 00:07:20,600 --> 00:07:25,960 Speaker 1: Congress could pass a statute establishing tariff rates for individual countries, 117 00:07:26,000 --> 00:07:28,960 Speaker 1: and that wouldn't take precedents over the executive orders issued 118 00:07:29,000 --> 00:07:34,600 Speaker 1: under AJIPA. Congress also can introduce resolutions terminating a national emergency, 119 00:07:34,800 --> 00:07:38,280 Speaker 1: so in theory, Congress could take action to withdraw the 120 00:07:38,360 --> 00:07:42,280 Speaker 1: legal basis for the reciprocal tariffs that President Trump announced, 121 00:07:42,480 --> 00:07:44,680 Speaker 1: they have not to date done that. And again i'd 122 00:07:44,720 --> 00:07:48,560 Speaker 1: go back to the twenty eighteen tariffs against China. You know, 123 00:07:48,640 --> 00:07:51,640 Speaker 1: that's an example where Congress has the authority to do 124 00:07:51,720 --> 00:07:54,520 Speaker 1: something and to reverse it, but todate has not done. 125 00:07:54,600 --> 00:07:58,360 Speaker 1: So I think the main point, you know, is that 126 00:07:58,440 --> 00:08:00,640 Speaker 1: Congress has a variety of tools they could use here 127 00:08:00,760 --> 00:08:04,840 Speaker 1: to to modify, to reverse, to change what the executive 128 00:08:04,840 --> 00:08:06,720 Speaker 1: branch is doing with prospect to tariffs. 129 00:08:07,200 --> 00:08:10,200 Speaker 3: So it seems unlikely that any bill or resolution opposing 130 00:08:10,280 --> 00:08:14,520 Speaker 3: Trump's tariffs would get through the House. Going beyond American 131 00:08:14,600 --> 00:08:18,600 Speaker 3: law for a moment, do these tariffs violate the rules 132 00:08:18,640 --> 00:08:20,080 Speaker 3: of the World Trade Organization? 133 00:08:20,560 --> 00:08:24,280 Speaker 1: Well, one thing I think is interesting about the Executive 134 00:08:24,440 --> 00:08:29,280 Speaker 1: Order is that it talks about the creation of the 135 00:08:29,280 --> 00:08:34,320 Speaker 1: World Trade Organization and frames some of the issues here 136 00:08:34,679 --> 00:08:39,000 Speaker 1: as the United States allowing other countries to get away 137 00:08:39,040 --> 00:08:42,720 Speaker 1: with breaches of what they promised to do under the WTO. 138 00:08:43,120 --> 00:08:46,720 Speaker 1: So that's the US perspective, I think. On the foreign perspective, 139 00:08:47,000 --> 00:08:50,520 Speaker 1: they'll say, also pointing to the WTO, that we had 140 00:08:50,559 --> 00:08:53,600 Speaker 1: a deal and the United States agreed to keep its 141 00:08:53,679 --> 00:08:56,880 Speaker 1: tariffs low and so they can't just sit by as 142 00:08:56,920 --> 00:09:00,040 Speaker 1: the United States acts and violation of that commitment, and 143 00:09:00,160 --> 00:09:03,480 Speaker 1: thus that becomes a basis for retaliation. And so it's 144 00:09:03,679 --> 00:09:07,080 Speaker 1: hard to have that crystal ball to see whether this 145 00:09:07,120 --> 00:09:09,920 Speaker 1: is going to create a spiraling effect of retaliation or 146 00:09:09,960 --> 00:09:12,920 Speaker 1: counter retaliation or if finstead, we could get to some 147 00:09:12,960 --> 00:09:15,600 Speaker 1: sort of equilibrium or these rates actually come down as 148 00:09:15,600 --> 00:09:18,560 Speaker 1: a result of agreements between the US and trading partners. 149 00:09:18,760 --> 00:09:22,240 Speaker 3: And under the WTO, is there a mechanism if one 150 00:09:22,320 --> 00:09:25,080 Speaker 3: member violates the trade rules. 151 00:09:25,280 --> 00:09:29,040 Speaker 1: Yes, and that would be the complaint of the US 152 00:09:29,120 --> 00:09:32,520 Speaker 1: trading partners. Here is that you could make a good 153 00:09:32,640 --> 00:09:36,920 Speaker 1: argument that the WTO's entire purpose was to help countries 154 00:09:37,480 --> 00:09:42,040 Speaker 1: define when another country is breaching it's WTO obligations through 155 00:09:42,360 --> 00:09:46,240 Speaker 1: the dispute settlement process. There have been a lot of 156 00:09:46,440 --> 00:09:50,600 Speaker 1: complaints from Democrats and Republicans alike about the WTO dispute 157 00:09:50,600 --> 00:09:54,520 Speaker 1: settlement process, but I think the reality is that foreign 158 00:09:54,520 --> 00:09:59,000 Speaker 1: countries view this as the United States walking away from 159 00:09:59,000 --> 00:10:02,600 Speaker 1: that dispute settlement process and going completely to a sort 160 00:10:02,640 --> 00:10:07,680 Speaker 1: of bilateral negotiating process for resolving trade disputes rather than 161 00:10:08,080 --> 00:10:10,000 Speaker 1: multilaterally through the WTO. 162 00:10:10,600 --> 00:10:13,720 Speaker 3: I know you advise companies on tariffs. What are some 163 00:10:13,800 --> 00:10:16,800 Speaker 3: of the concerns that your clients have or perhaps should have. 164 00:10:17,080 --> 00:10:20,480 Speaker 1: A lot of companies realize that the compliance stakes are 165 00:10:20,520 --> 00:10:24,000 Speaker 1: significantly increased when the tariff goes up this much, right, 166 00:10:24,080 --> 00:10:28,600 Speaker 1: because if your compliance practices don't get the country of 167 00:10:28,640 --> 00:10:31,920 Speaker 1: origin correct or the valuation correct, that now translates into 168 00:10:31,920 --> 00:10:35,080 Speaker 1: a fairly significant change in revenue that should have gone 169 00:10:35,120 --> 00:10:37,320 Speaker 1: to the US government if you're getting it incorrect. So 170 00:10:37,559 --> 00:10:40,800 Speaker 1: from a compliance standpoint, it's riskier now than it was 171 00:10:40,840 --> 00:10:45,080 Speaker 1: on Monday. With respect to declarations to US customs. One 172 00:10:45,120 --> 00:10:47,600 Speaker 1: thing that I think is going to generate a lot 173 00:10:47,600 --> 00:10:53,319 Speaker 1: of questions is because the tariff rates differ by different countries. 174 00:10:53,720 --> 00:10:57,560 Speaker 1: If you have product lines that make multiple stops prior 175 00:10:57,600 --> 00:11:00,600 Speaker 1: to be importing into the United States to further assembly, 176 00:11:00,880 --> 00:11:05,080 Speaker 1: are manufacturing, then the country of origin question becomes vitally 177 00:11:05,120 --> 00:11:08,080 Speaker 1: important because you may have a teriff rate down to 178 00:11:08,120 --> 00:11:10,680 Speaker 1: ten percent against the teriff frate that goes up to 179 00:11:10,760 --> 00:11:13,760 Speaker 1: forty nine percent on these reciprocal tariffs, and a lot 180 00:11:13,800 --> 00:11:16,720 Speaker 1: of terif liabilities at stake in applying the rule of 181 00:11:16,720 --> 00:11:18,679 Speaker 1: origin correctly. So I think that's going to be one 182 00:11:18,679 --> 00:11:22,040 Speaker 1: area where companies are examining carefully. The other thing is, 183 00:11:22,040 --> 00:11:24,439 Speaker 1: if you're stuck paying the tariff, the amount of tariff 184 00:11:24,480 --> 00:11:26,600 Speaker 1: you pay is going to be determined on how you 185 00:11:26,720 --> 00:11:29,679 Speaker 1: value the import as it comes into the United States. 186 00:11:29,720 --> 00:11:32,040 Speaker 1: And so a lot of companies who may not have 187 00:11:32,080 --> 00:11:36,120 Speaker 1: thought very hard about valuation because teriff rates or zero 188 00:11:36,280 --> 00:11:39,079 Speaker 1: are very low are looking at that question to make 189 00:11:39,120 --> 00:11:42,520 Speaker 1: sure they're not under or overvaluing the merchandise as it 190 00:11:42,559 --> 00:11:43,840 Speaker 1: comes into the United States. 191 00:11:43,920 --> 00:11:48,080 Speaker 3: It's a complex and evolving situation. Thanks for taking us 192 00:11:48,120 --> 00:11:51,800 Speaker 3: through it. That's David Townsend, a partner at Dorsey and Whitney. 193 00:11:52,080 --> 00:11:55,960 Speaker 3: Coming up next, Catholic Charities appears headed for a win 194 00:11:56,120 --> 00:11:59,320 Speaker 3: at the Supreme Court. I'm June Grosso. When you're listening 195 00:11:59,360 --> 00:12:00,480 Speaker 3: to Bloomberg. 196 00:12:01,920 --> 00:12:06,520 Speaker 4: I thought it was pretty fundamental that we don't treat 197 00:12:06,559 --> 00:12:10,800 Speaker 4: some religions better than other religions, and we certainly don't 198 00:12:10,840 --> 00:12:14,480 Speaker 4: do it based on the content of the religious doctrine 199 00:12:14,760 --> 00:12:16,320 Speaker 4: that those religions preach. 200 00:12:17,679 --> 00:12:21,080 Speaker 5: Isn't it a fundamental premise of our First Amendment that 201 00:12:21,160 --> 00:12:25,199 Speaker 5: the state shouldn't be picking and choosing between religions, between 202 00:12:25,480 --> 00:12:30,600 Speaker 5: certain evangelical sects and Judaism, and Catholicism on the other 203 00:12:30,720 --> 00:12:36,439 Speaker 5: for example, And doesn't it entangle the state tremendously when 204 00:12:36,480 --> 00:12:39,080 Speaker 5: it has to go into a soup kitchen. Send an 205 00:12:39,120 --> 00:12:42,120 Speaker 5: inspector in to see how much prayer is going on. 206 00:12:43,200 --> 00:12:49,160 Speaker 3: Justices across the ideological spectrum suggested that Wisconsin was discriminating 207 00:12:49,200 --> 00:12:53,240 Speaker 3: against Catholic Charities by denying it a religious exemption from 208 00:12:53,320 --> 00:12:57,600 Speaker 3: the state's unemployment tax program. The state argues that Catholic 209 00:12:57,679 --> 00:13:01,840 Speaker 3: Charities doesn't qualify for the tax exemption because the day 210 00:13:01,880 --> 00:13:06,080 Speaker 3: to day services it provides don't involve religious teachings. But 211 00:13:06,240 --> 00:13:10,880 Speaker 3: many of the justices seemed concerned about Wisconsin's contention that 212 00:13:11,120 --> 00:13:16,600 Speaker 3: one way organizations can get the exemption is by actively proselytizing. 213 00:13:16,920 --> 00:13:20,560 Speaker 3: Chief Justice John Roberts and Justice is Amy Cony Barrett 214 00:13:20,600 --> 00:13:24,679 Speaker 3: and Neil Gorsuch question just what that means in practice? 215 00:13:25,280 --> 00:13:30,120 Speaker 6: What is the simplest thing that the Catholic Charities would 216 00:13:30,200 --> 00:13:34,319 Speaker 6: have to do to qualify for the religious exemption in Wisconsin? 217 00:13:34,520 --> 00:13:34,760 Speaker 7: I think? 218 00:13:34,840 --> 00:13:37,400 Speaker 6: Were they sure they have one sign in the dining 219 00:13:37,440 --> 00:13:40,280 Speaker 6: hall saying this meal provided by Catholic Charities. If you 220 00:13:40,360 --> 00:13:44,679 Speaker 6: want to find out about the church, here's a brochure, and. 221 00:13:44,640 --> 00:13:46,960 Speaker 7: I mean, are they playing like hymn's on the radio 222 00:13:47,120 --> 00:13:50,680 Speaker 7: or like Christian rock at the evangelical soup kitchen on 223 00:13:50,720 --> 00:13:54,000 Speaker 7: the radio? You know, is that proselytization or not? Because 224 00:13:54,000 --> 00:13:55,760 Speaker 7: you're forced to sit there and listen to it. 225 00:13:57,040 --> 00:13:59,080 Speaker 5: I just want to know what the test is, So 226 00:13:59,320 --> 00:14:04,600 Speaker 5: repent sins, you get the exemption, not requiring you to 227 00:14:04,600 --> 00:14:07,400 Speaker 5: repent your sins, you don't. I guess you don't get 228 00:14:07,400 --> 00:14:07,920 Speaker 5: the exception. 229 00:14:08,679 --> 00:14:13,000 Speaker 3: Catholic Charities argues this state is violating its religious freedoms 230 00:14:13,040 --> 00:14:16,880 Speaker 3: protected by the First Amendment by making determinations about what 231 00:14:17,000 --> 00:14:20,800 Speaker 3: work qualifies as religious. My guest is Richard Garnett, a 232 00:14:20,840 --> 00:14:23,960 Speaker 3: professor at Notre Dame Law School and founding director of 233 00:14:24,000 --> 00:14:28,120 Speaker 3: the school's Program on Church, State and Society. He was 234 00:14:28,160 --> 00:14:30,880 Speaker 3: part of a group of law and religion professors who 235 00:14:31,000 --> 00:14:34,880 Speaker 3: submitted a brief in support of Catholic Charities. Rick, this 236 00:14:34,960 --> 00:14:38,640 Speaker 3: is an appeal from a decision of the Wisconsin Supreme Court. 237 00:14:38,840 --> 00:14:41,200 Speaker 3: Tell us about the issue before the justices. 238 00:14:41,600 --> 00:14:45,120 Speaker 8: So the justices are being asked to evaluate a ruling 239 00:14:45,200 --> 00:14:47,880 Speaker 8: by a Wisconsin court, and that ruling had to do 240 00:14:48,560 --> 00:14:52,600 Speaker 8: with an exemption that was in place in Wisconsin law, 241 00:14:52,800 --> 00:14:58,600 Speaker 8: it's an exemption from otherwise applicable requirement about providing unemployment insurance. 242 00:14:58,800 --> 00:15:02,840 Speaker 8: So Wisconsin, like a lot of states, has a religious exemption. 243 00:15:03,000 --> 00:15:06,680 Speaker 8: So some employers were exempt from this particular requirement if 244 00:15:06,720 --> 00:15:11,120 Speaker 8: they were religious. And the precise terminology of the exemption 245 00:15:11,320 --> 00:15:16,400 Speaker 8: was that organizations that are operated primarily for religious purposes 246 00:15:16,520 --> 00:15:20,720 Speaker 8: are entitled to the exemption. And Catholic charities, which is 247 00:15:20,960 --> 00:15:24,280 Speaker 8: what it sounds like, a Catholic organization that provides a 248 00:15:24,360 --> 00:15:28,080 Speaker 8: variety of social services, was denied the exemption on the 249 00:15:28,080 --> 00:15:31,000 Speaker 8: theory that, you know, although it's got the word Catholic 250 00:15:31,040 --> 00:15:34,800 Speaker 8: in it, and although it's probably motivated by Catholic concerns, 251 00:15:35,080 --> 00:15:37,400 Speaker 8: that a lot of the things it was doing they 252 00:15:37,440 --> 00:15:40,440 Speaker 8: weren't really religious. They weren't primarily religious. They were the 253 00:15:40,440 --> 00:15:44,160 Speaker 8: same kinds of things that secular organizations do. And so that, 254 00:15:44,240 --> 00:15:46,520 Speaker 8: you know, the Wisconsant Court kind of empsizes, Look, they 255 00:15:46,640 --> 00:15:49,800 Speaker 8: hire some people who aren't Catholic, they serve people regardless 256 00:15:49,800 --> 00:15:53,480 Speaker 8: of their faith, they don't engage in proselytism, they don't 257 00:15:53,480 --> 00:15:56,640 Speaker 8: require people to attend church, so they're not really religious. 258 00:15:56,840 --> 00:15:59,600 Speaker 8: And the Supreme Court took up the case to decide. 259 00:15:59,600 --> 00:16:03,160 Speaker 8: I think whether there wisconsint Court's definition of who gets 260 00:16:03,200 --> 00:16:07,440 Speaker 8: this exemption was in a way discriminatory, that it distinguished 261 00:16:07,520 --> 00:16:12,920 Speaker 8: between religions that engage in kind of overt evangelism when 262 00:16:12,920 --> 00:16:17,200 Speaker 8: they provide services and those that live out their religious 263 00:16:17,200 --> 00:16:20,440 Speaker 8: mission by providing social services to a broad range of people. 264 00:16:20,920 --> 00:16:25,640 Speaker 3: Both liberal Justice Elina Kagan and conservative Justice Neil Gorsuch 265 00:16:25,880 --> 00:16:28,640 Speaker 3: seemed to be on the same page, saying that we 266 00:16:28,720 --> 00:16:31,320 Speaker 3: don't treat some religions better than others. 267 00:16:31,840 --> 00:16:35,160 Speaker 8: Yeah. So we have a well established principle in American 268 00:16:35,240 --> 00:16:41,360 Speaker 8: law that legislatures are permitted to have exemptions for religious 269 00:16:41,360 --> 00:16:44,760 Speaker 8: believers or religious institutions from their laws. These happen all 270 00:16:44,760 --> 00:16:47,760 Speaker 8: the time, right, But one of the important qualifications is 271 00:16:47,800 --> 00:16:52,080 Speaker 8: that legislators aren't allowed to discriminate among religions when they 272 00:16:52,160 --> 00:16:54,720 Speaker 8: are granting these exemptions. So, you know, you couldn't have 273 00:16:54,920 --> 00:16:59,760 Speaker 8: an exemption for Baptist organizations but deny it to Presbyterian ones, 274 00:17:00,120 --> 00:17:02,840 Speaker 8: or an exemption for Buddhist ones but deny it to 275 00:17:02,920 --> 00:17:05,240 Speaker 8: Hindu ones. You're allowed to have religious exemptions, but the 276 00:17:05,240 --> 00:17:09,480 Speaker 8: exemptions themselves can't discriminate among religions. And I think Justice 277 00:17:09,640 --> 00:17:13,879 Speaker 8: Kagan's concern was that the Wisconsant Court in effect had said, 278 00:17:13,920 --> 00:17:17,879 Speaker 8: to count as religious, you have to be religious in 279 00:17:17,920 --> 00:17:20,199 Speaker 8: a certain way. You have to be religious in a 280 00:17:20,240 --> 00:17:23,640 Speaker 8: way that's kind of evangelical. Right where you're serving your 281 00:17:23,680 --> 00:17:28,479 Speaker 8: own you're engaging in evangelization and proselytism. Maybe you know 282 00:17:28,600 --> 00:17:31,040 Speaker 8: you're giving out food at the end of a church service, 283 00:17:31,040 --> 00:17:33,440 Speaker 8: but you're requiring people to attend church beforehand. There was 284 00:17:33,480 --> 00:17:35,639 Speaker 8: constant Court had a premise that I think all the 285 00:17:35,720 --> 00:17:39,280 Speaker 8: justices were uneasy with, namely that it was appropriate for 286 00:17:39,359 --> 00:17:42,600 Speaker 8: a secular court to say, you know, if you're not 287 00:17:42,680 --> 00:17:46,399 Speaker 8: engaging in proselytism, then you're just doing secular stuff. But 288 00:17:46,520 --> 00:17:49,400 Speaker 8: from the perspective of Catholic Charities, you know, when it's 289 00:17:49,520 --> 00:17:53,320 Speaker 8: feeding the hungry, or clothing the naked, or housing the unsheltered, 290 00:17:53,440 --> 00:17:56,480 Speaker 8: it's still engaging in religious activity. And to be clear, 291 00:17:56,600 --> 00:18:00,800 Speaker 8: the Catholic Charities position is not that any time institution 292 00:18:01,080 --> 00:18:04,879 Speaker 8: claims it's religious, it should get an exemption. Everybody acknowledges 293 00:18:04,960 --> 00:18:07,879 Speaker 8: that courts are allowed to ask whether the religious claims 294 00:18:07,880 --> 00:18:12,040 Speaker 8: are sincere, and everyone agrees that it is permissible to 295 00:18:12,200 --> 00:18:15,960 Speaker 8: distinguish between religious organizations on the one hand and secular 296 00:18:16,000 --> 00:18:19,240 Speaker 8: ones on the other. But where the justices got nervous 297 00:18:19,600 --> 00:18:22,520 Speaker 8: was the way the Wisconstant courts seemed to almost engage 298 00:18:22,520 --> 00:18:25,919 Speaker 8: in a little bit of armchair theology when it decided 299 00:18:25,960 --> 00:18:28,240 Speaker 8: that in order to be i think the word to 300 00:18:28,359 --> 00:18:31,840 Speaker 8: use was typically religious, you had to exercise your religion 301 00:18:31,840 --> 00:18:34,560 Speaker 8: in a certain way. And so Justice Kagan, for example, says, well, 302 00:18:34,560 --> 00:18:37,800 Speaker 8: you know, look, in Judaism, a lot of what we 303 00:18:37,880 --> 00:18:40,200 Speaker 8: do when we're active in the world is not engage 304 00:18:40,240 --> 00:18:42,720 Speaker 8: in proselytism. That's not one of the things that we do. 305 00:18:42,760 --> 00:18:45,200 Speaker 8: But we still do exercise our religion when we're providing 306 00:18:45,240 --> 00:18:47,480 Speaker 8: various social services. So that was clearly a theme that 307 00:18:47,520 --> 00:18:49,840 Speaker 8: she was focusing on. And there was also a theme 308 00:18:49,880 --> 00:18:52,880 Speaker 8: in the argument not quite as prominent as this discrimination theme, 309 00:18:52,920 --> 00:18:55,640 Speaker 8: I think, but it was still there that Wisconsin's rule 310 00:18:56,000 --> 00:19:00,520 Speaker 8: had kind of a coercive effect of basically pressuring religious 311 00:19:00,560 --> 00:19:04,199 Speaker 8: institutions to organize themselves in a certain way, because the 312 00:19:04,240 --> 00:19:06,959 Speaker 8: Wisconsin rule was one that said, if a charity is 313 00:19:07,040 --> 00:19:10,840 Speaker 8: separately incorporated from the church itself, then it's going to 314 00:19:10,880 --> 00:19:13,679 Speaker 8: be treated differently than if it's kind of integrated into 315 00:19:13,840 --> 00:19:16,440 Speaker 8: the religious institution, and so the concern was that that 316 00:19:16,480 --> 00:19:20,200 Speaker 8: regime would kind of pressure religious organizations to change their structures. 317 00:19:20,240 --> 00:19:22,600 Speaker 8: But I think the most straightforward part of the case, 318 00:19:22,640 --> 00:19:24,399 Speaker 8: and I think this is what the lawyer for Catholic 319 00:19:24,440 --> 00:19:27,040 Speaker 8: Charity was really leaning on, is that it's a straight 320 00:19:27,080 --> 00:19:31,199 Speaker 8: up black letter rule that governments can't discriminate among religions 321 00:19:31,359 --> 00:19:35,159 Speaker 8: when they are crafting their accommodations. And the Wisconsin Supreme 322 00:19:35,200 --> 00:19:39,159 Speaker 8: Court adopted an interpretation that appears to treat some religions 323 00:19:39,200 --> 00:19:42,800 Speaker 8: as being more authentically religious than others. So I suspect 324 00:19:42,880 --> 00:19:44,320 Speaker 8: the Supreme Court's going to reverse that. 325 00:19:44,680 --> 00:19:47,359 Speaker 3: What was the best argument you think the state put 326 00:19:47,440 --> 00:19:49,280 Speaker 3: forward to defend its claim? 327 00:19:49,680 --> 00:19:52,399 Speaker 8: Maybe two things are worth emphasizing. That one claim the 328 00:19:52,440 --> 00:19:54,680 Speaker 8: state made, but I don't think the justices were moved 329 00:19:54,720 --> 00:19:57,520 Speaker 8: by it was that, look, the language in the Wisconsin 330 00:19:57,600 --> 00:20:00,359 Speaker 8: statute is a lot like the language that appears in 331 00:20:00,359 --> 00:20:03,399 Speaker 8: a whole bunch of other religious exemptions, and so the 332 00:20:03,760 --> 00:20:06,000 Speaker 8: concern that the state was raising was like, if you 333 00:20:06,040 --> 00:20:08,320 Speaker 8: interpret this language really broadly, that's going to have all 334 00:20:08,400 --> 00:20:11,360 Speaker 8: kinds of sweeping effects. And the justices didn't seem as 335 00:20:11,440 --> 00:20:13,520 Speaker 8: moved by that. Another argument the state made, which is 336 00:20:13,560 --> 00:20:16,600 Speaker 8: completely reasonable, is that you know, in order for the 337 00:20:16,640 --> 00:20:19,600 Speaker 8: state to accommodate religion, it has to have some limits 338 00:20:19,640 --> 00:20:22,960 Speaker 8: on that accommodation. Otherwise that reduces the incentive of the 339 00:20:23,000 --> 00:20:25,040 Speaker 8: state to accommodate religion at all, which would be a 340 00:20:25,080 --> 00:20:27,199 Speaker 8: perverse effect. But I think the justices were able to 341 00:20:27,240 --> 00:20:29,640 Speaker 8: respond to that by saying, we agree with you. There 342 00:20:29,680 --> 00:20:32,120 Speaker 8: can be limits on the exemptions. Again, you can make 343 00:20:32,119 --> 00:20:34,760 Speaker 8: sure that the claimants are sincere, and you can make 344 00:20:34,800 --> 00:20:38,240 Speaker 8: sure that they are religious as opposed to secular or 345 00:20:38,280 --> 00:20:41,000 Speaker 8: philosophical or what have you. But what you can't do 346 00:20:41,440 --> 00:20:45,520 Speaker 8: is adopt the definition of religion, which in effect picks 347 00:20:45,520 --> 00:20:49,400 Speaker 8: and chooses among different religions, and I suspect will get 348 00:20:49,400 --> 00:20:52,840 Speaker 8: a pretty consensus ruling from the justices on that point. 349 00:20:53,040 --> 00:20:57,040 Speaker 3: Justice Barrett raised the question of how far the exemptions 350 00:20:57,080 --> 00:20:59,720 Speaker 3: would go, saying, one of the problems here is figuring 351 00:20:59,720 --> 00:21:02,679 Speaker 3: out what the line is. Some say there could be 352 00:21:02,760 --> 00:21:08,040 Speaker 3: broad ramifications if the Justice's side with Catholic charities here. 353 00:21:08,520 --> 00:21:10,439 Speaker 8: I mean, I think she was raising that issue and 354 00:21:10,760 --> 00:21:13,320 Speaker 8: was right to, because anytime you have an exemption from 355 00:21:13,359 --> 00:21:15,280 Speaker 8: a law, there's going to be questions about how far 356 00:21:15,359 --> 00:21:19,160 Speaker 8: the exemption goes. And it is true that in American law, 357 00:21:19,280 --> 00:21:22,479 Speaker 8: you know, we don't really have a clear definition of 358 00:21:22,520 --> 00:21:25,040 Speaker 8: what is or is not religion. But I think that 359 00:21:25,119 --> 00:21:29,040 Speaker 8: the lawyer for Catholic Charities was able to respond just 360 00:21:29,080 --> 00:21:33,040 Speaker 8: by assuring Justice Barrett that in this particular case, in 361 00:21:33,200 --> 00:21:36,919 Speaker 8: order to correct the error that there wis constant court made, 362 00:21:37,000 --> 00:21:39,320 Speaker 8: you don't actually have to issue a very broad ruling. 363 00:21:39,400 --> 00:21:42,280 Speaker 8: You don't have to say again that this religious exemption 364 00:21:42,840 --> 00:21:47,680 Speaker 8: covers any entity that conceivably claims to be religious. It's 365 00:21:47,720 --> 00:21:51,000 Speaker 8: a more narrowed and precise argument than that. It's that 366 00:21:51,200 --> 00:21:55,199 Speaker 8: when the state is engaging in crafting an exemption, it 367 00:21:55,240 --> 00:21:58,400 Speaker 8: can't do so in a way that discriminates among religions. 368 00:21:58,400 --> 00:22:01,439 Speaker 8: So that non discrimination rule, which is the key to 369 00:22:01,480 --> 00:22:04,480 Speaker 8: this case, that would prevent this case from going off 370 00:22:04,520 --> 00:22:07,000 Speaker 8: into some of the concerns that the state raised about 371 00:22:07,000 --> 00:22:09,440 Speaker 8: how you know the exemption, would swallow the rule itself. 372 00:22:09,600 --> 00:22:12,720 Speaker 8: It is possible to accommodate religion and to draw boundaries 373 00:22:12,760 --> 00:22:15,879 Speaker 8: around religion without doing so in a way that discriminates 374 00:22:16,040 --> 00:22:17,760 Speaker 8: among different religions. 375 00:22:18,480 --> 00:22:21,240 Speaker 3: I think most people who listen to the oral arguments 376 00:22:21,280 --> 00:22:25,080 Speaker 3: came to the same conclusion that the justices would rule 377 00:22:25,200 --> 00:22:28,400 Speaker 3: in favor of Catholic Charities. What's your take. 378 00:22:29,080 --> 00:22:33,440 Speaker 8: It seems like most, perhaps even all of the justices 379 00:22:33,640 --> 00:22:36,920 Speaker 8: were pretty skeptical of what the Wisconsin Court had done. 380 00:22:37,000 --> 00:22:39,919 Speaker 8: So it does seem pretty likely that the Catholic Charities 381 00:22:39,960 --> 00:22:42,560 Speaker 8: position is going to win out here. You know, people 382 00:22:42,600 --> 00:22:44,960 Speaker 8: sometimes forget that in the Supreme Court, whatever else they 383 00:22:45,040 --> 00:22:48,479 Speaker 8: might be divided by a lot of these religious freedom 384 00:22:48,520 --> 00:22:52,960 Speaker 8: cases are not divided red versus Blue, Republican versus Democrat. 385 00:22:53,000 --> 00:22:55,199 Speaker 8: There are a fair number of cases that are you know, 386 00:22:55,320 --> 00:22:57,560 Speaker 8: unanimous or close to it. And this might be another 387 00:22:57,600 --> 00:22:59,159 Speaker 8: one is that because. 388 00:22:58,920 --> 00:23:02,520 Speaker 3: There are seven Catholic on the Court. I asked that facetiously, 389 00:23:02,760 --> 00:23:06,800 Speaker 3: but that number of justices of one religion seems unusual. 390 00:23:06,960 --> 00:23:09,600 Speaker 8: I've written a few things about that and how that happened. Yeah, 391 00:23:09,800 --> 00:23:11,960 Speaker 8: especially when one thinks back that, you know, there were 392 00:23:12,040 --> 00:23:14,880 Speaker 8: zero for the first seventy years or so, and then 393 00:23:15,080 --> 00:23:17,240 Speaker 8: I don't think we had a situation where we had 394 00:23:17,359 --> 00:23:19,399 Speaker 8: more than one on the court until you know, the 395 00:23:19,480 --> 00:23:23,120 Speaker 8: nineteen eighties. Perhaps, so that is a change. But America's demographics, 396 00:23:23,200 --> 00:23:26,800 Speaker 8: religious demographics educational demographics have changed a lot, so maybe 397 00:23:26,800 --> 00:23:27,639 Speaker 8: that's part of the story. 398 00:23:28,040 --> 00:23:30,639 Speaker 3: This is the first case involving religion that the Court 399 00:23:30,680 --> 00:23:33,400 Speaker 3: has heard in about two years, and this term there 400 00:23:33,400 --> 00:23:37,280 Speaker 3: are three religion cases. Do you see a trend or 401 00:23:37,480 --> 00:23:40,719 Speaker 3: any explanation for why those three in particular? 402 00:23:41,119 --> 00:23:42,800 Speaker 8: It's hard to say. I mean, so much of the 403 00:23:42,920 --> 00:23:45,560 Speaker 8: court stock, as you know, is a function of kind 404 00:23:45,600 --> 00:23:48,520 Speaker 8: of accident, you know what happened in the courts below. 405 00:23:48,640 --> 00:23:51,359 Speaker 8: But you're right that there's this case which involves a 406 00:23:51,560 --> 00:23:54,879 Speaker 8: particular question that arises in the religious accommodation's context is 407 00:23:54,920 --> 00:23:57,880 Speaker 8: one coming out of Maryland, which involves some parents who 408 00:23:57,880 --> 00:23:59,679 Speaker 8: wanted to be able to opt their kids out of 409 00:23:59,760 --> 00:24:02,880 Speaker 8: some curricular matters that had to do with sexual orientation 410 00:24:02,920 --> 00:24:05,080 Speaker 8: and gender identity and so on, so they're seeking an 411 00:24:05,080 --> 00:24:07,880 Speaker 8: accommodation that was denied to them. And then of course 412 00:24:07,920 --> 00:24:11,479 Speaker 8: there's the Oklahoma case about the virtual Catholic School and 413 00:24:11,520 --> 00:24:14,879 Speaker 8: whether it can participate in that state's charter program. That 414 00:24:14,920 --> 00:24:17,399 Speaker 8: one's not really an accommodation case. It's it's more of 415 00:24:17,440 --> 00:24:20,600 Speaker 8: what I call a cooperation case. So certainly, you know, 416 00:24:20,800 --> 00:24:23,400 Speaker 8: an interesting year for law and religion at the Court. 417 00:24:23,440 --> 00:24:25,919 Speaker 8: But whether the fact that there are three tells us 418 00:24:25,960 --> 00:24:28,520 Speaker 8: anything deeper, I'm not sure, and those. 419 00:24:28,320 --> 00:24:30,640 Speaker 3: Other cases will be heard in the last two weeks 420 00:24:30,760 --> 00:24:34,440 Speaker 3: of April. Thanks so much, Rick, That's Professor Richard Garnett 421 00:24:34,480 --> 00:24:38,399 Speaker 3: of Notre Dame Law School coming up next. How do 422 00:24:38,560 --> 00:24:43,600 Speaker 3: Alipa and Mariah Carey won their copyright infringement lawsuits? I'm 423 00:24:43,680 --> 00:24:46,239 Speaker 3: June Grosso. When you're listening to Bloomberg. 424 00:24:51,600 --> 00:25:01,280 Speaker 6: With Glitter. 425 00:25:04,680 --> 00:25:08,840 Speaker 3: International pop star Dua Lipa has won a second lawsuit 426 00:25:08,960 --> 00:25:13,120 Speaker 3: accusing her of copying her twenty twenty mega hit Levitating. 427 00:25:13,440 --> 00:25:18,200 Speaker 3: Two songwriters said she plagiarized their disco era songs Wiggling, 428 00:25:18,280 --> 00:25:22,200 Speaker 3: Giggle All Night and Don Diablo, claiming that the opening 429 00:25:22,280 --> 00:25:25,720 Speaker 3: melody in Levitating was a duplicate of the melody in 430 00:25:25,800 --> 00:25:26,520 Speaker 3: their songs. 431 00:25:28,280 --> 00:25:29,800 Speaker 9: I was walking down the street when I saw all 432 00:25:29,840 --> 00:25:31,680 Speaker 9: the times of Soldier Boy A week a week in 433 00:25:31,760 --> 00:25:33,360 Speaker 9: atne He said, I'd like. 434 00:25:33,280 --> 00:25:33,800 Speaker 1: To make a date. 435 00:25:33,840 --> 00:25:37,840 Speaker 9: I said, so sorry about his lady said, a free, 436 00:25:38,720 --> 00:25:40,920 Speaker 9: free to me the love of my life, he said, 437 00:25:40,960 --> 00:25:42,720 Speaker 9: another way you wiggle in I look the way you 438 00:25:42,720 --> 00:25:44,400 Speaker 9: giggle in it love to give you just a little 439 00:25:44,480 --> 00:25:48,280 Speaker 9: kiss son your lips today light. So we giggled all night. 440 00:25:48,560 --> 00:25:52,680 Speaker 3: But a Manhattan federal judge gave Dua Lipa an early victory, 441 00:25:53,160 --> 00:25:57,000 Speaker 3: dismissing the lawsuit. The judge found that the shared melody 442 00:25:57,160 --> 00:26:01,359 Speaker 3: was generic and not protectable under copy right law. Having 443 00:26:01,359 --> 00:26:06,000 Speaker 3: appeared in Mozart and Rassini operas, Gilbert and Sullivan operettas, 444 00:26:06,160 --> 00:26:09,800 Speaker 3: and Staying Alive by the Begs, Joining Me is music 445 00:26:09,840 --> 00:26:13,880 Speaker 3: attorney Ron Beanstock, a partner at Scarency Holland Beck Ron 446 00:26:13,920 --> 00:26:16,840 Speaker 3: tell us about the first copyright lawsuit that du A 447 00:26:16,960 --> 00:26:21,200 Speaker 3: Lipa one over, Levitating where a reggae group suit her. 448 00:26:21,560 --> 00:26:24,560 Speaker 10: There's a twenty seventeen song by a relatively and I 449 00:26:24,600 --> 00:26:28,040 Speaker 10: don't want to result anybody. It's relatively unknown reggae group 450 00:26:28,080 --> 00:26:30,240 Speaker 10: in Florida. You got to prove access, as you know 451 00:26:30,320 --> 00:26:32,959 Speaker 10: on all of these cases through step process. The giant 452 00:26:33,000 --> 00:26:36,600 Speaker 10: hurdle is access. Then you've got substantial similarity. If you 453 00:26:36,760 --> 00:26:39,359 Speaker 10: don't have access and you can't really prove it, you 454 00:26:39,400 --> 00:26:41,360 Speaker 10: can't say somebody heard of this, or it was a hit, 455 00:26:41,520 --> 00:26:43,440 Speaker 10: someone should have heard of it, or you're on tour 456 00:26:43,480 --> 00:26:45,480 Speaker 10: with them, or you shared the same manager, or you've 457 00:26:45,520 --> 00:26:49,080 Speaker 10: shared the same producers, or all those different check the box. 458 00:26:49,119 --> 00:26:51,840 Speaker 10: For access. Then you've got to have some striking similarity 459 00:26:51,960 --> 00:26:54,960 Speaker 10: to go further, and that's where the subtle courts usually go. Okay, 460 00:26:54,960 --> 00:26:58,159 Speaker 10: there's your bar, right, and this doesn't striking similar So 461 00:26:58,520 --> 00:27:01,800 Speaker 10: back to our reggae claim. You've got effectively a four 462 00:27:01,920 --> 00:27:05,800 Speaker 10: chord pattern that is in minor key. The song Levitating 463 00:27:05,800 --> 00:27:08,080 Speaker 10: can be viner and the chord sort of match up. 464 00:27:08,119 --> 00:27:10,160 Speaker 10: But that's not how this works musically. If you don't 465 00:27:10,200 --> 00:27:13,399 Speaker 10: mind me singing, I hope I don't ruin. Everybody's go ahead. 466 00:27:13,600 --> 00:27:16,119 Speaker 10: But there are two things that are very clear in 467 00:27:16,200 --> 00:27:19,840 Speaker 10: both cases involving this song Levitating. It's this pattern Da 468 00:27:19,920 --> 00:27:21,320 Speaker 10: da da da da da da da da da da 469 00:27:21,359 --> 00:27:26,040 Speaker 10: da da da da da defending chromatic across the four chords. 470 00:27:26,160 --> 00:27:27,720 Speaker 10: Here you go da da da da da da da 471 00:27:27,760 --> 00:27:29,359 Speaker 10: da da da da da da da. And that's going 472 00:27:29,440 --> 00:27:31,960 Speaker 10: to be what somebody's got to hang their legal hat 473 00:27:32,000 --> 00:27:34,399 Speaker 10: on and say that is not a common element. You 474 00:27:34,440 --> 00:27:36,959 Speaker 10: don't hear that very often. And these things match up 475 00:27:36,960 --> 00:27:39,720 Speaker 10: when you use this analysis the way we do with chords. 476 00:27:39,920 --> 00:27:42,360 Speaker 10: When we take these melodies and we put them into 477 00:27:42,400 --> 00:27:44,679 Speaker 10: the TSC or you mask them up in the relative key, 478 00:27:45,119 --> 00:27:47,120 Speaker 10: those notes are in a match up, and then they 479 00:27:47,119 --> 00:27:50,520 Speaker 10: talk about harmonic diling and all these well, that's staying alive. 480 00:27:50,720 --> 00:27:52,000 Speaker 10: Da da da da da da da da da da 481 00:27:52,080 --> 00:27:54,520 Speaker 10: da da da da da da. Right, we've heard that before. 482 00:27:54,840 --> 00:27:59,399 Speaker 10: So immediately when you start singing, the judge saying Mozart 483 00:27:59,400 --> 00:28:02,800 Speaker 10: and Gilbert in Sullivan and mentions the beg's, you know, 484 00:28:03,400 --> 00:28:06,880 Speaker 10: that's a pretty common element. So when people say, hey, 485 00:28:08,000 --> 00:28:10,159 Speaker 10: i've heard that before, Sure you did. You heard it 486 00:28:10,240 --> 00:28:14,119 Speaker 10: probably six centuries ago, and the beg's da da da 487 00:28:14,200 --> 00:28:15,520 Speaker 10: da da da da da da da da da da 488 00:28:15,680 --> 00:28:18,880 Speaker 10: ay statalized. You know, these are sort of common elements. 489 00:28:19,119 --> 00:28:22,679 Speaker 10: So the first part is that the planets in the 490 00:28:22,760 --> 00:28:26,000 Speaker 10: first case involving the Regaevan couldn't prove access. And then 491 00:28:26,280 --> 00:28:29,119 Speaker 10: it really fell apart once you start talking about common 492 00:28:29,160 --> 00:28:31,800 Speaker 10: element and it got dismissed. And to give you one 493 00:28:31,880 --> 00:28:35,760 Speaker 10: more pop culture reference, the chords are the same things 494 00:28:35,880 --> 00:28:39,520 Speaker 10: to ELO's Evil Woman. These are common and four chord 495 00:28:39,640 --> 00:28:42,320 Speaker 10: patterns and songs. We could be here all day. I mean, 496 00:28:42,360 --> 00:28:46,320 Speaker 10: they're really common. So the first case dismissal rested upon 497 00:28:46,360 --> 00:28:47,880 Speaker 10: the idea that you had no access and they're not 498 00:28:47,880 --> 00:28:49,560 Speaker 10: striking a clar So we. 499 00:28:49,560 --> 00:28:53,360 Speaker 3: Go from reggae to the second case, which involves two 500 00:28:53,440 --> 00:28:54,320 Speaker 3: disco songs. 501 00:28:54,480 --> 00:28:58,240 Speaker 10: The second case is interesting because I think this was 502 00:28:58,440 --> 00:29:01,240 Speaker 10: a slightly more sophisticated approach to it, right they so 503 00:29:01,400 --> 00:29:03,280 Speaker 10: it kind of didn't work on the first matter that 504 00:29:03,400 --> 00:29:05,040 Speaker 10: they have that precedence, So now you can kind of 505 00:29:05,120 --> 00:29:07,360 Speaker 10: roll into what what should we do that's different? Here, 506 00:29:07,480 --> 00:29:10,040 Speaker 10: still the same issues. It's in B minor, and now 507 00:29:10,080 --> 00:29:14,480 Speaker 10: you have this nineteen seventy nine wiggle and giggle in 508 00:29:14,640 --> 00:29:18,960 Speaker 10: E flat major, and then this don diablo only in 509 00:29:19,000 --> 00:29:22,360 Speaker 10: Spanish Stung in Spanish, also in a major case B 510 00:29:22,520 --> 00:29:26,200 Speaker 10: flat major. So you already start with some variations. The 511 00:29:26,280 --> 00:29:28,720 Speaker 10: other thing that the lay person generally when they discussed 512 00:29:28,720 --> 00:29:30,400 Speaker 10: this with me, and I'm sure discussed this with you, 513 00:29:31,160 --> 00:29:35,240 Speaker 10: is it's about publishers. This is not about dualalipa. This 514 00:29:35,360 --> 00:29:38,840 Speaker 10: is about the publishers, the lawsuits involved. Who controls the copyright. 515 00:29:38,960 --> 00:29:43,600 Speaker 10: So these are major publishers, you know, Warners, Sony, Universal Music. 516 00:29:43,840 --> 00:29:46,760 Speaker 10: So they're going to get some really powerful teams of 517 00:29:47,040 --> 00:29:50,200 Speaker 10: really experienced copyright lawyers. I know some of these people. 518 00:29:50,200 --> 00:29:52,880 Speaker 10: They're great at what they do. They've enters before. So 519 00:29:53,360 --> 00:29:56,840 Speaker 10: you start already with the concept of all right, where's 520 00:29:56,840 --> 00:29:59,480 Speaker 10: our access. Where's that giant hurdle you've got to get 521 00:29:59,480 --> 00:30:03,160 Speaker 10: over a Men nine disco tune called Wiggle and Giggle, 522 00:30:03,200 --> 00:30:05,920 Speaker 10: And then you have the Spanish only don diablo. When 523 00:30:06,000 --> 00:30:09,080 Speaker 10: would these writers? Is support writers, it's not just do aliva? 524 00:30:09,360 --> 00:30:11,640 Speaker 10: When would these people have access to that song? So 525 00:30:11,680 --> 00:30:15,000 Speaker 10: that's a huge hurdle. If you don't prove back, you're 526 00:30:15,120 --> 00:30:19,120 Speaker 10: right back to this what's strikingly similar? So the plaintiff 527 00:30:19,200 --> 00:30:22,880 Speaker 10: said the opening melody was duplicated throughout the song and 528 00:30:22,960 --> 00:30:26,520 Speaker 10: gave a retro field. Well, okay, that doesn't count. Retro 529 00:30:26,640 --> 00:30:31,040 Speaker 10: feel is not substantive. Again, we're not talking about the 530 00:30:31,040 --> 00:30:34,760 Speaker 10: copyright and the sound recording. We're talking only about the composition, 531 00:30:35,040 --> 00:30:37,800 Speaker 10: the idea that things may sound similar because they are 532 00:30:37,760 --> 00:30:40,920 Speaker 10: of the same beat, and other elements not controlling here, 533 00:30:41,200 --> 00:30:43,800 Speaker 10: it's the song. So you had this claim that the 534 00:30:43,840 --> 00:30:47,320 Speaker 10: opening melody was duplicated, and then the defense was, well, 535 00:30:47,320 --> 00:30:50,400 Speaker 10: wait a second, these are non copyrightable elements, just like 536 00:30:50,400 --> 00:30:53,760 Speaker 10: our last case, right, common elements common for a chords 537 00:30:54,000 --> 00:30:56,680 Speaker 10: and that common descending pattern of da da da da 538 00:30:56,720 --> 00:30:58,040 Speaker 10: da da da da da da da da da da 539 00:30:58,080 --> 00:31:01,120 Speaker 10: da da, and so these are not enough to prove 540 00:31:01,400 --> 00:31:05,000 Speaker 10: it strikingly similar. And the judge dismissed and said, no, 541 00:31:05,240 --> 00:31:09,160 Speaker 10: I'm giving you some rejudgment to defendant. And I took 542 00:31:09,160 --> 00:31:11,520 Speaker 10: a look at the experts, and we had the Delbert 543 00:31:11,560 --> 00:31:14,640 Speaker 10: claims about whether they were acting as experts in their opinion. 544 00:31:14,680 --> 00:31:17,040 Speaker 10: You know, all the infighting will go on in federal 545 00:31:17,160 --> 00:31:20,480 Speaker 10: court about experts popyright. But ultimately the judge said, hey, 546 00:31:20,680 --> 00:31:23,320 Speaker 10: these are common elements. I can't let this case proceed 547 00:31:23,440 --> 00:31:24,120 Speaker 10: and keep the sensed. 548 00:31:24,400 --> 00:31:27,400 Speaker 3: The case seemed to have benefited from the Ed Sheeran case, 549 00:31:27,880 --> 00:31:31,000 Speaker 3: where it was found that sheeron song Thinking Out Loud 550 00:31:31,400 --> 00:31:35,000 Speaker 3: and Marvin Gaye's song Let's Get It On only shared 551 00:31:35,120 --> 00:31:38,480 Speaker 3: commonly used elements that are not copyrightable. 552 00:31:38,640 --> 00:31:42,120 Speaker 10: All right, So the Ed Sheering case, it's win a verdict, right. 553 00:31:42,280 --> 00:31:46,400 Speaker 10: It was not decided in a summary rejudgment or dismissal. 554 00:31:46,640 --> 00:31:51,040 Speaker 10: The jury got to hear Ed Sheeran play his song 555 00:31:51,080 --> 00:31:54,440 Speaker 10: in his version live. Then he got to interpret any 556 00:31:54,440 --> 00:31:57,280 Speaker 10: way he wanted how he would present that song. That 557 00:31:57,680 --> 00:32:00,720 Speaker 10: to me was an error by the flinker. So that's 558 00:32:00,720 --> 00:32:03,520 Speaker 10: a problem with just the presentation of evidence. The second 559 00:32:03,520 --> 00:32:07,040 Speaker 10: part was throughout his case, they said, there are some 560 00:32:07,080 --> 00:32:10,720 Speaker 10: common elements in music, right, there are common patterns and 561 00:32:10,880 --> 00:32:14,240 Speaker 10: common things. You don't own an idea for a song, 562 00:32:14,600 --> 00:32:17,800 Speaker 10: and that runs two ways. One it's the sound recording. 563 00:32:17,960 --> 00:32:21,240 Speaker 10: The problematic cases always have the idea that someone got 564 00:32:21,280 --> 00:32:23,239 Speaker 10: to hear it. That's not what we're talking about. They 565 00:32:23,320 --> 00:32:26,000 Speaker 10: get through that only talking about the song. So if 566 00:32:26,040 --> 00:32:28,680 Speaker 10: you have a song that has common elements, we're not 567 00:32:28,760 --> 00:32:31,840 Speaker 10: talking about other audio similarities. It's just talking about the 568 00:32:31,840 --> 00:32:35,520 Speaker 10: common elements in the composition. And yet you can't prove 569 00:32:35,920 --> 00:32:39,680 Speaker 10: that these common elements are listed right, they're not protectable. 570 00:32:40,040 --> 00:32:41,960 Speaker 10: Then that you get the same results that you had 571 00:32:41,960 --> 00:32:44,040 Speaker 10: with as Sharon right, they're not protectable. He has the 572 00:32:44,040 --> 00:32:47,719 Speaker 10: own interpretation of that does not match up to your claim, 573 00:32:48,080 --> 00:32:50,880 Speaker 10: and so eventually that case went its way. So the 574 00:32:50,880 --> 00:32:53,080 Speaker 10: common element scene comes to play in all three of 575 00:32:53,120 --> 00:32:55,800 Speaker 10: these to some extent. The first one really is just 576 00:32:55,840 --> 00:32:58,960 Speaker 10: based upon no access at all. So we kind of 577 00:32:58,960 --> 00:33:02,240 Speaker 10: get that running through all these cases. Those are all 578 00:33:02,520 --> 00:33:05,000 Speaker 10: southern districts, are all here in New York seas you 579 00:33:05,040 --> 00:33:08,600 Speaker 10: can get the same circus decisions to get some unanimity 580 00:33:08,880 --> 00:33:10,200 Speaker 10: as to the decision making. 581 00:33:10,680 --> 00:33:13,520 Speaker 3: I'm always surprised that the judges can break down the 582 00:33:13,680 --> 00:33:16,120 Speaker 3: musical elements in their opinions. 583 00:33:16,520 --> 00:33:20,360 Speaker 10: You're going to rely on the musicologists, right, because the 584 00:33:20,440 --> 00:33:23,240 Speaker 10: judges are going to make the decision based upon their 585 00:33:23,320 --> 00:33:25,840 Speaker 10: own Even though judges in the past go back to 586 00:33:25,840 --> 00:33:28,160 Speaker 10: the George Harrison case with he still find my street 587 00:33:28,200 --> 00:33:30,320 Speaker 10: Lord way way back, the judge kind of said, hey, 588 00:33:30,320 --> 00:33:32,880 Speaker 10: I'm a musician, I get this. And I've had judges 589 00:33:33,160 --> 00:33:36,720 Speaker 10: in federal court who, you know, kind of made reference 590 00:33:36,840 --> 00:33:39,640 Speaker 10: to the fact that they played an instrument. There's always 591 00:33:39,840 --> 00:33:45,080 Speaker 10: this idea that what the judges listening to are battling experts. Right, 592 00:33:45,200 --> 00:33:47,880 Speaker 10: in this particular case, the judge gave credence to both 593 00:33:47,920 --> 00:33:52,480 Speaker 10: sides and waited and said, look, your plaintiffs experts. They're 594 00:33:52,480 --> 00:33:55,040 Speaker 10: making some good points here, but not carrying the day 595 00:33:55,080 --> 00:33:57,120 Speaker 10: that they didn't get over the common elements of these 596 00:33:57,120 --> 00:34:00,240 Speaker 10: two things. And the expert on the other side has said, look, 597 00:34:00,240 --> 00:34:03,080 Speaker 10: these are really common and was pointing to Mozarts and 598 00:34:03,120 --> 00:34:06,360 Speaker 10: I have in my amazing singing voice that it's da 599 00:34:06,440 --> 00:34:07,840 Speaker 10: da da da da da da da da da da 600 00:34:07,920 --> 00:34:11,000 Speaker 10: da da da data, right, And that's ultimately what it 601 00:34:11,040 --> 00:34:13,120 Speaker 10: came down to, is that piece of common element. 602 00:34:13,360 --> 00:34:15,480 Speaker 3: What does it say about the song if you have 603 00:34:15,840 --> 00:34:17,440 Speaker 3: two different copyright suits. 604 00:34:17,880 --> 00:34:20,360 Speaker 10: It says that the song made a lot of money, 605 00:34:21,600 --> 00:34:24,879 Speaker 10: and no one would care unless it's made a lot 606 00:34:24,920 --> 00:34:29,640 Speaker 10: of money. So this is a popular artist and everybody 607 00:34:29,680 --> 00:34:33,200 Speaker 10: wants a piece of a hit. And you know, all 608 00:34:33,239 --> 00:34:35,240 Speaker 10: we got to do is talk about the Mariah Carey lawsuit, 609 00:34:35,280 --> 00:34:38,560 Speaker 10: and we're rolling right into that series. But these lawsuits 610 00:34:38,640 --> 00:34:42,000 Speaker 10: just don't happen unless there's money, and real money involved. 611 00:34:42,480 --> 00:34:58,640 Speaker 3: And while we're talking about real money, Mariah Carey also 612 00:34:58,719 --> 00:35:02,120 Speaker 3: want to copyright loss suit over her mega Christmas hit 613 00:35:02,640 --> 00:35:06,560 Speaker 3: All I Want for Christmas Is You, which makes mega money, 614 00:35:06,680 --> 00:35:10,480 Speaker 3: topping the Billboard Hot one hundred chart every holiday season 615 00:35:10,960 --> 00:35:14,600 Speaker 3: since twenty nineteen, earning Carrie two point five to three 616 00:35:14,680 --> 00:35:19,600 Speaker 3: million dollars every year in royalties. A songwriter accused her 617 00:35:19,640 --> 00:35:23,280 Speaker 3: of infringing a song he recorded with the same title 618 00:35:23,719 --> 00:35:28,239 Speaker 3: in nineteen eighty nine. Was this lawsuit not based on 619 00:35:28,280 --> 00:35:30,839 Speaker 3: the music but on the words of the song? 620 00:35:31,640 --> 00:35:34,400 Speaker 10: Probably the best question anyone's asked about that, because everybody 621 00:35:34,520 --> 00:35:37,400 Speaker 10: kind of lifts the wrong page in that result. First, 622 00:35:37,600 --> 00:35:39,680 Speaker 10: I don't often get to say someone's taking a hit, 623 00:35:39,719 --> 00:35:44,239 Speaker 10: had an evergreen hit, evergreen hit. My pun there it's 624 00:35:44,280 --> 00:35:47,640 Speaker 10: a Christmas hits and you can't protect the title. First 625 00:35:47,719 --> 00:35:50,480 Speaker 10: level of analysis. I'm not sure what people are thinking. 626 00:35:50,719 --> 00:35:54,719 Speaker 10: We have the same title. Okay, that's not protectable. So 627 00:35:54,760 --> 00:35:58,280 Speaker 10: they were to restart and then the common element melody 628 00:35:58,680 --> 00:36:01,399 Speaker 10: and other we're not here back to your lyric question, 629 00:36:01,680 --> 00:36:03,839 Speaker 10: want to hear it's the common lyrics were not at 630 00:36:03,840 --> 00:36:05,879 Speaker 10: the bust out laugh and on this get ready here 631 00:36:05,880 --> 00:36:12,319 Speaker 10: the common lyrics missiletow, Santa stocking, snow, and Christmas. Oh 632 00:36:12,800 --> 00:36:16,360 Speaker 10: ooh when you put it like that, ooh, that's not 633 00:36:16,480 --> 00:36:20,040 Speaker 10: going very far. That is just just not going to 634 00:36:20,080 --> 00:36:22,919 Speaker 10: carry the day. You can't protect the title. You've got 635 00:36:22,960 --> 00:36:26,239 Speaker 10: common elements and lyrics. You've got no question that you're 636 00:36:26,239 --> 00:36:29,680 Speaker 10: claiming with the melodies are exactly the same. And here's 637 00:36:29,800 --> 00:36:33,680 Speaker 10: sort of a sidebar moment. They claimed access and got 638 00:36:33,719 --> 00:36:36,880 Speaker 10: the case rolling through the process in the closest because 639 00:36:36,960 --> 00:36:39,879 Speaker 10: they claimed access if it had been a big hit 640 00:36:40,160 --> 00:36:43,280 Speaker 10: in the country chart, a kid or not. Their song 641 00:36:43,480 --> 00:36:46,160 Speaker 10: called well I Want for Christmas View was a country 642 00:36:46,239 --> 00:36:49,440 Speaker 10: hit roughly the same time, so their access was based 643 00:36:49,520 --> 00:36:53,160 Speaker 10: upon Yeah, it was a charting song. Whether a country 644 00:36:53,239 --> 00:36:56,560 Speaker 10: hit gets listened to by a pop star and her 645 00:36:56,600 --> 00:36:59,880 Speaker 10: co writer don't know. But this one fell down the 646 00:37:00,040 --> 00:37:03,760 Speaker 10: shares pretty quickly in the ninth toorkeit in California because 647 00:37:04,000 --> 00:37:06,640 Speaker 10: it wasn't provable. And I want to add also cut 648 00:37:06,719 --> 00:37:11,040 Speaker 10: sanctions and partial attorney sees were granted against the flankiffs 649 00:37:11,080 --> 00:37:13,400 Speaker 10: on them. It fell really short, and I think that 650 00:37:13,520 --> 00:37:16,480 Speaker 10: judge clearly said, wait a second, you should never apply 651 00:37:16,520 --> 00:37:17,200 Speaker 10: you Roscoe. 652 00:37:17,640 --> 00:37:21,160 Speaker 3: I believe the judge did refer to them as Christmas cliches. 653 00:37:21,760 --> 00:37:26,160 Speaker 3: Thanks Ron. That's Ron Beanstock of Scurrency, Holland Beck. And 654 00:37:26,200 --> 00:37:28,360 Speaker 3: that's it for this edition of the Bloomberg Law Show. 655 00:37:28,719 --> 00:37:31,040 Speaker 3: Remember you can always get the latest legal news on 656 00:37:31,080 --> 00:37:35,320 Speaker 3: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 657 00:37:35,560 --> 00:37:40,600 Speaker 3: and at www dot Bloomberg dot com, slash podcast slash Law, 658 00:37:41,000 --> 00:37:43,600 Speaker 3: And remember to tune into The Bloomberg Law Show every 659 00:37:43,640 --> 00:37:47,560 Speaker 3: weeknight at ten pm Wall Street Time. I'm Jim Grosso, 660 00:37:47,680 --> 00:37:49,279 Speaker 3: and you're listening to Bloomberg