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

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Speaker 2: This is Prepaid came firm a non say it.

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Speaker 3: His case captured the attention of millions on the hit

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Speaker 3: podcast Serial, which raised doubts about his conviction for the

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Speaker 3: murder of his former high school girlfriend. There have been

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Speaker 3: so many extraordinary twists and turns in Adnan Sayed's twenty

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Speaker 3: four year legal saga. It seemed like the case was

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Speaker 3: over in twenty twenty two when a judge vacated Sayed's

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Speaker 3: murder conviction after Baltimore's State Attorney, Marilyn Moseby, found errors

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Speaker 3: in the prosecution of the case against him in two thousand.

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Speaker 4: The Attorney General's office failing to disclose relevant information on

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Speaker 4: the alternative suspects, one of whom threatened to kill and

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Speaker 4: had motive to kill this victim. Both had a pattern

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Speaker 4: of violence against women and sexual assault. The improper clearance

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Speaker 4: of the suspects by investigators based on multi polygraph tests,

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Speaker 4: the faulty cell site information that is used today that

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Speaker 4: was used then that wouldn't be used today.

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Speaker 3: Sayed was released after serving twenty three years in prison,

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Speaker 3: but now the forty two year old is facing prison

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Speaker 3: once again. The Maryland Supreme Court has ordered a redo

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Speaker 3: of the hearing that freed him two years ago, ruling

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Speaker 3: that the rights of the victim's family were violated because

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Speaker 3: they weren't given enough notice of the time of that hearing.

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Speaker 3: Syed has maintained his innocence throughout.

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Speaker 4: We definitely understand that Hayes' family has suffered so much

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Speaker 4: and they continue to suffer, and I just it's just

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Speaker 4: that we suffer too.

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Speaker 3: The closely divided ruling means that Syed's murder conviction is

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Speaker 3: reinstated for the foreseeable future, although he remains free pending

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Speaker 3: a new hearing. Joining me is trial attorney David Ring

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Speaker 3: of Taylor and Ring David. The former Baltimore State's Attorney,

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Speaker 3: Marilyn Moseby, has said that this decision sets a dangerous

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Speaker 3: precedent over a prosecutor's ability to reverse an injustice. If

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Speaker 3: prosecutors decide they've wrongly convicted someone, shouldn't it be their

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Speaker 3: decision to drop the charges with a rubber stamp by

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Speaker 3: a court. Why should the Supreme Court here interfere?

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Speaker 1: The court has a say in that because the court's

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Speaker 1: the ultimate gatekeeper. You know, we have to have checks

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Speaker 1: and balances. Look, most of the time, if the prosecution

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Speaker 1: comes in and says, hey, you know, this guy's wrongfully convicted,

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Speaker 1: the fast majority of the time, the court's going to

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Speaker 1: agree with them and drop the charges. But this court

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Speaker 1: still has to sign off on it. There still has

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Speaker 1: to be some sort of hearing, and it's just a

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Speaker 1: way to have checks and balances to make sure that

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Speaker 1: everyone's playing fairly in the system.

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Speaker 3: The only issue is that the victim's brother, who spoke

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Speaker 3: at the hearing by Zoom, argues that he didn't get

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Speaker 3: enough notice of the proceeding. He was told on Friday

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Speaker 3: about the hearing that would take place on Monday. That's

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Speaker 3: the only issue.

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Speaker 1: Here, right, that was the issue. But here's the bigger

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Speaker 1: picture on that issue, because the way it's kind of

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Speaker 1: framed sometimes in the media, it's like, well, what's the

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Speaker 1: big deal he beared by Zoom, But that hearing was

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Speaker 1: a monumental hearing. That was a hearing where the prosecution

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Speaker 1: basically came into court and said, hey, Court, we want

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Speaker 1: to drop these charges. We want to have this conviction overturned.

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Speaker 1: And what Mariland's highest court has said in respond to

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Speaker 1: that was if you're going to have a hearing like that,

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Speaker 1: the victim or the victim's representative absolutely has a right

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Speaker 1: not only to be there in person, but to be heard.

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Speaker 1: And that's a big part of this ruling is that

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Speaker 1: you know the victim's brother, mister Lee, he was in California.

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Speaker 1: He was given notice on a Friday to be there Monday.

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Speaker 1: He had a turn who was representing him. They said, hey,

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Speaker 1: give us another week. We want to be there in

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Speaker 1: person and we want to be hurt. And they weren't

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Speaker 1: given that opportunity. And the key to this decision is

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Speaker 1: if he had been given time to come to Baltimore

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Speaker 1: to appear in court with his lawyer, the lawyer has

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Speaker 1: a right to argue, basically in the shoes of the

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Speaker 1: victim and say, why is this conviction being dropped. There's

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Speaker 1: plenty of evidence here this guy did it. There's no

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Speaker 1: new evidence to drop it, and they basically have a

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Speaker 1: right to challenge the prosecution's decision to drop the case.

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Speaker 1: That's where this decision is so important.

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Speaker 3: In Marilyn law, there's no set time for notice to

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Speaker 3: be given to the victim. So how did the court

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Speaker 3: here decide that the victim's brother wasn't given enough notice.

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Speaker 1: It's a reasonableness standard, and so basically, in a very

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Speaker 1: close decision four to three, the Supreme Court said it's

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Speaker 1: not reasonable to tell the victims representative on a Friday

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Speaker 1: that you're having a hearing on a Monday and say,

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Speaker 1: oh to you, but you can appear by zoom. That's

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Speaker 1: not reasonable. They have a right to be there in person.

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Speaker 1: So what's reasonable? Okay, set it a week out, two

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Speaker 1: weeks out, but setting it on the next business day unreasonable.

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Speaker 1: It denied the victim's representative of his right to be

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Speaker 1: in court and to be heard.

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Speaker 3: That's the key in the dissenting opinion, and as you noted,

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Speaker 3: it was five to four, so closely divided. Justice Michelle

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Speaker 3: Hotton argued the issue was moot because the underlying charges

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Speaker 3: no longer exist. Quote. This case exists as a procedural zombie.

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Speaker 3: It has been re animated despite its expiration. The doctrine

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Speaker 3: of mootoness was designed to prevent such judicial necromancy. What

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Speaker 3: evocative language there.

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Speaker 1: I totally disagree with her. I think in this day

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Speaker 1: and age, victims' rights are incredibly important, and too many

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Speaker 1: times the victim or their family the right to get

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Speaker 1: trampled in the criminal process. And the prosecutor. Remember, the

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Speaker 1: prosecutor represents the people, they don't necessarily represent the victim's

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Speaker 1: family or the victim. And so I think what Maryland

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Speaker 1: Supreme Court has said here is, hey, you know what,

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Speaker 1: we're going to respect the victim's rights here. And this

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Speaker 1: victim had his rights trampled upon by this prosecutor who

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Speaker 1: quickly went into court, had completely reversed course on how

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Speaker 1: they felt about Thaii's the conviction, and suddenly was willing

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Speaker 1: to let this guy go free. And basically the Supreme

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Speaker 1: Court of Maryland said, hey, that's not fair. This victim,

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Speaker 1: her representative has an absolute right to be there and

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Speaker 1: to challenge that decision by the prosecutor. Look, I think

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Speaker 1: if you want to kind of read between the lines here,

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Speaker 1: you know, sometimes we have to read between the lines

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Speaker 1: of how these decisions get played out in the highest court.

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Speaker 1: I think that the Supreme Court is basically saying, we

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Speaker 1: don't think Saia should be free. We think there should

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Speaker 1: be a new trial.

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Speaker 3: The rights of the victim are one thing, but you

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Speaker 3: know that our justice system is far from perfect, and

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Speaker 3: there are a lot of wrongful convictions. So how do

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Speaker 3: you weigh, you know, the rights of the victim versus

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Speaker 3: the rights of a defendant that the prosecution says now

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Speaker 3: was wrongfully convicted.

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Speaker 1: Well, here's where this dynamic kicks in again. It's all

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Speaker 1: about the opportunity to be heard and to have a

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Speaker 1: fair playing field. And so when the prosecution came in

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Speaker 1: in twenty twenty two and said, oh, we have new

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Speaker 1: evidence which we think exonerates said, well, they did that

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Speaker 1: behind closed doors. They didn't do that in open court.

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Speaker 1: You know it's come out what the evidence was. But

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Speaker 1: I'll tell you, if you'd have fresh eyes on that

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Speaker 1: so called new evidence, I'm not sure how new or

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Speaker 1: exculpatory it really is. I mean, there's no DNA in

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Speaker 1: her shoes. To me, that's like a so what you know,

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Speaker 1: she was strangled to death, why would there be his

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Speaker 1: DNA on her shoes. I get it. There's two sides

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Speaker 1: to this case. There are people who absolutely believe he

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Speaker 1: got railroaded and didn't do it, and there's people who

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Speaker 1: believe that he absolutely did it. And so the Supreme

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Speaker 1: Court is saying, you know what, not so fast here,

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Speaker 1: not so fast prosecution. There's got to be a hearing

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Speaker 1: on this. We want to shine a spotlight on what

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Speaker 1: your new evidence is and what your reasons are for

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Speaker 1: suddenly reversing a conviction and letting a guy go free,

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Speaker 1: and we're not going to let you do it behind

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Speaker 1: closed doors.

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Speaker 3: Now there's another twist in the case because the Baltimore

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Speaker 3: State's Attorney, Marilyn Moseby, who had moved to throw out

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Speaker 3: the conviction, she's no longer the Baltimore State attorney. And

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Speaker 3: now there's a new Baltimore State Attorney and his office

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Speaker 3: said it needed time to review the Supreme Courts lent

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Speaker 3: the opinion and to determine whether his office has a

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Speaker 3: conflict of interest in the case. What kind of conflict

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Speaker 3: of interest are they referring to.

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Speaker 1: So you have a new prosecutor, Ivan Bates, And in

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Speaker 1: his campaign to become the prosecutor, he seemed to be

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Speaker 1: a proponent that the conviction should be dropped. So, look,

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Speaker 1: he's in a political pickle right now, because it's a

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Speaker 1: tough decision. Do you drop this conviction for murder or

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Speaker 1: do you go ahead and reverse course yet again and

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Speaker 1: have a new trial. So he might take the easy

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Speaker 1: way out. He might punt it to another independent agency

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Speaker 1: and let them make the decision. You know, he may

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Speaker 1: look back at it and say, hey, this is too

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Speaker 1: much water under the bridge here for this Baltimore prosecution office,

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Speaker 1: and we've lost credibility on this case. Let's let another

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Speaker 1: state agency come in and make that decision for us.

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Speaker 3: This decision was a close one. Saya has been out

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Speaker 3: of prison for two years. The former state's attorney is

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Speaker 3: on record talking about the many problems with the original prosecution,

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Speaker 3: and it's been nearly a quarter century since the murder.

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Speaker 3: Do you think any prosecutor, any state agency would say,

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Speaker 3: we're going to refile the charges and have a new trial.

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Speaker 1: I don't think anyone's expecting that decision to be made,

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Speaker 1: because that's a tough decision to say, you know what,

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Speaker 1: we're going to another trial. We're going to go through

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Speaker 1: this all over again, and that's going to be more

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Speaker 1: years and more appeals and all that, and you know,

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Speaker 1: we're going to take this guy who's now out there

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Speaker 1: and free and we're going to put him back in prison.

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Speaker 1: That's the toughest decision to make. And you're right, the

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Speaker 1: easy decision is we're just going to let things stand

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Speaker 1: where they are. We're not going to pursue this any further.

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Speaker 1: It's been going on too long already. He was convicted

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Speaker 1: in the year two thousand. This case has been going

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Speaker 1: on for a long time. But it's not over yet

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Speaker 1: because we still have to have this new hearing. The

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Speaker 1: Supreme Court said there's going to be another hearing on

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Speaker 1: whether this conviction is going to be dropped. The victim's

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Speaker 1: brother has a right to be heard at that hearing,

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Speaker 1: and then there could be appeals that flow from that.

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Speaker 3: Although if the victim's family gets its chance to appear

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Speaker 3: and the charges are dropped again, that should and the

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Speaker 3: appeals also. We haven't talked about the obstacles to trying

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Speaker 3: a murder case twenty five years.

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Speaker 1: Later, very very difficult, especially given this incredibly high profile

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Speaker 1: nature of this case and all the interviews and the

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Speaker 1: podcasts and all of the statements made by some of

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Speaker 1: the key witnesses over the years and wildly inconsistent statements,

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Speaker 1: and let's face it, the forensic evidence twenty five years

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Speaker 1: ago is far different than what it is today. DNA

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Speaker 1: and cell phone towers and all that. It would make

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Speaker 1: it really really tough to retry this case. Twenty five

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Speaker 1: years later, it.

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Speaker 3: Does seem unlikely. Thanks so much, David. That's David Ring

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Speaker 3: of Tailor and Ring. Coming up next on the Bloomberg

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Speaker 3: Grosso and you're listening to Bloomberg.

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Speaker 3: legal battle over the pricing of the NFL Sunday Ticket

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Speaker 3: broadcast package has been going on for ten years, and

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Speaker 3: it's not game over yet. The NFL lost at trial

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Speaker 3: in June, when a jury awarded the Sunday Ticket subscribers

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Speaker 3: four point seven billion dollars after finding the NFL violated

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Speaker 3: antitrust laws in distributing out of market Sunday afternoon games

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Speaker 3: on a premium subscription service. But then in August, the

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Speaker 3: trial judge tossed out that verdict, concluding the jury calculated

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Speaker 3: the damages improperly. So it comes as no surprise in

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Speaker 3: this long running legal game that the subscribers are appealing

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Speaker 3: the judge's decision. In fact, the case was dismissed once

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Speaker 3: before in twenty seventeen, and then reinstated two years later

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Speaker 3: by the Ninth Circuit Court of Appeals, the same court

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Speaker 3: where this appeal will be heard. Joining me is anti

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Speaker 3: trust expert Harry First, a professor at NYU Law School. So, Harry,

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Speaker 3: the judge said that there was liability, but the jury

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Speaker 3: miscalculated the damages, so he threw out the jury award.

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Speaker 3: But then he didn't order a new trial, right that

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Speaker 3: seems odd to me?

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Speaker 2: Well, yes, that's presumably going to be one of the

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Speaker 2: arguments on appeal as to whether it should have been

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Speaker 2: returned for a new trial on damages. Now, as I

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Speaker 2: read the judge's opinion, the judge said, well, it looks

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Speaker 2: from the number that the jury came up with it

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Speaker 2: they didn't really rely on the expert's evidence and clear

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Speaker 2: how they got to these numbers. I'm not quite sure

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Speaker 2: why the plaintiffs should not be allowed to, you know,

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Speaker 2: to come forward with evidence on damages that are not

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Speaker 2: from these flawed Well, what judge found was flawed damage's estimates,

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Speaker 2: So I'm not quite sure whether that's going to be

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Speaker 2: supportable on appeal. The judge did say, you're right that

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Speaker 2: there was sufficient evidence from which the jury could infer

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Speaker 2: a violation of Section one of the Sherman Act. Well,

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Speaker 2: that's you know, that's a pretty important finding. So I think,

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Speaker 2: you know, this argument is yet to be fought out

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Speaker 2: in the Court of Appeals as to whether that's supportable,

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Speaker 2: And it sort of raises a good question about how

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Speaker 2: we feel about these juries in these complex cases. And

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Speaker 2: it seems to me that the desire of plaintiffness includes

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Speaker 2: the federal government to bring their cases before juries is

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Speaker 2: increasing precisely because jurors do have a sense of they

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Speaker 2: are consumers and they have a sense of when things

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Speaker 2: have gone wrong in the marketplace. So I think this

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Speaker 2: will be an interesting one to follow through on appeal

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Speaker 2: and see whether that is supportable and whether plaintiff should

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Speaker 2: have gotten a new tru Do.

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Speaker 3: Plaintiff's lawyers and the government want juries because they might

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Speaker 3: give awards that are larger or perhaps based on an

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Speaker 3: emotional response to the evidence, unlike an awarded judge might give.

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Speaker 2: Well, I can't psychoanalyze plaintiff's lawyers. I think they assume

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Speaker 2: that jurors might be more open to large damages awards

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Speaker 2: than judges, who you know, judges can be pretty skeptical,

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Speaker 2: and judges are often conservative, you know, that's how they

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Speaker 2: got there. And I don't mean conservative in a Republican

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Speaker 2: point of view, I mean just generally, you know, they're conservative.

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Speaker 2: They're not lay people. So yes, maybe plaintiffs think that

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Speaker 2: jurors are a more hospitable forum, but I think it

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Speaker 2: goes beyond that. I think it goes to the question

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Speaker 2: of jurors being not as attached to technical evidence as

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Speaker 2: to you know, sort of a broader understanding of how

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Speaker 2: the business operating, what the defendants have done, and they

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Speaker 2: haven't seen it all before. Judges may have seen a

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Speaker 2: lot of this before, so they may come with a

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Speaker 2: more open mind. You know, that may be better and

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Speaker 2: in some sense more democratic.

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Speaker 3: This is the tenth year of this lawsuit. I mean

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Speaker 3: they could win the appeal, then there could be another trial,

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Speaker 3: then more appeals, more appeals. Is this something that could

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Speaker 3: be settled or after ten years are they dug in?

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Speaker 2: I hadn't really thought about that since they hadn't settled before.

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Speaker 2: I think, you know, lawyers assess risk, and the NFL

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Speaker 2: assesses risk, and the owner's assess risk. So is it

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Speaker 2: possible to settle this? Well, you know, there's a liability finding,

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Speaker 2: so maybe maybe that will be possible. But on the

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Speaker 2: other hand, at this point, the worst that can happen

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Speaker 2: for the defendants, I guess is a new trial now

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Speaker 2: that might just make the cost of settlement more expensive,

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Speaker 2: I guess, or maybe the plaintiffs then would be more

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Speaker 2: willing to settle. So it's a delicate issue. Settlements possible

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Speaker 2: at any time, even while the jury's out, and you know,

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Speaker 2: there's more that we'll go into it, including the defendant's

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Speaker 2: reputation for whether they'll settle or sue.

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Speaker 3: Let's turn to another antitrust case, and they just keep

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Speaker 3: coming and coming from the government and from private plaintiffs.

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Speaker 3: Yelp is the first tech rival of Googles to sue

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Speaker 3: the search giant to try to capitalize on last month's

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Speaker 3: landmark decision finding that Google is a monopolist. Yelp didn't

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Speaker 3: even wait for the Google case to be finished. Judge

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Speaker 3: Ahmet met Us still has to decide on the remedy.

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Speaker 3: Can you tell us a little bit about Yelp's complaint.

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Speaker 2: Well, I think generally, I mean, yelp has felt that

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Speaker 2: Google has has stolen their lunch the right phrase, you.

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Speaker 3: Know phrase, I don't know if it's the right phrase.

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Speaker 2: Well, the local reviews. You know, Google has incorporated into

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Speaker 2: its own system and then gotten advertising off of it,

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Speaker 2: including reviews. So you know, to the extent that yelp

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Speaker 2: has to buy advertising, you know, under Google to get

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Speaker 2: viewers to then click onto Yelp is one problems, and

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Speaker 2: another problem may be the way reviews are done and

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Speaker 2: whether Google's self preferenced its own search results over yelps.

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Speaker 2: I mean, basically, I think they're complaining that Google runs

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Speaker 2: its business in a way that makes it very hard

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Speaker 2: for yelp to compete, because you know, they control the

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Speaker 2: search engine results page and in the end degrade searches

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Speaker 2: by favoring their own results, or at least that may

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Speaker 2: be what they're claiming.

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Speaker 3: JUDGEMENTA found that Google had a monopoly in general search

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Speaker 3: yelp is talking about now the local search advertising market.

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Speaker 3: So how relevant are Meta's findings to Yelp's case, Well.

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Speaker 2: He looked at really a different market. First of all,

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Speaker 2: rejected the idea brought by the States that there was

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Speaker 2: some problem with vertical search engines, which Yelp is. So

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Speaker 2: the advertising market that Yelp is alleging is different than

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Speaker 2: the search advertising market that Judge Meta focused on. So

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Speaker 2: they'll have to slog through that. The idea that there

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Speaker 2: is some degree of degrading of search results, which is

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Speaker 2: shown by preferencing Google search results over others, that may help.

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Speaker 2: But again I think this is all going to have

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Speaker 2: to be sort of fought out anew by Yelp at

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Speaker 2: this point in litigation because they don't get any technical

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Speaker 2: benefit from whatever findings judgemental made and Judge Metal decided

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Speaker 2: on a somewhat different market than I think Yelp is

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Speaker 2: a legend.

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Speaker 3: The Yelp complaint was filed in the Northern District of California.

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Speaker 3: Judge Meta is in the DC circuit. His ruling doesn't

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Speaker 3: even have any presidential power in another.

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Speaker 2: Circuit, Well, it doesn't have any presidential value now in

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Speaker 2: a technical sense at all, because it's not final and

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Speaker 2: it hasn't been appealed. So what Judge Meta's opinion has

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Speaker 2: is sort of legal momentum, so similar issues have been

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Speaker 2: presented in different courts, and judges will look to see

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Speaker 2: they're not necessarily bound. Well, they're not bound, but they

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Speaker 2: look to see, you know, what other judges have done.

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Speaker 2: There aren't that many cases like this, so on product

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Speaker 2: market definition, Judge Meta looked at a case that involved

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Speaker 2: digital advertising in a completely different setting with different parties,

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Speaker 2: and it was a merger case. So I would expect,

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Speaker 2: you know, a judge in the Northern District of California

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Speaker 2: to consider carefully what Meta is very thoughtful, very thorough opinion,

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Speaker 2: and you know it may be persuasive, but I assume

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Speaker 2: you help file there for other reasons, like thinking they'll

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Speaker 2: have a better shot on damages and maybe a better

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Speaker 2: shot on appeal. So you know, there are all sorts

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Speaker 2: of complicated reasons for choice of court. But in any event,

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Speaker 2: even filing in DC, other judge doesn't have to follow

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Speaker 2: what Meta has decided because it's still not final.

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Speaker 3: Do you think that now all Google's rivals are going

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Speaker 3: to start filing private antitrust suits against Google bouncing off

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Speaker 3: that decision?

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Speaker 2: Yeah, I think that's as they say, TBD a more

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Speaker 2: conservative response is to wait until the decision is finalized

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Speaker 2: for a number of reasons. There are legal benefits to

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Speaker 2: a final judgment that may be far off given that

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Speaker 2: this will have to go through appeals, so it's not

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Speaker 2: clear how much they'll want to wait. It's also not clear,

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Speaker 2: you know, what sort of private negotiations might occur, not

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Speaker 2: clear what sort of remedy the government might seek and

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Speaker 2: whether that might help any of these competitors. Any trust

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Speaker 2: litigation is expensive and private litigation. Although there can be

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Speaker 2: a pot of gold at the end because litigants can

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Speaker 2: get treble their damages plus attorneys fees, the end can

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Speaker 2: be you know, I guess the end of the rainbow

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Speaker 2: is far off. So it requires a good claim and

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Speaker 2: private counsel who are willing to wait or somehow finance

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Speaker 2: this litigation. So I don't know. We do see this

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Speaker 2: one case, YELP has been a complainant both in the

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Speaker 2: US and in Europe by a complainant to the government,

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Speaker 2: so it struck me as a little early maybe, but

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Speaker 2: there are always the possibilities of settlement between these parties.

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Speaker 2: So if we go back to the Microsoft litigation itself,

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Speaker 2: a lot of private parties sued including potential competitors and

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Speaker 2: licensees of Windows, and some of them got quite substantial,

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Speaker 2: you know settlement from Microsoft. But of course Microsoft you know,

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Speaker 2: eventually did lose on appeal, so that helped a lot.

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Speaker 2: So yes, I would expect more, not just yelp. But

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Speaker 2: I'm looking to see whether Microsoft will sue, which I

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Speaker 2: think would be just quite amusing from any tress point

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Speaker 2: of view, because you know, they testified that BING just

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Speaker 2: could never get any traction because of Google's practices. They

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Speaker 2: couldn't get the scale they needed. So in some ways

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Speaker 2: BING should have a good suit. The question, you know

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Speaker 2: would be what's their damages and what sort of relief

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Speaker 2: do they want? So yes, maybe being maybe duck duck go,

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Speaker 2: and we can you know, start listing them. People are

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Speaker 2: suggesting maybe some you know advertisers who complained that price

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Speaker 2: of advertizing was raised because they monopolized this general search

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Speaker 2: text advertising market. You know, all of these cases present

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Speaker 2: difficulties even with the win that the government just had

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Speaker 2: on liability, so no laydowns here. But on the other hand,

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Speaker 2: Google does face the possibility of these sorts of lawsuits.

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Speaker 3: Thanks Harry, It's always wonderful to have your insights that's

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Speaker 3: Professor Harry First of NYU Law School coming up next.

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Speaker 3: A judge order is Donald Trump to stop playing the

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Speaker 3: song hold On I'm Coming at his rallies. I'm June

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Speaker 3: Grosso and you're listening to Bloomberg Salm and Dave's nineteen

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Speaker 3: sixty sole classic hold On I'm Coming is instantly recognizable

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Speaker 3: from the instrumental introduction to the well known chorus. Perhaps

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Speaker 3: that's why Donald Trump has been playing the song as

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Speaker 3: his exit music at rallies since twenty twenty, playing it unlawfully,

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Speaker 3: according to a copyright lawsuit by the estate of Isaac Hayes,

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Speaker 3: who co wrote the song with Dave Porter. The lawsuit

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Speaker 3: says that Trump and his campaign never sought permission or

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Speaker 3: consent from Hayes's estate to play the song, and havn't

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Speaker 3: gotten a valid public performance license, even though the estate

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Speaker 3: sent Trump a cease and desist letter in twenty twenty.

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Speaker 3: Of course, many artists have objected to Trump's campaign using

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Speaker 3: their songs. In fact, the abcs of artists from Abba

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Speaker 3: and Beyonce to Jack White and Neil Young and don't

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Speaker 3: forget Celine Dion, Bruce spring Stein, Rihanna, rim Guns n' roses,

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Speaker 3: food fighters, and on and on. But for the first

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Speaker 3: time there's an actual legal judgment and Atlanta judge has

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Speaker 3: ordered Trump to stop playing hold On On Coming at

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Speaker 3: his rallies while the Hayes lawsuit plays out in court.

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Speaker 3: Joining me is Heidi Vakarano, a partner at Fox Rothschild.

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Speaker 3: Let's say a politician wants to play the song of

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Speaker 3: an artist at campaign rallies. What do they have to

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Speaker 3: do legally?

434
00:26:31,280 --> 00:26:35,040
Speaker 5: So it is a little bit complicated because of the

435
00:26:35,119 --> 00:26:38,280
Speaker 5: nature of how the licensing system is in the United States.

436
00:26:38,359 --> 00:26:40,040
Speaker 5: So if they're just going to play it at a

437
00:26:40,080 --> 00:26:43,679
Speaker 5: campaign at a public location like a convention center or rally,

438
00:26:43,920 --> 00:26:47,800
Speaker 5: then they need to obtain a public performance license from

439
00:26:48,040 --> 00:26:53,400
Speaker 5: the public performance organizations, which include ASCAT, BMI, FEBACK, or GMR.

440
00:26:54,040 --> 00:26:57,000
Speaker 5: And you need to obtain a license from each one

441
00:26:57,040 --> 00:26:59,800
Speaker 5: of them because a song could have various writers that

442
00:26:59,840 --> 00:27:03,720
Speaker 5: are registered to either one of the pros. So it's

443
00:27:03,760 --> 00:27:05,920
Speaker 5: not just that you would go to ASKCAF and think

444
00:27:05,960 --> 00:27:08,800
Speaker 5: that you have an entire license for a song, because

445
00:27:08,840 --> 00:27:11,440
Speaker 5: there may be four songwriters and two are registered with ASKAF,

446
00:27:11,480 --> 00:27:14,240
Speaker 5: one is registered with BMI, and one is registered with fsacks,

447
00:27:14,520 --> 00:27:16,440
Speaker 5: so they would need to obtain a license from each

448
00:27:16,480 --> 00:27:17,280
Speaker 5: of these pros.

449
00:27:17,920 --> 00:27:20,840
Speaker 3: Does an artist have the right to say I don't

450
00:27:20,880 --> 00:27:23,880
Speaker 3: want Trump to be playing my songs at his rallies

451
00:27:24,440 --> 00:27:28,160
Speaker 3: because there's an implication that I'm endorsing him.

452
00:27:28,600 --> 00:27:31,399
Speaker 5: Yes, they do. It's part of the rights under the

453
00:27:31,400 --> 00:27:36,040
Speaker 5: copyright law in the US, and it's also considered false endorsement.

454
00:27:36,240 --> 00:27:39,480
Speaker 5: So they do have the right to deny a youth,

455
00:27:39,840 --> 00:27:43,240
Speaker 5: either through their publishing administrator or their record label.

456
00:27:43,840 --> 00:27:47,760
Speaker 3: Is it unusual that a case like this actually gets

457
00:27:47,840 --> 00:27:49,520
Speaker 3: to a trial judge?

458
00:27:50,040 --> 00:27:52,879
Speaker 5: I would say so yes. Normally, a license like this

459
00:27:53,280 --> 00:27:56,440
Speaker 5: would be a very simple thing to obtain, and if

460
00:27:56,440 --> 00:27:58,640
Speaker 5: somebody sends a season to this letter, then they would

461
00:27:58,640 --> 00:28:02,000
Speaker 5: definitely can you the youth? But I feel like this

462
00:28:02,119 --> 00:28:04,200
Speaker 5: has kind of gone all the way because it is

463
00:28:04,280 --> 00:28:07,040
Speaker 5: like the nature of the political campaign.

464
00:28:07,480 --> 00:28:10,560
Speaker 3: The Isakaysa state claims that it sent a cease and

465
00:28:10,600 --> 00:28:13,840
Speaker 3: desist letter to Trump in twenty twenty if they didn't

466
00:28:13,840 --> 00:28:16,480
Speaker 3: have a license and they didn't get permission from the

467
00:28:16,480 --> 00:28:19,800
Speaker 3: Hayesa state. Is it a pretty easy decision for the

468
00:28:19,880 --> 00:28:21,399
Speaker 3: judge to say you can't play that.

469
00:28:21,840 --> 00:28:23,919
Speaker 5: Yeah, it should be like I said, you would have

470
00:28:23,960 --> 00:28:26,879
Speaker 5: to check if they have the proper public performance licenses

471
00:28:27,040 --> 00:28:29,560
Speaker 5: from all the songwriters involved in this case. You can

472
00:28:29,600 --> 00:28:32,320
Speaker 5: at least see that it is performed by a separate artist,

473
00:28:32,359 --> 00:28:34,639
Speaker 5: but written by Isaac Case, which is owned by the

474
00:28:34,680 --> 00:28:37,399
Speaker 5: Isaac Kase estate. So if they did not have the

475
00:28:37,440 --> 00:28:40,880
Speaker 5: proper licenses, it should be very easy, according to a copywriter.

476
00:28:41,280 --> 00:28:44,560
Speaker 3: At the hearing, the lawyers for Trump said a couple

477
00:28:44,560 --> 00:28:48,960
Speaker 3: of things. They said that the Isaakaysa State didn't own

478
00:28:49,000 --> 00:28:52,960
Speaker 3: the copyright, and apparently the Isaakaysa State produced documents for

479
00:28:53,000 --> 00:28:55,880
Speaker 3: the judge. They also said they obtained a license from

480
00:28:55,920 --> 00:28:58,960
Speaker 3: BMI Music in November twenty twenty two.

481
00:28:59,440 --> 00:29:02,880
Speaker 5: I believe has also sent a season desist letter too,

482
00:29:03,200 --> 00:29:07,160
Speaker 5: removing the song from its catalog for you. So at

483
00:29:07,200 --> 00:29:10,360
Speaker 5: this point, a lot of what the public performance organizations

484
00:29:10,400 --> 00:29:13,360
Speaker 5: are doing is actively going to their members and saying,

485
00:29:13,400 --> 00:29:15,719
Speaker 5: if you would like to exclude your works from use

486
00:29:15,800 --> 00:29:19,240
Speaker 5: by political campaigns, then please contact us and send us

487
00:29:19,240 --> 00:29:21,720
Speaker 5: a notice letter along with a list of your work

488
00:29:21,800 --> 00:29:25,800
Speaker 5: that you want to have excluded from use and political campaign.

489
00:29:25,880 --> 00:29:28,480
Speaker 3: So is there a possibility they got a license from

490
00:29:28,520 --> 00:29:30,920
Speaker 3: BMI at any point.

491
00:29:30,520 --> 00:29:33,840
Speaker 5: Whether they obtained a license from BMI, and if that's

492
00:29:33,840 --> 00:29:36,040
Speaker 5: the correct license, you would have to check, Like if

493
00:29:36,040 --> 00:29:38,959
Speaker 5: each of the songwriters were all registered with BMI, then

494
00:29:39,040 --> 00:29:41,040
Speaker 5: that would cover all of the songs. But it's not

495
00:29:41,280 --> 00:29:44,200
Speaker 5: just enough to have a license from BMI. There might

496
00:29:44,240 --> 00:29:47,400
Speaker 5: be songwriters who are registered with a different pro that

497
00:29:47,440 --> 00:29:48,160
Speaker 5: they would still have.

498
00:29:48,560 --> 00:29:52,719
Speaker 3: So the judges preliminarian junction said the Trump campaign couldn't

499
00:29:52,760 --> 00:29:56,080
Speaker 3: continue to use the song without a proper license, but

500
00:29:56,240 --> 00:30:01,040
Speaker 3: he is allowing the campaign to keep vito that already

501
00:30:01,080 --> 00:30:04,880
Speaker 3: exist that include hold on, I'm coming. Do you know

502
00:30:04,920 --> 00:30:06,239
Speaker 3: what the basis of that is?

503
00:30:06,360 --> 00:30:08,719
Speaker 5: But even if a song is used in the background

504
00:30:08,840 --> 00:30:10,880
Speaker 5: of a video, you would still have to pain a

505
00:30:10,920 --> 00:30:14,200
Speaker 5: synchronization use. My understanding would be that at this point

506
00:30:14,240 --> 00:30:17,800
Speaker 5: they would probably go back into Discovery and see what

507
00:30:17,880 --> 00:30:21,240
Speaker 5: licenses they obtained and if he obtained all the proper licenses.

508
00:30:21,360 --> 00:30:24,280
Speaker 3: I was confused because Trump's attorney said that we are

509
00:30:24,440 --> 00:30:27,640
Speaker 3: gratified that the court recognized the First Amendment issues at

510
00:30:27,720 --> 00:30:31,120
Speaker 3: stake and didn't order a takedown of existing videos.

511
00:30:31,400 --> 00:30:33,360
Speaker 5: I don't think that's in line with the reasoning. But

512
00:30:33,400 --> 00:30:35,360
Speaker 5: the court, I think that they would definitely want to

513
00:30:35,400 --> 00:30:37,520
Speaker 5: go in and see what licenses were obtained and see

514
00:30:37,560 --> 00:30:40,160
Speaker 5: if the videos that they're using with the song were

515
00:30:40,200 --> 00:30:43,320
Speaker 5: properly licensed. When you use a song in a video,

516
00:30:43,440 --> 00:30:46,320
Speaker 5: it's called the synchronization licensing. You need to paint a

517
00:30:46,400 --> 00:30:50,040
Speaker 5: license for both the master recording, so whatever master version

518
00:30:50,080 --> 00:30:53,000
Speaker 5: they use, and also on the US publishing side from

519
00:30:53,040 --> 00:30:54,600
Speaker 5: the songwriters of the music.

520
00:30:55,160 --> 00:30:58,360
Speaker 3: I mean, do most campaigns go through all these hoops?

521
00:30:59,080 --> 00:31:02,200
Speaker 5: They should definitely should be someone in a campaign who

522
00:31:02,520 --> 00:31:06,080
Speaker 5: is looking into all of the clearances required, whether it's

523
00:31:06,240 --> 00:31:08,880
Speaker 5: just that a political rally or they're going to be

524
00:31:09,000 --> 00:31:10,160
Speaker 5: using it in commercials.

525
00:31:10,480 --> 00:31:13,440
Speaker 3: There are so many artists I counted more than twenty

526
00:31:13,560 --> 00:31:16,760
Speaker 3: who have complained about Trump using their songs in his

527
00:31:16,920 --> 00:31:22,920
Speaker 3: presidential campaigns. Some complained publicly, others sense cease and desist letters,

528
00:31:23,240 --> 00:31:26,360
Speaker 3: and Trump has often continued to play the songs even

529
00:31:26,440 --> 00:31:30,920
Speaker 3: after the objections were raised. Last month, they actually played

530
00:31:31,040 --> 00:31:35,400
Speaker 3: a video of Celine Dion performing My Heart Will Go

531
00:31:35,560 --> 00:31:39,920
Speaker 3: On at a Trump campaign rally in Bozeman, Montana. A

532
00:31:40,040 --> 00:31:45,360
Speaker 3: post on Dion's Instagram page said the usage was unauthorized.

533
00:31:45,520 --> 00:31:48,440
Speaker 3: It added, and really that song.

534
00:31:48,600 --> 00:31:51,560
Speaker 5: That is definitely an infringing use, not only from the

535
00:31:51,680 --> 00:31:55,360
Speaker 5: use of the music, but also the false endorsement any

536
00:31:55,400 --> 00:31:58,400
Speaker 5: potential trademarks that we're using. Whoever the owner of the

537
00:31:58,480 --> 00:31:59,640
Speaker 5: video footage is as well.

538
00:32:00,200 --> 00:32:04,760
Speaker 3: Isaacay's the third called the preliminary injunction, the first step

539
00:32:04,920 --> 00:32:09,040
Speaker 3: in our copyright infringement case against Donald Trump and Donald

540
00:32:09,080 --> 00:32:13,720
Speaker 3: Trump for President. They're seeking actual and punitive damages for

541
00:32:13,920 --> 00:32:18,560
Speaker 3: each infringement, and they say Trump infringed the copyright one

542
00:32:18,680 --> 00:32:20,200
Speaker 3: hundred and thirty three times.

543
00:32:20,840 --> 00:32:23,880
Speaker 5: So the nature of how our copyright works is once

544
00:32:23,920 --> 00:32:27,160
Speaker 5: yours have protection under the copyright, you registered it with

545
00:32:27,200 --> 00:32:30,880
Speaker 5: the Copyright Office, then you are entitled for statutory damages

546
00:32:30,920 --> 00:32:35,080
Speaker 5: and potentially additional damages, punitive damages like they're requesting if

547
00:32:35,160 --> 00:32:37,959
Speaker 5: they have sent these feats into this letters and can

548
00:32:38,040 --> 00:32:42,479
Speaker 5: prove that there has been economic harm due to the continued.

549
00:32:42,040 --> 00:32:42,760
Speaker 2: Use of the song.

550
00:32:43,240 --> 00:32:45,080
Speaker 3: One of the things that Trump's lawyer said is that

551
00:32:45,120 --> 00:32:47,840
Speaker 3: they weren't harmed by this. They weren't economically harmed by this.

552
00:32:48,200 --> 00:32:50,920
Speaker 3: What kind of economic harm can you prove?

553
00:32:51,360 --> 00:32:54,120
Speaker 5: It could be that they lost other for example, like

554
00:32:54,400 --> 00:32:57,840
Speaker 5: imagine if this was a car commercial and the ISO

555
00:32:57,880 --> 00:33:00,440
Speaker 5: cases State decided, okay, we have our you have a

556
00:33:00,560 --> 00:33:03,239
Speaker 5: deal with BMW but then Volbo used it, you know,

557
00:33:03,360 --> 00:33:06,280
Speaker 5: so if they have existing licenses that this would put

558
00:33:06,280 --> 00:33:08,640
Speaker 5: them in breach of That's one issue, right that they

559
00:33:08,640 --> 00:33:11,719
Speaker 5: can show they've lost money due to this infringing use

560
00:33:11,800 --> 00:33:15,400
Speaker 5: that was unauthorized. They can also show that they potentially

561
00:33:15,440 --> 00:33:18,480
Speaker 5: lost other uses because of this false endorsement from the

562
00:33:18,560 --> 00:33:21,520
Speaker 5: use of their music. And they can also use the

563
00:33:21,560 --> 00:33:26,120
Speaker 5: fact that they were in active negotiations potentially with other

564
00:33:26,280 --> 00:33:29,080
Speaker 5: publishers or whoever they are, that the use of their

565
00:33:29,160 --> 00:33:32,120
Speaker 5: music lost value because of a campaign that used their

566
00:33:32,240 --> 00:33:33,520
Speaker 5: music unauthorized.

567
00:33:33,880 --> 00:33:36,320
Speaker 3: That sounds a little more difficult than I thought. It's

568
00:33:36,360 --> 00:33:39,960
Speaker 3: not just give me economic damages because you use this

569
00:33:40,040 --> 00:33:42,520
Speaker 3: song one hundred and thirty three times without my permission.

570
00:33:42,960 --> 00:33:47,040
Speaker 5: No, the statutory damages are set by the US copyright

571
00:33:47,120 --> 00:33:51,600
Speaker 5: law for each infringing use right, but economic damages or

572
00:33:51,760 --> 00:33:55,400
Speaker 5: punitive damages are more nuanced, and they would have to

573
00:33:55,440 --> 00:33:59,960
Speaker 5: prove that they potentially lost other licensing opportunities and dam

574
00:34:00,000 --> 00:34:02,120
Speaker 5: I mentioned their name, imager likeness.

575
00:34:02,480 --> 00:34:04,800
Speaker 3: There's a little bit of a twist here because Sam

576
00:34:04,840 --> 00:34:08,759
Speaker 3: Moore of Sam and Dave was against the filing of

577
00:34:08,800 --> 00:34:09,719
Speaker 3: this lawsuit.

578
00:34:09,960 --> 00:34:13,920
Speaker 5: So Sam Moore had performed the song at an inauguration

579
00:34:14,040 --> 00:34:14,960
Speaker 5: concert for Trump.

580
00:34:15,040 --> 00:34:15,160
Speaker 2: Right.

581
00:34:15,440 --> 00:34:18,319
Speaker 5: So what's interesting in the US is that you know,

582
00:34:18,520 --> 00:34:22,080
Speaker 5: Britney Spears can perform a song, but it's written by

583
00:34:22,280 --> 00:34:26,120
Speaker 5: four different songwriters, but it's her who's on the master recording,

584
00:34:26,239 --> 00:34:29,040
Speaker 5: who's a performer on this. So they would still need

585
00:34:29,080 --> 00:34:31,759
Speaker 5: to get permission from the artists. So in this case

586
00:34:31,800 --> 00:34:34,440
Speaker 5: where Sam is saying like, hey, I gave provission or

587
00:34:34,480 --> 00:34:37,680
Speaker 5: potentially saying I'm okay with the youth, if one person

588
00:34:37,760 --> 00:34:41,720
Speaker 5: out of four songwriters denies the youth, then you cannot

589
00:34:41,840 --> 00:34:42,879
Speaker 5: use the song either way.

590
00:34:43,440 --> 00:34:48,200
Speaker 3: Actually, Trump's lawyers filed a sworn statement from Sam Moore

591
00:34:48,280 --> 00:34:50,759
Speaker 3: with the court where he said he was opposed to

592
00:34:50,800 --> 00:34:54,840
Speaker 3: the actions taken by the Hayes estate. That carries no weight,

593
00:34:54,960 --> 00:34:56,240
Speaker 3: I take it, no.

594
00:34:56,520 --> 00:35:00,440
Speaker 5: Not really. There's a nuance to the US cup up

595
00:35:00,480 --> 00:35:05,799
Speaker 5: where a songwriter of a composition can license the use

596
00:35:05,880 --> 00:35:09,480
Speaker 5: of the song for non exclusive use, just solely in

597
00:35:09,560 --> 00:35:12,600
Speaker 5: the US, but that does not really extend to public

598
00:35:12,600 --> 00:35:16,000
Speaker 5: performance uses because those are controlled by the public performance

599
00:35:16,080 --> 00:35:19,680
Speaker 5: organization and the campaign would still need to obtain a license.

600
00:35:19,760 --> 00:35:23,080
Speaker 5: And if a songwriter from one of the songs has

601
00:35:23,160 --> 00:35:26,520
Speaker 5: already asked the pro to exclude their music, then they

602
00:35:26,520 --> 00:35:27,680
Speaker 5: couldn't grant the license.

603
00:35:28,200 --> 00:35:32,400
Speaker 3: How much does a public license usually cost, because the

604
00:35:32,440 --> 00:35:35,920
Speaker 3: Hayeses State said it would allow Trump to pay a

605
00:35:36,000 --> 00:35:40,440
Speaker 3: quote very discounted three million dollar licensing fee. I mean,

606
00:35:40,480 --> 00:35:42,680
Speaker 3: are they that high? No, I don't.

607
00:35:42,719 --> 00:35:46,840
Speaker 5: The public performance license depends on what the nature of

608
00:35:46,920 --> 00:35:49,719
Speaker 5: the use will be, whether it's just like for the

609
00:35:49,800 --> 00:35:53,560
Speaker 5: life of the political campaign which lasts up until Canada

610
00:35:53,600 --> 00:35:56,520
Speaker 5: is born into office. I'm not exactly sure what the

611
00:35:56,560 --> 00:35:59,759
Speaker 5: price is for each pro but I don't believe it's

612
00:35:59,760 --> 00:36:00,400
Speaker 5: in the millions.

613
00:36:00,840 --> 00:36:04,040
Speaker 3: This is much more complicated than it seems at first.

614
00:36:04,080 --> 00:36:05,480
Speaker 3: Blush correct.

615
00:36:05,760 --> 00:36:09,560
Speaker 5: It's a very complicated licensing structure also due to the fact,

616
00:36:09,680 --> 00:36:12,280
Speaker 5: like these are very popular songs, right, and you're able

617
00:36:12,280 --> 00:36:14,840
Speaker 5: to find the songwriters. But there are some songs where

618
00:36:15,000 --> 00:36:18,200
Speaker 5: you don't know who owns what, who the administrator is.

619
00:36:18,280 --> 00:36:21,279
Speaker 5: So it's a very difficult process. But you know, there

620
00:36:21,280 --> 00:36:24,200
Speaker 5: should be someone on a campaign who has, you know,

621
00:36:24,280 --> 00:36:26,840
Speaker 5: the experience, and it's in their wheelhouse to obtain the

622
00:36:26,880 --> 00:36:31,280
Speaker 5: licenses so that each political campaign is properly licensed.

623
00:36:31,640 --> 00:36:33,880
Speaker 3: It's going to be fascinating to see just how this

624
00:36:34,080 --> 00:36:37,960
Speaker 3: case plays out and whether they're able to prove economic harm.

625
00:36:38,320 --> 00:36:41,400
Speaker 3: Thanks so much, Heidi. That's Heidi Vakarano, a partner at

626
00:36:41,440 --> 00:36:45,680
Speaker 3: Fox Rothschild. And in case you're wondering, Trump is apparently

627
00:36:45,880 --> 00:36:50,160
Speaker 3: back to using the Village People's YMCA to close out

628
00:36:50,200 --> 00:36:54,240
Speaker 3: his rallies. That group reportedly sent a CS and Assist

629
00:36:54,400 --> 00:36:57,399
Speaker 3: letter to Trump in twenty twenty three over his use

630
00:36:57,440 --> 00:37:00,360
Speaker 3: of their song Macho Man. And that's it for this

631
00:37:00,520 --> 00:37:03,640
Speaker 3: edition of the Bloomberg Law Podcast. Remember you can always

632
00:37:03,640 --> 00:37:06,400
Speaker 3: get the latest legal news by subscribing and listening to

633
00:37:06,440 --> 00:37:10,600
Speaker 3: the show on Apple Podcasts, Spotify, and at Bloomberg dot com,

634
00:37:10,600 --> 00:37:14,880
Speaker 3: slash podcast, Slash Law. I'm June Grosso and this is

635
00:37:14,920 --> 00:37:15,520
Speaker 3: Bloomberg