1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio, 2 00:00:10,000 --> 00:00:12,600 Speaker 1: Good Afternoon Later a gentleman, my name is Joe Exotic. 3 00:00:12,640 --> 00:00:15,800 Speaker 1: In this Cissar, it was like a mythical character who 4 00:00:15,840 --> 00:00:20,079 Speaker 1: owned twelve hundred tigers and lions and bears. They have 5 00:00:20,160 --> 00:00:23,079 Speaker 1: a heart and soul in mind. I've learned from them. 6 00:00:23,440 --> 00:00:27,760 Speaker 1: Netflix docuseries Tiger King, about the life of former zookeeper 7 00:00:27,800 --> 00:00:31,479 Speaker 1: and convicted felon Joe Exotic, became an immediate hit in 8 00:00:32,640 --> 00:00:36,080 Speaker 1: watched by millions of people confined during the early days 9 00:00:36,120 --> 00:00:39,239 Speaker 1: of the pandemic. In the first episode of the series, 10 00:00:39,400 --> 00:00:42,080 Speaker 1: there are two clips of Jim Carrey from the movie 11 00:00:42,120 --> 00:00:45,640 Speaker 1: ace Ventura to one running an elephant and the other 12 00:00:45,720 --> 00:00:48,280 Speaker 1: with a monkey on his shoulder. There in a sequence 13 00:00:48,320 --> 00:00:51,600 Speaker 1: of clips from movies, as Baga van Antel describes his 14 00:00:51,680 --> 00:00:56,440 Speaker 1: work training animals for Hollywood movies, including ace Ventura. People 15 00:00:56,440 --> 00:00:59,000 Speaker 1: in Hollywood, people in the places came to me and said, hey, 16 00:00:59,280 --> 00:01:01,040 Speaker 1: we need a tiger to do this. We would like 17 00:01:01,080 --> 00:01:05,679 Speaker 1: a tiger to do that. You are a good kid, 18 00:01:08,560 --> 00:01:12,640 Speaker 1: I mean five hundred gigantic international movies from ace Ventura, 19 00:01:12,880 --> 00:01:16,120 Speaker 1: Jungle Book, Dr Doolittle, Mighty Joe Young. It's a huge 20 00:01:16,240 --> 00:01:19,520 Speaker 1: list of features that we made. The clips are about 21 00:01:19,560 --> 00:01:22,600 Speaker 1: one and a half seconds combined without the audio. But 22 00:01:22,720 --> 00:01:26,240 Speaker 1: the producers of ace Ventura two are suing Netflix and 23 00:01:26,319 --> 00:01:30,400 Speaker 1: Good Films for copyright infringement. Joining me is intellectual property 24 00:01:30,400 --> 00:01:35,120 Speaker 1: litigator Terence Fross a partner catn Uchin, Rosenman Terry. It's 25 00:01:35,160 --> 00:01:38,959 Speaker 1: two clips without the audio. The lawsuit says five seconds, 26 00:01:39,000 --> 00:01:41,800 Speaker 1: but it's really more like one and a half seconds. 27 00:01:42,240 --> 00:01:45,360 Speaker 1: The average person might ask why there should be compensation 28 00:01:45,440 --> 00:01:49,640 Speaker 1: for that. It's an excellent point, and it's why this 29 00:01:50,040 --> 00:01:52,960 Speaker 1: exact same situation comes up over and over again, particularly 30 00:01:53,000 --> 00:01:56,400 Speaker 1: in a context of documentaries. The typical maker of a 31 00:01:56,560 --> 00:02:00,360 Speaker 1: documentary or television shows such a Tiger King, is not 32 00:02:00,600 --> 00:02:04,280 Speaker 1: trained in copyright law and has the same reaction as 33 00:02:04,520 --> 00:02:07,440 Speaker 1: your man on the street does to this situation that 34 00:02:07,800 --> 00:02:10,800 Speaker 1: it's really short and they ought to be able to 35 00:02:10,919 --> 00:02:15,520 Speaker 1: use it, and that presents a recurring problem in this area. 36 00:02:15,960 --> 00:02:18,160 Speaker 1: Do you have any idea how much it would cost 37 00:02:18,360 --> 00:02:21,600 Speaker 1: if the creators went to the ace fan tour people 38 00:02:21,919 --> 00:02:24,720 Speaker 1: and said, we want to license these clips. So I 39 00:02:24,720 --> 00:02:27,600 Speaker 1: don't know how much you could license this particular clips 40 00:02:27,600 --> 00:02:31,840 Speaker 1: from a spent tour. Typically that's not the problem, though, 41 00:02:32,320 --> 00:02:34,760 Speaker 1: I've had a number of documentary filmmakers come to me 42 00:02:34,880 --> 00:02:38,000 Speaker 1: with this issue and they say, you know, we anticipated this. 43 00:02:38,480 --> 00:02:41,760 Speaker 1: We went to the owner of the copyright on the 44 00:02:41,800 --> 00:02:44,800 Speaker 1: snippet that we wanted to use, and the process of 45 00:02:44,840 --> 00:02:48,880 Speaker 1: getting a permission was a nightmare. Most television shows, both films, 46 00:02:48,919 --> 00:02:51,640 Speaker 1: even documentaries that are shot over a longer period do 47 00:02:51,639 --> 00:02:56,480 Speaker 1: do have a schedule, and the content owners from whom 48 00:02:56,560 --> 00:03:00,160 Speaker 1: permission to use these short snippets is thought often make 49 00:03:00,160 --> 00:03:05,520 Speaker 1: it as difficult as possible to get a permission from them, 50 00:03:05,840 --> 00:03:10,000 Speaker 1: so as to drive up the cost that the entity 51 00:03:10,080 --> 00:03:13,079 Speaker 1: seeking to use the snippet might be willing to pay, 52 00:03:13,120 --> 00:03:16,200 Speaker 1: just to shortcut the process of getting permission. What would 53 00:03:16,200 --> 00:03:21,480 Speaker 1: the legal analysis be here? The unfortunate tendency that most 54 00:03:21,800 --> 00:03:25,240 Speaker 1: folks have is to immediately, and almost like a knee 55 00:03:25,280 --> 00:03:28,919 Speaker 1: jerk reflex, turned to the fair use doctrinate and say, well, 56 00:03:28,960 --> 00:03:31,320 Speaker 1: this is a short snippet and we're using it in 57 00:03:31,400 --> 00:03:35,800 Speaker 1: transformative way, and therefore fair use would apply. And my 58 00:03:35,920 --> 00:03:38,760 Speaker 1: advice to the clients coming to any this problem has 59 00:03:38,800 --> 00:03:42,240 Speaker 1: always been your first line of defense should be the 60 00:03:42,280 --> 00:03:46,040 Speaker 1: so called di minimous use defense. This is a defense 61 00:03:46,080 --> 00:03:49,280 Speaker 1: that was established by the Second Circuit, which is the 62 00:03:49,360 --> 00:03:53,160 Speaker 1: premier federal Pellet court for copyright law, a number of 63 00:03:53,200 --> 00:03:57,880 Speaker 1: years ago in a case called Sandoville versus New Line Cinema. 64 00:03:58,280 --> 00:04:00,960 Speaker 1: This grows out of the movie Seven. I don't know 65 00:04:00,960 --> 00:04:04,280 Speaker 1: if you remember this movie. It starred Brad Pitt, one 66 00:04:04,360 --> 00:04:07,280 Speaker 1: of my youngest daughter Charlotte's favorite actors of all time, 67 00:04:07,680 --> 00:04:11,480 Speaker 1: as a New York City detective investigating a serial killer. 68 00:04:11,840 --> 00:04:14,440 Speaker 1: And there's a scene in the movie where Brad Pitt 69 00:04:14,520 --> 00:04:17,560 Speaker 1: and Morgan Freeman is the other detective, go into the 70 00:04:17,600 --> 00:04:21,120 Speaker 1: suspect's apartment. The suspect is a photographer, and in the 71 00:04:21,320 --> 00:04:24,000 Speaker 1: sort of old school way, he has strung up on 72 00:04:24,040 --> 00:04:27,760 Speaker 1: a clothesline in his apartment photographs he's taken that are 73 00:04:27,800 --> 00:04:31,039 Speaker 1: just fresh out of the chemical solution and are drying. 74 00:04:31,680 --> 00:04:35,719 Speaker 1: And as the detectives approached these photographs, you can see 75 00:04:35,920 --> 00:04:40,279 Speaker 1: that they are not fictional photographs, but that the production 76 00:04:40,320 --> 00:04:46,039 Speaker 1: company has used real photographs by the famous photographer Jorge Sandoval, 77 00:04:46,279 --> 00:04:50,880 Speaker 1: and Fondoval sued for copyright infringement, and the total amount 78 00:04:50,880 --> 00:04:53,080 Speaker 1: of time that you see these photographs is maybe thirty 79 00:04:53,160 --> 00:04:56,280 Speaker 1: second in the movie seven, And during a couple of 80 00:04:56,279 --> 00:04:59,200 Speaker 1: those seconds, as they're approaching the photos, you can't really 81 00:04:59,360 --> 00:05:01,680 Speaker 1: tell what are there with the blurry, but there does 82 00:05:01,720 --> 00:05:03,480 Speaker 1: come at point in time which you can clearly see 83 00:05:03,480 --> 00:05:06,920 Speaker 1: that their stand devolves photographs. And the Second Circuit said 84 00:05:06,960 --> 00:05:10,440 Speaker 1: this is not copyright infringement. They said that there is 85 00:05:10,480 --> 00:05:14,920 Speaker 1: a day minimus use test for copyright infringement, and if 86 00:05:14,960 --> 00:05:18,920 Speaker 1: you use just a tiny seconds of a copyright work 87 00:05:19,200 --> 00:05:22,120 Speaker 1: that that does not constitute copyright infringement, and you never 88 00:05:22,279 --> 00:05:26,080 Speaker 1: get into the complexities of the fair use decent. So 89 00:05:26,120 --> 00:05:28,320 Speaker 1: do you think that's a winning defense in the Tiger 90 00:05:28,400 --> 00:05:31,240 Speaker 1: King case? Here? In the Tiger King, I think that's 91 00:05:31,240 --> 00:05:34,200 Speaker 1: particularly true. As you said, to the lawsuit alleges it's 92 00:05:34,240 --> 00:05:37,279 Speaker 1: five seconds out of the film face mentor or two 93 00:05:37,520 --> 00:05:40,520 Speaker 1: when you actually look at it on the screen, it's 94 00:05:40,560 --> 00:05:44,039 Speaker 1: probably more like two seconds. Well, that's a lot less 95 00:05:44,040 --> 00:05:48,400 Speaker 1: than the thirty seconds that Sandoval's photographs were on the 96 00:05:48,440 --> 00:05:51,200 Speaker 1: screen in the movie seven. And it seems to me 97 00:05:51,560 --> 00:05:55,000 Speaker 1: that that's really the defense that should be applicable here. 98 00:05:55,320 --> 00:05:58,719 Speaker 1: And I think the mistake that we make in talking 99 00:05:58,720 --> 00:06:03,440 Speaker 1: about these cases involving the taking of short clips is 100 00:06:03,480 --> 00:06:07,080 Speaker 1: to always default to the fair use defense when you're 101 00:06:07,160 --> 00:06:10,080 Speaker 1: much better off going with this dondival case howl the 102 00:06:10,080 --> 00:06:12,920 Speaker 1: second circuit and saying this the minimous use terry, I 103 00:06:12,960 --> 00:06:16,160 Speaker 1: want to discuss what happens if the do minimous defense 104 00:06:16,240 --> 00:06:19,520 Speaker 1: doesn't work. How would the fair use defense apply here? 105 00:06:19,880 --> 00:06:23,880 Speaker 1: So the argument used by defendant in the fair use 106 00:06:24,120 --> 00:06:27,640 Speaker 1: context here would be that the four factors of the 107 00:06:27,680 --> 00:06:31,760 Speaker 1: fair use tests all cut in favor of application of 108 00:06:31,800 --> 00:06:33,640 Speaker 1: the fair use events, and the most important those is 109 00:06:33,680 --> 00:06:36,800 Speaker 1: probably the second factor. The sacond factors takes ano account 110 00:06:36,920 --> 00:06:40,359 Speaker 1: the amount of the taking of the work, and the 111 00:06:40,480 --> 00:06:45,040 Speaker 1: argument is I've not taken the entire movie a Centaur two. 112 00:06:45,279 --> 00:06:48,280 Speaker 1: I haven't even taken an entire scene. I've taken this 113 00:06:48,440 --> 00:06:51,560 Speaker 1: tiny film clip of a couple of seconds, and that 114 00:06:51,600 --> 00:06:55,120 Speaker 1: should drive the fair use analysis. Don't buy the way. Moreover, 115 00:06:55,480 --> 00:06:58,279 Speaker 1: I'm not using it in the context that's used in 116 00:06:58,360 --> 00:07:00,839 Speaker 1: Age tur or two. I'm using it to establish a 117 00:07:00,839 --> 00:07:04,680 Speaker 1: completely different point here that there are these interactions between 118 00:07:04,760 --> 00:07:07,480 Speaker 1: humans and the animal kingdom that could be humorous and 119 00:07:07,680 --> 00:07:11,880 Speaker 1: therefore it's a transformative use. And that combination of taking 120 00:07:11,880 --> 00:07:15,640 Speaker 1: a very very tiny amount the transformative use should be 121 00:07:15,760 --> 00:07:19,560 Speaker 1: sufficient to carry if they're used defense. But the problem 122 00:07:19,680 --> 00:07:22,520 Speaker 1: with that defense is it comes up late in the 123 00:07:22,520 --> 00:07:26,360 Speaker 1: game the copyright pass. You spend a lot of attorney 124 00:07:26,440 --> 00:07:29,400 Speaker 1: s fees to get to that point, and the analysis 125 00:07:29,440 --> 00:07:33,120 Speaker 1: is very complicated for most trial court judges, and not surprisingly, 126 00:07:33,160 --> 00:07:35,400 Speaker 1: they often get it wrong, and therefore you have to 127 00:07:35,440 --> 00:07:37,840 Speaker 1: take it up to appeal to the circuit court to 128 00:07:37,920 --> 00:07:40,720 Speaker 1: get it fixed, which runs up your attorney species more 129 00:07:41,040 --> 00:07:46,120 Speaker 1: and the reality is many filmmakers television makers can't afford 130 00:07:46,160 --> 00:07:50,239 Speaker 1: that process. The benefit of the di minimus use test 131 00:07:50,440 --> 00:07:52,880 Speaker 1: is you can bring it on a motion to the SMISS. 132 00:07:53,040 --> 00:07:55,600 Speaker 1: It's quick and cheap, allows you to keep on your 133 00:07:55,600 --> 00:07:59,560 Speaker 1: filming schedule without burning your budget on Durney space do. 134 00:07:59,680 --> 00:08:05,000 Speaker 1: These cases usually come up after the documentary is shown 135 00:08:05,160 --> 00:08:09,600 Speaker 1: or after the movie is shown, so that is probably 136 00:08:09,640 --> 00:08:13,520 Speaker 1: the most frequent context in which this issue comes up, 137 00:08:13,720 --> 00:08:16,240 Speaker 1: but it's not the only one. There are a lot 138 00:08:16,320 --> 00:08:20,080 Speaker 1: of filmmakers out there who have gone to good film 139 00:08:20,160 --> 00:08:23,840 Speaker 1: schools like n y U and have been alerted to 140 00:08:23,880 --> 00:08:27,960 Speaker 1: the problem. They may not completely understand copyright law, but 141 00:08:28,160 --> 00:08:32,480 Speaker 1: they're able to red flag an issue when it comes along, 142 00:08:33,040 --> 00:08:38,160 Speaker 1: and um go seek permission ahead of time. You're always 143 00:08:38,320 --> 00:08:41,600 Speaker 1: in this quandary. Then, though, as a filmmaker, I go 144 00:08:41,679 --> 00:08:45,400 Speaker 1: seek permission and denied and I use it anyway, Does 145 00:08:45,440 --> 00:08:50,080 Speaker 1: that mean that sort admit it that I needed to 146 00:08:50,120 --> 00:08:54,559 Speaker 1: get permission, that it would be copyright infringement without permission. Um. 147 00:08:54,600 --> 00:08:57,560 Speaker 1: If you remember the famous Supreme Court case that came 148 00:08:57,600 --> 00:09:03,000 Speaker 1: out of the in this context that involved Ray Orbison's 149 00:09:03,000 --> 00:09:07,360 Speaker 1: song song pretty Woman, UM band wanted to do a 150 00:09:07,520 --> 00:09:11,960 Speaker 1: sort of punk version of that song. They went to 151 00:09:12,000 --> 00:09:16,000 Speaker 1: the estate of Orbison and asked for permission UM to 152 00:09:16,640 --> 00:09:19,679 Speaker 1: use part of the song, and we're denied, and then 153 00:09:19,720 --> 00:09:22,960 Speaker 1: did it anyway. And of course in the subsequent copyright 154 00:09:23,080 --> 00:09:26,120 Speaker 1: plot suit, that was one of the big facts that 155 00:09:26,200 --> 00:09:29,480 Speaker 1: came up while they asked us for permission. The Supreme 156 00:09:29,520 --> 00:09:33,400 Speaker 1: Court ultimately decided that was not relevant. Um, that you're 157 00:09:33,480 --> 00:09:36,959 Speaker 1: entitled the fair use even if you went in first 158 00:09:37,000 --> 00:09:40,800 Speaker 1: ask permission and got turned down. UM, you don't apprecate 159 00:09:40,840 --> 00:09:44,320 Speaker 1: the fair use of them. But it is a problem. 160 00:09:44,520 --> 00:09:48,120 Speaker 1: I assume that a lot of documentary producers don't have 161 00:09:48,200 --> 00:09:54,120 Speaker 1: the money to go get legal help beforehand. So this 162 00:09:54,200 --> 00:09:59,160 Speaker 1: is what the copyright owner knows that there is usually 163 00:09:59,280 --> 00:10:05,920 Speaker 1: not a budgets UM for UM lawyers to litigate, and 164 00:10:06,280 --> 00:10:09,040 Speaker 1: they think that they sort of have you over a 165 00:10:09,080 --> 00:10:12,560 Speaker 1: barrel once you come and ask for permission, and can 166 00:10:12,800 --> 00:10:15,760 Speaker 1: either prevent you from doing the first place or squeeze 167 00:10:15,760 --> 00:10:19,320 Speaker 1: them a few thousand dollars out of you UM. A 168 00:10:19,360 --> 00:10:26,680 Speaker 1: couple of years ago, one of the prominent copyright professors 169 00:10:26,720 --> 00:10:31,280 Speaker 1: in this country, Peter Yazy over at a American University 170 00:10:31,360 --> 00:10:35,440 Speaker 1: law school UM set up a clinic UM to do 171 00:10:35,600 --> 00:10:39,599 Speaker 1: pro bona work in the copyright field, and one of 172 00:10:39,640 --> 00:10:44,199 Speaker 1: their missions was to give free advice to filmmakers, particularly 173 00:10:44,200 --> 00:10:50,439 Speaker 1: documentary filmmakers, on this whole subject of permissions and UM. 174 00:10:50,480 --> 00:10:54,160 Speaker 1: This is one of the mechanisms that has developed out 175 00:10:54,360 --> 00:10:59,840 Speaker 1: of the legal profession for addressing this imbalance of power 176 00:11:00,760 --> 00:11:07,400 Speaker 1: between copyright owners and company seeking to use UM their 177 00:11:07,520 --> 00:11:12,440 Speaker 1: copyrights for particularly short snippets or film clips UM and 178 00:11:12,480 --> 00:11:18,040 Speaker 1: who simply don't have the legal wherewithal to address the problem. 179 00:11:18,240 --> 00:11:23,280 Speaker 1: Is that the response from the copyright bar has been 180 00:11:23,360 --> 00:11:27,319 Speaker 1: too address this through pro bono initiatives such as the 181 00:11:27,360 --> 00:11:30,800 Speaker 1: one that Professor Yazy American University set up, and that 182 00:11:30,960 --> 00:11:33,800 Speaker 1: has worked pretty well to the extent that particularly young 183 00:11:33,880 --> 00:11:37,160 Speaker 1: filmmakers are aware of it and bother to pick up 184 00:11:37,200 --> 00:11:42,440 Speaker 1: the phone and call UM because it's the copyright owner, 185 00:11:42,679 --> 00:11:46,200 Speaker 1: gets a letter, gets a phone call from a really 186 00:11:46,200 --> 00:11:50,640 Speaker 1: good copyright lawyer, UM saying hey, look, you're overstepping the 187 00:11:50,679 --> 00:11:55,600 Speaker 1: bounds of copyright here, and we intend to defend it. 188 00:11:55,679 --> 00:11:58,800 Speaker 1: Often backs them off and makes it possible for the 189 00:11:58,800 --> 00:12:01,400 Speaker 1: filmmaker to use the clip. I suppose this goes to 190 00:12:01,400 --> 00:12:04,840 Speaker 1: a jury and they decide that you know, they're going 191 00:12:04,880 --> 00:12:09,160 Speaker 1: to award damages. How would damages be determined? Because it 192 00:12:09,280 --> 00:12:12,599 Speaker 1: seems like, in a strange sort of way, seeing in 193 00:12:12,720 --> 00:12:17,560 Speaker 1: ace Ventura clip might lead people to watch the movie again, 194 00:12:17,640 --> 00:12:21,200 Speaker 1: this whole movie. So what are the damages really to 195 00:12:21,640 --> 00:12:26,080 Speaker 1: the ace Ventura people? Calculating damages in this area is 196 00:12:26,200 --> 00:12:31,800 Speaker 1: very tricky. UM. There is typically not a market for 197 00:12:33,320 --> 00:12:36,520 Speaker 1: short clip. Now that's not always true. There are some 198 00:12:36,600 --> 00:12:42,880 Speaker 1: movies that have iconic short clips UH that advertisers, for example, 199 00:12:42,920 --> 00:12:47,560 Speaker 1: want to use UM, But for the most part, there 200 00:12:47,679 --> 00:12:50,880 Speaker 1: is no marketplace. And how do we measure damages. We 201 00:12:50,880 --> 00:12:55,160 Speaker 1: we measure it as what a willing buyer and a 202 00:12:55,160 --> 00:12:57,800 Speaker 1: willing seller would agree to the price for it. And 203 00:12:57,840 --> 00:13:01,480 Speaker 1: if you don't have any asked the experience of willing 204 00:13:01,559 --> 00:13:05,640 Speaker 1: buyers coming in and agreeing to price with the copyright owner, 205 00:13:05,960 --> 00:13:08,360 Speaker 1: it makes it very hard. So you bring in expert 206 00:13:08,720 --> 00:13:12,880 Speaker 1: so called damages experts, who perform an economic model as 207 00:13:12,960 --> 00:13:18,160 Speaker 1: to the value and present that UM. The defendant, however, 208 00:13:18,280 --> 00:13:23,200 Speaker 1: could mitigate those damage by arguing that UM, as you 209 00:13:23,320 --> 00:13:27,160 Speaker 1: just did this actually um. The use of these short 210 00:13:27,200 --> 00:13:32,800 Speaker 1: snippets actually enhances the value of a mentor two because 211 00:13:32,800 --> 00:13:35,120 Speaker 1: people are reminded of it and they go back watch again, 212 00:13:35,640 --> 00:13:39,520 Speaker 1: pay for online streaming of it. UM. And that is 213 00:13:39,559 --> 00:13:42,680 Speaker 1: a calculus that the jury has to perform. Is this 214 00:13:42,720 --> 00:13:45,080 Speaker 1: a case that might be settled? I mean, you have 215 00:13:45,160 --> 00:13:48,199 Speaker 1: a deep pocket, you have a Netflix on one side. 216 00:13:48,640 --> 00:13:51,559 Speaker 1: Might they just settle it instead of going through trial? 217 00:13:52,360 --> 00:13:59,199 Speaker 1: So Netflix might have an interest in establishing better law 218 00:13:59,360 --> 00:14:04,839 Speaker 1: in this yield for purposes benefiting the entire community filmmakers. 219 00:14:04,880 --> 00:14:09,920 Speaker 1: Netflix does have original content. Now they do have copyrights 220 00:14:09,920 --> 00:14:12,719 Speaker 1: of their own, but for the most part they are 221 00:14:12,760 --> 00:14:15,959 Speaker 1: a consumer of copyrights as opposed to an owner, and 222 00:14:16,280 --> 00:14:18,440 Speaker 1: they do have deep pockets. As you point out, the 223 00:14:18,520 --> 00:14:21,080 Speaker 1: movie seven went all the way up to the second 224 00:14:21,120 --> 00:14:25,160 Speaker 1: circuit because you had New Line Cinema as the defendant 225 00:14:25,320 --> 00:14:29,280 Speaker 1: who had very substantial resources and was not about to 226 00:14:29,360 --> 00:14:33,000 Speaker 1: yank the movie out of theaters and edit it to 227 00:14:33,080 --> 00:14:36,560 Speaker 1: remove that scene, which was actually somewhat important scene in 228 00:14:36,560 --> 00:14:40,600 Speaker 1: the movie. So the times you tend to get new 229 00:14:40,640 --> 00:14:44,080 Speaker 1: precedent established in this area is when you have exactly 230 00:14:44,080 --> 00:14:47,800 Speaker 1: as you've described, a deep pocket defendant who is more 231 00:14:47,920 --> 00:14:51,720 Speaker 1: interested in the principle than the fees that are going 232 00:14:51,760 --> 00:14:54,000 Speaker 1: to be incurred, and is willing to push it to 233 00:14:54,080 --> 00:14:57,880 Speaker 1: the very end. Terry, how often do these issues about 234 00:14:57,920 --> 00:15:00,600 Speaker 1: the use of clips come up and doesn't have a 235 00:15:00,680 --> 00:15:05,480 Speaker 1: chilling effect on young producers. One of the problems that 236 00:15:05,640 --> 00:15:09,320 Speaker 1: particularly young filmmakers in the documentary field experience here is 237 00:15:09,400 --> 00:15:12,120 Speaker 1: the notion of what some people call copyright bullies. These 238 00:15:12,160 --> 00:15:16,360 Speaker 1: are content owners who are overly aggressive and quite frankly 239 00:15:16,520 --> 00:15:21,040 Speaker 1: overstepped their legal rights in order to either extract payments 240 00:15:21,080 --> 00:15:23,960 Speaker 1: from secondary users or to deter them from using their 241 00:15:24,040 --> 00:15:26,640 Speaker 1: copyright work in the first place. And I have been 242 00:15:26,640 --> 00:15:29,600 Speaker 1: in the past had young documentary filmmakers I work with 243 00:15:29,760 --> 00:15:32,760 Speaker 1: come to me and say, oh my gosh, we accident 244 00:15:32,880 --> 00:15:35,760 Speaker 1: might have in the background of one of our scenes 245 00:15:35,960 --> 00:15:39,920 Speaker 1: unplanned music from a copyrighted song, and we're concerned that 246 00:15:40,000 --> 00:15:42,600 Speaker 1: once we put this out will get a threat of infringement. 247 00:15:42,760 --> 00:15:46,240 Speaker 1: And the notion is that they are in effect self 248 00:15:46,280 --> 00:15:50,600 Speaker 1: censoring out of a fear of a copyright infringement loss 249 00:15:50,640 --> 00:15:53,000 Speaker 1: of And you see this also at the First Amendment space, 250 00:15:53,080 --> 00:15:56,680 Speaker 1: where you have publication engage in self censoring because they're 251 00:15:56,680 --> 00:15:59,960 Speaker 1: not sure that the courts will fully protect and guard 252 00:16:00,080 --> 00:16:02,840 Speaker 1: their First Amendment right. So this is a really bad 253 00:16:02,880 --> 00:16:07,640 Speaker 1: thing for society that we have filmmakers self censoring out 254 00:16:07,680 --> 00:16:11,000 Speaker 1: of concern that they will end up on the receiving 255 00:16:11,120 --> 00:16:14,320 Speaker 1: end of a copyright infringement lawsuit that they can't afford, 256 00:16:14,680 --> 00:16:17,080 Speaker 1: and that their film schedule does not allow them to 257 00:16:17,160 --> 00:16:19,640 Speaker 1: incorporate for that they end up having to change the 258 00:16:19,640 --> 00:16:22,840 Speaker 1: work after it's already been filmed. It's a real problem 259 00:16:23,080 --> 00:16:27,960 Speaker 1: that we have in society because these filmmakers don't understand 260 00:16:28,000 --> 00:16:32,520 Speaker 1: that they actually have very strong defenses and rights to 261 00:16:32,760 --> 00:16:37,000 Speaker 1: make certain types of youth Thanks Terry, that's intellectual property 262 00:16:37,000 --> 00:16:42,640 Speaker 1: litigator Terence Ross of Captain Uten Rosenman, Prince Andrew has 263 00:16:42,680 --> 00:16:47,080 Speaker 1: been stripped of his military titles and charities. Buckingham Palace 264 00:16:47,160 --> 00:16:50,480 Speaker 1: made that announcement just one day after the British Royal 265 00:16:50,680 --> 00:16:54,000 Speaker 1: failed to convince a judge to toss a lawsuit accusing 266 00:16:54,080 --> 00:16:57,520 Speaker 1: him of sexually abusing a teenage girl decades ago. The 267 00:16:57,560 --> 00:17:00,160 Speaker 1: Palace said the Duke of York is defending in this 268 00:17:00,280 --> 00:17:03,600 Speaker 1: case as a private citizen. Prince Andrew denies all the 269 00:17:03,680 --> 00:17:07,240 Speaker 1: accusations made in a lawsuit joining me is Bloomberg Legal 270 00:17:07,280 --> 00:17:10,720 Speaker 1: reporter Bob van Voris Bob tell us about Virginia de 271 00:17:10,880 --> 00:17:14,879 Speaker 1: phrase lawsuit against Prince Andrew. Virginia du Phrase suit Prince 272 00:17:15,000 --> 00:17:19,639 Speaker 1: Andrew for allegedly abusing her sexually when she was a 273 00:17:19,640 --> 00:17:23,320 Speaker 1: teenage girl a couple of decades ago. She claims that 274 00:17:23,480 --> 00:17:27,280 Speaker 1: he was one of the people to whom Jeffrey Epstein 275 00:17:27,359 --> 00:17:30,520 Speaker 1: lent her for sexual abuse when she was a teenager. 276 00:17:31,040 --> 00:17:35,160 Speaker 1: So what is Prince Andrew's defense. Well, first of all, 277 00:17:35,200 --> 00:17:39,920 Speaker 1: Prince Andrew denies that he did anything to Virginia Dufray. 278 00:17:40,480 --> 00:17:43,840 Speaker 1: The defense that he's raised in court most recently is 279 00:17:43,880 --> 00:17:47,919 Speaker 1: that a two thousand nine settlement agreement between Virginia du 280 00:17:48,000 --> 00:17:53,200 Speaker 1: Frey and Jeffrey Epstein that that includes a clause that 281 00:17:53,280 --> 00:17:57,120 Speaker 1: releases him from any liability for anything that he might 282 00:17:57,200 --> 00:18:00,560 Speaker 1: have done. So he claims that that had let him 283 00:18:00,560 --> 00:18:03,880 Speaker 1: out of the case entirely. A judge in New York 284 00:18:03,920 --> 00:18:08,640 Speaker 1: has considered that claim and he rejected it. The judge, 285 00:18:08,760 --> 00:18:12,280 Speaker 1: Lewis Kaplan ruled that it's too early in the case 286 00:18:12,640 --> 00:18:15,359 Speaker 1: for him to be able to sort out the different 287 00:18:15,400 --> 00:18:18,760 Speaker 1: claims on both sides as to what that release means, 288 00:18:19,200 --> 00:18:23,040 Speaker 1: whether it refers to Prince Andrew, and whether Prince Andrew 289 00:18:23,280 --> 00:18:28,000 Speaker 1: is a proper party to raise that. So he ruled 290 00:18:28,040 --> 00:18:30,920 Speaker 1: against Prince Andrew and the case goes on against them. 291 00:18:31,160 --> 00:18:35,000 Speaker 1: It's a forty three page opinion, which seems long to 292 00:18:35,080 --> 00:18:38,600 Speaker 1: say it's too soon. Well, that's exactly right. The judge 293 00:18:38,640 --> 00:18:43,400 Speaker 1: went into what the parties may have been thinking when 294 00:18:43,400 --> 00:18:47,040 Speaker 1: they entered this agreement, but he said it's far from 295 00:18:47,040 --> 00:18:50,679 Speaker 1: a model of clear and precise drafting, which is really true. 296 00:18:51,280 --> 00:18:55,920 Speaker 1: The clause that's in question here releases from liability quote 297 00:18:56,080 --> 00:18:59,080 Speaker 1: any other person. Now that's in addition to Epstein and 298 00:18:59,119 --> 00:19:02,680 Speaker 1: the people around him as employees and attorneys, but any 299 00:19:02,720 --> 00:19:07,080 Speaker 1: other person or entity who could have been included as 300 00:19:07,080 --> 00:19:11,639 Speaker 1: a potential defendant in the twenty nineteen lawsuit by Giuffrey 301 00:19:11,760 --> 00:19:16,359 Speaker 1: against Epstein. So Prince Andrew claims that he is included 302 00:19:16,400 --> 00:19:19,680 Speaker 1: in that that he could have been named by Giuffrey, 303 00:19:20,320 --> 00:19:23,000 Speaker 1: that he was one of the people that Epstein was 304 00:19:23,480 --> 00:19:27,119 Speaker 1: thinking about when he entered into that settlement. And by 305 00:19:27,119 --> 00:19:30,399 Speaker 1: the way, under that settlement, Giuffrey was paid five hundred 306 00:19:30,440 --> 00:19:34,680 Speaker 1: thousand dollars to release her claims against Epstein and against 307 00:19:34,760 --> 00:19:37,400 Speaker 1: you know, right now we're trying to figure out who 308 00:19:37,440 --> 00:19:43,320 Speaker 1: else you've written that Epstein used high pressure litigation tactics 309 00:19:43,440 --> 00:19:47,680 Speaker 1: to reach these secret settlements. That's right. Epstein had a 310 00:19:47,800 --> 00:19:53,119 Speaker 1: history of entering settlements with girls who were later women 311 00:19:53,119 --> 00:19:55,600 Speaker 1: who sued him. To try to keep it quiet, he 312 00:19:55,720 --> 00:19:59,320 Speaker 1: paid in excess of a million dollars in some cases 313 00:20:00,000 --> 00:20:03,880 Speaker 1: a thousand, we know, to Virginia Dufray, but he included 314 00:20:04,000 --> 00:20:09,320 Speaker 1: and in the Fray settlement um there are included confidentiality provisions. 315 00:20:09,359 --> 00:20:12,840 Speaker 1: He didn't want people to know that these claims were 316 00:20:12,840 --> 00:20:15,040 Speaker 1: filed against him and that he was settling them for 317 00:20:15,280 --> 00:20:18,959 Speaker 1: you know, pretty substantial subs that obviously came out later. 318 00:20:19,359 --> 00:20:22,080 Speaker 1: He is alleds who have put a lot of pressure 319 00:20:22,080 --> 00:20:25,240 Speaker 1: on these people, and it's pretty clear that he used 320 00:20:25,520 --> 00:20:30,720 Speaker 1: aggressive litigation tactics and aggressive settlement tactics. So has any 321 00:20:30,800 --> 00:20:35,160 Speaker 1: evidence been exchanged yet between the parties very little. They 322 00:20:35,280 --> 00:20:38,639 Speaker 1: just started. The cases been pending for you know, about 323 00:20:38,640 --> 00:20:42,760 Speaker 1: half a year, so there hasn't been very much activity 324 00:20:42,960 --> 00:20:45,359 Speaker 1: yet in the case. But one sign that the judge 325 00:20:45,480 --> 00:20:48,720 Speaker 1: was going to rule against Prince Andrew even before he 326 00:20:48,840 --> 00:20:52,000 Speaker 1: came out with his forty three page decision the other day, 327 00:20:52,440 --> 00:20:56,680 Speaker 1: he decided not to suspend that pre trial exchange of evidence. 328 00:20:57,119 --> 00:21:00,520 Speaker 1: And so now that he has ruled again and Andrew, 329 00:21:00,600 --> 00:21:03,600 Speaker 1: we can expect that to go forward, and you know 330 00:21:03,640 --> 00:21:06,119 Speaker 1: that'll take a little while, that'll take a certainly month, 331 00:21:06,440 --> 00:21:11,200 Speaker 1: maybe longer. The judge in pre trial hearings doesn't seem 332 00:21:11,200 --> 00:21:17,520 Speaker 1: particularly sympathetic to Prince Andrew's claims. He doesn't, I mean, 333 00:21:17,760 --> 00:21:22,560 Speaker 1: the basic ruling was, look, we've got two different readings 334 00:21:22,600 --> 00:21:26,359 Speaker 1: of this release that are potentially reasonable, and as a 335 00:21:26,520 --> 00:21:29,439 Speaker 1: judge this early in the case, you know, I can't 336 00:21:29,520 --> 00:21:31,520 Speaker 1: rule on that right now that it has to go 337 00:21:31,640 --> 00:21:34,840 Speaker 1: further into the case and have potentially the jury decide 338 00:21:35,040 --> 00:21:37,480 Speaker 1: who was included in that release and whether the Prince 339 00:21:37,560 --> 00:21:40,679 Speaker 1: was included in that release. But he made short thrift 340 00:21:40,760 --> 00:21:44,200 Speaker 1: of a lot of his arguments, including one argument that 341 00:21:44,359 --> 00:21:48,640 Speaker 1: Virginia drew phrase complaint wasn't insufficiently clear about what happened 342 00:21:48,640 --> 00:21:52,040 Speaker 1: to her? Kaplan read it from the bench, he kind 343 00:21:52,040 --> 00:21:57,400 Speaker 1: of mocked the Prince's argument that it was not clear enough, saying, quote, 344 00:21:57,600 --> 00:22:02,400 Speaker 1: it was sexual intercourse in volun terry sexual intercourse. There's 345 00:22:02,440 --> 00:22:05,800 Speaker 1: no doubt about what that means, at least since somebody 346 00:22:05,800 --> 00:22:09,520 Speaker 1: else was in the White House, apparently referring to Bill Clinton, 347 00:22:09,800 --> 00:22:13,320 Speaker 1: who ironically is the president who appointed Kaplin to the bench. 348 00:22:14,320 --> 00:22:18,600 Speaker 1: So what's the next step in the lawsuit. Obviously Andrew 349 00:22:18,720 --> 00:22:21,000 Speaker 1: is going to have to get together with his legal 350 00:22:21,040 --> 00:22:24,200 Speaker 1: counsel and figure out what he's going to do. This 351 00:22:24,320 --> 00:22:26,440 Speaker 1: is going to go on for a while. He has 352 00:22:26,480 --> 00:22:28,800 Speaker 1: to decide if he wants to remain in the headlines 353 00:22:28,840 --> 00:22:34,080 Speaker 1: in connection with allegations of child sexual abuse. So presumably 354 00:22:34,119 --> 00:22:37,040 Speaker 1: he's going to think about whether this is a case 355 00:22:37,080 --> 00:22:39,680 Speaker 1: that can be settled, whether he wants to go forward 356 00:22:39,920 --> 00:22:43,520 Speaker 1: and try to vindicate his good name, or if he 357 00:22:43,560 --> 00:22:46,760 Speaker 1: wants to just sit in Britain and not contest the 358 00:22:46,800 --> 00:22:49,880 Speaker 1: case and let it go forward. You know, without him, 359 00:22:49,920 --> 00:22:55,440 Speaker 1: the parties will be uh starting the process of exchanging documents, 360 00:22:55,800 --> 00:22:58,560 Speaker 1: taking depositions, all of the things that you do to 361 00:22:58,640 --> 00:23:03,960 Speaker 1: get ready for a trial. Could he appeal the judge's decision? UM, 362 00:23:04,000 --> 00:23:07,600 Speaker 1: It's possible. Usually in cases like this you have to 363 00:23:07,600 --> 00:23:10,080 Speaker 1: wait until the case is over to take it to 364 00:23:10,119 --> 00:23:14,439 Speaker 1: an appeals court. It's possible that the Prince will ask 365 00:23:15,359 --> 00:23:18,280 Speaker 1: Judge Kaplan to allow him to take the case up 366 00:23:18,320 --> 00:23:23,000 Speaker 1: to the the appeals court. UH. If he's denied, It's 367 00:23:23,040 --> 00:23:26,520 Speaker 1: possible he would also just ask the appeals court to 368 00:23:26,680 --> 00:23:29,760 Speaker 1: reach down and grab this case and UH and delay 369 00:23:29,800 --> 00:23:33,360 Speaker 1: it while they decide whether Judge Kaplan's ruling on this 370 00:23:33,600 --> 00:23:38,200 Speaker 1: was was correct. Those kind of appeals, you know, if 371 00:23:38,320 --> 00:23:42,359 Speaker 1: Kaplan doesn't agree with it, it's it's unusual for the 372 00:23:42,400 --> 00:23:44,800 Speaker 1: Court of Appeals to take UH to take up an 373 00:23:44,840 --> 00:23:48,280 Speaker 1: appeal at this point. Although that's a possibility. And she 374 00:23:48,480 --> 00:23:52,120 Speaker 1: was not one of the four victims who testified at 375 00:23:52,160 --> 00:23:56,359 Speaker 1: the Maxwell trial. Is she that's correct? She was not. 376 00:23:56,640 --> 00:24:01,160 Speaker 1: She's made many very public accusations. Some of the women 377 00:24:01,200 --> 00:24:05,920 Speaker 1: who testified at the Maxwell trial testified under procedures that 378 00:24:06,400 --> 00:24:09,880 Speaker 1: allowed them to keep their anonymity as as much as possible. 379 00:24:09,920 --> 00:24:11,879 Speaker 1: I think some of those names are out there also, 380 00:24:12,160 --> 00:24:16,119 Speaker 1: but they testified as so called. Jane does thanks Bob. 381 00:24:16,520 --> 00:24:22,119 Speaker 1: That's Bob, then Boris Bloomberg, Legal reporter. President Joe Biden 382 00:24:22,160 --> 00:24:25,920 Speaker 1: beat out every president since Ronald Reagan in getting judges 383 00:24:26,000 --> 00:24:29,800 Speaker 1: confirmed in his first year, and Biden helped to diversify 384 00:24:29,840 --> 00:24:33,280 Speaker 1: the bench with his nominees. Twenty were Black, fourteen were 385 00:24:33,280 --> 00:24:37,640 Speaker 1: Hispanic or Latino, thirteen were Asian American and Pacific Islander, 386 00:24:37,920 --> 00:24:41,359 Speaker 1: and three were Native American. But the road to confirmations 387 00:24:41,359 --> 00:24:44,160 Speaker 1: may be more difficult this year. Joining me is Professor 388 00:24:44,240 --> 00:24:47,840 Speaker 1: Carl Tobias of the University of Richmond Law School. So, 389 00:24:48,119 --> 00:24:51,800 Speaker 1: first of all, tell us what Joe Biden accomplished with 390 00:24:51,880 --> 00:24:58,640 Speaker 1: his judicial confirmations in well, he tied Ronald Reagan's record 391 00:24:58,880 --> 00:25:03,520 Speaker 1: for the first year for pres residency because Biden confirmed 392 00:25:03,880 --> 00:25:09,120 Speaker 1: forty appellate and district judges eleven and for the appeals 393 00:25:09,160 --> 00:25:13,600 Speaker 1: courts twenty nine for the district courts. Uh. And you 394 00:25:13,640 --> 00:25:15,520 Speaker 1: have to go back to the time of Reagan to 395 00:25:15,600 --> 00:25:19,280 Speaker 1: see anyone who came close to that, and to Biden 396 00:25:19,359 --> 00:25:24,800 Speaker 1: easily surpassed the number whom Trump nominated and confirmed in 397 00:25:26,800 --> 00:25:32,040 Speaker 1: So it was very successful. And the nominees who were confirmed, 398 00:25:32,320 --> 00:25:39,320 Speaker 1: and the nominees themselves, we're very diverse in terms of ethnicity, gender, 399 00:25:39,680 --> 00:25:46,520 Speaker 1: sexual orientation, experience in ideology and all of that is 400 00:25:46,560 --> 00:25:50,240 Speaker 1: critically important for the federal kid issue. Or so, some 401 00:25:50,560 --> 00:25:54,399 Speaker 1: groups are complaining that there should be more Hispanics on 402 00:25:54,440 --> 00:25:58,199 Speaker 1: the bench and nominees who are disabled or who have 403 00:25:58,280 --> 00:26:02,040 Speaker 1: a background in disability any law. Are you getting the 404 00:26:02,080 --> 00:26:07,080 Speaker 1: best candidate possible when you're looking to change the diversity 405 00:26:07,080 --> 00:26:10,159 Speaker 1: on the bench. Well, it depends on which kind of 406 00:26:10,200 --> 00:26:15,320 Speaker 1: diversity you're talking about, but the types of diversity which 407 00:26:15,440 --> 00:26:19,720 Speaker 1: Biden has promoted, I think are important. To have a 408 00:26:19,800 --> 00:26:25,800 Speaker 1: judiciary that reflects the country gives more confidence to citizens 409 00:26:25,880 --> 00:26:31,840 Speaker 1: in the federal courts when it reflects America, limits prejudice 410 00:26:32,160 --> 00:26:39,520 Speaker 1: against people whom might experience discrimination the federal courts, and 411 00:26:39,680 --> 00:26:44,000 Speaker 1: so all of that is valuable and also means you'll 412 00:26:44,080 --> 00:26:50,480 Speaker 1: have better decisions. And so everyone has a different definition 413 00:26:50,600 --> 00:26:55,480 Speaker 1: of what qualified person is for the federal bench, but 414 00:26:56,200 --> 00:27:00,760 Speaker 1: certainly all of Biden's nominees and for me, have been 415 00:27:00,880 --> 00:27:07,000 Speaker 1: highly qualified and I think something like the highest American 416 00:27:07,040 --> 00:27:12,720 Speaker 1: Bar Association ratings. There's a vacancy on the Philadelphia Circuit 417 00:27:12,800 --> 00:27:17,520 Speaker 1: Court that'll give Biden a chance to flip that circuit yes, 418 00:27:18,240 --> 00:27:22,000 Speaker 1: Brooke Smith, who was the chief judge of the court 419 00:27:22,760 --> 00:27:27,199 Speaker 1: recently a student senior status and he was appointed by 420 00:27:27,280 --> 00:27:30,639 Speaker 1: Republican president and so that means when his seat is 421 00:27:30,680 --> 00:27:35,880 Speaker 1: filled that that court will flip back, if you will, 422 00:27:36,359 --> 00:27:41,159 Speaker 1: to a majority appointed by Democratic president. So how important 423 00:27:41,400 --> 00:27:45,919 Speaker 1: is that, you know, flipping of the circuits when the 424 00:27:45,960 --> 00:27:50,800 Speaker 1: panels are composed of three judges and so it depends 425 00:27:50,840 --> 00:27:53,160 Speaker 1: on the look of the draw for that it does. 426 00:27:53,560 --> 00:27:56,840 Speaker 1: And you also have to remember on bank review by 427 00:27:56,840 --> 00:27:59,680 Speaker 1: a majority of judges in active service, as the second 428 00:27:59,680 --> 00:28:03,640 Speaker 1: Circuit rarely takes up on bonds, but other courts are 429 00:28:03,720 --> 00:28:07,800 Speaker 1: quite active on that front. But you're correct. I mean 430 00:28:07,800 --> 00:28:10,639 Speaker 1: they're supposed to be random draws for three judged pianis 431 00:28:11,040 --> 00:28:14,080 Speaker 1: and it's somewhat of a crude measure to talk about 432 00:28:14,080 --> 00:28:17,760 Speaker 1: who the appointing president was. But generally, I think when 433 00:28:17,760 --> 00:28:22,320 Speaker 1: it's a Republican the nominees and appointees are more conservative, 434 00:28:22,400 --> 00:28:27,000 Speaker 1: and when it's a Democrat, the appointees and nominees are 435 00:28:27,080 --> 00:28:30,880 Speaker 1: more moderate and sometimes little so tell us a little 436 00:28:30,880 --> 00:28:35,000 Speaker 1: about the sixth Circuit nominee who's facing opposition from the 437 00:28:35,040 --> 00:28:41,520 Speaker 1: Republican senators. Andre Mathis is a nominee for the sixth Circuits. 438 00:28:41,960 --> 00:28:47,040 Speaker 1: He's highly qualified. He's a long time commercial litigator, but 439 00:28:47,120 --> 00:28:51,120 Speaker 1: has done a fair amount of criminal litigation as well, 440 00:28:52,880 --> 00:28:57,920 Speaker 1: and was nominated recently by the President. The Home state 441 00:28:58,000 --> 00:29:03,000 Speaker 1: senators from Tennessee, Senator Blackburn, who sits on Judiciary Committee, 442 00:29:03,160 --> 00:29:08,560 Speaker 1: and Senator Haggarty said they weren't consulted enough by the 443 00:29:08,600 --> 00:29:14,760 Speaker 1: White House in terms of whether they agreed to that nomination, 444 00:29:15,320 --> 00:29:19,960 Speaker 1: and the President did go forward and nominate Mathis, but 445 00:29:20,200 --> 00:29:23,680 Speaker 1: the White House and the Council's Office have responsibility for that. 446 00:29:24,080 --> 00:29:29,240 Speaker 1: Said that there was considerable consultation with the Homestade senators, 447 00:29:29,640 --> 00:29:33,480 Speaker 1: so it maybe that's Blackburn will bring that up in 448 00:29:33,480 --> 00:29:38,280 Speaker 1: the hearing. But remember that Senator Grassley has share of 449 00:29:38,360 --> 00:29:45,200 Speaker 1: Judiciary in carved out an exception from blue slips called 450 00:29:45,320 --> 00:29:52,320 Speaker 1: a circuit exception, and with that change, fifty four extremely 451 00:29:52,360 --> 00:29:58,640 Speaker 1: conservative Republican appointees of Trump were able to move through 452 00:29:58,760 --> 00:30:04,520 Speaker 1: the Judiciary, and Senator Blackburn voted for every one of 453 00:30:04,600 --> 00:30:08,520 Speaker 1: Trump's nominees from a blue state who did not have 454 00:30:09,160 --> 00:30:12,720 Speaker 1: two Blue slips, And so it doesn't seem like she 455 00:30:12,840 --> 00:30:17,240 Speaker 1: has much grounds to complain in this situation given her 456 00:30:17,320 --> 00:30:21,480 Speaker 1: voting records, and I think the White Houses certainly going 457 00:30:21,680 --> 00:30:26,320 Speaker 1: to honor the circuit exception that was created by Republicans 458 00:30:26,480 --> 00:30:34,480 Speaker 1: and used to basically appoint all of the Trump appointees 459 00:30:34,840 --> 00:30:38,680 Speaker 1: in blue states over objections of home state senators from 460 00:30:38,720 --> 00:30:42,360 Speaker 1: the Democratic Party. And so that's where we are, and 461 00:30:42,600 --> 00:30:47,360 Speaker 1: I think Chair Durban is committed to that position. So 462 00:30:47,960 --> 00:30:52,880 Speaker 1: we'll see how that place I'm hearing if he's on liberal, 463 00:30:53,440 --> 00:30:56,240 Speaker 1: it's not clear. He's been in private practice, I believe 464 00:30:56,320 --> 00:31:00,800 Speaker 1: his whole career with a smaller firm in Memphis and 465 00:31:00,880 --> 00:31:03,600 Speaker 1: then now with Butler and Snow, which is a fairly 466 00:31:03,640 --> 00:31:08,320 Speaker 1: substantial firm in that part of the country. And he's 467 00:31:08,400 --> 00:31:13,320 Speaker 1: litigated many cases, mostly commercial, but a number of criminal 468 00:31:13,400 --> 00:31:16,560 Speaker 1: cases that he took on I think pro bono and 469 00:31:16,720 --> 00:31:21,800 Speaker 1: some quite substantial and difficult cases in the criminal justice system. 470 00:31:22,160 --> 00:31:26,040 Speaker 1: And so I don't know whether they think he is 471 00:31:26,160 --> 00:31:30,120 Speaker 1: liberal or not. He's a partner in that major firm, 472 00:31:30,240 --> 00:31:35,040 Speaker 1: has record as a highly qualified litigator, and so knows 473 00:31:35,080 --> 00:31:40,120 Speaker 1: his way around federal courts. What other nominations are ahead, well, 474 00:31:40,240 --> 00:31:45,680 Speaker 1: there were a number of nomination seventy five, which is 475 00:31:45,920 --> 00:31:52,840 Speaker 1: a very substantial number in twenty twenty one, and what's 476 00:31:53,120 --> 00:31:58,480 Speaker 1: most striking is how the Biden administration is prioritizing its 477 00:31:58,520 --> 00:32:03,640 Speaker 1: nominations by first being sure that as many appellate nominees 478 00:32:04,320 --> 00:32:08,560 Speaker 1: are there to fill all of those vacancies, as well 479 00:32:08,680 --> 00:32:13,760 Speaker 1: as targeting states that have high numbers or percentages of vacancies, 480 00:32:13,800 --> 00:32:19,120 Speaker 1: for example New York and especially California and Emergency, which 481 00:32:19,240 --> 00:32:22,960 Speaker 1: both of those states has substantial numbers of So they're 482 00:32:23,000 --> 00:32:27,440 Speaker 1: setting priorities about which are most critical and then moving people. 483 00:32:27,640 --> 00:32:31,240 Speaker 1: For example, on December fifteen, there was a package of 484 00:32:31,440 --> 00:32:35,959 Speaker 1: ten nominees, the most recent, some of the most recent nominees, 485 00:32:36,200 --> 00:32:40,160 Speaker 1: and a number of them were from California and New York. 486 00:32:40,680 --> 00:32:45,120 Speaker 1: And so they that is the way in which they're proceeding, 487 00:32:45,160 --> 00:32:48,080 Speaker 1: and I think that makes sense for the needs of 488 00:32:48,120 --> 00:32:54,120 Speaker 1: the judiciary. Biden has been concentrating. The overwhelming number of 489 00:32:54,240 --> 00:32:58,800 Speaker 1: nominations were in states represented by two Democrats. Do you 490 00:32:58,840 --> 00:33:03,480 Speaker 1: see things getting tougher in the second year, and certainly 491 00:33:03,560 --> 00:33:06,600 Speaker 1: it's a year when they have to move fast due 492 00:33:06,640 --> 00:33:11,040 Speaker 1: to the upcoming possible change in the Senate. Yes, I 493 00:33:11,360 --> 00:33:14,280 Speaker 1: think they're very aware of that and they are acting 494 00:33:15,240 --> 00:33:18,360 Speaker 1: as if they might lose Senate majority, and I think 495 00:33:18,400 --> 00:33:21,800 Speaker 1: that's pragmatic and realistic on the part of the administration, 496 00:33:22,200 --> 00:33:25,960 Speaker 1: and so they're doing everything possible to extradite nominations and confirmations. 497 00:33:26,000 --> 00:33:29,840 Speaker 1: For example, tomorrow, I think they're likely to be five 498 00:33:30,400 --> 00:33:35,040 Speaker 1: district nominees as well as mathis, and I think we'll 499 00:33:35,040 --> 00:33:37,880 Speaker 1: see every two weeks that Senator Durburn his share of 500 00:33:37,960 --> 00:33:41,840 Speaker 1: Judiciary will schedule hearings and move them forward to committee 501 00:33:41,880 --> 00:33:45,840 Speaker 1: votes and then on to the floor UM as quickly 502 00:33:45,880 --> 00:33:49,920 Speaker 1: as possible. There'll be more nominee slates I think this month, 503 00:33:50,000 --> 00:33:53,720 Speaker 1: and every month, and probably two or three a month 504 00:33:54,520 --> 00:33:59,640 Speaker 1: as we move forward UM during So I think that's 505 00:33:59,680 --> 00:34:04,640 Speaker 1: the land. As to your point, I think that there 506 00:34:04,680 --> 00:34:11,200 Speaker 1: are enough appointees who Democratic Presidents confirmed to take up 507 00:34:11,320 --> 00:34:15,640 Speaker 1: much of the time of the Senate this year, though 508 00:34:15,760 --> 00:34:17,880 Speaker 1: I think there's been a reach, and we'll see for 509 00:34:18,040 --> 00:34:21,160 Speaker 1: certain that the three nominees from the Northern District of 510 00:34:21,520 --> 00:34:27,879 Speaker 1: Ohio who have come forward and need a committee vote tomorrow, 511 00:34:28,480 --> 00:34:34,120 Speaker 1: all supported by Portman, who's a Republican in Browns as 512 00:34:34,120 --> 00:34:38,920 Speaker 1: a Democrats and worked through their excellent bipartisans Election Commission, 513 00:34:39,280 --> 00:34:42,239 Speaker 1: we'll see them confirmed. So it shows that at least 514 00:34:42,239 --> 00:34:46,200 Speaker 1: in swing states of purple states, that you can work 515 00:34:46,239 --> 00:34:50,239 Speaker 1: together and move forward. Thanks Carl. That's Carl Tobias at 516 00:34:50,280 --> 00:34:53,360 Speaker 1: the University of Richmond Law School. And that's it for 517 00:34:53,360 --> 00:34:56,040 Speaker 1: the edition of the Bloomberg Law Show. Remember you can 518 00:34:56,080 --> 00:34:59,080 Speaker 1: always at the latest legal news on our Bloomberg Law Podcast. 519 00:34:59,320 --> 00:35:02,160 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 520 00:35:02,200 --> 00:35:07,040 Speaker 1: www dot bloomberg dot com, slash podcast Slash Law. I'm 521 00:35:07,120 --> 00:35:09,560 Speaker 1: June Grosso and you're listening to Bloomberg