1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law, with June Brussel from Bloomberg Radio. 2 00:00:09,280 --> 00:00:11,800 Speaker 1: The Supreme Court spared Google what could have been a 3 00:00:11,880 --> 00:00:15,560 Speaker 1: multibillion dollar award and allowed tech firms a sigh of 4 00:00:15,600 --> 00:00:18,720 Speaker 1: relief on Monday when it ruled that Google did not 5 00:00:18,800 --> 00:00:23,360 Speaker 1: commit copyright infringement by copying Oracle programming code to develop 6 00:00:23,400 --> 00:00:27,400 Speaker 1: the Android operating system now used on most smartphones. Writing 7 00:00:27,440 --> 00:00:30,760 Speaker 1: for the majority in the landmark decision, Justice Stephen Bryer 8 00:00:30,880 --> 00:00:35,040 Speaker 1: said Google's copying was legitimate fair use, using a recipe 9 00:00:35,080 --> 00:00:38,320 Speaker 1: finding robot as part of an analogy reminiscence of the 10 00:00:38,360 --> 00:00:41,520 Speaker 1: analogies that Justice has had peppered the lawyers with during 11 00:00:41,520 --> 00:00:45,519 Speaker 1: the oral arguments to discern what is copyrightable. Here are 12 00:00:45,560 --> 00:00:49,559 Speaker 1: Justice Briar, Chief Justice John Roberts, and Justice Elena Kagan. 13 00:00:50,640 --> 00:00:53,080 Speaker 1: You didn't have to have a quarty keyboard on typewriters 14 00:00:53,120 --> 00:00:56,400 Speaker 1: at the beginning, But my god, if you let somebody 15 00:00:56,400 --> 00:01:00,000 Speaker 1: have a copyright on that, now they would control all typewriters, 16 00:01:00,120 --> 00:01:04,120 Speaker 1: which really has nothing to do with copyright. Let's say 17 00:01:04,160 --> 00:01:07,040 Speaker 1: you want to open a restaurant. You've got a great 18 00:01:07,040 --> 00:01:11,200 Speaker 1: new chef, he's got great new dishes. Uh, and you say, well, 19 00:01:11,319 --> 00:01:13,440 Speaker 1: we've got to figure out what the men you should 20 00:01:13,480 --> 00:01:15,760 Speaker 1: look like. You know, of course you're going to have, 21 00:01:15,959 --> 00:01:19,880 Speaker 1: you know, appetizers first and entrees and then desserts. You 22 00:01:19,880 --> 00:01:23,959 Speaker 1: shouldn't have to worry about whether that organization is copyrighted. 23 00:01:25,240 --> 00:01:27,959 Speaker 1: Suppose I own a grocery store and I come up 24 00:01:27,959 --> 00:01:31,560 Speaker 1: with a really terrific way of organizing all my fresh produce, 25 00:01:31,640 --> 00:01:35,640 Speaker 1: all my fruits and vegetables into these categories and subcategories, 26 00:01:35,760 --> 00:01:39,640 Speaker 1: very intuitive for the shopper, and um uh, this is 27 00:01:39,720 --> 00:01:43,760 Speaker 1: not the standard way. So it's different from the Chief 28 00:01:43,800 --> 00:01:47,080 Speaker 1: Justices hypothetical in that way, it's novel, uh, and it's 29 00:01:47,120 --> 00:01:50,080 Speaker 1: great joining me is sham Bogan as a professor at 30 00:01:50,080 --> 00:01:53,480 Speaker 1: Columbia Law School. Are people correct in calling this a 31 00:01:53,560 --> 00:01:57,280 Speaker 1: landmark decision? I think absolutely. The way I would put 32 00:01:57,320 --> 00:01:59,520 Speaker 1: it is people have uittually expected it to be the 33 00:01:59,600 --> 00:02:01,960 Speaker 1: copy case of the century. I don't think it's the 34 00:02:02,000 --> 00:02:04,600 Speaker 1: copyright case of the center. It's a copyright case of 35 00:02:04,640 --> 00:02:07,640 Speaker 1: the last half century in the sense that the biggest 36 00:02:07,680 --> 00:02:11,280 Speaker 1: question on copyright ability that the court side steps would 37 00:02:11,280 --> 00:02:15,040 Speaker 1: have entailed it examining such a critical issue and copyrights 38 00:02:15,080 --> 00:02:17,400 Speaker 1: that dates back to the nineteenth century. It did not 39 00:02:17,560 --> 00:02:20,320 Speaker 1: do that, but fair use being so critical to the 40 00:02:20,360 --> 00:02:23,600 Speaker 1: copyright in many ways, breathing license of the copyright system 41 00:02:23,680 --> 00:02:27,040 Speaker 1: has been reinvigorated. So unquestionably it's the landmark. I would 42 00:02:27,040 --> 00:02:29,120 Speaker 1: say it's even more than a landmark. It's probably the 43 00:02:29,160 --> 00:02:32,000 Speaker 1: biggest copyright case and intimitt at least a few decades. 44 00:02:32,400 --> 00:02:36,040 Speaker 1: For those who don't know that much about computer code, 45 00:02:36,400 --> 00:02:41,160 Speaker 1: tell us what the dispute was about. So the case 46 00:02:41,240 --> 00:02:46,200 Speaker 1: basically entailed Google copying what are known as parts of 47 00:02:46,560 --> 00:02:52,480 Speaker 1: applications program interfaces from some Java system or a PIS, 48 00:02:52,560 --> 00:02:54,840 Speaker 1: and and parts of it, not the entire thing. And 49 00:02:54,919 --> 00:02:58,160 Speaker 1: let me explain what API are in very basic terms. 50 00:02:58,720 --> 00:03:03,560 Speaker 1: APIs represented packages of pre written computer code that are 51 00:03:03,639 --> 00:03:06,400 Speaker 1: contained in a Java library, and they're meant to be 52 00:03:06,480 --> 00:03:09,600 Speaker 1: able to be taken off the shelf to be reintegrated 53 00:03:10,200 --> 00:03:14,679 Speaker 1: into another program, so that it saves upware programmers significant 54 00:03:14,760 --> 00:03:18,440 Speaker 1: time and such. And what Google did when it was 55 00:03:18,520 --> 00:03:24,800 Speaker 1: designing its Android platform for smarket phone technology. It decides, 56 00:03:24,880 --> 00:03:28,120 Speaker 1: in order to ensure that programmers who are already similar 57 00:03:28,160 --> 00:03:31,520 Speaker 1: with Java would be able to carry over their skills 58 00:03:31,560 --> 00:03:35,360 Speaker 1: and knowledge based to their new platform. It decides to 59 00:03:35,440 --> 00:03:40,480 Speaker 1: copy a portion of Sun's EPI thirty seven of Sun's 60 00:03:40,520 --> 00:03:44,360 Speaker 1: applications program interfaces, or the pre written packages. It copies 61 00:03:44,800 --> 00:03:48,160 Speaker 1: a portion of them called the declaring code. So let 62 00:03:48,160 --> 00:03:50,960 Speaker 1: me explain the different kinds of code that exists within 63 00:03:51,120 --> 00:03:55,200 Speaker 1: these pre written packages, because the case involves very importantly 64 00:03:55,240 --> 00:03:58,560 Speaker 1: the distinction between these kinds of codes. So, as I said, 65 00:03:58,600 --> 00:04:01,560 Speaker 1: the A p I s are written packages of code, 66 00:04:02,080 --> 00:04:06,080 Speaker 1: but the APIs contained two primary forms of code. According 67 00:04:06,080 --> 00:04:09,400 Speaker 1: to both parties, the first one is referred to as 68 00:04:09,520 --> 00:04:12,640 Speaker 1: declaring code. And the best way to understand the declaring 69 00:04:12,680 --> 00:04:15,960 Speaker 1: code is that it's the code or the part of 70 00:04:16,040 --> 00:04:20,160 Speaker 1: the API that describes the function of the package or 71 00:04:20,200 --> 00:04:23,119 Speaker 1: the task of the package. So these are the lines 72 00:04:23,120 --> 00:04:27,240 Speaker 1: of the code that basically allow someone who's using the 73 00:04:27,279 --> 00:04:29,720 Speaker 1: code or someone who's implementing it later on to know 74 00:04:29,880 --> 00:04:32,480 Speaker 1: what the package is for the best way to understand 75 00:04:32,480 --> 00:04:34,640 Speaker 1: it again in terms of an analogy, and there were 76 00:04:34,680 --> 00:04:36,960 Speaker 1: a lot of analogies thrown out in this case during 77 00:04:37,040 --> 00:04:39,320 Speaker 1: oral argument and in the brief, where that the declaring 78 00:04:39,360 --> 00:04:42,000 Speaker 1: code is something like a header or like an index 79 00:04:42,080 --> 00:04:46,080 Speaker 1: or a glossary that indicates what the package is about. Now, 80 00:04:46,200 --> 00:04:49,839 Speaker 1: very distinct from the declaring code was something called the 81 00:04:49,920 --> 00:04:54,039 Speaker 1: implementing code. The implementing code is the actual functional code 82 00:04:54,520 --> 00:04:59,040 Speaker 1: of the API of the application program interface, which executes 83 00:04:59,080 --> 00:05:02,719 Speaker 1: the task which the package is meant to perform. Right now, 84 00:05:02,920 --> 00:05:07,840 Speaker 1: very very importantly, Google had copied about eleven thousand, five 85 00:05:08,360 --> 00:05:12,880 Speaker 1: lines only of the declaring code from thirty seven of 86 00:05:13,000 --> 00:05:17,480 Speaker 1: these pre written packages or API. Google did not copy 87 00:05:17,680 --> 00:05:21,520 Speaker 1: any of the implementing code that Oracle owns, right, and 88 00:05:21,560 --> 00:05:25,400 Speaker 1: so the entire case revolved around Google's copying of these 89 00:05:25,440 --> 00:05:29,320 Speaker 1: eleven thousand, five hundred lines of declaring code from the 90 00:05:29,720 --> 00:05:34,159 Speaker 1: Java AMPI library that Oracle owned, and obviously Oracle stood 91 00:05:34,240 --> 00:05:38,320 Speaker 1: for copyright infringement, claiming that this was copying not just 92 00:05:38,640 --> 00:05:41,679 Speaker 1: of the codes of the declaring code itself, but also 93 00:05:41,720 --> 00:05:45,280 Speaker 1: the organizational structure, the way in which these headers had 94 00:05:45,320 --> 00:05:50,080 Speaker 1: been organized in the library, something referred to as the structure, sequence, 95 00:05:50,120 --> 00:05:53,160 Speaker 1: and organization of the code of the declaring code had 96 00:05:53,200 --> 00:05:56,680 Speaker 1: also been copied. So the case entirely adjusts just in summary. 97 00:05:56,680 --> 00:06:01,080 Speaker 1: After that long response involved Google's copying of the declaring 98 00:06:01,160 --> 00:06:05,520 Speaker 1: codes from thirty seven pre written packages called APIs that 99 00:06:05,600 --> 00:06:09,240 Speaker 1: were owned by or What were the issues before the court. 100 00:06:10,120 --> 00:06:12,080 Speaker 1: So it's important to understand that when the Court took 101 00:06:12,120 --> 00:06:15,599 Speaker 1: the case, there were two principal issues that were argued. 102 00:06:16,080 --> 00:06:19,440 Speaker 1: The first one was whether the declaring code itself and 103 00:06:19,640 --> 00:06:25,719 Speaker 1: its organizational structure, THEO were copyrightable under copyright rule that 104 00:06:25,920 --> 00:06:32,520 Speaker 1: excludes protection for functional content for functional expression right um. 105 00:06:32,560 --> 00:06:35,679 Speaker 1: And the second issue was whether the copying by Google, 106 00:06:35,880 --> 00:06:41,040 Speaker 1: even assuming it was copyrightable content, would constitute sit The 107 00:06:41,200 --> 00:06:44,800 Speaker 1: court duct the first question and moved to the second one, 108 00:06:44,800 --> 00:06:47,120 Speaker 1: saying if we want to resolve it because the first 109 00:06:47,200 --> 00:06:50,880 Speaker 1: question would be a little too technological intensive, technologically intensive, 110 00:06:50,960 --> 00:06:53,839 Speaker 1: and and it answered the second question by saying that 111 00:06:54,480 --> 00:06:57,200 Speaker 1: let's look at the nature of the code. So what 112 00:06:57,320 --> 00:06:59,880 Speaker 1: the court does is it takes the four fair use 113 00:07:00,080 --> 00:07:03,760 Speaker 1: factors that are codified in the Statutes of copyright statute. 114 00:07:04,120 --> 00:07:06,120 Speaker 1: But what are the interesting things that Justice Brier does 115 00:07:06,120 --> 00:07:10,040 Speaker 1: in the majority opinion is he sort of expands and 116 00:07:10,160 --> 00:07:14,760 Speaker 1: reinterpret these factors in a way that makes them applicable 117 00:07:15,000 --> 00:07:17,960 Speaker 1: to computer software. So he says, so, for instance, the 118 00:07:18,040 --> 00:07:21,559 Speaker 1: first factor that he uses is a factors that hasn't 119 00:07:21,560 --> 00:07:24,840 Speaker 1: been used extensively in the prior juristudents, a factor known 120 00:07:24,880 --> 00:07:27,840 Speaker 1: as the nature of the copyrighted work. Most courts have 121 00:07:27,920 --> 00:07:31,000 Speaker 1: said it's probably the least important factor in the overall 122 00:07:31,000 --> 00:07:35,560 Speaker 1: fair use analysis. Justice Brier says, actually, for computer software, 123 00:07:35,600 --> 00:07:37,720 Speaker 1: it is perhaps one of the, if not the most 124 00:07:37,760 --> 00:07:41,720 Speaker 1: important factors, and it allows us to sift between the 125 00:07:41,760 --> 00:07:44,400 Speaker 1: types of computer code that are an issue in a 126 00:07:44,480 --> 00:07:48,840 Speaker 1: software So, now, why did the court find that Google's 127 00:07:49,080 --> 00:07:53,120 Speaker 1: use of that code was fair use? Writing forward, the majority, 128 00:07:53,160 --> 00:07:57,360 Speaker 1: Justice Brier focuses on I would say a couple of 129 00:07:57,360 --> 00:07:59,720 Speaker 1: the fair use factors more than the others to find 130 00:07:59,760 --> 00:08:02,120 Speaker 1: that it stay use. Here, the most important thing to 131 00:08:02,160 --> 00:08:05,600 Speaker 1: note is that he takes the statutory factors and he 132 00:08:05,760 --> 00:08:09,280 Speaker 1: modifies them for the context of computer software. So what's 133 00:08:09,400 --> 00:08:13,400 Speaker 1: very important is how he adapts their use for computer software. 134 00:08:13,480 --> 00:08:16,080 Speaker 1: So to illustrate, there's through the factors that he relies 135 00:08:16,120 --> 00:08:18,920 Speaker 1: on an important say use factor. The second factor in 136 00:08:18,960 --> 00:08:21,880 Speaker 1: the statute is something called the nature of the copyrighted work. 137 00:08:22,360 --> 00:08:25,120 Speaker 1: Briar spends a lot of time on this factor, showing 138 00:08:25,120 --> 00:08:28,720 Speaker 1: how it can be used to differentiate between different forms 139 00:08:28,720 --> 00:08:32,280 Speaker 1: of computer code. And he says, well, because we're dealing 140 00:08:32,360 --> 00:08:35,679 Speaker 1: with this declaring code which has this function like a 141 00:08:35,679 --> 00:08:39,120 Speaker 1: header or an index and not the implementing code. We 142 00:08:39,200 --> 00:08:43,960 Speaker 1: have to approach it differently. And because it's functional code 143 00:08:44,160 --> 00:08:47,440 Speaker 1: of this declaring time, uh, it isn't really to be 144 00:08:47,480 --> 00:08:50,880 Speaker 1: given as much protection as the implementing code because Google 145 00:08:50,880 --> 00:08:53,720 Speaker 1: didn't copy the implementing code. So that factor, he finds 146 00:08:53,880 --> 00:08:58,240 Speaker 1: very importantly allows him to recognize that what Google did 147 00:08:58,320 --> 00:09:00,840 Speaker 1: could constitute a stronger case for fair use under the 148 00:09:00,880 --> 00:09:04,200 Speaker 1: factor because the nature of what it copied wasn't core 149 00:09:04,320 --> 00:09:08,679 Speaker 1: or central the copyists. Another important factor, and perhaps one 150 00:09:08,720 --> 00:09:11,359 Speaker 1: of the most important and his analysis, is this conclusion 151 00:09:11,600 --> 00:09:14,360 Speaker 1: that what Google did is was engaging in a form 152 00:09:14,400 --> 00:09:18,600 Speaker 1: of what it's called interoperability, trying to allow software programmers 153 00:09:18,679 --> 00:09:22,319 Speaker 1: to use their knowledge and awareness of the Java platform 154 00:09:22,559 --> 00:09:26,920 Speaker 1: in developing the Android apps and the Android framework so 155 00:09:26,960 --> 00:09:31,320 Speaker 1: that it could be compatible back with Java. This interoperability, 156 00:09:31,400 --> 00:09:35,040 Speaker 1: he basically says, this is the copying a new purpose, 157 00:09:35,720 --> 00:09:38,840 Speaker 1: and this new purpose was something that he weighs very 158 00:09:38,880 --> 00:09:43,040 Speaker 1: heavily to say that it could constitute a transformative used, 159 00:09:43,480 --> 00:09:47,120 Speaker 1: a transformative used under the fair use analysis. And this 160 00:09:47,240 --> 00:09:49,280 Speaker 1: again he weighs very heavily in favor of Google. And 161 00:09:49,320 --> 00:09:51,320 Speaker 1: the last thing of the other I think the most 162 00:09:51,320 --> 00:09:53,800 Speaker 1: important factor that he relies on is to say, let's 163 00:09:53,880 --> 00:09:57,520 Speaker 1: just not focus on the commercial harm that Oracle suffered, 164 00:09:57,800 --> 00:10:00,200 Speaker 1: but let's really focus on the public benefit as well 165 00:10:00,320 --> 00:10:03,920 Speaker 1: from Google's actions. Let's look at how the interoperability and 166 00:10:03,960 --> 00:10:08,440 Speaker 1: the development of a new platform expands public benefits. And 167 00:10:08,559 --> 00:10:11,360 Speaker 1: therefore he says the economic harm should be weighed against 168 00:10:11,400 --> 00:10:14,160 Speaker 1: the benefits. And this favor is Google as well. So 169 00:10:14,280 --> 00:10:16,640 Speaker 1: I think these three factors are the most important in 170 00:10:16,679 --> 00:10:19,400 Speaker 1: his analysis, and that's why he's finds there to be there. 171 00:10:19,679 --> 00:10:22,400 Speaker 1: But I think the key point really more than anything else, 172 00:10:22,400 --> 00:10:25,839 Speaker 1: that he expands each of these factors and tailored for 173 00:10:25,960 --> 00:10:29,360 Speaker 1: computer software in a new and interesting ways. Let's talk 174 00:10:29,400 --> 00:10:33,880 Speaker 1: about the descent written by Clarence Thomas, because he said 175 00:10:34,160 --> 00:10:38,360 Speaker 1: that this wasn't fair use Google erased five percent of 176 00:10:38,400 --> 00:10:42,720 Speaker 1: the value of oracles partnership with Amazon. And he also 177 00:10:42,840 --> 00:10:46,720 Speaker 1: criticizes the fact that the court didn't decide whether or 178 00:10:46,760 --> 00:10:50,439 Speaker 1: not this code was copyrightable. So what do you think 179 00:10:50,440 --> 00:10:56,280 Speaker 1: of his descent? So Justice Thomas's descent very interestingly, um, 180 00:10:56,440 --> 00:10:59,240 Speaker 1: it's very close to what when many people expected after 181 00:10:59,400 --> 00:11:02,800 Speaker 1: oral argument would be the court majority position in the 182 00:11:03,040 --> 00:11:06,600 Speaker 1: oral argument, most of the justices were asking the lawyer's 183 00:11:06,720 --> 00:11:10,960 Speaker 1: questions about copyright ability and how they could reconcile, especially 184 00:11:11,040 --> 00:11:14,440 Speaker 1: Google lawyer, how the Google could reconcile its position with 185 00:11:14,600 --> 00:11:17,600 Speaker 1: the text of the statute, which says that computer code 186 00:11:17,720 --> 00:11:21,120 Speaker 1: is copyrightable and it doesn't draw a distinction between different 187 00:11:21,120 --> 00:11:24,800 Speaker 1: forms of computer code. Justice Thomas really builds on that 188 00:11:25,000 --> 00:11:29,560 Speaker 1: in his dissenting opinion, saying, look, the Court basically side 189 00:11:29,600 --> 00:11:34,000 Speaker 1: steps critical question of whether declaring code is copyrightable at 190 00:11:34,000 --> 00:11:38,840 Speaker 1: all and reintroduces this copyright ability or the extent of 191 00:11:38,880 --> 00:11:42,920 Speaker 1: copyright protection analysis into fair youth. And he sees that 192 00:11:43,040 --> 00:11:47,600 Speaker 1: as circumventing congresses policy in the statute. Right. So, in 193 00:11:47,679 --> 00:11:50,320 Speaker 1: his view, if you look at the text of the statue, 194 00:11:50,480 --> 00:11:54,280 Speaker 1: there is no distinction between declaring code and implementing code. 195 00:11:54,800 --> 00:11:57,800 Speaker 1: And what the Court is doing, in his view, is 196 00:11:58,160 --> 00:12:02,400 Speaker 1: introducing an artificial distinction that runs counter to congressional policy 197 00:12:02,440 --> 00:12:05,800 Speaker 1: and very importantly runs counter to the text of the statute. Right. 198 00:12:05,960 --> 00:12:08,800 Speaker 1: And that's Justice Thomas's view, And so he first falls 199 00:12:08,800 --> 00:12:12,280 Speaker 1: supports the side stepping this question because he's acutely aware 200 00:12:12,520 --> 00:12:15,640 Speaker 1: of the fact that the majority is reintroducing this analysis 201 00:12:15,760 --> 00:12:18,200 Speaker 1: under the rubric of the nature of the copyrighted work 202 00:12:18,559 --> 00:12:22,920 Speaker 1: in Fair You. But even on the majority's own terms, 203 00:12:22,920 --> 00:12:26,920 Speaker 1: Justice Thomas recognizes that the majority is expanding the domain 204 00:12:26,960 --> 00:12:29,080 Speaker 1: of fair use of every one of these factors. So 205 00:12:29,120 --> 00:12:32,000 Speaker 1: to go back to what you indicated his discussion of 206 00:12:32,040 --> 00:12:35,040 Speaker 1: the value of oracles that was emustrated, He says, well, 207 00:12:35,440 --> 00:12:38,960 Speaker 1: this is an astoundingly new expansion of the concept of 208 00:12:39,080 --> 00:12:42,680 Speaker 1: market harms in the fourth fair use factor. Where we've 209 00:12:42,720 --> 00:12:45,800 Speaker 1: examined what kind of harm the copyright owner suffers in 210 00:12:45,840 --> 00:12:49,000 Speaker 1: the existing market or in future markets, We've never really 211 00:12:49,040 --> 00:12:52,920 Speaker 1: examined public benefits. The statute doesn't talk about the public benefits. 212 00:12:52,960 --> 00:12:56,280 Speaker 1: The statute doesn't talk about cost benefit analysis that focus 213 00:12:56,400 --> 00:12:59,560 Speaker 1: on the harm to the existing our potential value of 214 00:12:59,600 --> 00:13:02,920 Speaker 1: the work. And so that's why he falls the majority 215 00:13:03,040 --> 00:13:06,040 Speaker 1: for expanding each of the fair Youth factors in a 216 00:13:06,080 --> 00:13:08,920 Speaker 1: way that doesn't too closely to the text. I think 217 00:13:09,240 --> 00:13:13,160 Speaker 1: this was not unexpected um Justice Thomas in many ways 218 00:13:13,200 --> 00:13:16,640 Speaker 1: of channeling his textualism and the need for the Court 219 00:13:16,800 --> 00:13:21,040 Speaker 1: to be aware of its appropriate role in the copyright 220 00:13:21,080 --> 00:13:25,080 Speaker 1: system to the text and to not second guest Congresses 221 00:13:25,520 --> 00:13:27,920 Speaker 1: policy decisions that are apparent in the text and what 222 00:13:28,000 --> 00:13:31,320 Speaker 1: he sees the majority doing is violating that rule. But 223 00:13:31,400 --> 00:13:35,240 Speaker 1: in defense of the majority's opinions, by pushing everything into 224 00:13:35,320 --> 00:13:39,280 Speaker 1: fair you, fair used has been recognized as this domain 225 00:13:39,320 --> 00:13:42,840 Speaker 1: where judges have significant freedom. Fair use is effectively a 226 00:13:42,920 --> 00:13:45,920 Speaker 1: judge made job friend that is in the statue today, 227 00:13:45,960 --> 00:13:49,040 Speaker 1: but Congress wanted courts to continue to develop it. So 228 00:13:49,200 --> 00:13:52,400 Speaker 1: Justice Bryer, by pushing all of these decisions or all 229 00:13:52,440 --> 00:13:55,840 Speaker 1: of these elements and expansions into fair youth has in 230 00:13:55,880 --> 00:14:00,840 Speaker 1: many ways a perfect response to Justice Thomas's textualism, basically 231 00:14:00,880 --> 00:14:04,079 Speaker 1: by saying, well, fair use is not a textualist doctrine. 232 00:14:04,160 --> 00:14:07,800 Speaker 1: Fair use is a doctrine that is judged made. And 233 00:14:07,880 --> 00:14:12,240 Speaker 1: so does this decision then expand the idea of fair 234 00:14:12,360 --> 00:14:16,960 Speaker 1: use in computer software? Oh? I think it absolutely does. 235 00:14:17,120 --> 00:14:19,040 Speaker 1: I think there are three ways in which it does. 236 00:14:19,080 --> 00:14:21,640 Speaker 1: There's a there's a short term inplication, there's a medium 237 00:14:21,720 --> 00:14:23,960 Speaker 1: term implication, and then there's a long term implication that 238 00:14:24,000 --> 00:14:27,600 Speaker 1: goes beyond computer software. I think the first thing in 239 00:14:27,640 --> 00:14:31,360 Speaker 1: the short term is it reinforces the idea that fair 240 00:14:31,480 --> 00:14:35,160 Speaker 1: use protected borrowing. In the context of computer software, that 241 00:14:35,360 --> 00:14:41,160 Speaker 1: interoperability writes the compatibility between developing technologies and older ones 242 00:14:41,360 --> 00:14:44,400 Speaker 1: is an important value that should be factored into the 243 00:14:44,480 --> 00:14:47,240 Speaker 1: fair use and out that had already been nascent in 244 00:14:47,360 --> 00:14:49,920 Speaker 1: some prior case law. But the Supreme Court reaffirms that. 245 00:14:50,400 --> 00:14:54,560 Speaker 1: I think it's important and very importantly. If it's significant enough, 246 00:14:54,640 --> 00:14:58,080 Speaker 1: it constitutes a transformative use. So I think it makes 247 00:14:58,120 --> 00:15:01,840 Speaker 1: that that short term expansion to the reaffirmation. But I 248 00:15:01,840 --> 00:15:03,960 Speaker 1: think what it also does, and this is the second 249 00:15:03,960 --> 00:15:07,200 Speaker 1: point um in the medium term by by saying that 250 00:15:07,440 --> 00:15:11,520 Speaker 1: there's one particular factor in the fair use analysis that 251 00:15:12,320 --> 00:15:16,080 Speaker 1: is particularly appropriate for computer software, namely the factor called 252 00:15:16,080 --> 00:15:20,040 Speaker 1: the nature of the copyrighted work. Um, it allows courts 253 00:15:20,040 --> 00:15:22,880 Speaker 1: in the future to be able to examine types of 254 00:15:22,920 --> 00:15:27,160 Speaker 1: computer software that are being litigated for copyright infringements. So 255 00:15:27,280 --> 00:15:30,120 Speaker 1: IFACT think that's the medium term is the implication is 256 00:15:30,160 --> 00:15:32,600 Speaker 1: that fair use is going to be the next frontier 257 00:15:32,600 --> 00:15:37,120 Speaker 1: of litigation for computer software types of code, classifications between 258 00:15:37,160 --> 00:15:39,720 Speaker 1: them and the extent to which some of them are 259 00:15:39,760 --> 00:15:44,040 Speaker 1: more purely functional as opposed to implementation of the program 260 00:15:44,440 --> 00:15:46,440 Speaker 1: uh is something that we're going to start seeing courts 261 00:15:46,520 --> 00:15:49,240 Speaker 1: do under the rubries of the fair use analysis. And 262 00:15:49,240 --> 00:15:51,080 Speaker 1: and then the last thing is In the long term, 263 00:15:51,120 --> 00:15:54,640 Speaker 1: I think the implications of the courts fair use decisions 264 00:15:54,640 --> 00:15:58,240 Speaker 1: go well beyond computer software. UM. I think the signals 265 00:15:58,240 --> 00:16:01,640 Speaker 1: adjustice rier in the majority sent for the interpretation of 266 00:16:01,720 --> 00:16:04,080 Speaker 1: fair use. In the long term, we're going to see 267 00:16:04,480 --> 00:16:07,920 Speaker 1: carry over beyond computer software and and liberate the doctrine 268 00:16:07,920 --> 00:16:11,080 Speaker 1: from the text of the statute. UM say that most 269 00:16:11,120 --> 00:16:12,920 Speaker 1: of it can be decided by a judge. You don't 270 00:16:12,920 --> 00:16:15,480 Speaker 1: have to rely on a jury. And that fair used, 271 00:16:15,560 --> 00:16:18,040 Speaker 1: very importantly is a way of determining the scope of 272 00:16:18,120 --> 00:16:20,680 Speaker 1: the work, the scope of protection and a work. UM. 273 00:16:20,720 --> 00:16:22,600 Speaker 1: So I think fair use very much as front and 274 00:16:22,600 --> 00:16:25,600 Speaker 1: center and and has been given a new invigorated growth. 275 00:16:26,160 --> 00:16:31,480 Speaker 1: So then does this decision settle questions for tech companies 276 00:16:31,600 --> 00:16:36,040 Speaker 1: or does it open more questions and more litigation about 277 00:16:36,120 --> 00:16:39,880 Speaker 1: fair use. I think it settles some right now in 278 00:16:39,920 --> 00:16:42,560 Speaker 1: the short term, and it opens up more litigation for 279 00:16:42,600 --> 00:16:44,440 Speaker 1: fair use in different ways. And let me explain why. 280 00:16:44,800 --> 00:16:48,120 Speaker 1: I think the core side. Stepping the question of copyright 281 00:16:48,200 --> 00:16:52,240 Speaker 1: ability in the abstract for computer software allows tech companies 282 00:16:52,280 --> 00:16:55,640 Speaker 1: to continue to develop and work under the assumption that 283 00:16:55,840 --> 00:17:00,120 Speaker 1: computer software obtains protection under the copyright statute with out 284 00:17:00,120 --> 00:17:02,240 Speaker 1: any problems. I think one of the big concerns that 285 00:17:02,480 --> 00:17:05,439 Speaker 1: some had voice, certainly some a making head voice, was 286 00:17:05,520 --> 00:17:09,200 Speaker 1: that the court could question the entire availability of copyright 287 00:17:09,200 --> 00:17:11,040 Speaker 1: for computer SEF. But of course there is no such things. 288 00:17:11,280 --> 00:17:13,800 Speaker 1: So I think in that sense the status quo is preserved, 289 00:17:13,840 --> 00:17:17,440 Speaker 1: at least for now. But insofar as fair use is 290 00:17:17,440 --> 00:17:20,040 Speaker 1: going to become the next battleground, let's not forget that 291 00:17:20,160 --> 00:17:24,560 Speaker 1: fair use is a very fact intensive determination. Fair use 292 00:17:24,680 --> 00:17:28,040 Speaker 1: is not how the determination that happens completely in the abstract. 293 00:17:28,359 --> 00:17:31,000 Speaker 1: It's case by case. It's based on a factual record, 294 00:17:31,320 --> 00:17:35,560 Speaker 1: and it involves a determination of what the borrowing entails, 295 00:17:35,640 --> 00:17:37,800 Speaker 1: or how much was taken, and what its impact was. 296 00:17:38,480 --> 00:17:40,639 Speaker 1: I don't think that in the abstract is going to 297 00:17:40,680 --> 00:17:43,560 Speaker 1: cause any problems, but to the extent that there is 298 00:17:43,960 --> 00:17:47,760 Speaker 1: significant borrowing of this kind that entails interoperability, I do 299 00:17:47,840 --> 00:17:50,160 Speaker 1: believe that fair use is something that parties will start 300 00:17:50,160 --> 00:17:52,520 Speaker 1: thinking about as the next battle ground if they're willing 301 00:17:52,520 --> 00:17:55,520 Speaker 1: to jump into litigation. Right fair use is cost intens 302 00:17:55,560 --> 00:17:58,560 Speaker 1: it involves litigation. It's not something that can be determined 303 00:17:58,600 --> 00:18:00,760 Speaker 1: in the abstract, given how fact intense of it is. 304 00:18:01,160 --> 00:18:03,159 Speaker 1: So in short, I think the tech companies don't have 305 00:18:03,200 --> 00:18:05,679 Speaker 1: too much to worry about. In many ways, it reaffirms 306 00:18:05,720 --> 00:18:09,480 Speaker 1: the practice of existing borrowing, and it it recognizes the 307 00:18:09,640 --> 00:18:13,640 Speaker 1: value of interoperability and computer programming. But um, and that's 308 00:18:13,640 --> 00:18:16,320 Speaker 1: primarily because the court does not resolve the question of 309 00:18:16,440 --> 00:18:19,399 Speaker 1: copyright ability, which it leads for another day. Thanks for 310 00:18:19,440 --> 00:18:23,040 Speaker 1: being in the Bloomberg Law Show. That's Professor Shambaganesh of 311 00:18:23,119 --> 00:18:27,399 Speaker 1: Columbia Law School. It was day done. At the murder 312 00:18:27,480 --> 00:18:30,960 Speaker 1: trial of former Minneapolis police officer Derek Chauvin in the 313 00:18:31,000 --> 00:18:34,840 Speaker 1: death of George Floyd. Chauvin's defense attorney has been arguing 314 00:18:34,880 --> 00:18:38,280 Speaker 1: that Floyd's death was caused by drugs, heart problems, and 315 00:18:38,320 --> 00:18:42,320 Speaker 1: other health ailments, not by Chauvin's knee on his neck. Today, 316 00:18:42,400 --> 00:18:45,720 Speaker 1: Dr Martin Tobin, a lung and critical care specialist who 317 00:18:45,760 --> 00:18:49,119 Speaker 1: is also well versed in fentanel deaths, took the stand 318 00:18:49,200 --> 00:18:54,359 Speaker 1: and refuted that defense. Here's Prosecutor Jerry Blackwell questioning Dr Tobin, 319 00:18:55,080 --> 00:18:57,639 Speaker 1: do any of those conditions have anything to do with 320 00:18:57,720 --> 00:19:03,320 Speaker 1: the cause of Mr Foyd's death in your professional opinion? Whatsoever? None, whatsoever? 321 00:19:03,840 --> 00:19:07,440 Speaker 1: And again, what was the cause? Us? That those conditions 322 00:19:07,440 --> 00:19:10,640 Speaker 1: don't matter? The cause of death is a low level 323 00:19:10,680 --> 00:19:13,760 Speaker 1: of oxygen. Joining me is Richard Frays, a professor at 324 00:19:13,760 --> 00:19:18,080 Speaker 1: the University of Minnesota Law School. Has the prosecution built 325 00:19:18,160 --> 00:19:22,320 Speaker 1: an overwhelming case so far? Would you say? Well? No, 326 00:19:22,840 --> 00:19:26,440 Speaker 1: Although if you ever watch a trial, it's always amazing 327 00:19:26,560 --> 00:19:31,160 Speaker 1: how convincing the prosecution case seems when it's only subject 328 00:19:31,240 --> 00:19:34,920 Speaker 1: to cross examination, and then when the other side gets 329 00:19:35,000 --> 00:19:39,600 Speaker 1: up and start to poke holes and produce its own experts, 330 00:19:39,960 --> 00:19:43,479 Speaker 1: then you can turn around and say, Wow, it's not 331 00:19:43,560 --> 00:19:47,280 Speaker 1: a strong prosecution case at all, And you know what 332 00:19:47,320 --> 00:19:49,480 Speaker 1: should I think? So we're gonna have to wait and 333 00:19:49,520 --> 00:19:51,960 Speaker 1: see what the defense case looks like. But I would 334 00:19:52,000 --> 00:19:55,800 Speaker 1: say that the prosecution has has done a very good 335 00:19:55,920 --> 00:20:01,000 Speaker 1: job of laying out its key themes, anticipating even before 336 00:20:01,040 --> 00:20:04,840 Speaker 1: they cross examination, anticipating where the defense is going to 337 00:20:05,080 --> 00:20:09,760 Speaker 1: attack most forcefully. So, particularly on the issues of causation 338 00:20:09,800 --> 00:20:14,000 Speaker 1: of deaths by Derek Chauvin and justified use of force. 339 00:20:14,600 --> 00:20:18,200 Speaker 1: I think they've made as strong a case as they can. 340 00:20:19,000 --> 00:20:21,920 Speaker 1: We'll have to see if the defense can come back. 341 00:20:22,160 --> 00:20:24,960 Speaker 1: I think the use of force, I have never heard 342 00:20:25,040 --> 00:20:28,800 Speaker 1: of a police killing a prosecution. There aren't that many 343 00:20:28,800 --> 00:20:30,800 Speaker 1: of them. I've never heard of one that had so 344 00:20:30,840 --> 00:20:36,480 Speaker 1: many police officers testifying against the police officer that's on trial. 345 00:20:37,160 --> 00:20:40,320 Speaker 1: You keep hearing that the blue wall has crumbled. Is 346 00:20:40,359 --> 00:20:44,440 Speaker 1: that particularly effective for the jury to have police officers 347 00:20:44,680 --> 00:20:49,600 Speaker 1: within his own former police department, the police chief, testifying 348 00:20:49,640 --> 00:20:54,040 Speaker 1: against him. I would think so. I don't know how 349 00:20:54,160 --> 00:20:57,640 Speaker 1: the other than the kind of questions that we've seen 350 00:20:57,640 --> 00:21:01,040 Speaker 1: a cross examination pointing out, well, how long has event 351 00:21:01,080 --> 00:21:04,320 Speaker 1: since you arrested somebody? Did you ever arrest anybody? Do 352 00:21:04,359 --> 00:21:07,520 Speaker 1: you do you understand that officers have discretion and have 353 00:21:07,640 --> 00:21:12,200 Speaker 1: to make decisions on the street. Yes, yes, yes, the 354 00:21:12,320 --> 00:21:15,840 Speaker 1: witnesses say, so, you know, we know that the defense 355 00:21:15,920 --> 00:21:18,920 Speaker 1: has has tried to limit the damage that's been done. 356 00:21:19,240 --> 00:21:22,280 Speaker 1: They may at some point, just as the defense is 357 00:21:23,040 --> 00:21:27,680 Speaker 1: essentially trying to blame the victim because he used drugs, 358 00:21:27,920 --> 00:21:31,440 Speaker 1: they will also perhaps try to point the finger at 359 00:21:31,920 --> 00:21:34,560 Speaker 1: the police department and say, all of these people are 360 00:21:34,640 --> 00:21:37,920 Speaker 1: just trying to shift blame to this poor officers Chauvin. 361 00:21:38,600 --> 00:21:40,520 Speaker 1: They may try that type me but I think I 362 00:21:40,600 --> 00:21:45,960 Speaker 1: think I'm guessing that the jurors will be impressed by 363 00:21:46,040 --> 00:21:51,560 Speaker 1: the police testimony against Chauvin. Yesterday, video was played and 364 00:21:51,600 --> 00:21:55,640 Speaker 1: the question was whether George Floyd said I ate too 365 00:21:55,640 --> 00:22:01,040 Speaker 1: many drugs versus I ain't do no drugs. And some 366 00:22:01,160 --> 00:22:04,320 Speaker 1: of the reporters said that the jury started to perk 367 00:22:04,440 --> 00:22:06,960 Speaker 1: up during this where they had been you know, they've 368 00:22:06,960 --> 00:22:11,359 Speaker 1: been in trance during the testimony of the eyewitnesses, but 369 00:22:11,520 --> 00:22:14,679 Speaker 1: not so much during the use of force experts. But 370 00:22:14,880 --> 00:22:19,119 Speaker 1: here they started to listen carefully to these particular words. 371 00:22:19,200 --> 00:22:22,879 Speaker 1: Make a difference because the prosecution has admitted that Floyd 372 00:22:22,920 --> 00:22:26,639 Speaker 1: did drugs. Yeah, and I I thought that was a 373 00:22:26,640 --> 00:22:30,359 Speaker 1: bit of a tempest in a teapot, because even if 374 00:22:31,400 --> 00:22:35,960 Speaker 1: he said I too many drugs, and even if Chauvin 375 00:22:36,040 --> 00:22:39,560 Speaker 1: heard that comment, that's just another red flag. This is 376 00:22:39,640 --> 00:22:44,280 Speaker 1: somebody who may be in serious medical distress and you 377 00:22:44,320 --> 00:22:46,280 Speaker 1: need to be careful that you don't push them over 378 00:22:46,320 --> 00:22:49,520 Speaker 1: the edge. So I think it cuts both ways. And 379 00:22:49,800 --> 00:22:52,360 Speaker 1: I can imagine the jurors probably thought, well, our job 380 00:22:52,440 --> 00:22:55,199 Speaker 1: is to is to decide the fact. Here is a 381 00:22:55,240 --> 00:22:59,480 Speaker 1: contested factual issue. We have ears, so we can decide 382 00:22:59,600 --> 00:23:03,199 Speaker 1: ourself what he said. So it doesn't surprise me that 383 00:23:03,280 --> 00:23:06,680 Speaker 1: they perked up. There was testimony about the pills found 384 00:23:06,800 --> 00:23:10,399 Speaker 1: in Floyd's car, as well as the police car. Is 385 00:23:10,440 --> 00:23:14,879 Speaker 1: that something the prosecution introduced in order to take the 386 00:23:14,920 --> 00:23:19,640 Speaker 1: bite out of the defense introducing it? Yes, that's a standard, 387 00:23:19,720 --> 00:23:23,640 Speaker 1: a standard move in litigation. If you know something bad 388 00:23:23,800 --> 00:23:27,239 Speaker 1: is going to come out, introduce it yourself, above all 389 00:23:27,359 --> 00:23:30,240 Speaker 1: to show you're not hiding anything, but also to put 390 00:23:30,520 --> 00:23:34,440 Speaker 1: characterize it in a certain way that if you wait 391 00:23:34,560 --> 00:23:37,840 Speaker 1: until the other side presents it, they're gonna characterize it 392 00:23:37,960 --> 00:23:39,879 Speaker 1: their way, and that would be the first time the 393 00:23:39,960 --> 00:23:43,360 Speaker 1: jury hears it. The first impressions are important. So it's 394 00:23:43,440 --> 00:23:50,240 Speaker 1: absolutely standard for one side to to present damaging information 395 00:23:50,320 --> 00:23:53,160 Speaker 1: that they know the other side is going to want 396 00:23:53,160 --> 00:23:56,320 Speaker 1: to introduce anyway. In a normal case, you wouldn't have 397 00:23:56,560 --> 00:23:59,879 Speaker 1: the video that you have here, video from different angle. 398 00:24:00,560 --> 00:24:04,240 Speaker 1: So I'm wondering how much experts testifying about the use 399 00:24:04,280 --> 00:24:07,760 Speaker 1: of force matters in a case where you have the 400 00:24:07,880 --> 00:24:11,800 Speaker 1: video and you see what was being done. Well, I 401 00:24:12,160 --> 00:24:15,879 Speaker 1: guess I say two things about that. One is the 402 00:24:15,880 --> 00:24:21,280 Speaker 1: the experts can can address the very important question of 403 00:24:21,320 --> 00:24:25,959 Speaker 1: whether this was unreasonable force for a police officer in 404 00:24:26,040 --> 00:24:30,840 Speaker 1: that situation, so the jury can see what's happening. The 405 00:24:30,920 --> 00:24:35,880 Speaker 1: jury doesn't know, uh from a police perspective and police 406 00:24:36,320 --> 00:24:40,560 Speaker 1: good police policy was this okay, So that's what you 407 00:24:40,600 --> 00:24:43,240 Speaker 1: need the experts for. And the video, even though the 408 00:24:43,280 --> 00:24:45,760 Speaker 1: jury can see it, it's very important that the experts 409 00:24:45,800 --> 00:24:49,920 Speaker 1: can see it because then they can't be dismissed as well. 410 00:24:49,960 --> 00:24:54,280 Speaker 1: You're talking in abstractions. You weren't there. Uh, we were 411 00:24:54,320 --> 00:24:57,359 Speaker 1: all there, and then the experts can look at it 412 00:24:57,400 --> 00:25:00,920 Speaker 1: as if they were there and say, I, I know 413 00:25:01,320 --> 00:25:05,480 Speaker 1: what was happening there. I'm not talking in general terms, 414 00:25:06,080 --> 00:25:09,560 Speaker 1: the defense said in its opening statement, and is pushing 415 00:25:09,640 --> 00:25:13,200 Speaker 1: the the idea that the officers at the scene were 416 00:25:13,240 --> 00:25:17,760 Speaker 1: distracted by this hostile crowd. Has there been any momentum 417 00:25:17,840 --> 00:25:21,919 Speaker 1: for that defense? Well, it is. Yeah. It's one of 418 00:25:21,960 --> 00:25:27,399 Speaker 1: the themes that the defense keeps bringing up, and I'm 419 00:25:27,440 --> 00:25:30,480 Speaker 1: sure we'll continue to bring up if for no other 420 00:25:30,520 --> 00:25:35,320 Speaker 1: reason than just to uh generate, in another way, some 421 00:25:35,520 --> 00:25:41,919 Speaker 1: sympathy for the defendant who uh Otherwise, just to judge 422 00:25:41,920 --> 00:25:44,679 Speaker 1: by the cell phone video, which doesn't show much of 423 00:25:44,720 --> 00:25:48,560 Speaker 1: the crowd, uh, there isn't much sympathy for the defendant, 424 00:25:49,320 --> 00:25:54,000 Speaker 1: especially since the crowd is, if anything, raising red flags 425 00:25:54,000 --> 00:25:58,159 Speaker 1: and warning the chauvin that what you're doing is dangerous. 426 00:25:58,200 --> 00:26:03,440 Speaker 1: So the the um the defense wants to to suggest 427 00:26:03,560 --> 00:26:07,480 Speaker 1: that that Chovin and the other officers were distracted from 428 00:26:07,560 --> 00:26:12,720 Speaker 1: Floyd and Floyd's condition by this angry crowd UH and 429 00:26:12,880 --> 00:26:16,439 Speaker 1: the jury. We'll have to see if how the jury 430 00:26:17,119 --> 00:26:22,480 Speaker 1: takes that. But I guess they're the expert testimony address 431 00:26:22,560 --> 00:26:25,919 Speaker 1: that too, I believe and said, well, it doesn't appear 432 00:26:26,000 --> 00:26:28,840 Speaker 1: that the officers were ever in any danger or that 433 00:26:28,880 --> 00:26:32,960 Speaker 1: the crowd was ever showing any serious interest in intervening. 434 00:26:33,760 --> 00:26:37,480 Speaker 1: And again, what's good policing. What does a a well 435 00:26:37,520 --> 00:26:42,320 Speaker 1: trained and conscientious police officer do in a situation like that. 436 00:26:43,040 --> 00:26:48,040 Speaker 1: They don't let themselves get distracted by the crowd. I've 437 00:26:48,040 --> 00:26:50,359 Speaker 1: heard time and again that this is going to come 438 00:26:50,400 --> 00:26:54,280 Speaker 1: down to the cause of death and a battle of 439 00:26:54,320 --> 00:26:59,280 Speaker 1: the experts. Do you agree with that? Well, it is 440 00:27:00,000 --> 00:27:03,720 Speaker 1: ours of death is an essential element of all three 441 00:27:03,760 --> 00:27:07,639 Speaker 1: homicide charges, so it is the as is justified force, 442 00:27:08,520 --> 00:27:11,680 Speaker 1: so that those are those are the issues the defense 443 00:27:11,720 --> 00:27:14,639 Speaker 1: has to keep hammering on at least raise a reasonable 444 00:27:14,680 --> 00:27:18,560 Speaker 1: doubt for UH causation or and or a reasonable doubt 445 00:27:18,640 --> 00:27:21,639 Speaker 1: unjustified force. I don't think it's just a battle of 446 00:27:21,640 --> 00:27:25,240 Speaker 1: the experts. I think the way the prosecution has has 447 00:27:25,320 --> 00:27:29,680 Speaker 1: laid this out, uh, sort of builds to the experts, 448 00:27:29,680 --> 00:27:33,600 Speaker 1: but doesn't rely on them totally uh for cause of death. 449 00:27:33,680 --> 00:27:37,480 Speaker 1: So you have the initially a large number of people 450 00:27:37,480 --> 00:27:41,119 Speaker 1: who just saw the video or there on the scene 451 00:27:41,600 --> 00:27:47,040 Speaker 1: uh and were shocked and and and uh disturbed by 452 00:27:47,160 --> 00:27:51,200 Speaker 1: what they thought what appeared to be excessive force. Uh. 453 00:27:51,240 --> 00:27:55,440 Speaker 1: And then you have the the use of force testimony. H. 454 00:27:55,680 --> 00:27:59,240 Speaker 1: A lot of that was essentially saying you didn't need 455 00:27:59,320 --> 00:28:02,199 Speaker 1: to continue using this level of force. Your force was 456 00:28:02,280 --> 00:28:07,320 Speaker 1: becoming increasingly less necessary minute by minute and increasingly more dangerous. 457 00:28:07,560 --> 00:28:10,640 Speaker 1: These procedures can kill somebody. Well, that leads right into 458 00:28:10,640 --> 00:28:14,800 Speaker 1: the causation argument. Yes, the procedures are dangerous and they 459 00:28:14,800 --> 00:28:18,000 Speaker 1: can kill somebody, and in fact somebody did die. So 460 00:28:18,160 --> 00:28:20,959 Speaker 1: that tends to support the idea that it wasn't just 461 00:28:21,000 --> 00:28:25,920 Speaker 1: a coincidence that Mr. Floyd died at that moment, It 462 00:28:26,000 --> 00:28:29,880 Speaker 1: was because of the stresses that the officers were placing 463 00:28:29,920 --> 00:28:32,879 Speaker 1: on him, meant physically and mentally. I taken though, that 464 00:28:32,920 --> 00:28:35,359 Speaker 1: the defense is going to have experts that say he 465 00:28:35,520 --> 00:28:39,120 Speaker 1: died because of the drugs in his system. Yes, and 466 00:28:39,160 --> 00:28:42,640 Speaker 1: that's that's a possibility. Again, I think the prosecution will say, 467 00:28:43,080 --> 00:28:46,080 Speaker 1: all we have to prove is that the officer's actions 468 00:28:46,160 --> 00:28:50,920 Speaker 1: were a substantial causal factor, not the only causal factor. Uh. 469 00:28:50,960 --> 00:28:54,920 Speaker 1: And if there are pre existing conditions that make the 470 00:28:55,000 --> 00:28:58,959 Speaker 1: victim more vulnerable, will you take your victim as you 471 00:28:59,000 --> 00:29:02,800 Speaker 1: find them is a legal expression. Uh. And even if 472 00:29:02,800 --> 00:29:05,959 Speaker 1: there these are conditions that aren't known to the defendant, 473 00:29:06,680 --> 00:29:10,080 Speaker 1: the defendant's action uh, in the in the state's view, 474 00:29:10,600 --> 00:29:15,960 Speaker 1: pushed the victim over the line into death. Uh. And 475 00:29:16,000 --> 00:29:20,520 Speaker 1: again the prosecution will argue, it's not It's not likely 476 00:29:20,840 --> 00:29:24,360 Speaker 1: that Floyd happened to die just at that moment from 477 00:29:24,400 --> 00:29:27,600 Speaker 1: these pre existing conditions. I wanted to give your reaction 478 00:29:27,680 --> 00:29:31,320 Speaker 1: to the testimony of Floyd's girlfriend, who was called under 479 00:29:31,360 --> 00:29:34,880 Speaker 1: a legal doctrine in Minnesota called spark of life. I 480 00:29:34,920 --> 00:29:38,240 Speaker 1: hadn't heard about that before. Yeah, And I'm I I 481 00:29:38,320 --> 00:29:42,000 Speaker 1: have no expertise on that, and I'm not sure i'd 482 00:29:42,040 --> 00:29:46,440 Speaker 1: ever even heard about it before. It As a general matter, 483 00:29:46,960 --> 00:29:52,120 Speaker 1: you would think that each side wants to humanize their 484 00:29:52,800 --> 00:29:59,880 Speaker 1: their client or their their particular uh person of intra. 485 00:30:00,240 --> 00:30:05,400 Speaker 1: So the defense usually wants to humanize the defendant. He's 486 00:30:05,440 --> 00:30:07,640 Speaker 1: not a monster. You know, he has a family, there 487 00:30:07,680 --> 00:30:10,320 Speaker 1: are people who care about him, and in this case, 488 00:30:10,440 --> 00:30:14,520 Speaker 1: the client of the prosecution in a way is George Floyd. 489 00:30:14,600 --> 00:30:17,480 Speaker 1: Also the public, of course, so they want to to 490 00:30:17,600 --> 00:30:22,680 Speaker 1: show that this isn't just just one more criminal being arrested. Uh. 491 00:30:22,880 --> 00:30:26,760 Speaker 1: This this is somebody who had a life, had ups 492 00:30:26,760 --> 00:30:33,400 Speaker 1: and downs, including drug use. But it is Uh. It 493 00:30:33,520 --> 00:30:36,560 Speaker 1: is a way to to to get past sort of 494 00:30:36,680 --> 00:30:39,520 Speaker 1: abstractions and say no, this is this is or was 495 00:30:39,760 --> 00:30:44,520 Speaker 1: a living, breathing human being whose life was was lost. 496 00:30:45,520 --> 00:30:48,640 Speaker 1: I am a little surprised to hear. Again, I have 497 00:30:48,720 --> 00:30:51,280 Speaker 1: no expertise. I was a little surprised to hear that 498 00:30:51,320 --> 00:30:55,360 Speaker 1: this isn't commonly as far as what's happening in the courtroom, 499 00:30:55,800 --> 00:30:59,720 Speaker 1: you have prosecutors, these shifting prosecutors doing the questioning and 500 00:30:59,720 --> 00:31:02,960 Speaker 1: the opening statements, and on the other side you have, 501 00:31:03,360 --> 00:31:06,320 Speaker 1: at least in the courtroom the one defense attorney and 502 00:31:06,520 --> 00:31:10,760 Speaker 1: his legal assistant. Does that have any impact on the 503 00:31:10,880 --> 00:31:14,400 Speaker 1: jury in that either you think that this defendant is 504 00:31:14,480 --> 00:31:18,440 Speaker 1: overwhelmed by the prosecution's team or the jury is not 505 00:31:18,560 --> 00:31:22,400 Speaker 1: able to connect with any one prosecutor. I'm sure the 506 00:31:22,440 --> 00:31:25,480 Speaker 1: defense will will try to suggest that or argue that, 507 00:31:25,600 --> 00:31:29,400 Speaker 1: you know, I don't have this huge team of lawyers 508 00:31:29,480 --> 00:31:32,760 Speaker 1: that the other side has. Mr Chauvin has his me. 509 00:31:33,760 --> 00:31:38,840 Speaker 1: I'm sure that they'll they'll try and use that, but um, 510 00:31:39,120 --> 00:31:41,160 Speaker 1: I don't. I don't know that I will be effective 511 00:31:41,240 --> 00:31:44,400 Speaker 1: or not. The publicity before is one thing, But the 512 00:31:44,440 --> 00:31:47,959 Speaker 1: publicity during the trial and the fact that you have 513 00:31:48,000 --> 00:31:53,040 Speaker 1: protesters outside every day that the jury has to go past, 514 00:31:53,640 --> 00:31:56,880 Speaker 1: I'm wondering if that might have an effect or might 515 00:31:56,920 --> 00:32:02,680 Speaker 1: be after trial if he's convicted an appeal issue. Sure, well, 516 00:32:03,720 --> 00:32:09,120 Speaker 1: there is obviously a great concern of the trial judge 517 00:32:09,160 --> 00:32:11,880 Speaker 1: is well aware of and the prosecution is well aware 518 00:32:11,920 --> 00:32:16,720 Speaker 1: of that. There there we have to give Mr Chauvin 519 00:32:16,760 --> 00:32:19,440 Speaker 1: a fair trial. We all want that so that if 520 00:32:19,440 --> 00:32:22,160 Speaker 1: he's convicted. Uh No, one says, well, it was a 521 00:32:22,200 --> 00:32:26,200 Speaker 1: show trial, it was rigged trial. Um so we we 522 00:32:26,200 --> 00:32:31,520 Speaker 1: we don't want a conviction that where the jury felt pressured. 523 00:32:32,240 --> 00:32:37,280 Speaker 1: I believe that the jury is not only their identity 524 00:32:37,400 --> 00:32:41,440 Speaker 1: is being kept secret for now, but I believe they're 525 00:32:41,480 --> 00:32:44,320 Speaker 1: coming and going in a way that they don't see 526 00:32:44,480 --> 00:32:48,240 Speaker 1: much of the crowds. But we'll have to see if 527 00:32:48,240 --> 00:32:52,520 Speaker 1: there's a conviction, and then some juror speaks out that 528 00:32:52,560 --> 00:32:57,680 Speaker 1: would add strength to a defense appeal that the jury 529 00:32:57,760 --> 00:33:01,280 Speaker 1: was tainted. Finally, it aims as if it would have 530 00:33:01,280 --> 00:33:05,720 Speaker 1: avoided some appella issues if the judge had moved the 531 00:33:05,720 --> 00:33:10,080 Speaker 1: trial out of Minneapolis. Well, but as the judge said, 532 00:33:10,280 --> 00:33:13,080 Speaker 1: where are you going to move it to? This this 533 00:33:13,160 --> 00:33:19,120 Speaker 1: case has such wide publicity, uh, not just in Minneapolis, 534 00:33:19,200 --> 00:33:22,640 Speaker 1: but around the country and around the world. It would 535 00:33:22,680 --> 00:33:29,160 Speaker 1: be difficult to find another court in Minnesota that wouldn't 536 00:33:29,200 --> 00:33:31,760 Speaker 1: have many of the same problems and would probably have 537 00:33:31,880 --> 00:33:36,080 Speaker 1: less court security. And of course, the the logistics of 538 00:33:36,160 --> 00:33:40,280 Speaker 1: holding a trial outside of Minneapolis for all the attorneys 539 00:33:40,280 --> 00:33:45,880 Speaker 1: and the witnesses are much much greater. So it's it's 540 00:33:45,920 --> 00:33:48,720 Speaker 1: not surprising to me. It's a hard, hard decision. I'm 541 00:33:48,720 --> 00:33:53,920 Speaker 1: sure the defense will appeal on that ground, but judges, 542 00:33:54,080 --> 00:33:58,520 Speaker 1: judges have substantial discretion and deciding whether all things taken 543 00:33:58,560 --> 00:34:02,440 Speaker 1: into account, whether the raile needs to be moved somewhere else, 544 00:34:02,960 --> 00:34:06,720 Speaker 1: and I'm pretty sure that on that issue, the trial 545 00:34:06,800 --> 00:34:09,240 Speaker 1: judge will be upheld. Thanks for being on the show. 546 00:34:09,600 --> 00:34:12,600 Speaker 1: That's Professor Richard Phrase at the University of Minnesota Law 547 00:34:12,640 --> 00:34:15,120 Speaker 1: School and that's it for the edition of the Bloomberg 548 00:34:15,200 --> 00:34:17,680 Speaker 1: Law Show. Remember you can always at the latest legal 549 00:34:17,719 --> 00:34:21,040 Speaker 1: news by subscribing to our Bloomberg Law Podcast. You can 550 00:34:21,080 --> 00:34:24,960 Speaker 1: find them on Apple Podcasts, Spotify, and at www dot 551 00:34:24,960 --> 00:34:29,640 Speaker 1: bloomberg dot com slash podcast Slash Law. I'm June Grosso. 552 00:34:29,760 --> 00:34:32,120 Speaker 1: Thanks so much for listening, and please tune into The 553 00:34:32,120 --> 00:34:35,120 Speaker 1: Bloomberg Law Show every week now at ten pm Eastern 554 00:34:35,400 --> 00:34:38,319 Speaker 1: right here on Bloomberg Radio. Pisoda Law School about the 555 00:34:38,360 --> 00:34:38,720 Speaker 1: trial