# Weekend Law: Social Media Addiction, Music Piracy & Asylum

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 27 Mar 2026, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/d67b98ee-ff36-432f-be93-b41a0166b1fa/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Collin Walke who leads Hall Estill’s cybersecurity & data privacy practice, discusses the jury verdict against Meta and YouTube in a landmark social media addiction trial. Then intellectual property litigator Terence Ross, a partner at Katten Muchin Rosenman, discusses a Supreme Court decision that is a blow to the music industry’s efforts to combat music piracy. And immigration law expert Leon Fresco, a partner at Holland & Knight, discusses the Supreme Court oral arguments over whether the Trump administration can turn away asylum seekers at the border. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: It took nine days of deliberations, but on Wednesday, a
[0:12] Speaker 2: California jury found Meta and Google libel in a first
[0:17] Speaker 2: of its kind lawsuit. The jurors held the social media
[0:21] Speaker 2: platforms responsible for a twenty year old woman's mental health struggles,
[0:26] Speaker 2: which she said were caused by her addiction to the platforms.
[0:30] Speaker 2: Jurors awarded her six million dollars, finding that Meta and
[0:34] Speaker 2: Google were negligent in the design and operation of their platforms.
[0:39] Speaker 2: Her attorney, Mark Lanier says the verdict is a game changer.
[0:44] Speaker 3: I feel like what we're about here is something beyond
[0:47] Speaker 3: just trying to make a buck, beyond just trying to
[0:50] Speaker 3: help Kayley. I feel like we're about something that is
[0:54] Speaker 3: incredibly socially important and responsible.
[0:58] Speaker 2: There are thousands of other lawsuits that claim that Instagram,
[1:02] Speaker 2: YouTube and other platforms are intentionally designed to addict young users,
[1:08] Speaker 2: but it's a long road ahead for those plaintiffs, as
[1:12] Speaker 2: Meta and Google will appeal.
[1:14] Speaker 4: We respectfully disagree with the verdict and will appeal. Team
[1:19] Speaker 4: mental health is profoundly complex and cannot be linked to
[1:22] Speaker 4: a single app. We will continue to defend ourselves vigorously
[1:27] Speaker 4: as every case is different, and we remain confident in
[1:31] Speaker 4: our record of protecting teens online.
[1:33] Speaker 2: This is what's called a bellweathered trial or a test
[1:37] Speaker 2: case designed to foresee how future litigation will play out.
[1:41] Speaker 2: And the next case is slated to go to trial
[1:44] Speaker 2: in California in July. Joining me is an expert in
[1:48] Speaker 2: cybersecurity and data privacy, Colin Walkee, a partner at haul Estel. Colin.
[1:54] Speaker 2: This is one case among thousands. What does this verdict
[1:57] Speaker 2: stand for?
[1:59] Speaker 1: This verdict actually stands for the proposition that Meta and
[2:03] Speaker 1: YouTube intentionally made their algorithms addictive and negatively impacted someone's
[2:10] Speaker 1: mental health as a result.
[2:12] Speaker 5: This particular claim is based upon negligence, i e.
[2:16] Speaker 1: They knew and owed a duty to individuals to not
[2:19] Speaker 1: make their algorithms addictive. They did it anyway. However, you
[2:23] Speaker 1: could look at a recent case out of New Mexico
[2:25] Speaker 1: to the tune of three hundred and seventy five million
[2:27] Speaker 1: dollars where tech companies were found to have violated the
[2:30] Speaker 1: consumer protection law. So the difference here is is this
[2:34] Speaker 1: is just a traditional negligence theory. There is no statutory
[2:37] Speaker 1: action against these companies.
[2:39] Speaker 2: Meta argued that the plaintiff had struggle with her mental
[2:43] Speaker 2: health separately from her social media use, and they pointed
[2:47] Speaker 2: to her turbulent home life and bullying at school, etc.
[2:52] Speaker 2: Did the jury discount those factors? Did they find they
[2:56] Speaker 2: were not contributory?
[2:58] Speaker 1: That wasn't the only thing that their attorney's pointed to.
[3:01] Speaker 1: YouTube's attorney also pointed to the fact that in all
[3:04] Speaker 1: of the evidence presented, only a few minutes worth of
[3:07] Speaker 1: time was actually proven to have been on YouTube. So
[3:10] Speaker 1: I don't think that the jury discounted that fact. I
[3:12] Speaker 1: think the jury knew what we all know, which is
[3:15] Speaker 1: we reach for our phones when we don't intend to,
[3:17] Speaker 1: when we're sitting on their couch without thinking, and why
[3:20] Speaker 1: because social media is addictive.
[3:22] Speaker 5: And not only that this case is a long time coming.
[3:26] Speaker 1: It's not as though we haven't read tell All book
[3:28] Speaker 1: after tell All book about the manner and method by
[3:31] Speaker 1: which these tech companies have attempted to make their algorithms
[3:34] Speaker 1: more addictive in order to get more attention, in order
[3:36] Speaker 1: to sell more advertising.
[3:38] Speaker 6: When you are using a.
[3:39] Speaker 5: Free product, you are the product.
[3:41] Speaker 1: And so I think the jury knew that, understood it,
[3:43] Speaker 1: and have lived through it and simply did what has
[3:47] Speaker 1: been a long time coming.
[3:48] Speaker 2: What do you think the strongest evidence was showing the
[3:51] Speaker 2: intention of the platforms to knowingly addict young users.
[3:56] Speaker 1: Some of the evidence that came out during this trial,
[3:58] Speaker 1: for example, was a study that Meta had suppressed and
[4:01] Speaker 1: they had conducted it themselves that showed when individuals in
[4:05] Speaker 1: particularly youth, put away their phone for a week, there
[4:09] Speaker 1: was an actual causative relation. We're not talking correlative relation,
[4:14] Speaker 1: We're talking causitive relationship between that, showing that there was
[4:17] Speaker 1: an effect on mental health. Not only that, but another
[4:21] Speaker 1: study that they conducted showed that individuals who were already
[4:24] Speaker 1: predisposed to mental health issues increase their usage of social
[4:29] Speaker 1: media and increase their worsening mental health.
[4:32] Speaker 5: So these were some of the studies that were shown.
[4:34] Speaker 1: So this put Meta on notice of what their algorithms
[4:38] Speaker 1: were doing.
[4:39] Speaker 2: The jury was out for nine days forty hours over
[4:43] Speaker 2: nine days, so they must have been struggling with some
[4:46] Speaker 2: aspect of the plaintiff's case, right.
[4:49] Speaker 1: Well, it could be something that was holding them up
[4:51] Speaker 1: from a liability standpoint. To your point earlier, well, this
[4:54] Speaker 1: individual did have mental health issues in any event, is
[4:57] Speaker 1: that really the cause here because we had to prove
[4:59] Speaker 1: its positive. But I think more to the point, it
[5:03] Speaker 1: could also be on the damage valuation. This woman was
[5:06] Speaker 1: ultimately awarded three million dollars in actual damages and three
[5:10] Speaker 1: million dollars.
[5:10] Speaker 5: In punitive damages.
[5:12] Speaker 1: Sometimes the fight isn't over the liability. The fight is, okay,
[5:16] Speaker 1: how much do we award?
[5:18] Speaker 2: And where huge liability for the companies could have come
[5:21] Speaker 2: in is in the punitive damages. I mean, three million
[5:26] Speaker 2: dollars in punitive damages is just a drop in the
[5:29] Speaker 2: bucket to Meta or Google. Isn't it usually the case
[5:33] Speaker 2: that when you hear about these huge verdicts, most of
[5:35] Speaker 2: it is in the punitives.
[5:37] Speaker 1: Absolutely whether the evidence shows that their actions were willful
[5:40] Speaker 1: and wanton and in reckless disregard.
[5:43] Speaker 5: Of the plaintiff's rights. Point back to.
[5:45] Speaker 1: Those studies, were the individuals new at Meta the consequences
[5:49] Speaker 1: of these algorithms and so for example, one famous jury
[5:52] Speaker 1: verdict that resulted in a several hundred million dollars punitive
[5:55] Speaker 1: damage award was likened to a parking ticket. If I
[5:59] Speaker 1: made one hundred thousand dollars a year and I get
[6:01] Speaker 1: a parking ticket for one hundred and fifty dollars. Well,
[6:04] Speaker 1: you know, that's really one percent of my income or
[6:07] Speaker 1: whatever that comes out to be point oh one. And
[6:10] Speaker 1: so if you did the same thing to Meta's, you know,
[6:12] Speaker 1: sixty billion dollars in profits last year, that can be.
[6:15] Speaker 5: A fairly big number just for a speeding ticket.
[6:18] Speaker 2: So only nine out of the twelve jurors had to
[6:21] Speaker 2: agree on each claim against each defendant. Two jurors consistently
[6:26] Speaker 2: disagreed with the other ten on whether the tech company
[6:29] Speaker 2: should be held liabel. So the social media companies now
[6:32] Speaker 2: know what kinds of jurors lean toward their position. Will
[6:36] Speaker 2: they be looking to select jurors with similar characteristics to
[6:41] Speaker 2: those two in upcoming trials?
[6:44] Speaker 5: Oh?
[6:44] Speaker 1: Absolutely, And I'm confident that Meta and the tech companies
[6:48] Speaker 1: spent tons of money on jury consultants and identifying the
[6:51] Speaker 1: type of juror they want. And I'm confident now that
[6:53] Speaker 1: they've identified these two jurors, their personality profiles.
[6:56] Speaker 5: Will be what is sought out in the future.
[6:58] Speaker 1: I mean that being said, and Meta has already indicated
[7:01] Speaker 1: it's going to appeal, so they have legal arguments to
[7:04] Speaker 1: appeal from, and then they may have some factual arguments
[7:08] Speaker 1: to appeal from and the fact that you have two
[7:10] Speaker 1: descending jurors certainly helps that case. But at the end
[7:13] Speaker 1: of the day, jury verdicts are typically fairly sacred and
[7:17] Speaker 1: they're very hard to overturn. So absence the judge making
[7:20] Speaker 1: an error on the law or the jury really abusing.
[7:23] Speaker 5: Their findings of fact, I think this verdict stands.
[7:25] Speaker 2: So, as I mentioned, this is just the first verdict.
[7:28] Speaker 2: Do you think that Meta now goes out and tries
[7:31] Speaker 2: to start settling. Do you think they're going to take
[7:33] Speaker 2: the long road and say, well, wait for the appeal,
[7:36] Speaker 2: wait for other cases, to see how other cases shake out.
[7:41] Speaker 5: Yeah.
[7:41] Speaker 1: I mean I found it odd that they wanted to
[7:44] Speaker 1: use this as their test case, but they clearly have
[7:46] Speaker 1: and they have a creative First Amendment argument with regard
[7:50] Speaker 1: to the.
[7:51] Speaker 5: Whole problem with prosecuting.
[7:53] Speaker 1: Previously has been thought that section two thirty of federal law,
[7:57] Speaker 1: which says that social media companies can not be liable
[8:00] Speaker 1: for the information that is posted on their website. This
[8:04] Speaker 1: lawsuit says that that's true, but they can be held
[8:08] Speaker 1: liable for the decisions and the algorithms that show that content,
[8:13] Speaker 1: how that content is portrayed, and typically in intellectual property law,
[8:18] Speaker 1: those are considered editorial rights. We are editing what you
[8:23] Speaker 1: are seeing. Why is that a problem. And so there's
[8:25] Speaker 1: a First Amendment case that they are alleging here. And
[8:28] Speaker 1: so if it goes up on appeal, makes it to
[8:30] Speaker 1: the Supreme Court, and the Supreme Court insulates them from liability, they're.
[8:34] Speaker 5: Not likely to settle anything in the future.
[8:35] Speaker 1: And that's why I think they'll keep prolonging in this
[8:37] Speaker 1: litigation at least through that opinion.
[8:39] Speaker 2: Do you think people are jumping the gun too much?
[8:41] Speaker 2: They're comparing this to the tobacco litigation and the global
[8:44] Speaker 2: settlement there and the opioid litigation. I mean, it seems
[8:47] Speaker 2: like we're just at the starting gate.
[8:49] Speaker 5: I do think it's the starting gate.
[8:51] Speaker 1: But I think that so many people, in spite of
[8:53] Speaker 1: their constant social media usage, have been expecting this to
[8:56] Speaker 1: come for so long that it does feel like the
[8:59] Speaker 1: big Tobaccos settlement scenario the opioid issues.
[9:03] Speaker 5: But what I will tell you is, at least with
[9:04] Speaker 5: regards to.
[9:05] Speaker 1: Tobacco, to your point, June, three million dollars is a
[9:09] Speaker 1: drop in the bucket, and last year Meta posted sixty
[9:12] Speaker 1: billion dollars in profit in nineteen ninety seven, the year
[9:15] Speaker 1: before the tobacco settlement got entered into Philip Morris, their
[9:19] Speaker 1: profits were magnitudes of orders less than that, like five billion.
[9:23] Speaker 5: And so the point here is Meta and these other.
[9:25] Speaker 1: Tech companies have plenty of money to continue to fight on.
[9:28] Speaker 1: Even if they settle a billion dollars year and a
[9:30] Speaker 1: billion dollars there, they have plenty of money to keep fighting.
[9:34] Speaker 2: To put it in terms we all can relate to,
[9:36] Speaker 2: how depressed do you think Meta and Google should be
[9:39] Speaker 2: about this verdict?
[9:40] Speaker 4: Well?
[9:40] Speaker 1: I don't know, because if you look at the approach
[9:44] Speaker 1: that our government has taken too regulating AI and data
[9:47] Speaker 1: privacy in general, which is to say we don't and
[9:50] Speaker 1: we won't, I would not be surprised at all if
[9:54] Speaker 1: what you see is a bunch of legislation coming down
[9:56] Speaker 1: the pike, pushed by tech industry lobbyists that says we're
[10:00] Speaker 1: insulating these companies from these types of lawsuits. The only
[10:04] Speaker 1: mannering method by which you consue these companies is for X, Y,
[10:07] Speaker 1: and Z and negligence. Ain't one of them some sort
[10:10] Speaker 1: of insulation from their liabilities. I can see that happening,
[10:13] Speaker 1: and I can see the legislators, if history is prologue
[10:17] Speaker 1: bending over backwards to accommodate that request.
[10:20] Speaker 2: Colin, what do you see as the ultimate sort of
[10:23] Speaker 2: ideal answer the social media companies go out of business.
[10:27] Speaker 5: Well, I don't think that they're supposed to go out
[10:29] Speaker 5: of business.
[10:29] Speaker 1: I think that they are supposed to show generalized and
[10:32] Speaker 1: neutralized algorithms, not algorithms that are designed to get you hooked.
[10:37] Speaker 1: In other words, one thing they could do, for example,
[10:40] Speaker 1: is stop infinite scroll. The whole reason why infinite scroll
[10:43] Speaker 1: was invented was because ase people got tired of having
[10:46] Speaker 1: to wait for their page to load, a little bit
[10:48] Speaker 1: of patients built into an algorithm might actually get us
[10:51] Speaker 1: off of our phones. And that's one of the things
[10:53] Speaker 1: that I find so ironic about this. The entire point
[10:57] Speaker 1: of this case is that social media negatively impacts mental health.
[11:02] Speaker 1: And I go and I look at the front page
[11:04] Speaker 1: of the newspaper after this verdict comes down, and everybody
[11:07] Speaker 1: is on their cell phone sharing it in social media.
[11:10] Speaker 5: The irony is.
[11:11] Speaker 1: Thick here, and we don't realize that we ourselves are
[11:15] Speaker 1: participating in this problem.
[11:16] Speaker 2: I guess I'll have to plead guilty to that as well.
[11:19] Speaker 2: Thanks so much Colin. That's Colin Walkee of hall Estell
[11:23] Speaker 2: coming up next on the Bloomberg Law Show. In a
[11:26] Speaker 2: landmark case, the Supreme Court deals a major blow to
[11:30] Speaker 2: the music industry's efforts to stop music piracy. I'm June
[11:35] Speaker 2: Grosso and you're listening to Bloomberg. A jury had returned
[11:41] Speaker 2: a one billion dollar verdict against Cox Communications for failing
[11:45] Speaker 2: to shut down the accounts of more than one hundred
[11:48] Speaker 2: thousand users who illegally downloaded and distributed copyrighted songs. Justice
[11:55] Speaker 2: is Sonya Sotomayor and Amy Coney Barrett had called Cox
[11:59] Speaker 2: out for its flagrant behavior during oral arguments.
[12:03] Speaker 7: You did nothing and in fact, counselor your clients sort
[12:08] Speaker 7: of lais a fair attitude towards the respondents is probably
[12:14] Speaker 7: what got the jury upset.
[12:17] Speaker 8: What incentive would you have to do anything if you won?
[12:20] Speaker 8: You if you win and mere knowledge isn't enough, Why
[12:23] Speaker 8: would you bother to send out any notices in the future.
[12:26] Speaker 2: And yet Sodamayor and Barrett join their colleagues in letting
[12:31] Speaker 2: Cox completely off the hook. In a unanimous decision, the
[12:35] Speaker 2: Court overturned the verdict and found that internet service providers
[12:40] Speaker 2: like Cox can't be held liable for copyright infringement even
[12:44] Speaker 2: if they know their users are illegally copying and sharing
[12:48] Speaker 2: protected content. The decision sets a precedent that's a serious
[12:53] Speaker 2: blow to the music industry's efforts to curb online piracy.
[12:58] Speaker 2: My guest is intellect actual property litigator Terrence Ross, a
[13:02] Speaker 2: partner at catin Mutchen, Rosenmann Terry. The jury said Cox
[13:07] Speaker 2: had to pay a billion dollars in damages, and now
[13:10] Speaker 2: the Supreme Court says, no, Cox doesn't have to pay
[13:13] Speaker 2: anything at all.
[13:14] Speaker 5: That's correct.
[13:15] Speaker 9: The cause of action in the lower court was for
[13:18] Speaker 9: contributory copyright infringement, which means that the defendant did not
[13:23] Speaker 9: actually commit the copyright theft, but somehow contributed to the
[13:28] Speaker 9: ability of a third party to commit copyright infringement, and
[13:32] Speaker 9: the Supreme Court determined that the lower courts had applied
[13:38] Speaker 9: the wrong standard for measuring whether or not contributory copyright
[13:43] Speaker 9: infringement had occurred, and therefore reversed as to liability, which
[13:48] Speaker 9: eliminated the damages verdict.
[13:50] Speaker 2: Just as so do Mayors scolded Cox's attorney, saying you
[13:55] Speaker 2: did nothing, and now the court is saying that's fine.
[13:59] Speaker 2: You don't have to do anything well.
[14:01] Speaker 9: As we discussed that week after the oral argument before
[14:05] Speaker 9: the Supreme Court, I had commented that I thought this
[14:08] Speaker 9: was one of the most opaque oral arguments I'd ever
[14:11] Speaker 9: listened to at the Supreme Court. And you'd ask me,
[14:14] Speaker 9: what's Gordon Hamn? I said, I just blained, don't know,
[14:16] Speaker 9: I do not have a clue. And I was proven right.
[14:19] Speaker 9: The oral argument centered so heavily on the really terrible
[14:24] Speaker 9: facts were Cox surrounding its efforts, half hearted at best,
[14:29] Speaker 9: to comply with the safe Harbor provision of the Digital
[14:32] Speaker 9: Millennium Copyright Act, and they were just terrible facts. We
[14:36] Speaker 9: know the jury thought they were so bad that they
[14:38] Speaker 9: found Cox to be willfully liable for contributory infringement. And
[14:44] Speaker 9: yet none of that came out in this opinion. There
[14:47] Speaker 9: was some discussion, although very limited, during oral argument as
[14:52] Speaker 9: to what the correct standard for contributory copyright fragment was,
[14:57] Speaker 9: but Cox in particular had pushed that argument into a
[15:00] Speaker 9: very odd place where it was drawing upon aiding in
[15:03] Speaker 9: a betting cases from common torts. Even cited to the
[15:07] Speaker 9: recent Mexican government case against American gun manufacturers, which was
[15:12] Speaker 9: an aiding in a betting theory that the Supreme Court
[15:14] Speaker 9: had lost, And so the decision is maybe not surprising
[15:20] Speaker 9: as to the result, but a little bit surprising after
[15:23] Speaker 9: the or or argument that it went in the direction
[15:26] Speaker 9: that it went.
[15:26] Speaker 2: How did the court handle the apparent violations of the
[15:30] Speaker 2: DMCA with Cox ignoring more than one hundred and sixty
[15:33] Speaker 2: thousand copyright infringement notices and giving users chance after chance
[15:39] Speaker 2: after chance rather than terminating their service. And there was
[15:43] Speaker 2: evidence that the Cox manager who was overseeing compliance told
[15:48] Speaker 2: his team to ignore the DMCA, using foul language to
[15:53] Speaker 2: say that.
[15:54] Speaker 6: That's clearly all correct.
[15:56] Speaker 9: Justice Thomas, who wrote the opinion from the majority of
[15:59] Speaker 9: the Court, simply chose to ignore the Digital Millennium Copyright Act.
[16:03] Speaker 9: In essence, he said that Cox had failed to comply
[16:09] Speaker 9: with the safe harbor in the Digital Millennium Copyright Act
[16:12] Speaker 9: because they did not have a program in place to
[16:16] Speaker 9: comply with copyright infringement notices. But then he said, and
[16:20] Speaker 9: this is an important party set, but that does not
[16:22] Speaker 9: prove the case for the recording companies. He said, a
[16:27] Speaker 9: mere failure to establish that you're entitled to take advantage
[16:31] Speaker 9: of the safe harbor defense of the Digital Millennium Copyright
[16:35] Speaker 9: Act does not establish the affirmative grounds for contributory copyright infringement.
[16:42] Speaker 9: And then he went through an analysis of what he
[16:46] Speaker 9: viewed to be the elements of cause of action for
[16:50] Speaker 9: contributory copyright infringement. He found that there was an affirmative
[16:55] Speaker 9: action required on the part of the defendant be accused
[16:58] Speaker 9: of contributory copyright infringement. And that's what surprised I think
[17:03] Speaker 9: a lot of us. There is a long history of
[17:06] Speaker 9: decisions in the circuit courts and in the Supreme Court
[17:11] Speaker 9: stretching back to nineteen twelve, in which courts have allowed
[17:16] Speaker 9: contributory copyright infringement cases go forward in situations factual situations,
[17:22] Speaker 9: which has seemed to be nothing more than providing a
[17:25] Speaker 9: product or a service, and Justice Thomas starts off by
[17:31] Speaker 9: recharacterizing those cases as findings that a company cannot be
[17:35] Speaker 9: liable as a copyright infringement for purely providing a service
[17:39] Speaker 9: to the general public, even with knowledge that it will
[17:41] Speaker 9: be used by some copyright infringers. And that's the big
[17:44] Speaker 9: surprise here.
[17:45] Speaker 5: The cases had.
[17:46] Speaker 9: Implicitly understood the provision of services and products that led
[17:52] Speaker 9: to copyright infringement as an affirmative action on the part
[17:56] Speaker 9: of the defendant. Now, the Supreme Court says that's.
[17:59] Speaker 6: Not good enough.
[18:00] Speaker 9: They seem to be of the view that the only
[18:04] Speaker 9: way you can bring a contributory copyright infringement case against
[18:09] Speaker 9: a provider of a service or product is if they
[18:12] Speaker 9: specifically promote that product or service as capable of engaging.
[18:18] Speaker 6: In copyright infringement.
[18:19] Speaker 9: And so the result of this case is that it
[18:24] Speaker 9: will be extraordinarily hard to ever again bring a cause
[18:29] Speaker 9: of action for contributory copyright infringement.
[18:32] Speaker 2: Terry, do you have any idea how the justices reached this.
[18:36] Speaker 2: I'll call it a radical decision. Do you think it
[18:39] Speaker 2: was the result of compromise.
[18:41] Speaker 9: I call this a way out, not a compromise. This
[18:43] Speaker 9: was a way to avoid a really hard decision with
[18:46] Speaker 9: respect to the damage element, but was not a compromise.
[18:50] Speaker 9: It was basically a complete one to eighty change in
[18:53] Speaker 9: direction of the cases that have existed for one hundred
[18:57] Speaker 9: and twenty years now. This case adopts such a radical
[19:02] Speaker 9: view of secondary liability under the Copyright Act, and I
[19:05] Speaker 9: don't think was attended by Congress that it basically kills
[19:08] Speaker 9: off the two causes of action only a complete moron
[19:12] Speaker 9: could be found liable for a contributory or vicary's copyright
[19:15] Speaker 9: infringement at this point in time, So I don't know
[19:17] Speaker 9: what went on behind closed door. I found it fascinating
[19:20] Speaker 9: that Justice Thomas wrote the opinions. Justice Thomas tends to
[19:24] Speaker 9: write opinions that are short, sweetened to the point, and
[19:28] Speaker 9: so sometimes he gets designated for a case that the
[19:33] Speaker 9: Court does not want to spend too much time intellectualizing.
[19:37] Speaker 5: They just say, look, here's.
[19:38] Speaker 6: What we think.
[19:39] Speaker 9: You only get contributory infringement if you show an affirmative act.
[19:42] Speaker 9: There was no firmative act found case over, and that's
[19:45] Speaker 9: what this opinion is. It certainly doesn't address any of
[19:48] Speaker 9: the past cases involving contributory copyright infringement except for Rochester
[19:52] Speaker 9: and Betamax, both of them the Preme Court cases, which
[19:56] Speaker 9: were only slightly helpful in this decision. They really needed
[19:59] Speaker 9: to look at the full spectrum of contributory copyright cases
[20:03] Speaker 9: over the last century and have failed to do that.
[20:05] Speaker 2: And this is supposed to be a textualist court, But
[20:09] Speaker 2: were they reading the text here?
[20:11] Speaker 9: None of this is in the Copyright Act. I mean,
[20:13] Speaker 9: the whole purpose of having a statute is to set
[20:17] Speaker 9: out the meats and bounds of causes of action and writes.
[20:21] Speaker 9: None of this is in the Copyright Act.
[20:23] Speaker 6: I just plain, don't give it.
[20:24] Speaker 9: And you know, over the years there have been a
[20:26] Speaker 9: lot of good justices no copyright law, and even Justice Scalia,
[20:31] Speaker 9: who was all about the text, never ever stopped to say,
[20:35] Speaker 9: wait a minute, there is no secondary liability in the
[20:38] Speaker 9: seventy six Copyright Act. What are we talking about here?
[20:40] Speaker 6: It's just crazy.
[20:41] Speaker 2: How much does this decision hamper the music industry's efforts
[20:46] Speaker 2: to combat online piracy? Are there any other options available
[20:51] Speaker 2: to music labels?
[20:53] Speaker 10: Now?
[20:54] Speaker 9: Okay, so it seems to me there are two options here.
[20:56] Speaker 9: One is legal and once legislative legislative. They could go
[21:00] Speaker 9: to Congress and say, look, this is an absurd decision
[21:03] Speaker 9: and it's completely gut it the Digital Millennium Copyright Act.
[21:06] Speaker 9: This is not what you intended with the Digital Millennium
[21:09] Speaker 9: Copyright Act. And I thought I saw congressmen put out
[21:13] Speaker 9: a press release essentially saying that they could then ask
[21:16] Speaker 9: Congress to rewrite the Digital Millennium Copyright Act to provide
[21:20] Speaker 9: that the ISPs must comply with the Safe Harbor provisions
[21:26] Speaker 9: in order to avoid contributory or vicarious copyright fridemen. So
[21:30] Speaker 9: that's one route that the music companies could pursue. The
[21:34] Speaker 9: other route, which is more complicated, is to serve subpoenas
[21:40] Speaker 9: upon Cox or other ISPs for the IP addresses that
[21:46] Speaker 9: are doing the most downloading of copyright music and get
[21:52] Speaker 9: the names and addresses of whoever the owner is and
[21:56] Speaker 9: then sue that owner. So you bypass Cox and you
[22:00] Speaker 9: sue the person who's actually engaged in the music file
[22:03] Speaker 9: downloading for copyright infringement. Now, this was a course of
[22:07] Speaker 9: action that occasionally has happened in the past, and it's
[22:10] Speaker 9: relatively successful because the defendant usually caves in quickly and
[22:16] Speaker 9: they enter into some settlement where they agree never to
[22:18] Speaker 9: download music again. It seems to me that that remains
[22:22] Speaker 9: a viable option from a legal side. It's just very cumbersome.
[22:26] Speaker 9: You don't always get courts willing to enforce such a subpoena,
[22:30] Speaker 9: and that it requires it follow on litigation, so it's
[22:34] Speaker 9: going to be a little bit more costly. But those
[22:36] Speaker 9: are the only two options I see for the music
[22:39] Speaker 9: company at this point.
[22:40] Speaker 2: How much does the music industry lose because of this piracy.
[22:45] Speaker 9: I've seen all sorts of estimates, but it's over a
[22:47] Speaker 9: billion dollars a year typically. Now, the interesting thing about
[22:50] Speaker 9: this case is that the music companies didn't even pursue
[22:53] Speaker 9: all the copyright infringements that were being utilized through the
[22:59] Speaker 9: Cock system. They were only going after the really large
[23:03] Speaker 9: downloads and distributions of files. And the jury found damages
[23:08] Speaker 9: of a billion dollars. And that was against a single ISP,
[23:12] Speaker 9: not the many ISP's in this country, and for only
[23:15] Speaker 9: a portion of the copyright infringement that was going on.
[23:18] Speaker 9: So that suggests that the number is many billions of dollars.
[23:22] Speaker 9: Look to understand the extent of the problem. June, at
[23:26] Speaker 9: one point in time, over the entire Cox Internet system,
[23:30] Speaker 9: twenty one percent of all traffic involved music copyright infringement.
[23:36] Speaker 9: The fall the traffic is infringement upon copyrighted music. I mean,
[23:41] Speaker 9: it's just a phenomenal number. And here the Supreme Court says, wow,
[23:45] Speaker 9: now there's actually no remedy for that, And that's not
[23:47] Speaker 9: what Congress thought when they passed the Digital Millennium Copyright Act.
[23:51] Speaker 2: It'll be interesting to see what happens to a similar
[23:55] Speaker 2: music industry case against Verizon that's seeking two points six
[24:00] Speaker 2: billion dollars in damages. We'll see whether that case survives.
[24:05] Speaker 2: It's always a pleasure to have you on Terry, Thanks
[24:07] Speaker 2: so much. That's Terence Ross of Catanutchen Rosaman Coming up next.
[24:12] Speaker 2: The Supreme Court appears ready to allow asylum seekers to
[24:16] Speaker 2: be turned away at the border. I'm June Grosso. When
[24:19] Speaker 2: you're listening to Bloomberg in the Trump administration turn away
[24:25] Speaker 2: asylum seekers at the US Mexico border. Federal law says
[24:29] Speaker 2: that any non citizen who quote arrives in the United
[24:33] Speaker 2: States can apply for asylum. So the answer turns on
[24:38] Speaker 2: what it means to arrive in the United States. Though
[24:41] Speaker 2: that may sound like a simple question, most of the
[24:45] Speaker 2: oral arguments at the Supreme Court on Tuesday were basically
[24:49] Speaker 2: an attempt to determine what those four words mean. The
[24:53] Speaker 2: government's attorney, Vivek Suri said, a person has to have
[24:56] Speaker 2: crossed the border in order to be considered to have
[24:59] Speaker 2: a in the United States.
[25:01] Speaker 10: You can't arrive in the United States while you're still
[25:04] Speaker 10: standing in Mexico. That should be the end of this case.
[25:08] Speaker 2: But liberal Justice Katanji Brown Jackson challenged that interpretation.
[25:13] Speaker 11: Imagine a person who has a placard on their body
[25:16] Speaker 11: as they approach the border that says, you know, I
[25:20] Speaker 11: would like entrigue. I'm being persecuted in Mexico. Your suggestion
[25:26] Speaker 11: that the United States would say, unless you can figure
[25:28] Speaker 11: out a way to illegally cross, we're not going to
[25:31] Speaker 11: entertain that claim seems very peculiar.
[25:35] Speaker 2: And the attorney arguing on behalf of asylum seekers, Kelsey Corkran,
[25:40] Speaker 2: said until a policy changed ten years ago, arriving in
[25:44] Speaker 2: the United States simply meant making it to a port
[25:47] Speaker 2: of entry.
[25:48] Speaker 12: From nineteen seventeen to twenty sixteen, ninety nine years, there
[25:53] Speaker 12: was not a single example of a turnback. So what
[25:55] Speaker 12: was happening is people would come through the port. At
[25:58] Speaker 12: that point. When they were in the port, they would
[26:00] Speaker 12: be inspected and processing. What happen. So it's an unusual
[26:03] Speaker 12: scenario we have here where we have the officers standing
[26:05] Speaker 12: there and turning people back.
[26:07] Speaker 2: The justices pressed her with questions about whether an asylum
[26:11] Speaker 2: seeker had arrived in the United States if they reached
[26:14] Speaker 2: the border wall or made it almost halfway through the
[26:17] Speaker 2: Rio Grande, or cross the Rio Grande, or we're first
[26:21] Speaker 2: in the line waiting to enter a port of entry
[26:24] Speaker 2: or second in the line. Here are Justices Amy Cony,
[26:27] Speaker 2: Barrett and Neil Gorsuch.
[26:30] Speaker 8: How do you know under your theory, when the person
[26:32] Speaker 8: is close enough that we could say they have arrived
[26:35] Speaker 8: in or arrived in the destination? I mean, what if
[26:38] Speaker 8: there's a queue and they're far back, or what if
[26:40] Speaker 8: they arrived not at a port of entry? How close
[26:43] Speaker 8: do you have to be to the border? Could you
[26:45] Speaker 8: say that someone arrives in the United States if they're
[26:47] Speaker 8: at a portion of the border that does not have
[26:49] Speaker 8: a port of entry, Like, what is it if it's
[26:51] Speaker 8: not crossing the physical border? What is the magic thing
[26:56] Speaker 8: or the dispositive thing that we're looking for where we say, ah,
[26:58] Speaker 8: now that person we can say arrives in the United States.
[27:02] Speaker 10: Now, how come somebody who's in the line, isn't it?
[27:05] Speaker 10: I mean, if the whole point is to make sure
[27:08] Speaker 10: that people who are attempting to get into the country
[27:11] Speaker 10: have the opportunity to file asylum claims, and they've made
[27:16] Speaker 10: it all the way, why doesn't matter he's second in line.
[27:20] Speaker 2: The High Court's answers could reshape the government's asylum policy.
[27:25] Speaker 2: Joining me is Leon Fresco, a partner at Holland and Knight.
[27:29] Speaker 2: He was the head of the Office of Immigration Litigation
[27:32] Speaker 2: during the Obama administration. Leon this case stems from a
[27:36] Speaker 2: policy called metering that was adopted in twenty sixteen because
[27:41] Speaker 2: of an overwhelming surge of migrants. It required people to
[27:46] Speaker 2: wait on the Mexican side of the border. So what's
[27:49] Speaker 2: the issue here.
[27:51] Speaker 13: So in this case, which is called Gnome versus alot Lado,
[27:55] Speaker 13: the issue is whether a non citizen who has stopped
[27:58] Speaker 13: on the Mexican side of the US Mexican border, are
[28:02] Speaker 13: they considered someone under the statute who arrived in the
[28:06] Speaker 13: United States for the purposes of being allowed to get
[28:09] Speaker 13: asylum processing under the immigration laws. So here's how this works.
[28:14] Speaker 13: So there's two kinds of people who tried to apply
[28:17] Speaker 13: for asylum. There's the people who tried to sneak across
[28:20] Speaker 13: the border. And so for those people, traditionally, for the
[28:25] Speaker 13: last thirty forty years or so, there was this understanding
[28:29] Speaker 13: that yes, once you got across the border, you could
[28:32] Speaker 13: make a claim for asylum. Now there's a separate case
[28:35] Speaker 13: and a separate issue involved with President Trump basically using
[28:38] Speaker 13: the travel ban authority to say no, if you cross
[28:42] Speaker 13: the border, you can't get asylum, but that's not an
[28:45] Speaker 13: issue in this case. This case is about whenever you
[28:48] Speaker 13: ask people what you're supposed to do when you really
[28:52] Speaker 13: want asylum, they say, well, go to a port of
[28:55] Speaker 13: entry and present yourself as a proper person. Don't create
[29:00] Speaker 13: chaos and all kinds of confusion by running across the border.
[29:04] Speaker 13: Go to a port of entry. So what happens is
[29:07] Speaker 13: you go to a port of entry, if the government
[29:09] Speaker 13: refuses to ever see you, it just keeps you on
[29:12] Speaker 13: the Mexican side, which is what's currently happening, then you
[29:16] Speaker 13: never get to apply for asylum either.
[29:19] Speaker 6: So the question that this case tries to.
[29:21] Speaker 13: Deal with is what happens to those individuals who've clearly
[29:25] Speaker 13: presented themselves and said I want asylum, but their human
[29:30] Speaker 13: body is on the Mexican side of the border. Does
[29:33] Speaker 13: the US government have an obligation to still process these
[29:37] Speaker 13: individuals for asylum? That's the question, and the Trump administration
[29:41] Speaker 13: says no, if your body's on the Mexican side of the.
[29:44] Speaker 6: Border, you don't get to apply for asylum.
[29:47] Speaker 13: And the litigants who were from this organization called Al
[29:50] Speaker 13: Ultra Lado said that's not correct, and the Ninth Circuits
[29:54] Speaker 13: did the same thing that once you've presented yourself for asylum,
[29:58] Speaker 13: you've done what's needed.
[29:59] Speaker 6: It's not really mattering if your body is a.
[30:02] Speaker 13: Few feet away from the US territorial border.
[30:06] Speaker 2: Explain the questions over the interpretation of the phrase arrives
[30:11] Speaker 2: in the United States.
[30:13] Speaker 13: So the asylum statute uses the quote arrives in or
[30:19] Speaker 13: is quote physically present in the United States. So if
[30:23] Speaker 13: you were just to do again an artificial intelligence or
[30:26] Speaker 13: a dictionary or something like that, then that would be
[30:31] Speaker 13: the end of this, because then that would mean if
[30:33] Speaker 13: you arrived in your body would have to be inside
[30:35] Speaker 13: the United States, or if you were physically president in
[30:38] Speaker 13: the United States, that would mean your body would have
[30:40] Speaker 13: to be inside the United States. But then there's a
[30:43] Speaker 13: separate concept in the immigration law called an arriving alien,
[30:48] Speaker 13: and the idea is, if you are an arriving alien
[30:51] Speaker 13: and you're apprehended or somehow in the custody of the
[30:54] Speaker 13: government or even the situational awareness of the government that
[30:59] Speaker 13: you are in a alien, you're someone who can apply
[31:01] Speaker 13: for asylum. Yes, you're kept in detention during this time,
[31:05] Speaker 13: but you can apply for asylum. The law actually uses
[31:08] Speaker 13: this word arriving alien. So the question is, why would
[31:12] Speaker 13: the law use the term arriving alien if that didn't
[31:17] Speaker 13: mean anything, if the sort of process of arriving didn't
[31:21] Speaker 13: shield you in some way, if the government knew about
[31:25] Speaker 13: you and apprehended you in some way, whether the apprehension
[31:28] Speaker 13: was inside the United States or to prevent you from
[31:32] Speaker 13: coming inside the United States. And so that's the sort
[31:35] Speaker 13: of debate or dispute here is once the government knows
[31:39] Speaker 13: about you and is doing something to stop you, then
[31:43] Speaker 13: the plaintiffs, the immigrants' rights groups thing that should be
[31:46] Speaker 13: the end of it. They think, hey, that's the answer here.
[31:49] Speaker 13: You are an arriving alien, you've been apprehended. You should
[31:52] Speaker 13: now get to apply for asylum. And the government says, yeah,
[31:55] Speaker 13: but that's not how that works. The arriving alien is
[31:58] Speaker 13: sort of for the apprehension of the person and then
[32:02] Speaker 13: the deportation of the person and the detention. But the
[32:05] Speaker 13: actual act of applying for asylum requires an actual arrival
[32:10] Speaker 13: and requires physical presence in the United States.
[32:13] Speaker 2: This is why Justice Scalia used to reach for the
[32:16] Speaker 2: dictionary sometimes. So what's your take on how the justices
[32:19] Speaker 2: might rule here.
[32:21] Speaker 13: So I do think that because much of this court
[32:25] Speaker 13: is textualists. So you have three very strong textualists on
[32:29] Speaker 13: the court, but then you also have people who are
[32:31] Speaker 13: asking practical questions amongst the conservative justices that I think
[32:36] Speaker 13: out of the six conservative justices, you're probably likely to
[32:39] Speaker 13: find at least five votes, probably for the government's argument
[32:45] Speaker 13: that in order to be eligible for asylum, your human
[32:49] Speaker 13: body actually has to be inside the United States. Now,
[32:53] Speaker 13: they may say, look, this is very cruel that the
[32:56] Speaker 13: administration can just keep people out from the ports of
[32:59] Speaker 13: entry when they're saying, go to the ports of entry.
[33:02] Speaker 6: This has to be your solution.
[33:04] Speaker 13: But they may say that's something for the Congress to
[33:08] Speaker 13: have to adjudicate in terms of passing a bill that
[33:11] Speaker 13: lets a certain amount of people get screened each day
[33:15] Speaker 13: or does something else, but it's not an issue for
[33:18] Speaker 13: the courts to decide. I think that's where this is
[33:21] Speaker 13: likely going, but we'll have to wait and see.
[33:23] Speaker 2: The Justice has posed all these hypotheticals to determine what
[33:28] Speaker 2: point an asylum seeker had to have reached in order
[33:31] Speaker 2: to be considered to have arrived in the United States.
[33:35] Speaker 2: So was it enough if they reached the border wall
[33:38] Speaker 2: or made it almost halfway through the Rio Grande, or
[33:42] Speaker 2: suppose they were first in line waiting to enter a
[33:46] Speaker 2: port of entry, or suppose they were last in line. Obviously,
[33:49] Speaker 2: there are a lot of variables.
[33:51] Speaker 6: That's correct. I mean.
[33:52] Speaker 13: The problem is it's very hard to draw a bright
[33:55] Speaker 13: line rule. The easiest right line rule to draw, which
[33:58] Speaker 13: is why I think this is going to be a
[33:59] Speaker 13: peace to the Conservative justices is that your body is
[34:03] Speaker 13: inside the United States. And this is why they talked
[34:06] Speaker 13: a lot about the Haitian interdiction cases where Haitians were
[34:10] Speaker 13: interdicted at sea, and the question was did those cases
[34:15] Speaker 13: require asylum and they did not. Those were considered extra
[34:19] Speaker 13: territorial cases, and that the asylum laws didn't apply to
[34:23] Speaker 13: the Haitians that were interredicted at sea. And so I
[34:27] Speaker 13: don't know how you would draw this line. But what's
[34:31] Speaker 13: going to be interesting is I do think, assuming that
[34:35] Speaker 13: the immigrants rights groups lose here on that basis, that
[34:39] Speaker 13: it's sort of hard.
[34:39] Speaker 6: To draw a line.
[34:40] Speaker 13: And so we might as well read the statute the
[34:42] Speaker 13: way it says, which is arrives and that your body
[34:45] Speaker 13: has to be in the US. There's still going to
[34:47] Speaker 13: be a second case that comes to the Supreme Court, Well,
[34:50] Speaker 13: when you do arrive and you do apply for asylum,
[34:53] Speaker 13: can the Trump administration still ban you anyway? And I
[34:57] Speaker 13: think it's going to be hard for the court if
[34:58] Speaker 13: they rule against them, Gridsier to rule against them yet
[35:01] Speaker 13: again a second time and say there's just literally no
[35:05] Speaker 13: way to apply for asylum ever in America.
[35:08] Speaker 6: So we'll see.
[35:10] Speaker 13: But I do think the difficulty they're having with this
[35:13] Speaker 13: case for shadows a potential triumph for the immigrants' rights
[35:19] Speaker 13: groups in this second case about what happens when people
[35:22] Speaker 13: do actually arrive.
[35:24] Speaker 6: But again, we'll just have to wait and see.
[35:26] Speaker 2: What's happening at the border right now, because during the
[35:29] Speaker 2: oral arguments they said that the administration is not engaging
[35:33] Speaker 2: in this practice called metering at this time.
[35:37] Speaker 13: Correct, they're banning everybody from asylum. So that's what they're
[35:41] Speaker 13: doing right now, is they're saying you're just completely banned
[35:44] Speaker 13: from seeking asylum at the southern border of the United States.
[35:48] Speaker 6: What I do think is when they then get to
[35:50] Speaker 6: the second.
[35:50] Speaker 13: Case about well, what about when your body is in
[35:52] Speaker 13: the United States, can the president still unilate early ban you,
[35:57] Speaker 13: then they're going to have to look at that within
[35:58] Speaker 13: the context of what they dicay here and see that
[36:01] Speaker 13: this really would mean that a president could ignore all
[36:04] Speaker 13: of these statutes that talk about asylum and its pages
[36:08] Speaker 13: and pages and pages of statutes and regulation, that could
[36:11] Speaker 13: just ignore all of them and say this whole thing
[36:13] Speaker 13: doesn't exist anymore.
[36:15] Speaker 6: And I do think that.
[36:16] Speaker 13: Will probably give the court some pause, although who knows,
[36:19] Speaker 13: because the question is do they also want to just
[36:22] Speaker 13: allow a one hundred percent ban on asylum cases.
[36:25] Speaker 6: So we'll have to wait and see.
[36:26] Speaker 2: And this is just one of the immigration cases that
[36:29] Speaker 2: the Supreme Court is hearing this term. This coming Wednesday,
[36:33] Speaker 2: the Justices will be hearing arguments in one of the
[36:36] Speaker 2: most high profile cases of the term, a challenge to
[36:39] Speaker 2: President Trump's executive order seeking to end birthright citizenship. Thanks
[36:44] Speaker 2: so much for joining me, Leon, that's Leon Fresco of
[36:47] Speaker 2: Holland and Knight. And that's it for this edition of
[36:50] Speaker 2: the Bloomberg Law Show. Remember you can always get the
[36:52] Speaker 2: latest legal news on our Bloomberg Law Podcast. You can
[36:55] Speaker 2: find them on Apple Podcasts, Spotify, and at www dot
[37:00] Speaker 2: Bloomberg dot com, slash podcast Slash Law, and remember to
[37:04] Speaker 2: tune into the Bloomberg Law Show every weeknight at ten
[37:07] Speaker 2: pm Wall Street Time. I'm June Grosso and you're listening
[37:11] Speaker 2: to Bloomberg

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