Bloomberg LawMusic Piracy, SCOTUS Backloaded & Malibu Sand Spat
Bloomberg Law Supreme Court Reporter Kimberly Strawbridge Robinson, discusses why the Supreme Court’s workload is backloaded. Internet and copyright expert Alfred Yen, a Professor at Boston College Law School, discusses Cox Communications asking the Supreme Court to reverse a $1 billion music piracy verdict. Bloomberg Legal Reporter Rachel Graf discusses a spat over sand between wealthy neighbors in Malibu. June Grasso hosts.
This is Bloomberg Law with June Brusso from Bloomberg Radio. You might remember the end of the Supreme Court's term in June, when in the space of a week, the Republican super majority slashed the power of regulators, curbed the SEC's use of in house judges, tossed a six billion dollar opioid settlement, and allowed cities to evict the homeless from public encampments. And then the justices added a day to issue the blockbuster decision shielding former presidents from criminal prosecution and giving Donald Trump an electioneer boost. Increasingly we see the most controversial decisions handed down the last week of the term. Justics Elena Kagan recently told a group of judges and lawyers that it's not planned that way.
You know, I read at the end of every year all these theories about how we've sort of planned it this way, and you know, what I would say are a little bit conspiracy theories and the truth of the matter, truly, you know, this is really, truly the case, is that we announce decisions when they're done.
More and more, the Court's workload is bunched up toward the end of the term, and the upcoming term appears to be no exception, as the justices are off to a slow start. Joining me is Bloomberg Law Supreme Court reporter Kimberly Strowbridge Robinson who's investigated this. Kimberly start by explaining how the Supreme Court's calendar works.
Yeah, so the Supreme Court has a pre long break in the middle of the summer, which I think a lot of the justices like it tends to break up the workload, at least in the past, is broken up the workload. But that means that when the Justices come back to start off their terms in October, they really have had to do some work beforehand to sort of have enough cases that have already gone through briefing and that are ready for arguments. So it really means that in January, February, March, the Justices need to be granting cases for their October, November, and December sittings. The problem with that is that's also when the Court is still hearing new cases and trying to get decisions together, so it becomes a really busy time for the justices and so they.
Have argument sittings in the fall. How many cases have they lined up for that, and how does it compare with other terms.
Well, this term is starting off like many recent terms, where the justices are really getting a pretty slow start. You know, a full calendar, we think of a full argument calendar is about two cases a day, where the justices here cases, you know in the morning at ten and eleven. We haven't really seen that for a few terms, and so instead, you know, the justices are coming in under their full calendar, and that just means that they're going to have to make up those empty are human sittings in the later sittings that they have in January, February, March, April. And you know, again that's creating this backlog where right as other work is sort of ramping up, they're having to go back in and fill in for the deficits that they had in the fall.
And they're hearing far fewer cases than they did years ago.
Yeah, that's one thing you know, even Justice Kagan she talked about when she clerked many decades ago, the court was hearing you know, one hundred to one hundred and fifty cases. Now the justices are hearing about sixty. So it's been a really dramatic decrease and it's been a really steady one too. And I started covering the court about a dozen years ago, and the court was hearing about seventy five cases, and now it's it's closer to sixty each year, So it keeps getting smaller and smaller. Nobody really knows why. We know, the justices are aware of this, but nobody has really been able to pin down why it is that the Court's hearing so so fewer cases.
And Justice Kagan said that even she doesn't understand one part of this process.
One part of it is a little bit unfathomable to me, which is, for whatever reason, we seem to get a lot of cert petitions that we take at a time of the year where arguments are scheduled in March and April, and those cases are just not realistically going to come down until the end of June. And in fact, even that is very it's a very crunched time period.
Yeah, I think she was referring to the fact that, you know, for some reason, a lot of the really significant petitions seem to be coming into the court sort of in the later months of its term, right when the Court is really trying to get out all of its opinions, usually when the justices are circulating opinions on its most sort of consequential cases, and so it just really seems like all the work is sort of bunching up in the later months of the term, which you know are in the spring and early summer. And so she she didn't really have an explanation for it, but she said, you know, for whatever reason, that just seems to be the case that it makes for a really really busy march in April sitting. And then she said something that I thought was really candid was that, you know, she doesn't think that the justices can really do their best work in those months because there's so much going on. And she sort of told the story of a previous justice talking about, you know, one of his clerks coming to him and saying, I can't make sense of this case. Then he would say, well, when was it decided? Is it an April case? Than if it is, then that would explain why the case didn't really make any sense. So Jessice Kagan was talking about that seems to still be the case decades on.
Is there anything in the way they're handling cases or a green cases that's changed over the years.
I think one thing that you know, advocates that I talked to people who had clerked his court, people who argue with the court, if they say that it seems like the Court is taking bigger cases, meaning you know, these cases that really grapple with big social issues that are really important for the country. You know, I think a lot of times we think of the court sort of handling these run of them most cases about jurisdiction or about you know, burdens of proof, things like that. But anybody who's been paying attentions for the last few terms as the court knows that it's not really been like that. There's been one major case after another, and those cases, you know, they're hard cases. They take up a lot of the court's time. They're more likely to be divided cases, which means that there's more likely to be more opinions, more to cents, more concurrences. All that just takes a lot of time.
The number of concurring opinions has really shot up in recent terms.
It has, you know, I think one of the best examples of this from from last term was the Second Amendment case Brahemi, about whether or not the federal government could bar those with a domestic violence restraining order from owning guns. And there we saw not only a majority and a descent, but we saw many. I think there were five concurrences, and so, you know, in a case that was eight to one, to see seven different opinions was really striking. But I think it's something that people think is going to be happening more and more, as again we have these more consequential cases where the justices be like, you know, they really got to get it right and they got to explain their reasoning.
Yeah, that seemed like they were each explaining their approach to originalism or textualism or right despite agreeing. Now, I thought this was really interesting. You spoke to someone who said that if the court returned to hearing seventy five cases or more, the justices would probably pick up the pace.
Yeah. I think the thinking there is that, you know, if the court is taking you know, fewer cases, and if a larger majority of those cases are really high profile, that all that's going to suck up a lot of time. And if the court were to go back to a time where it was sort of resolving you know, circuit splits or cases where it really doesn't matter what the outcome is. It just there really needs to be some sort of rule for lawyers. But they wouldn't spend so much time on these concurring opinions, there wouldn't be so many dissenting opinions, and it wouldn't create the kind of bottlenecks that we sort of are guessing is happening at the court to kind of push everything back. You know, we really saw that this term when the justices, you know, they used to be sort of a hard deadline that they would not go into July, that that was sort of a sacred time for them to go off and take a break or to do some sort of teaching assignments. But for the second time and a few terms, they went into July. And we think it's probably because of this effect of having so few cases and such a high portion of them being really high profile.
You think about the justices being off from July through October, but are they working at that time?
Yeah, especially now, you know, this is another thing that Justice Kagan spoke about, as well as Justice Kavanaugh and Justice Thomas. We're also speaking this summer, and they all said that they feel really busy, you know, and they're granting sixty or so cases, which isn't as many as before, but they feel like they're working just as hard. And that's because even in the summertime, when they typically wouldn't have a lot of work to do, they're sort of inundated with what we've come to know is the shadow dog at these emergency requests, So they're definitely not on, you know, these vacations like they used to have.
Are there any big cases coming up next term?
So far, they don't think we really see the kind of high profile cases that we saw from last term, which was just blockbuster after blockbuster after blockbuster. But there are some big cases. I think the biggest one is probably the United States versus here Many, which deals with a Tennessee law that is a ban on gender affirming care for minors. That's going to be a big one and hasn't been set for argument yet. There's also another Second Amendment case that's sort of like the bump stock case from last year, this one dealing with ghost guns.
You know.
The Biden administration says that if the Justices strike down this that it could really undo federal gun regulations because people can just take these kits these ghost guns and sort of circumvent all federal laws. And then there's another, you know, important environmental case. The justices have really been sort of dismantling environmental cases under democratic presidential administration. So a few big ones, but again nothing like we saw a last term or a couple of terms ago with abortion and affirmative action. But there's still a lot of time to go.
I was going to say there might be election cases too, coming up, right.
I do think, you know that maybe part of the reason that the Court has gotten off to a slow start as well is that they do anticipate that there will be some emergency election cases that will be sort of making their way up to the justices that will require them to really focus on that in a short period of time. And actually we already see that happening at the course. There's a pending election case out of Arizona that justices are considering on an emergency basis. So it would be reasonable, I think, for them to think that some of those cases are going to come, but of course they don't know what those are going to look like, and.
Of course there is a long way to go. Even before the first Monday in October thanks so much, Kimberly. That's Bloomberg Law. Supreme Court reporter Kimberly Strawbridge Robinson coming up next on the Bloomberg Law Show. Will the Supreme Court take this case? The justices are being asked to reverse a copyright loss in a one billion dollar music case. We'll tell you all about it. This is Bloomberg. In twenty nineteen, a jury awarded a group of major music labels a one billion dollar award against internet service provider Cox Communications, finding it libel for music piracy committed by its customers. The Fourth Circuit reversed part of the verdict and ordered a new trial on damages. Cox is asking the Supreme Court to reverse that ruling, saying it shouldn't be libel for infringement at all, and that the Fourth Circuit Good's opinion would force ISPs to terminate service and the Internet lifeline, where tens of thousands of homes and businesses or else face crushing liability. Joining me is an expert in internet and copyright law. Alfred Jann, a professor at Boston College Law School, tell us about that one billion dollar verdict.
So, as you know, internet service providers provide internet service to people. People do whatever they want with that Internet service, and a fair number of those people do commit copyright infringement. They might download or upload music to the Internet without permission. That's the most common, but movies or books might also be the subject of that kind of behavior. In this particular case, a bunch of record companies sued Coxcommunication because it's subscribers did what I just described, and in this particular case, an automated notice service and automated notices every time they thought they detected someone committing copyright infringement. And in this particular case, the court held that Coxcommunication was responsible for their subscribers infringement, and that's a lot of infringement.
The record labels or the rights holders have said that the ISPs are the only ones in the position to be able to identify and cut off the infringement.
They may not be the only people who are in a position to identify infringers. After all, the fact that they were sending notices to the ISPs suggests that they were also able to notify infringers. It is true that the ISPs are in a good position to turn internet service off and thereby stop infringement. However, I think it's important to understand that there's a bit of a wrinkle here in that internet service is not used just to commit copyright infringement. There are lots of important things that people do with internet service. You participate in work calls or get assignments from your boss, access your health care, you handle your finances, and you pay your bills and investments. Right, you do all these things over the Internet. And so if the expected remedy for copyright infringement is that the service provider would turn somebody's Internet service off, the person whose Internet service is turned off will wake up in the morning and find out I can't get into my bank account, I can't pay my bills, I'm not getting communication from my employer, so on and so forth. So it's not entirely certain, and the law does not make particularly clear exactly what the extent of the Internet service provider is to prevent copyright infringement by turning somebody's Internet service off.
Okay, So then what happened is Cox took it to the Fourth Circuit, and the Fourth Circuit determined that that award wasn't justified, but sent it back for a new trial.
That's right now, The reason for that is that the plaintiff originally brought two different theories of liability against cos One is called vicarious liability and the others called contributory infringement. The vicarious liability theory would probably lead to broader liability, and the jury found the lower court found that Cox was liable on both theory. On appeal, the Fourth Circuit determined that the vicarious liability theory was not valid and therefore only contributory liability could pertain to Cox. And so that's why they wanted another trial on the damages because now that we don't know what theory of liability is actually supporting the damages, that needs to be straightened out.
So is this the first verdict of its kind? Are the music labels going after other service providers?
Music labels are definitely going after other service providers. This might be one of the first cases to get to this particular position in litigation where Cox is now appealing to the United States Supreme Court for relief from the Fourth Circuit's decision affirming liability on contributory liability grounds.
What are the reasons it's giving the Supreme Court.
To take the case, So technically, what Cox will say is that the Fourth Circuit's decision creates a conflict among the circuits that other circuits who have come to consider this particular question of law, although maybe not exactly precisely, have done it in a different way. So the Supreme Court needs to come in and you know, basically straighten the whole thing out right, get the courts all on the same page. Now, Behind that is a much bigger policy question, which is what I was alluding to earlier, namely that Cox thinks it's extremely important for the Supreme Court to tell the Fourth Circuit that before they can impose contributory liability against Cox, they have to show that Cox behaved unreasonably in deciding to continue selling Internet services to subscribers who commit copyright infringement.
And where did Cox get that unreasonable standard?
There are two Supreme Court cases that are fairly directly relevant to this dispute. In those cases, the Supreme Court said that common law principles of fault based liability should govern the development of law. All right, what does that mean in tort law? In common law of tort, right, there are two general theories of liability. Intentional tort I walked up you and punched you in the face because I don't like you, and negligence. I was careless and had unreasonable disregard for your safety. I was speeding, or maybe I didn't brush the snow off the sidewalk or something like that. In this particular case, the Fourth Circuit said that COS should be held liable as an intentional tort feezer that because they knew that their subscribers were substantially certain to commit infringement for all intents and purposes, Cox must have wanted that infringement to occur, and therefore they should be held liable. Now, in my particular view, that is not a correct understanding of intent under the law of torte. First of all, Cox does not want copyright infringement to occur. They're indifferent. They just want to sell people internet service. Second, the mere fact that they are substantially certain that some of their subscribers will infringe does not make them culpable under the law of intent. So, for example, the electric company sells electricity to people every day, and they know that some of the people who use the electricity will do bad things with it. They may shock other people. You know, some people will suffer electric shocks. People may use the electricity to commit financial crimes on the Internet. That doesn't make the electric company liable for that kind of behavior. So I think that the fourth circuits construction of liability under intent based tort law is not accurate, and I think that is effectively the basis for Cox's appeal. It may be dressed up another language, but I think at root that's the conceptual basis for it. They're saying that you've got to do more than say we know our subscribers commit copyright infringement. You have to show that our refusal to cut their service off was also unreasonable. I suspect what Cox would then contend is that it was not unreasonable for us to continue to sell internet service to these people, because the consequences would have been catastrophic to those people. They wouldn't have been able to get their healthcare or get emails from their boss or whatever. It's a little bit like how the electric come and he has to be really careful about turning off your power in the middle of winter. I mean, yeah, that's right, maybe you didn't pay your electric bill, but that doesn't mean they're justified in cutting your power off, right, away because you might freeze.
That sounds very reasonable to me. I'm wondering why the Fourth Circuit didn't see it that way. I mean, the problems with cutting off people's access to the Internet.
Well, mistakes do occur, and so I think there is behind this case a larger question of what the competing priorities in our society are. Right. Let's suppose that copyright infringement was the equivalent of thermonuclear warfare, and it would mean the end of the world. Well, then we would expect people like Cox to go to great lengths to prevent copyright infringement, even if it meant that some people might not be able to handle their investments or communicate with their boss. Right. On the other hand, if we think that doing your job and you know, getting your health care, and you know, attending online classes or whatever is more important than some level of copyright infringement, then maybe we feel differently. So I think that's what Cox wants to get the Supreme Court to think about. I think what the Fourth Circuit fell prey to is that it's true that Cox's selling of internet service enables some people to violate the law, and then they fell into the easy conclusion, then then well, Cox ought to do something to stop it, without asking further what would the consequences of taking the desired action be. So let me give a different example to sort of give you an idea of what I'm saying. Okay, let's suppose that you're driving a car and you're on your way to the hospital and you could speed. Right now, ordinarily we would say yacht, not speed, that's negligent, right, But let's suppose instead that you have a woman who's pregnant and in labor, or maybe someone who's bleeding to death in your car and you're driving to the hospital. Would it be reasonable to speed? Maybe it would be right. And so I think what this case is really about is making sure that courts consider the entire circumstances under which a service provider operates before concluding that the service provider has to cut off the service of infringing subscribers on pain of becoming liable for their misdeed.
Do you have any inkling as to whether or not the Supreme Court will take up this case? I take it you think they should.
I think they should. If I knew what the Supreme Court was going.
To do, I like to ask the question anyway.
I do not claim to have any crystal ball. I do think that the existing Supreme Court pressed in the area suggests that the four Circuit decision was incorrect and that there is a reason for them to step in here and correct the error. But whether they choose to do it now or wait for another case to come down the road, I mean, the justices have many reasons for choosing the cases that they do.
Well.
It sounds like there are some good reasons here, So we'll see what happens. Thanks so much for being on the show. That's Professor Alfred jen of Boston College Law School. Coming up next on The Bloomberg Lawn Show. Malibu, a getaway for celebrities and tech and finance billionaires where two neighbors are currently having a spat about sand. Turning now to the sandbox feud. Malibu. The twenty one mile stretch of beachfront is a getaway for celebrities, tech, and finance billionaires, with the most expensive homes ever sold in California, a state where the ultra rich often get involved in disputes. The latest Malibu fight between neighbors is about stealing sand. You heard that correctly stealing sand from the beach. Here to tell us more about it is Bloomberg Legal reporter Rachel Graff. Rachel tell us about the people who are involved in this sandbox bat So.
The person who filed the suits is the son of the co founder of private equity firm KKR. His name is Jim Kolberg. He bought his beachfront home in Malibu a few years ago for just north of fourteen million dollars, and he is doing the owner of the baseball team the Milwaukee Brewers, who is named Mark at Nasio and at Nasio paid about twenty three million dollars back in two thousand and seven for one of the properties and then over six million dollars for a lot next door.
And explain the sort of mystique of Malibu.
So Malibu is a very wealthy neighborhood near Los Angeles. I mean, it has some of the most expensive homes in californ Ornia. It's known to be a getaway for celebrities and these very wealthy executives. So it's a very well to do area on the California coast.
Well to do is almost an understatement. I mean, what Beyonce and jay Z bought a place there for one hundred and ninety million, and there may be a sale of a three hundred million dollar property there.
So now tell us what this feud is all about.
At Nacio got a permit to repair the private sea wall on one of his parcels of land. So Colbert is claiming that at Nacio is dredging up land on a public beach in Malibu for his own private youth, and that he's disturbing marine life in violation of certain environmental protections and also just causing nuisance to his neighbors, which include Colberg himself.
Would that be against the permit or they're claiming that that's against the permit.
So at Nafia was saying that he is doing everything in accordance with the permits, that his construction is in compliance with the permits. So that is what he's using as his defense, and whether that stands up in court is yet to be seen.
It doesn't seem like a difficult case to figure out what happened. There are pictures of a giant excavator excavating the sand right.
Yes, in the complaints there is a photo of a rather large excavator that appears to be on the beach.
I mean, these are very very wealthy people. Yeah, I mean, couldn't he just get sand from someplace else? Why would he have to excavate the beach?
I can't tell you that. It seems like sometimes the wealthiest people are involved in some of the silliest disputes.
And speaking about silly disputes, there was one involving Bill Gross a few years ago.
Yes, so just south of Malibu. Bill Gross has a property in Laguna Beach and he, according to court documents, had this statue or something to that effect in his yard that he wanted to protect. So he put netting above the fixture, and his neighbors sued, claiming that this netting blocked their view of the beach, for which I'm sure they paid a pretty penny. And so after that, Bill Gross started playing loudly outdoors the theme songs to Gilligan's Island. He claims that he just had an affinity for that theme song because in the opening shot of Gilligan's Island you can see another one of his properties, and so he just loved that theme song, and that argument did not fly. He was ordered to stop doing that and got a bit of a stop on the risk from the judge there. So yeah, another again kind of silly dispute among very wealthy business men in a rich California neighborhood.
And then a fifteen year fight by venture capital billionaire vinad Coast Law over public access to the beach.
Yes, so he's for fifteen years now been trying to block public access through his private property from I guess sturfers try to cut through his private property near San Francisco, and so he's trying to prevent those public people from what he says is his own private property.
Is the beach in front of these homes public?
The beach is public, It's broad beach.
I believe the.
Beach and it is a public beach, which is part of the dispute. Holberg is claiming that at Nacio is taking from this public beach for his own private youth And was.
The Sandbox complaint filed with the California Coastal Commission or was it filed in court?
The complaint was filed in a California state court, but prior to the filing of the complaint, Kolberg says that he launched his own complaints with the California Coastal Commission, which he says has launched an investigation, but they have yet to do anything to actually stop at Nacio from taking this sand. So he did go to the California Coastal Commission to try to get them to stop this behavior, and when they did not do so, he filed a complaint in the state court system.
Is it alleged that this is still going on? Is dredging of the sand?
It is, yes, and so the complaint is asking for a court order blocking at Nacio from taking any more sand and also requiring him to replace the sand that he's already taken.
I'm actually interested to see what happens here. Let us know, Rachel. That's Bloomberg Legal reporter Rachel and that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot Com, Slash podcast, Slash Law. I'm June Grosso and this is Bloomberg
