Apple Can't Escape Copyright Suit Over 'Servant'

lawsuit after a district court had dismissed it. Here to help us figure out the plot of the lawsuit, that is, is intellectual property litigator Terence ross A partner Captain uten Rosenman, So Terry in what way does Gregory any alleged that the TV series ripped off her movie? Well, June. Both the movie and the television series, on their face tell the story of a grieving mother who has lost a baby and forms an attachment to a doll, and in both a teenage nanny goes along with the mother and

starts caring for this doll. As if it were a real baby. So there are those superficial similarities which in copyright law we would call simply ideas. With respect to more specific allegations of similarity, there is in the original complaint filed by Miss Gregorini allegations that the plot, themes, and dialogue are all similar. The problem I think that the District Court judge had with this lawsuit and why he dismissed, is that there is a certain lack of

specificity in that original complaint. Gregory did specify certain things such as both nannies form attachments with naive young women whom they compelled to steal a bottle of wine. Similar blocking of shots shock reveals. But the judge said the alleged similarities pale in comparison to the differences. So here's the core problem with the District Court judges decision. In my opinion, it's this focus on differences between the two works.

That's not the legal standard from the Ninth Circuit and other courts have said, we focus on what are the similarities and not what are the differences. This is not a balancing test where you put on one side the similarities, on the other side the differences that there are more differences than similarities. Therefore we're going to dismiss the lawsuit. No,

that's not the way it's done. The way it's supposed to be done is you focus just on the similarities and ask yourself, are there sufficient similarities that a reasonable juror might find copyright infringement. That's not wealth spelled out in the Ninth Circuits decision reversing the discord judge. But it is the one thing that jumped off the page at me in the District Court judges decision and was probably working on the minds of the Appellate Court judges,

even though they didn't expressly articulate it that way. Tell us more about the Ninth Circuits reasons for unanimously telling the judge you can't dismiss this lawsuit at this stage. So the decision on appeal largely focused on procedural elements, and these procedural elements have been a bug a book in the Ninth Circuit in copyright cases for over a

decade now. The way the cases involving substantial similarity, remember we're not talking about literal copyright infringement, where you put the book on the xerox machine and just copy the pages or you simply run the movie without authorization. That's literal copyright infringement not at issue here. What is that

issue with substantial similarity? And for substantial similarity we apply a two part test known as extrinsic test and the intrinsic test on a motion to dismiss, which, in general civil litigation in the United States federal court system is rare to start with, and even rarer in copyright cases. But on a motion to dismiss, all we consider is the extrinsic test. And the extrinsic test asks whether there

are similarities, remember, similarities, not differences. Where there are similarities between plot, themes, dialogue, mood, fetic, characters, and sequence of events that are considered protectable elements under copyright law. So what should a district court judge do? Then? The just first thing the distrect court judge has to do is decide what's protectable and what's not protectable elements. So the general idea of a grieving mother is not protectable under

copyright law. The idea of all being given humanistic features being treated like human is not copyrightable. The fact that you focused on inducing a boyfriend to go steal a

bottle that may well be copyrightable. What did not happen here at the discord level was the judge never attempted to separate the wheat from the chaff, to figure out what were the copyrightable elements and what were the non copyrightable elements, and then say, well, these copyrightable elements do have some similarities such that reasonable juror might believe there was copyright fringement. That's what the district court did not do, in which the Ninth Circuit really wants to be done.

On a motion to dismiss, the Ninth Circuit said that dismissal of the lawsuit at this early stage was improper because quote, reasonable minds could differ on whether the stories are substantially similar. My question is, don't reasonable minds always differ on whether these things are similar? I mean, it seems like it's very subjective. You're absolutely right, June. And that's why the Ninth story that followed those comments with a suggestion that it would be more appropriate here to

allow x birts to weigh in on this batter. And

this has become increasingly common in the Ninth Circuit. We see experts being used more and more in copyright cases, and I would say there's a definite trend in the Ninth Circuit to almost requiring some sort of expert input before some rejudgment or motions is mrs granted In particularly, I think the court here wanted experts to weigh in on whether the elements identified in the compliance being substantially similar were simply where known as scenes up fair the

common settings, common ideas, common themes. Is it common to have young teenagers try to get people to steal app all for them, But these are questions that are appropriate for experts in the field of film studies and film criticism who could weigh in. And the court pretty strongly suggested that on close calls, the court should allow experts to express their views on which elements are copyrightable and which are not copyrightable, and then the court can make

a decision. Don't you end up with experts on either side of the issue. The plaintiff brings in experts that support her claim, the defendant brings in experts that support his claim in this case, and then the judge just decides which expert he finds more credible or worse. The judge decides that he or she cannot make up the mind over which one is better, and just turns the whole mess over to the jury. This is the core problem in the Ninth Circuit in copyright case these days,

cutting across medium. We see it in in the music cases, we see it in the film and television cases, and we see it in comic book cases. In regular book publishing cases. The Ninth Circuit seems to be making it so difficult to get rid of a non meritorious lawsuit allegend copyright infringement in an early stage that it seems like every copyright case has to feel the jury. And that's not right. That's not the way the federal Silver procedure system is designed to operate. We have motions to

dismiss allowed. We have some reary judgment emotions allowed, specifically to read out weak lawsuits in advance and not the bird in the jury system. And yet the Ninth certain seems to maybe making just so hard for a defendant to get out of a lawsuit that they almost are going to get to that point where they stop fighting them and just start paying off claims from play offs. Well, it's also really expensive, isn't it because you can't get rid of it before discovery and you have to start

calling experts and prepping for trial. I mean it. It makes all these cases really expensive so they may settle them. And that's absolutely right, and often very expensive visa v. The potential damages at stake in the cases I mean experts charge on an hourly rate basis, and in many cases are as expensive or more expensive than the lawyers involved in the case. And so it adds onto the burden that the defendant has to endure to get rid

of the lawsuit. On the other side of the equation, the copyright planet is austen represented not always but often represented by contingent fee lawyers, and so is not incurring a similar burden of expense. This is the third time in at least two years that the Ninth Circuit reverse to federal judges decision to dismiss a copyright lawsuit. It also happened with the first movie Pirates of the Caribbean

and The Shape of Water. And in the Shape of Water, discovery led to the plaintiff agreeing to dismiss the case. Do you know what happened there? Well, that situation is very rare. I have seen situations where discovery proves that a copyright in nitment cases so meritless that it makes no sense for the plaintiff to continue it. Particularly the plaintiff lawyer with no prospect of a recovery, will not want to invest time and money in it. But that

is very rare. I don't think that we can, as a judicial system simply assume that discovery is going to get to the truth or the bottom of the facts and it will resolve itself. I think in the overwhelming majority of cases, discovery does nothing more than tee up a summary judgment motion, and under the standards that are emerging in the Ninth Circuit of District court, judges are reluctant to take sides in a battle of experts, and so that means the case simplice goes to a jury trial.

Most of the lawsuits having to do with movies and TV, the Hollywood type, are in the Ninth Circuit. We've often talked about how the Ninth Circuit and the Second Circuit are the two circuits that are well known for copyright claims. Does the Second Circuit treat these cases the same as the Ninth does? So the Second Circuit has a comparable two part test involve in um, the court assessing the

extrinsic test and a jury assessing the intrinsic test. So these are similar, and indeed the remote origins of that test stem from cases in the Second Circuits the first part of the twentieth century. What is different is there seems to be a greater willingness in the Second Circuit to accept a district court's judgment with respect to either

a motion to dismiss or summary judgment motion. We have far more music cases in the Second Circuit than television and film cases, um, and so it's hard to know how the Second Circuit would react in these television cases, but they're just does seem to be a little bit more willingness at the Second Circuit to except the district court's decision below. The Ninth Circuit, in contrast, seems to be trying to make it as hard as possible for a district court judge to get rid of a dubious

copyright lawsuit without resorting to trial on the merits. Is this a new trend in the Ninth Circuit And if so, is there something that set them off? Can't identify any single fact that set them off. But as you said, this is not brand new. You mentioned the three instances in which the Ninth Circuit has in just a couple of years now reverse district court decision prior to a

trial being held. In my mind, this trend, if you want to call back, goes back at least a decade, and I'm sure if you studied earlier opinions you might find the seeds of it. But I would not say it's brand new. I think there's just this notion in the Ninth Circuit jurisprudence that it is very difficult to determine the validity of a copyright infringement claim short of thorough discovery, and that is starting to reflect itself in

decisions that we see. That's just this case. Thanks as always, Terry. That Terence Ross of Caton Uton Rosenman. The Supreme Court refused to reinstate Bill Cosby's conviction for sexually assaulting a Temple University employee. In two thousand four. The Court rejected an appeal by Pennsylvania prosecutors in a case that became

an emblem of the me too movement without comment. The Justice has left intact a Pennsylvania Supreme Court ruling that the state renegged on an agreement not to prosecute Cosby. Now eighty four. Cosby was released from prison last year after serving almost three years of a three to ten year sentence. Joining me as Greg store Bloomberg new Supreme Court reporter. What was the basis for the appeal to

the Supreme Court? Well, the Pennsylvania's Supreme Court throughout Cosby's conviction, and what the court said was back when the first district attorney to look at the case decided not to prosecute, he put out a press relief in according to the Pennsylvania Supreme Court, made a promise that Cosby wouldn't be prosecuted. Then in a civil suit, Cosby relied on that decision, according to the Pennsylvania Supreme Court, and testified in that

civil suit and incriminated himself. And then a different district attorney came along and said, I AM going to prosecute and I'm going to use that civil testimony in the prosecution. So that's why the conviction was thrown out in the first place. And Pennsylvania prosecutors went to the U. S. Supreme Court saying that the Pennsylvania Court had misunderstood the Fifth Amendment and the righting and self incrimination, and that

Cosby's reliance on this alleged promise was not reasonable. And what was the argument of Cosby's attorneys to the Supreme Court as to why it should not take the case. Well, Cosby's attorneys said, there's no reason to take up this case. This is a very fact specific case that won't really apply more broadly than to Bill Cosby. Causby's attorneys said, it's not just about that press release that said that

the distct Attorney had decided not to prosecute. There actually was an agreement, a non prosecution agreement, and Bill Cosby relied on that agreement. It doesn't matter what exactly the press release said. There was an agreement, and therefore his sithemen that rights were violated and the lower court got it right. That's what struck me. What's the legal question of the Supreme Court would decide because the whole theme

seems based on the facts of this case, the odd facts. Yeah, and that maybe why the Supreme Court decided not to take up the case. They may well have agreed with that assessment from the standpoint of the prosecutors. They said, the legal question here was that they didn't require The Pennsylvania Court did not require Bill Cosby to show that his reliance on the statements of the district attorney was reasonable, And they say that's a legal air. The courts should

have required a showing that that Cousby acted reasonably. But we don't know what was said by the district attorney to Cosby's attorneys beyond the press police. Certainly, what Cosby's lawyers argue, what the Pennsylvania Supreme Court found was that it wasn't just the press release that he was relying on. That there was evidence that there was indeed an agreement

that he wouldn't be prosecuted. And the motivation, they say for that agreement was that the district attorney has decided that it would be better to let the civil case go forward rather than hold the possibility of prosecution over Cosby's head and thus keep him from being able to testify in that civil case. This was one of the first major milestones of the Me too movement. So this case has gotten a lot of publicity, and you know,

prosecutors feel they have to keep pushing. Yeah, there was certainly a lot of As more and more women came out with allegations against Bill Cosby, there certainly was more pressure hun prosecutors to bring a case. Uh. This was really an emblem of the me too movement and um the decision to overturn his conviction was very much a blow to people on the side of trying to hold

people accountable for for sexual misconduct. And the court also rejected a group of New York City school workers who wanted to stop the city from firing them because they hadn't gotten vaccinated. That was along the lines of other decisions they've made. Yeah, this is the same group that was turned away on February eleventh by Justice Sonia so of Mayor. She's the justice who handles emergency matters out

of New York. And what the workers did was to file with another Justice, Neil Gorsch, who then referred to the full nine member court. And so today the full Court did the same thing. So to Mayor, did it turned away the request and said not going to intervene on behalf of these workers who most are all of whom have essence been fired. Is that often done? If one justice turned you away, you go to another justice I thought they each had certain circuits that they handle

appeals from. It's always a possibility. Usually it's not done in part because the justice who handles the emergency requests always has the ability to confer with his or her colleagues to kind of take their temperature and see if anybody else disagrees with with their assessment and whether it might be more controversial. But in this case, the workers decided might as well give it a shot, but it didn't work. It used to be more common, and it's

especially common in death penalty cases. Thanks Gregg. That's Bloomberg News Supreme Court reporter Greg Store and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast slash Law, and remember to tune in to The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg