Possible Criminal Charges in Deadly Houston Concert

Nine people were killed and dozens were injured. Joining me is Rachel Phase, a criminal defense attorney with his wy back Phez and Coleman Rachel This isn't the first time Scott has face legal action over his concerts. Are criminal charges possible here? I think there needs to be an incredibly massive investigation that encompasses Travis Scott, Light Nation, the venue, the security team, and all members of the crowd to

determine what happened. So what they'll be looking for in that investigation, particularly as it relates to Scot's role, is if he encouraged the conduct that led to the deaths and the injuries, and if he did encourage it in some way, if that encouragement rises to a criminal act. In Texas, Scott was arrested twice when he encouraged fans at concerts in Chicago and and Arkansas in to ignore security measure and rush the stage. He pleaded guilty to

public disorder charges both times. That's a slap on the wrist. Is that what's likely to happen here? I think the public disorder charges are different than what would rise to the level of a felony, which would be that Scott acted in a way that he knew he was creating an unjustifiable risk given the circumstances, And so if he was creating an unjustifiable risk to his crowd, that would

be a felony in Texas as to disorderly conduct. I think that was a plea deal, and so it was down from what maybe law enforcements thought they could charge him with. How does it play and the fact that this seems to be part of what he does fans

come expecting. I suppose this kind of raucous environment. So the way it plays in and the way negligence always works, has to do with force, the ability, and so it really has to do with his state of mind, and that's where his priors come in, because he already knows that there's been injuries at task concerts and that he has been found responsible for inciting some of those safety breaches. So it really puts him on maybe higher alert than somebody who has not been charged. So it makes this

act more foreseeable. And that's really how a negligence determination, both for civil liability and for criminal liability plays out. Because nothing was intentional. He didn't intentionally kill anyone. It's whether he acted in a way where he was putting these people at risk. Also, the Houston Police chief said he met with Scott and his head of security prior to the event to express his concerns about safety. So that's putting him on notice, isn't it. Absolutely all of

these things put him on notice. He's getting sued by a or concert goer that was paralyzed at one of his shows. It would be hard to say that safety concerns for frankly, all parties involved, including the venue, including the security team, including the promoter, including everyone, safety concerns people were on notice of them. They should have been front of mind based on past events, particularly at Travis Scott concerts. This should have been foreseeable and so what

was done to prevent it? Now becomes the questions. Let's discuss the civil lawsuits that are piling up. They're being filed against Scott, the events promoters and management, including Live Nation, basically for negligence. What would have to be proven if the cases went to a jury. So these kinds of

determinations go back to the same analysis. What was foreseeable and what was done in advance and during the show to take the correct measures for the safety of the crowd and as to the venue and the security and all the people setting up in advance, were those roots in play? Did they have safety measures, do they have emergency measures? Did they have the right amount of people in the fake What was done in advance to make

sure the crowd was faked? And there are a lot of the sports that even before Travis Dot came on that people were passing out and basically the safety of the show was already in jeopardy and all of that should be foreseeable to those in management. Did they sell too many tickets? Did they let too many people in?

All of this is going to be closely investigated and these civil suits will continue to pop up because there were so many injuries and so many deaths, and Live Nation has already been linked to hundreds of deaths and injuries in the past fifty years. According to the Houston Chronicle, they've been connected to about two hundred deaths and at least seven fifty injuries since two thousand six. Does that

come in in a trial, It all comes in. I mean, of course, it matters what kinds of deaths those were, Were they related to crowd management, what kinds of venues that those deaths and injuries took place. What is standard in the industry is what our Live Nations numbers better than other company numbers as it relates to concert injuries and deaths. All of that will be closely looked at.

The concerts are a high risk business in some ways, and so there will always be some sort of injury or deaths unfortunately associated with live events with large crowds. So it just comes into play. What were they doing to react to each of these possible safety issues and

safety management issues for each of their events? What were they doing in response to each of the other incidents, or do they know things and they're specifically not addressing them because it would cost too much money, or they couldn't promote the show in the way they wanted. So it is a large scale investigation and discovery process as it relates to these civil lawsuits. There are allegations that people begged the security guards that were hired by Live

Nation for help, but we're ignored. So it's wondering what they could have done, why they weren't doing anything. Perhaps the security guard could not help one person because he had if he left to help one person to see other people would be in jeopardy. All of this will come down to a lot of witness that pounds. There will be many, many witness accounts. There's video footage, concert goers, security guards, the people that put the plans in place. This is a very large legal issue and issues this

This will be going on four years. Do you know of any other cases like this? I was able to find. Gwen Stefani was sued by a concert goer who was injured at one of her concerts and she was sued along with Live Nation, and I believe the judge dismissed Live Nation from that suit, but said that Gwen Stefani could be held liabel. This kind of issue, with this mass amount of casualties and injuries is new for our country.

There's been soccer stampedes in other countries where over a hundred members of the crowd have died as a results, but those laws are different. Toward laws are different, and that's what a lot of this civil liability will absolutely hanging on. So there's not full precedent for this kind of map. There's been a lot of talk about whether there were drugs and it's a concert, so if there

are drugs involved, could that be used against the plaintiffs? Right, So what will happen is if any of these cases make it to trial, what will happen is the venue will say it was the concert go resplved that there was, and these are this is part of the investigations. What was the concert go? We're doing him or herself to cause the injury? Were they intoxicated, were their drugs? Were they inciting violence? Were were by acting in a dangerous way?

And if they were, how much of the responsibility for their own injury should they take. I think the one thing that is important here as it relates to possible criminal charges and the civil liability is under Texas law that if somebody is found to have committed a felony and they are one of many defendants, they can be on the hook for everything. So I think that what will happen is the criminal issues may play out if there are any charges made, that may come first before

the civil issues conclude. Uh if anyone is charged with a crime, Thanks so much, Rachel. That's Racial Physe, managing partner of Sybeck, Physe and Coleman. Thanksgiving and Christmas may look a little dear Frint this year as the supply chain crisis threatens our holiday cheer, from toys to books to Christmas trees. Disruptions are making things harder to find and much more expensive, something President Joe Biden has acknowledged.

COVID nineteen has stretched global supply chains like never before, and suddenly when you go to order a pair of sneakers or a bicycle or Christmas presents for the family, you're met with higher prices and long delays that they said they just don't have any at all. So what's the legal fallout here? To answer that question is Brian Gardner, a partner at Winston and Strong, describe the different kinds of legal fallout we're likely to see from this crunch

on the supply chain. We've really got a perfect storm here in terms of the fragility of the supply chain and then the disruption that hit it. In terms of disputes, you've got two sort of areas. You could have shippers. When I say shippers, I mean consumers of services like Walmartner, cost Co, right carriers being notion carriers like Marisker. I think you could see service contract breach actions brought by

shippers against the carriers. And I think also really the big question form is going to be the Federal Maritime Commission and whether folks really start to ramp up complaints being filed with the Federal Maritime Commission for violation and the Shipping Act, or whether the Bureau of Enforcement, which is sort of like the prosecutorial arm of the Commission, whether they begin to take action on their own as they've telegraphed they're going to do, separately from those things

case by case disputes. I think there's a big question as to whether legislative action is going to happen, and the Ocean Shipping Reform Act is one such piece of legislation. That's been introduced in the House and is quickly gathering sponsors with something like this COVID, which no one anticipated. Where is the blame to be placed, Well, it's going to be placed everywhere, right, So, certainly folks are looking at carriers and saying the carriers are violating the Shipping

Act or service contracts. There's a couple of different things in play. If you're a shipper, a furniture importer on the West coat Post, and you're a small shipper and you're not getting the capacity that the box carriers, you know, the container carriers promised you, you will blame them for violating your contract in terms of delay if goods arrive late because they got rolled from one vessel to another.

And almost all carrier contracts do not promise that the goods will arrive at any particular time, for any particular purpose, or to meet any deadline under most bills of lading in contracts, so there's blame on the carriers for delay or for not our in commitments. There's blame on the truckers, the drage struckers who moved the boxes from the yard to inland points for not responding, not having the capacity there's blame for chassis providers, which is the truck chassis

that goes underneath the box. There's simply not enough to go around, or they're in the wrong place. If there's no contractual promise that goods will arrive on time, how do you sue the carriers if you do eventually get the goods. I think anybody bringing a suit, a contractual suit against the carrier for having goods that don't arrive on time is going to have a difficult time if they have the standard contract. I think you could bring

a Shipping Act cause of action. The Shipping Act makes unlawful unreasonable practices and it makes unlawful discrimination against shippers. So for example of if a carrier is providing all the good service, the speed, the capacity to a large shipper and scriminate against small shippers, that could potentially be a violation of the Act and the actionable. Where I'm seeing a lot of traction in this area is with demerging detention charges, and this is a big issue and

it's a friction point in the community. Demerge is the charge that the container carrier, the ocean carrier, charges the shippers, say Walmart, for not picking up their container on time at the yard. It sits there too long, they get to say ten days of free time. And if it doesn't get picked up because it's too congested, they just can't get there, whatever the reason. They can't find a trucker, the truckers are too busy, they can't get in, it's

too crowded, it's blocked in. They get charged X dollars per day, and if they don't return that container back to where it's supposed to go, they get charged another fee white dollars per day. The first one is demerged is the cost of not picking up the container on time, and detention is the cau us not returning it on time.

That mounts into the millions or tens of millions of dollars, particularly in this environment where there's so much congestion and problems, and the carriers are charging that, and often the yard charges the carrier, and the carrier may market up and charges the shipper, and so not only are the goods not arriving on time, but then the shippers, you know you're a Walmarts and so forth, they're being stuck with these huge bills for what they view is poor service.

And then on top of that, the ocean carriers are saying, well, if you really wanted it to get to a certain place at a particular time, you can buy one of our premium end to end products. You know, It's kind of like we're all familiar with the airlines, and you know, we were buying airline seats and we thought we were supposed to get a seat to go from A to

B at a particular time. And now the airlines are telling us, well, you know, if you really want to get there on time, you really want to get a seat, you really want to have a place to put your carry ons, you can pay extra. People don't receive that well, and shippers are the same way with these premium products. Are shippers suing at this point? So yes, some UM there have been some actions filed the Federal Maritime Commission,

far fewer than we would expect. And the real reason that we've seen and that the Commission themselves have identified is a fear of retaliation the ocean carriers. It's almost all collected in say nine or ten painter carriers, all the all the capacity, and then they in turn are organized into three UM shipping conferences and you know in many ways it's an oligopoli, and you know the antitrust laws. They have antitrust immunity in the industry in exchange for

being monitored by the Commission. So people are just afraid to file is what we've seen a lot. I think a lot of things you've been settled offline. Some people have filed. There was a furniture importer called MCS Industries filed a suit against Costco Chin Ocean Shipping with the Commission and that just settled recently. I know that there

are others in the pipeline as well. So in this chain, who is likely to get sued if Walmart doesn't get the products that it needs, If Mark doesn't get the products because they're not getting the capacity that was contractually promised to them by the Ocean Carry, the Ocean Carry will get suited. If it's because their truckers don't pick up the goods, there may be a breach of contract action against the trucker. But I think what's really going to happen is that the Christmas goods or you know,

whatever it's it is. It's a issue, right, we're all talking about Christmas presents. Now they're just gonna be late. There's going to be a fewer of them, and ultimately the shipping public and the consumer will pay the price in terms of less quality, and people are gonna start rethinking. There's seven thousand miles supply chain. People are gonna start rethinking, particularly an era of great power competition, whether they want to have a sole source with China seven thousand miles away.

You add to that just in time inventory, you know, which which everybody learned from the Japanese starting in the eighties. You've got a really fragile situation and all it takes is the beating of a butterfly's wings for the whole thing to go to hell or their force masure provisions in these contracts that COVID would fall under. So maybe, right,

I mean, you could try. Um, you know, we maritime lawyers have been writing pretty good contracts for ocean carriers for a long time, and they're pretty they're pretty solid, and you know, I would say that probably somebody trying to bring a force masure um claim. We're trying to sert first and forced masure here is going to have a hard time. Um. You know, first of all, I mean the ocean carriers are disclaiming delay right in the contract, and to claim force the masure here, it's going to

be difficult because it's so foreseeable. I mean, the fact that you and I are sitting here talking about this shows how foreseeable you know, it really is. So I don't think a force masure claim is gonna lie. What would an action on a service contract look like? So there's a contract, right, So you've got a service contract. So carriers can operate on a tariff, which is basically like a posted bill of prices, and then they have a bill of lading, which is their contract of carriacter.

The tariffs sets out the terms and includes the bill and that that's got all the protective language about we don't we don't pay for delays and all that kind of stuff, right, I mean, that could be a breach action for you know, not providing the quality. Most service contracts are just that, right, They promised a certain amount of quality at a certain rate. They can deviate from

their posted tariff, right they can. They can charge somebody less in exchange, for example, for getting more volume, because carriers are typically chasing volume as opposed to running away from it like they are now, so there's a potentially contract action there, but those contract actions are lying courts.

They don't lie before the Federal Maritime Commission. As I said, I don't I think at least with the perspect of the ocean carriers, and we can talk about the truck are separately, but at least with respect of the ocean carriers, what you can assume for if it's not a breach of the commitment, delay is going to be an uphill battle. But at the Commission you can sue for unreasonable practices and discrimination and emerging attention. I think it's going to

be a big thing. As I mentioned earlier, you know, the Commission is very focused on this. The Ocean Shipping Reform Act, the piece of legislation I mentioned, is also focused on this. Um. The carriers have these pake many of them, not all of them, that have these very

opaque billing practices with respect to emerging attention. And it's not clear you know, to the shippers, to the to the walmarts when they're gonna get hit with these charges, and so that that is an unreasonable practice if they if they're getting whacked with these charges for boxes that they couldn't pick up or they couldn't return beyond their control. It's an unreasonable practice and they can get sued for that.

It has to promote freight fluidity because demerge charges. The reason they're justified is because they expect the movement of the boxes. They get them out of the port, they get them back, they keep things moving. If they're not doing that because you just can't get there, you can't get the container because there's too much congestion, how does that promote fre freight fluidity? So you anticipate seeing some

action there in that area. Yeah, um, and I think you'll see some action by the Bureau of Enforcement as well. If things don't debate, if we don't see money shifting to services and the pressure keeps up on the supply chain, I think we're going to see a more muscular and more robust Federal Maritime Commission. They've already done a lot. I mean they've they've done a lot of inquiries. Commissioner dies been focused on fact finding. Twenty nine, they promulgated

an interpretive rule, we're going to merge in detention. They laid down the law about this whole freight fluidity principle. And so they've they put down the markers, they've been conducting investigations, submitting information requests, you know, basically subpoenas to the carriers. So they're watching, they're waiting, and they're getting ready.

There hasn't been a lot of activity yet in the docket, but you know, I think that they will because as I mentioned, there's a lot of shipper you know, Walmart, you know, Ocean, Ocean Service consumer fear of that they will be discriminated against, which of course would be a violation of the Shipping Act. But nevertheless, they they're afraid that if they come out against the ocean carriers, they won't get any any service at all, you know. So

and also you know, it's very diffuse. The shippers are very diffused, right, I mean, they've got there's so many of them compared to the nine or ten carriers and three conferences, and it's factually very challenging, you know, because they might have one one container here, one container there, and there's so you know, each container is a different delay period, each one is a different move and so you know, unless you take a consolidated entity like to

grow of enforcement, that's going to sort of stand up for everybody. There's a lower incentive to bring a cause of action for a shipper. And if if BOE doesn't, then and then Congress will, Congressman John Garamendi and Congressman Johnson will through their act, which has got sixty six co sponsors. What is their act do just broadly imposes new requirements to certify and explain and make more transparent

these emerging detention charges and invoices. Another thing that it does, which is which is really interesting, it imposes new obligations for the carriers to furnish the facilities and instrumentalities to perform their services, including containers. So you know, as a consumer, you think they're going to get your stuff to you in say Peory, Illinois from l A Long Beach. But so the carrier, you know, they've kind of spun off everything after the port except for these end to end

products which I was talking about earlier. So as I mentioned, it's like a huge problem is that the containers are just all in the wrong places and the chassis are in the wrong places or there aren't enough of them, and the carriers are saying, well, it's not my fault, you know, sorry, you know, you know, there's been reports that the carriers are sending back empty containers westbound to China because they can make ten or twenty or or

more dollars to box on that eastbound import. Whereas before they were sending it westbound to make a little extra money. They were sending westbound with the farmers agricultural products. Now it's just not going to the inland at all, and so um, you know, there's a lot of anger there. But you know, they can disclaim the obligation to provide the container and the chassis if the Act goes through.

You know, that language to me looks like it puts the onus back on the ocean carry to make sure that box is available, make sure that chassis availab ball and that that's a huge change and transparency emerge as a huge change. And it also has other things that it does that provides new weapons to the Commission to make them more robust. You know, for example, you know, has new compensation rules that allows the Commission to prosecute or pursue refunds on behalf of shippers who may not

be willing to bring the causes of action. What about truckers, is it easier. Is that an easier cause of action because you're not involved with the Maritime Commission? Well, you know, it kind of depends on what your contract looks like with your trucker. Again, a lot, I think a lot of shippers there's a scarcity of truckers as well, you know, particularly you know in the drage segment, which is what we're really talking about. And so again they're disinclined to

drag their trucker into court. Who can just say, you know, I'm not going to deal with you anymore, and where are they going to go? But you know, they can bring cause of action against them. But what I've seen a lot is that, you know, the the trucking contracts typically say um, here's the conditions of service, and then underneath that there for each move there's like an offering acceptance.

There's a task order, you know, and often they will have two or three dradge providers and so the shipper wah wah right, they will say, um, okay, you know, I have a boxing needs to go from me to be and then the trucker can accept it or not. And so what the truckers are saying now is, you know, we just don't have the capacity. So if you've got two or three and both of them are rolling, you know, saying I can't take that load, how do you really go?

How do you proceed against them for breach? Unless you know you have a particular commitment that they're not meeting, then you can go after them. You know, in terms of volume. My guess is that that the truckers are meeting that volume because nobody foresaw what the volume would be. So it's not that they aren't meeting their commitments, it's just that the demand is higher than it used to be.

One of the things that's really interesting that I've seen is that, you know, say as a shipper, you know, like a big box store with a lot of power, they have capacity commitments from the ocean carriers that say you have to give me however many boxes I need on a rolling, say eight week basis. So those guys have that. But then you know you're small four hundred boxes forty boxes a year importer and say like this

West Coast furniture importer, that guy doesn't have that. You know, he's got something that says you get your whatever you want. You were going to pay for your four D boxes. So you see what happens is that the big box stores they keep eating more and more commitment. And I

mean to put it on the big box stores. They just mean, you know, anybody who has that kind of market power with the ocean carriers, because there's a fixed supply of wrestle space, they keep eating more and it rolls downhill and a lot of and I've seen carriers just walk out on contracts, just say I'm not going to give you your minimum quantity commitment or they call m QC. I'm not gonna give your boxes the little

guy because they don't have to. And those guys bring actions, and you know, typically, you know, the ocean carriers are making so much money that they just stepped them. It's cheaper to walk out on that than then disappoint the big box store or that, you know, the big the

big customer. Thanks Briant. That's Brian Gardner, a partner at Winston and Strawn Unicolors, was before the Supreme Court arguing that the Ninth Circuit wrongly next to copyright and rangement win against designer H and M, and several Supreme Court joices appeared skeptical of the Ninth circuits interpretation of when a copyright registration should be invalidated for errors. Joining me is an expert in intellectual property law. Sham balgan Ish,

a professor at Columbia Law School. Unicolors sued H and M in federal court. Explain what the lawsuit was about and what happened so so the lawsuit itself was fairly straightforward.

Unicolors is obviously a company that manufactures and selves designs of fabrics, and it had registered a whole bunch of different designs, and its sued H and M for copying one of its designs in federal court and um in the actual At the actual trial, the jury concluded that there was in fact infringement and awarded Unicolors a significant

award of damages. And then what happened at the end of the trial, Each and M discovered that Unicolors, when hit it had applied for its copyright registration, had made an error, had submitted inaccurate information to the Copyright Office, and under a provision known as Section four and eleven of the Copyright Statute, it allows the certificate of registration

to be invalidated. And that's what the whole litigation is about if there was inaccurate information that was included on the application for registration with the knowledge that it was inaccurate, okay. And so the district courts found, however, that there was no knowledge of this inaccuracy, and it continues to find, and it found for Unicolors and affirmed the jury award, and I think there was a reduction in the jury award, but it awards the damages the Unicolor and also awards

attorneys fees reasonable costs. Then what happens The matter gets appealed to the Ninth Circuit, and the Ninth Circuit interprets that requirement of inaccurate in formation and knowledge to conclude that, based on the on the lower court's factual record itself and its own interpretation of the inaccuracy, that all that was needed for the invalidation of the copyright registration was that Unicolors should have known about a factual inaccuracy on

the registration information that was submitted, and since that was unambiguously shown on the trial record, its registration was invalidated and it would not succeed. And that's the narrow question on which the Supreme Court took this petition took this case was to determine what kind of knowledge there needed to be in order to invalidate a copyright registration or

inaccurate information. So whether Unicolor committed fraud in filing the application, well so um in technical terms yes, but not fraud. That's not the legal term that's used. They did use

it occasionally. It basically a little bit of background into it was in an eighth Congress makes a change the Copyright Statute to introduce this standard for invalidating a copyright registration for inaccuracy, and it's it codifies this age old doctrine that is known as fraud on the Copyright Office, which is about giving the Copyright Office UH improper information inaccurate information in order to get a copyright registration. But

the statute itself doesn't talk about fraud. And so the whole question technically was about what kind of knowledge Unicolors needed to have had for this invalidation to happen. And Unicolors makes the argument that you know, while we did present inaccuracy UM on on the underlying facts, namely on whether all of the registrations and if you want to talk about the group registration, which was another wrinkle and complexity, making this even more technical. But Unicolor said there was

an inaccuracy, yes, in the facts. However, the legal standard that applies to those facts is what rendered inaccurate. In other words, the inaccuracy emanates not just from the underlying facts, but from the standard for registrability, which has remained ambiguous, and we don't have any clear interpretation until the Ninth Circuit took a particular position on it, and so we did not know when we submitted the registration that we

were inaccurate as a matter of law. And you should apply the standard to mean an inaccuracy on the legal application of the standard to the facts, and therefore you should not invalidate our registration. What was the main topic or what was the concern of the justices during oral arguments? So I think a couple of things. First, trying to figure out what exactly the party's dispute and disagreement was

in terms of their standard of knowledge. What exactly each party meant by its sense of knowledge, was it going to be actual knowledge? Was its subjective knowledge? And really a focus on the difference between knowledge of the underlying fact and knowledge of the legal standard. Is applied to that fact, which renders it an inaccuracy and application right. I think that was the principal concern of the justices, and in some sense most of the questions really turned

on statutory interpretation. I think one of the unambiguous things coming out of today's oral argument was that this is going to be a case about statutory interpretation, where there's going to be agreement that there is a knowledge requirement in the statute based on the plain meaning. But the second question is going to be what is that knowledge

relating to? Is it just knowledge of the underlying facts, like the Ninth Circuit said, or is it knowledge of the legal standard as applied to the facts, namely, knowledge of the legal interpretation to render something an inaccuracy along the lines of what Unicolor is asking for. And I think that's that was one of the main takeaways. The second one was a sense in which how to approach

the question of knowledge. Whether you should look exclusively at the other parts of the copyright Statute which used the word knowledge and have other kinds of c inter requirements, or that you should look at other statutes that have

similar usages of the word knowledge. I think, especially when h and M's lawyer argued there was a lot of back and forth and trying to compare the knowledge requirement under this section to some of the courts prior jurisprisons on knowledge to life and dife how there may be

some differences. Another question that came up, not quite as central as one might have initially predicted, was this issue with copyright troll, which H and M had made an issue of in its brief, basically accusing Unicolors of being a copyright troll. So tell us what a copyright troll is.

Copyright troll at least as not a technical legal term, but it's used pejoratively, no doubt, to refer to a copyright plaintiff who doesn't have a real interest in the underlying creativity that copyright is meant to promote, but whose business model is really built around copyright litigation and and sort of generating licensing fees after threats to litigate right and so H and M was trying to make the argument that you want a lower standard of knowledge so

as to not encourage copyright trolls to file frivolous lawsuits.

I think a couple of justices asked that question Justice to Mayor began with that question, and then Justice brier really pushed on it in oral argument, and I think one of the revelations was the justices didn't really see the copyright troll issue to be a major issue because under Unicolor's argument about inaccuracy needing to be inaccuracy relating to the legal standard, at least, Justice Briar's argument was, well, copyright trolls tend to be pretty legally sophisticated, so they

wouldn't be able to satisfy that burden. So having a higher threshold is really not going to feed into copyright trolls.

So I guess if I were to just summarize that that the core takeaway from the argument argument today was that it was going to be about statutory interpretation, trying to figure out what knowledge means in this particular domain, and and really trying to figure out whether that knowledge word and meaning is something specific to the copyright statute or whether it can draw parallels to other statutes that use the similar terminology in different contexts. There are several

justices who are textualists on the Court. Did you see any division between the textualists and the other justices as to how they look at the statute. I actually did not, and I'm not surprised by that, to be honest, I think all of the justices agreed at the text says something, but that the text is not clear, right. I think where you would see this kind of disagreement would be in a case like Star Athletica, which I had to do with the cheerleader uniforms and definition of design of

a useful article. I think what you you had here was a recognition that the text uses the word knowledge. No one was denying that. Then the second order question was simply how you interpret the word knowledge that is

embedded in the text. And there I think there wasn't the sense that the language is plain and unambiguously clear, that you needed to go beyond the text itself to try and understand the context in which Congress use this word in two thousand and eight, and the context against which you know other statutes that Congress had enacted this.

So I did not see that textualist non textualist division, And to be very honest, and I think part of it is even the justices who are not self identified textualists recognize that they have to begin a question of statutory interpretation with the text of the statute, right, So it's not as though the non textualists don't pay attention to the statute. So everyone agrees that you begin with the statute. Here, the question is what additional components do

you use to add meaning to the statute? And I think that's where, to the extent we see some potential disagreement. It may come in in terms of the sources for interpreting that that second order question of what knowledge means. But I also wanted to add I don't think I'm surprised by this because one of the things we started seeing in the Roberts Court where there's a lot of

disagreement around substantive major core copyright issues. So for example, Oracle versus Google a split decision, or even the one before that p r OH State of Georgia versus Public Dot Resource Org, we saw splinter decision. In contrast to that, on copyright decisions that deal with the administrative, the remedial, or the procedural side of the system, there's been a

significant amount of unanimity in the on the court. Granted, this is sort of a first for the court because it's the first time Justice Barrett has been participating in a copyright decision, So it remains to be seen what role she plays in it, because remember she was not part of the decision in Oracle versus Google, and with the replacement of Justice Ginsburg, it will be interesting to

see what the dynamic is. But before that, the unambiguous reality was that the Court's procedural and remedial and administrative opinions and copyright generated a significant amount of unanimity, and that would be in keeping with the trend that we saw today's oral argument, how do you think that justices will rule here? So there was very favorably predisposed based

on the oral argument to the listener General's argument. The Government intervened basically on the side of unicolors, saying that the Ninth Circuits approach saying that all you needed was knowledge of the underlying fact, and even if you misinterpreted the law because the law was unclear, that does not protect you. That is, they basically said that that was a path breaking, unprecedented opinion that needed to be changed. And I think the justices who were quizzing government's lawyer

seemed favorably predisposed towards that argument. So I think that the Court will come out saying that Unicolor's position is a more preferable one. It does not feed into the phenomenon of copyright trolls. The standard for invalidating a copyright registration is that the inaccuracy must have been included with the knowledge that the legal standard as applied to the fact was in fact inaccurate. In other words, it's not

just enough if you know of the underlying facts. You have to know that as you interpreted the underlying facts, you were representing an inaccuracy who copyright office. That's the way in which I think the Court is gonna come out rather than on the other side. I think principally because there's there's also an underlying policy concern here, which is um Congress and the Court a couple of justices did voice this. You don't want a standard that makes

it very easy to have a copyright registration invalidated. The flip side of the copyright troll situation would be where every defendant who is sued for copyright infringement basically goes and digs around to find some minor inaccuracy in the copyright registration. And then goes back to court saying, hey, look,

I found an inaccuracy. As long as we were able to show some level of knowledge connected to that factually inaccuracy left invalidate the registration and not allow the lawsuit to go for I think that's also a concern because the idea behind the registration is to to not have it be an impediment to having creators go into court to sue for copyright infringement. It shouldn't be an easy get out of jail free pass, and I think the justices were, in my view, seemingly convinced by that concern.

That's Professor sham Balganes of Columbia Law School. 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 into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg