Section 230 Challenge; Astley Sues Over Voice Theft

videos on their platforms. Congress has been unsuccessful in efforts to reform section to thirty, and the Supreme Court is being asked to step into the controversy and change the status quo, something most of the justices seemed reluctant to do. Here are Justices Elena Kagan and Brett Kavanaugh. I mean, we're a court. We really don't know about these things. You know, these are not like the nine greatest experts

on the internet. Congress draft today broad text, and that text has been unanimously read by courts of appeals over the years to provide protection in this sort of situation,

and that you now want to challenge that consensus. In the first case argued on Wednesday, the family of a US citizen killed by Islamic State in a twenty fifteen Paris Attack argued that Google should be held liable for software algorithms that recommended terrorist videos to YouTube users, but in the first question, Justice Clarence Thomas suggested that companies can't be sued if their recommendation algorithms are neutral about

the kind of content they promote. The same algorithm to present cooking videos to people who are interested in cooking, and isis videos to people who are interested in isis racing videos, So people who are interested in racing. Then I think you're going to have to explain more clearly if it's neutral in that way, how your claim is set. Apart from that. Joining me is Eric Goleman, a professor at Santa Clara University School of Law and co director

of the High Tech Law Institute. Before the Oral arguments this week, there was a lot of gloom and doom concerns about the future of Section two thirty. Do you think the cases sort of fizzled out and the concerns are not as great anymore. I was certainly one of the people who was spreading doom and gloom. I was and remained fearful about the future of the Internet. I do think that the oral arguments exposed just how weak the cases are, that at the core they aren't meritorious,

and they never were. And to be clear, lots of other courts that said that. It was only the Ninth Circuit that opened up the door to these cases that all the other judges had shut down. And I think that the justice is we're more on the side of the judges who had rejected these cases in the beginning than the end. So I think that seeing how weak the cases are gives us some comfort that the justices

are going to reach a good conclusion. However, they're going to do so in a way that I still fear is going to be in strategic loss for the Internet. Before we get to that, let's discuss the plaintiff targeting the algorithms used by YouTube. The first question from Clarence Thomas was that the algorithm is neutral, so you know, show us your case here. Well, they definitely got the point that the plaintiffs are trying to ask social media services to perhaps be something that they're not, and that

troubled them and that gave them some pause. They recognize both the speech implications of changing the social media services algorithms, and they also recognize the potential economic consequences, that there's a lot of businesses that are built on the premise that they can decide what's fit for their audience or not. So I think that the Justices recognized the big strategic issues in the case, and it was great to hear Justice Thomas bring that up as the very first question.

It's set the tone for the rest of their arguments that we need the plaintifts to be very specific why they think liabilities should be post here and in the Gonzales case, I honestly think they never met that challenge. Across the ideological spectrum. They seem to have problems with the plaintiffs arguments, even saying, you know, I'm confused. I'm so confused. Several the Justices said that it should be Congress who changes Section two thirty. So I'm wondering why

they even took the case. It's a great question and one that has vexed me and I think many others from the moment that Supreme Court agreed to hear it. This wasn't the right case for the Supreme Court to

take to understand Section two thirty. I felt that was obvious even from the request to the Supreme court to hear it, and I have to feel like whoever voted in favor of hearing these cases kind of regretted it that they thought the cases were going to be a better vehicle for judicial analysis than they ended up being. So I don't exactly know why they took the cases.

That was always a mystery, and I think that that got exposed during the oral arguments that this was not the right case for the court to really dig into some hard questions. Give us some background on these cases. These two cases were part of actually a larger litigation enterprise that was initiated. It was about twenty lasses filed across the country on behalf of victims of terrorist attacks, all claiming that social media services should be held accountable

for their role in those terrorist attacks. Those lawsuits have uniformly failed across the country except for the one exception in the Ninth Circuit that led to this appeal. And it's so heartbreaking because on the one hand, everyone is sympathetic to the victims. All of them want to see justice for the victims and efforts taken to curb terrorism. But it was so fortunate that they chose these defendants.

These are not the right defendants. This is not the right way to curb terrorism or to provide justice for the victims of terrorist attacks. And so the courts have been clear about that the plaintiffs reach too far in the list of possible defendants, and I felt like that

message really came through at the Supreme Court. They understood that there are trade offs that need to be made in any decision about speech policy online, and that they're not the right ones to make that decision congresses, and that if they overweight the concerns and the victims here, they're going to create other problems for people who are not in court, and those people also have interests and

need to be considered. So you said that even if the justices dismissed the plaintiff's claims here, you're worried about how they come to that decision. Yeah, I am. So. The court usually will write an opinion that says, here's who wins, and here's why they win. And in a clean opinion, they will say, in very few words, these are the elements of the test. The plaintiffs are the

defense method right elements that resolves the case over. But the more modern trend in the Supreme Court has been to say more than they have to, and they start musing or speculating or caveating their statements. So it would be easy for them to say something like Google wins because of Section two thirty, and if they stop right there,

that could actually be an okay opinion. But what they're likely to do is then say, because of the following facts, and if those facts were different, we might reach a different outcome. Well, as you can imagine, every single plaintiff is going to pick up on the caveat and say, well, I think I can make a claim where I can allege the facts that they said might make a difference. And so we're going to just initiate this huge ground swell of new litigation to explore any caveat or qualification

of the Supreme Court puts in. And I don't think they can help themselves to do that. Let's talk about the Twitter case for a moment. That was not about Section two thirty. That was about the boundaries of the federal anti terrorism law. You heard a lot about aiding and abetting, as you did in the Google case. Correct, And just to be clear, so the Gonzals case involves Section two thirty, which is a defense immunity from liability

that covers a wide range of potential claims. The Twitter case only evolved the Anti Terrorism Act one of the many possible claims I might be covered by Section two thirty. That's why there's been so much interest in the Gonzales case over the Twitter case, because of the fact that the Gonzals case could change the law across hundreds or

thousands of other laws. Now in the Anti Terrorism Act, the question is what constitutes aiding and abetting a terrorist organization, and that kind of inquiries exactly the kind of thing that section two thirty has mooted. In the past, plaintiffs have alleged that they could get around Section two thirty in other legal doctrines by saying, I'm not suing them because they were the bad actor. I'm suing them because they helped the bad actor. And Section two thirty simply

says you can't do that. So we haven't seen the kind of cases like the oral arguments we heard in the Twitter case because of the fact that Section two thirty has made those inquiries moot. So every plaintiff can allege that social media or other websites help some bad actor. That's the whole nature of talking to each other online, and section two there has taken away. When we open up that door and look at it like we did with a Twitter case, the justices don't know what to do.

That's just judicial anarchy. Eric. So section two thirty is a defense that Google raised in the Gonzales case on Tuesday. Why didn't Twitter raise it in the case on Wednesday? So my understand is that the court shows to decide the case on the Anti Terrorism Act grounds only, which is of course prerogatives. They don't have to rule on every single basis on which the plaintiff might lose. And so my understanding is that section two therey could in fact be playing in the case if the case is

still open. It's just that the judge put the Anti Terrorism Act in quired first. So in the Twitter case, there were lots of hypotheticals. Banks and restaurants that serve terrorists, people give guns to known criminals, and Justice Alito said, let's say j Edgar Hoover tells Bell Telephone Company that Dutch Schulz is a gangster and he's using his phone to carry out mob activities. The phone company says, we don't deprive people of service based on that that makes

him an aider and a better he was expecting. I think a different response from the lawyer. The aidan embedding question is just a morass of confusion and ambiguity. And in particular, I didn't love the hypotheticals where law enforcement is telling a service that one of their customers is doing illegal activity, because as we know, law enforcement isn't always credible on that front, and sometimes they can use or weaponize their status to achieve things that the law

wouldn't otherwise permit them. And while that happens sometime in the US, that happens all the time in some other countries, and so cheating the government source as an authoritative provider of identifying a criminal or a terrorist or a bad actor is actually just a road to ruin. And so I think the correct answer should be that we can't rely on the government's claims alone. However, if the court has adjudicated that someone is a criminal or terrorist, maybe

we would feel differently. Did the more liberal justices seem to be more open to the idea that Twitter should bear some responsibility for indirectly supporting ISIS. I didn't get a clear partisan divide on any of the oral arguments. It really did seem that each justice was in their own space. And so I think that a lot of the speech related cases, basically put the partisan alignments in a blender, are a lot of conflicting considerations pointing in

different directions. So I didn't see the partisan divide obviously. Could the justices use the Twitter case as a potential off ramp to sidestep any tricky Section two thirty issues? Justice Amy Coney Barrett suggested that in the Google arguments on Tuesday. So they're both relying on the same aiding and ebtting theory. So if you lose tomorrow, do we even have to reach the Section two thirty question here? Would you can see that you would lose on that

ground here? So if the Supreme Court decides that social media companies can't be held responsible for aiding and abetting terrorism in the Twitter case, the justices could up not to decide whether Section to thirty protects the online companies from those claims. Yeah, that is a possibility for the Court to decide that the decision and Twitter could affect the decision in the Gozzals case. I don't know if

they want to do that. They've geared up to hear the cases and do all the analysis, and then they would be basically putting all that work into the garbage. So I would be surprised if they want to go that route. But on the other hand, I could see why they would choose through that because in the end, they know that whatever they say about sexually too there is going to have huge consequences, and if they feel like they're not ready to pine upon it, they do

have that potential eggs around. So listening to the arguments, your best guess is that the justices are going to rule against both the plaintiffs. No, I don't really have a prediction about the Twitter case. It was just too confusing to see where all the justices stood, and I

don't have a prediction. And especially in cases like that where they're trying to figure out what is the culpable mental state of a defendant, there's so many considerations that I don't know that the oral argument questions really preview where the justices stand. They may be stress testing alternative arguments, they may be making statements to their peers, they may be trying to figure out how they're going to keep a coherent line the next time the coupable mental state

issue comes up. Because it comes up all the time in the Supreme Court, that's like a standard issue for them to deal with, and they want to try and be coherent. I do think that Google is likely to prevail on the Gonzales case. I just did not hear enough support for the plaintiff's arguments. But even in that case, depending on how the court phrases opinion, I still am not sure that Google will get a net strategic win. They might get the votes, but the opinion might take

it all back. And just to be clear, these cases are just about whether or not the suits can go forward. So even if the court, let's say said okay, the Twitter suit can go forward, that would still have to go to trial and they would still have to prove

that yes. But that actually sidesteps one of the primary battles taking place in these cases, whether a judge can provide the early off ramp that Section two thirty is best known for, or if they have to spend more money to persuade a judge that they should prevail, and so having to defend a case in court over the course of the standard litigation process is a strategic loss in many circumstances for defendants, they simply don't want to spend the time or money that way, and they'll do

a lot to avoid having to do that. So even if Google or Twitter could prevail at some later stage in the case, if they can't prevail early, it might not matter. They might it might change their decision making just having to defend the case that far. Thanks so much for those insights, Eric, that's Professor Eric Goleman of the Santa Clara University School of Law. Never Gonna Give You Up was not only a huge hit for Rick Astley in nineteen eighty seven, its popularity has been revived

with the Rick Roll Internet memes. So it's no surprise that rapper Young Gravy used part of that song in his twenty twenty two breakout hit Betty Get Money. Did that sound to you like it was Rick Astley who was singing well. Astley says it's a deliberate and nearly indistinguishable imitation of his voice, and he's suing Young Gravy for stealing his voice. Joining me as intellectual property litigator

Terrence Ross, a partner at Captain Yuchen Rosenman. So Terry Young Gravy, whose real name is Matthew Warie, did get the rights to use the music and lyrics from Never Going to Give You Up? So what's the problem here. So the problem with the egal approach Young Gravy or his lawyers took is that they obtained what is known as a mechanical rights license, which is a license with respect to the copyright in the music and the lyrics.

What they did not do was obtain a master license, which is a license to the copyright in the actual recording of the song. So they were licensed up to go out and do a cover using the music and lyrics of the nineteen eighty seventh song, but they were not licensed to actually play the nineteen eighty seven recording. And the mistake, arguably made by Young Gravy is to set out to purposefully imitate the voice of Rick Astley

from the song Never Going to Give You Up? And that is what this lawsuit is all about, not about the copyrights, but about what cal point is known as a violational right of publicity for using somebody else's identity. Have you heard this kind of you stole my voice claim before believe it? Or not June. This is not an unusual cause of action in the courts. There are at least two cases I know of in the Ninth Circuit. There's a nineteen eighty eight case by Bette Midler. There's

a nineteen ninety two case by Tom Waits. Going back further in time, Nancy Sinatra sued Goodyear in nineteen seventy over her these boots are made for walking song, And even further back in time, nineteen sixty two. Bert Lair, the actor who portrayed the Cowardly Lion and the Wizard of Oz and did a lot of other great acting work, sued for the use of his voice back in nineteen sixty two. So, believe it or not, this is not the first time someone has dreamed up a cause of

action relating to the imitation of someone else's voice. I wonder if young Gravy knew what the limits of the rights he had purchased, because he said, at one point we had a different singer and instruments, but it was all really close because it makes it easier legally. So I don't know what advice he got from his lawyers. I don't even know to what extent that he consulted his lawyers. The problem practiced lawyers like myself face in this area with artists that often they don't explain the

entirety of the project that they're setting out upon. They will say, oh, I want to do a cover of Rick Astley's song never going to give you Up, but don't give you any other information. So I'm not in a position to criticize the lawyers or to even criticize Young Gravy here. The problem with a project like this is both the lawyers and the artists and the producers have to sit down and really explore all the possible outcomes. And it doesn't seem like that happened here. So does

Astley have a good case? So, June, We've talked enough about different laws see Seed, that I'm reluctant to ever say one party score win or lose, or give odds. I'm reminded of the famous episode back during the Apollo program when Apollo thirteen had its disastrous incident and was on the way back to Earth and President Nixon called the flight director and asked him, one are the chances of these guys getting back alive and demanded that he actually put odds on it. You just can't do that

either in space missions or lossess. And so I'm going to refrain from giving you some sort of a set of odds here. Maybe Las Vegas can do that for you. But I will say this, on its face, this is

a colorable claim that Rick Astley has brought. On the other side of the ledger, there are some strong defenses to be made here by Young Gravy, and so to a certain extent, this will be an interesting case to follow to see how the court works out both a strong and interesting cause of action versus some pretty strong defenses. So let's talk about some of the defenses that Young Gravy may have fair use, which we've discussed a lot.

So a couple of years ago, the Supreme Court of California, and remember this lawsuit is brought in the California state court system. It's not a federal lawsuit, and so the decisions from the California Supreme Court apply. And back in two thousand and one, the California Supreme Court, in a case that involved the same sort of right of publicity claim, incorporate it into California state law. Right of publicity a transformative use defense, which it stole out of the copyright cases.

And transformative use is an element of a fair use defense, but it's not the complete fair used defense, and the Supreme Court California soft it just to pull out this one part of the copyright fair used defense, the transformative use element, and that is available to Young Gravy here in this lawsuit. The problem might have with that defense is not quite sure how the song that Young Gravy did Betty Get Money transforms the Rick Astley song Never Going to Give You Up. I don't consider it to

be a parody. Indeed, Young Gravy said a number of things prior to the lawsuit in which he praised the song and referred to as being think iconic or just famous, and generally was positive about it. Whereas a parody is a criticism. It makes fun of a work by way of criticizing it, typically to make some sort of social commentary. And I don't think that's what's going on here. And so that's going to be a challenging defense for Young Gravy to make in this lawsuit. So what defenses might

he have? So amongst the other defenses are just a straight up sort of First Amendment freedom of speech defense. The Ninth Circuit has said, if use has some sort of informative or cultural usefulness, then it's immune from this sort of state court challenge. Not sure that the informative prong has anything to do with it, but I think an argument could be made that they're using this in purely an entertainment manner, So they're not trying to sell

a product using Rick Astley saw. They're simply trying to entertain the public. And this is a really important distinction here because in the Bette Midler case, Ford Motor Company had used a person imitating her voice to sell Forward cars, and she brought a lawsuit and claimed that they couldn't do that, that it was a violation of her right of publicity, and the Ninth Circuit said, yeah, she's right. They are trying to sell a product, a motor car,

using her iconic and recognizable voice. And so here this is not being used by young gravy in the sense of trying to sell a product, whether it's entertainment. Most of the successful right of publicity cases come in the context of advertising, whether it be a commercial on television or radio or a print ad of some sort, and it's typically advertising trying to sell a product or service, and this is a song, and so I think that there is an argument to be made by Young Gravy

that the First Amendment protects him in this context. Are the circuit courts united on these issues, so they've been very little of this sort of lawsuit outside of the Ninth Circuit, So it is it's hard to explain or discuss whether or not there's some sort of difference amongst circuit courds. Now in the Second Circuit, I think they would just instinctively jump to the Rogers v. Gravaldi test, which we've talked about before, which provides protection to use

to somebody else's trademark in connection with expressive works. I'm not sure that that would apply here. I mean, young Baby may well make that defense, but this is not that classic use of a trademark. And in particularly, the Ninth Circuit has distinguished these voice imitation cases from copyright and trademark. They've said things along the lines of your

voice is part of your identity. It's like your name, it's like your persona, and when somebody else takes it, it's not the same as taking authorship of work or a trademark. It is something that is so uniquely personal that it deserves and receives a common law special protection in the form of the sport called a rite of publicity. So I'm not sure that the Rogers v. Grimaldi test

would apply here, although you might see it get made. Indeed, I think the traditional trademark sort of defense is nominative fair use for example, are unlikely to apply because the Ninth Circuit at least has said writes a publicity cases, whether it's name, likeness, image, voice, they're all unique to that individual's identity, and therefore they stand separate and apart from the various federal causes of action. Terry doesn't matter how much this clip sounds like Rick Astley. I think

it does. And I played the video of the song, which may be slightly different than the actual song of the recording, but I played it, and I had trouble associating the alleged imitation of Rick Astley's voice with his actual original song never Gonna Give You Up. I just

didn't see it. Now that may be me, maybe my personal impression reaction to the song, and that'll be a factual issue for a jury to decide, and that's important here because as a defendant, you want to get rid of these cases early on, either in motion to dismiss stage or some may judgments. Really don't want to let the case go to the jury because unusual and challenging

things can happen when the case gets the jury. We saw this in the Blurred Lines case, where the Marvin Gay Is State sued Farrell and a number of other people over the song Blurred Lines and alleged copyright infringement, and the jury returned a verdict in favor of the plaintiff, finding copyright infringement and I think awarding over four million dollars in damages, even though I struggled to see the

substantial similarity between the two songs. And that's why you don't want to defend let these cases get to jury. And the interesting thing here, June, is that the lawyer for the Marvin Gay estate and heirs who brought the Blurred Lines case, a gentleman by the name of Richard Bush, is the lawyer for Rick Ashley in this lawsuit. That should prove interesting. Thanks so much, Terry. That's intellectual property litigator Terence Ross of Captain Yuchen Rosenman 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 app podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg