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It's entertainment law update episode 149 for September 28 2020.

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Music.

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Hello, hello, and welcome to another episode of Entertainment Law update from Los Angeles, California, I am Gordon Firemark.

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Hey I'm from the Dallas Fort Worth Metroplex I'm Tamara Bennett and we are so glad that you were here for,

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Today's episode this is the podcast about entertainment law where each month we pull together a round up of legal and business news stories and share opinions and commentary and analysis and just try to have a

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Sort of a good time with everything. How you doing?

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To get through the intro but we're here today and we're ready.

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It was the third time and thank you for outing me. Okay, sorry.

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I'm doing great i'm doing great getting ready for big trip to Europe

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I'm getting ready for a big trip to Europe. Super excited about that. We are going to be in Austria for a few days in Barcelona for a few days and then we're doing a trans Atlantic cruise. Oh, wow.

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So that'll be fun. I know it'll be itch. I hope so. It should be. It it should be a blast. So, very excited. We we've had the trip plan for over a year and then,

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Tacked on the Austria part once we knew Brock was moving to Austria. So,

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Voyage.

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No conception. Oh, wow.

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A year there and the year was punctuated by a birth so.

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New things I never knew about Gordon Firemark. For all the good it does me. I guess if I wanted to pay taxes in England as well as the US I could.

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Well, enough about how I was conceived.

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Oh my goodness. Well, we haven't interesting rundown of stories this this month and let's just jump right into it.

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Spencer Elvin Spencer is the baby you may remember who appeared on the cover of the Nirvana album,

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Never mind,

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Of the 91 never mind album.

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Over the cover that featured the picture of him naked as an infant.

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And in response to defense noted that he had suffered no injury in fact he had spoken positively of his experience while finding numerous ways to,

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Capitalize on monetize his fame as the Nirvana baby,

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And they moved to dismiss the case on statute limitation grounds arguing that he hadn't filed his lawsuit within 10 years of his 18th birthday the date on which the statute of limitations begins for these kinds of childborn artifie claims.

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He initially missed the deadline, To respond but the court late until respond to the motion. Excuse me, but the court later let him remit the filings to address that issue on the statue of limitations.

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And in the new filings he argued that I'm doing exploitation of the album cover and resulting injury,

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And in the courts view dismissing the case they said no that theory would basically allow them to sue the defendants forever in perpetuity and the gate the entire purpose of having a statue of limitations so,

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He has set the intense to appeal the dismissal to the ninth circuit we haven't yet seen that appeal filed but.

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You know, for now, it's over. Nirvana has succeeded. What are your thoughts?

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I mean I think there is a real statue of limitations issue,

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We've discussed this multiple times over the last year as the case has been proceeding on all kinds of other issues regarding the child pornography with there be such an album cover today,

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No. Right?

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Takes it up and feels like there so,

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Hey issue that needs to be resolved on the statue limitations because they didn't make a ruling on the other issues attempt to mine knowledge they just.

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Kicked it out for that.

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As expeditiously as possible and then the statue of limitations is a fast and and.

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Rereleasing something or those kind of we just have to say enough stop.

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We'll see. Okay, I could not,

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Obviously famous Quentin Tarantino film.

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John Travolta.

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Hey.

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I don't know that I made it to the end. It is a very,

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Like many Tarantina films it's a very full of violence and and I want to gore but there's a you know a lot of stuff that sort of hard to look at,

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Yeah. Yeah, there was a lot of stuff hard to look at. If I did make it to the end, I would never watched it a second. So, anyway,

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Tying 1996 to 2022 are non-funishable tokens NFTs.

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There you go.

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Own the car owns the copyright to the screenplay Miramax who released the film owns the copyright to the movie to the film

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In November of 21 tarantino made a public announcement saying he was gonna release NFTs from politician the film.

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Which,

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He probably didn't own those any replace those with some more generic.

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Images and when she may have had the ownership anyway the details of the agreement are not disclosed but there has been a settlement between the two parties and that they're going to collaborate on future projects I think Terrantino was hanging this on the phone,

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That his grant.

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Yeah what's the name of tea is it

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Yeah.

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Kind of a tidbit, quick take, interesting thing to think about is what is that relationship when they're,

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Hey which is often the case with NFTs there are multiple copyright owners involved in what's going to be released,

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Print it as an FT.

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I'm of the perception that the NFT.

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And there's still there going strong but.

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People now understate people who are trying to seriously do this now,

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This is harder than licensing a piece of music.

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Required to in different places to go secure those rights.

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Yeah,

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Other kinds of issues come up in the NFT space. I think this isn't the last we've heard of it.

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Not on this case in particular but these kinds of issues about infringements within NFTs and and,

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Not just copyrights but trademarks and rights of privacy and publicity as well other other kinds of stuff have a lot of potential here. I think there's a lot of variety of publicity issues. I mean that's where I've kind of,

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Projects I've seen or or heard of is you know it's,

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Well, I always give the example. Let's go back to almost to 1996 but early June 2 thousands where I received a phone call from a person.

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Interesting.

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Real to real or Alright. Doesn't mean he owned the recordings. Yeah. And just because you might be in possession of a picture of Alvis doesn't mean you own. Now, this is right of publicity.

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But yeah all kind of people are trying to then take these things that they have physical possession and somehow think they can turn it into an NFT

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And not have to get a license.

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Similar issues, you know, yeah, you've got the physical possession of the of the article, but.

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You know, you can't use Elvis' likeness for commercial game without some help from,

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Other people.

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Or maybe.

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Music entertainment,

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It was really 2010. Gosh, long time. 12 years since he's gone. Okay. Well, more than toys.

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They were planning to release this posturous album containing these unreleased vocal tracks allegedly made by the singer Michael Jackson

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Jackson's mother, several of his brothers, two of his children, some nephews, and a couple of former music producers.

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Raise some doubts about whether or not three of these recordings were actually Michael Jackson's voice.

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And Sony and an attorney for the estate fired back with a letter that said,

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A long way before my musical director and former musical vocal director forensic music colleges that they they.

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Got their experts to say they believe that it was in fact Michael Jackson's voice on these disputed tracks. So they moved forward with release.

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And an album cover that stated on the back this album contains nine previously unreleased vocal tracks performed by Michael Jackson.

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A long comes vira sarova,

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Album allegedly relying on that album cover and a commercial for the album and statements from the Jackson family friend made an episode of Oprah,

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And the letter from the estate all of which directly or indirectly stated that Jackson had indeed selling these vocals on these tracks.

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Audio expert to analyze the tracks and that expert said it's very likely that it wasn't him on the tracks. Okay, so I just have to interject here. Yeah.

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What person decides I should go higher an audio expert to figure this out.

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Hey that's what I just I made some I was making assumptions that somebody did this with the sole purpose of we're going to save.

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Not to cast dispersions on this plane if miss Arova but,

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She asserted that, you know, the family, friend, knew the Jackson wasn't the vocalist, you know, so why would you buy the thing if you had suspicions?

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Unless you are planning on suing and why would you go investigating,

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Yeah. The recordings are the albums are.

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Poor quality,

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Sony was advertising this falsely which is, you know, okay, fair enough that,

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The whole fact situation seems a little peculiar. Anyway, Vera Sarova is the plaintiff now in a putitive class action lawsuit on behalf of California purchasers of the disputed tracks. Alleging violations of the consumer legal remedies act.

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And unfair competition law here in California for the marketing of these disputed songs,

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Directly with those statements made on the Oprah show and indirectly through the deception of Sony so Sony has filed a motion to strike under California's anti-slap statute.

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And,

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By the anti-slap statute she zoning further argued that the consumer deception claims like merit because the speech was non commercial.

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Jackson didn't sing the disputed crack tracks were correct,

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Granted the motion Holding that the letter from Jackson's estate was non-commercial and not subject to the consumer protection laws and,

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So Sonia Peels. Sarova did not but so the estate letters no longer part of the dispute but Tony appeals and the intermediate court held that the album cover statement and commercial were more than just pure commercial speech and therefore not subject to consumer regulation statutes.

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So, while the case is going on, the California Supreme Court decided another case dealing with first Amendment and corporate speech.

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So it sent to that case back down to the intermediate court would you reach the same conclusion as it did the first time.

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After returning to the the California Supreme Court Sony notified the court that a settlement had been reached but later Sarova informed the court that the settlement wasn't finalized and asked the court to continue the analysis.

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Strange.

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Attorneys.

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Wanted the court to reach an opinion,

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There we go. Anyway, so the court has held now that commercial speech can certainly be limited or entirely prohibited. In order to safeguard the flow of accurate information to consumers,

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You know the the idea that commercial speech can be more easily verifiable by the disseminator.

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Likely know has more information,

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Interesting,

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And the speech of issue in question is commercial speech when you look at the three elements the speaker the intended audience and the content,

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The speaker is Sony. They're promoting an album for sale, the intended audiences, the potential purchasers for the album and the content is the statements

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Which appear to be traditional advertising kinds of context. So, the court noted.

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Further that the album is an expressive work but,

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When it's a product for sale,

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That that's a factor as well and the statements that issue were not inextricably intertwined with the expressive work,

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Sales material for the album so Sony also tried to argue it was unaware of the possibility that it's statements and indications that Jackson was in fact the singer could be false,

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And the court said. Lack of knowledge doesn't make the speech non-commercial so sort of a strict liability if you make a misleading statement even though you didn't realize it was misleading you can be held liable.

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Yeah. Hey so I was wondering why this didn't get filed as like a federal trade commission,

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Advertising and and then my brain kicked in and realized there's no.

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For the for the individual playing to if they go that route.

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Oh, yeah, yeah, yeah, yeah. I was trying to remember, wasn't there a time when.

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You know

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That was a group of sushi

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Finally decided to be deceptive. I don't remember. Yeah.

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Hey, hey, hey, who knows?

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Well, I guess you'd have to go under the lanimac for false and misleading. You would. There's not a you could notify the FTC but there is no.

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Consumer damages.

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I do not believe. I'm not a no way to do a class action. Right, right. So, when there's no real money damn, I mean, you know, what did you spend on the album, right? 2030, bucks.

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Right what are the actual,

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Millions of people who bought the album.

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I personally love evil.

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For people who don't know who evil can able is he was a very famous,

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Daredevil motorcycle.

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Recollections is there anyone that even comes close to evil enable when it comes to,

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Other than his son who I think has taken up the mantle,

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Can you think of anybody? No, I I think he's.

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And he may be the only person in the category,

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Have seen the original toy story. Many, many, many, many times,

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I have not seen,

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Watch Toy Story four.

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Hey motorcycle daredevil stunt character in Walt Disney studios and pixars film toy story for.

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It's based on a figure from Canada who's a boisterous motorcycle riding daredevil

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And K and K or that's the allegation that K and K.

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Promotions who owns the rights to the American daredevil evil

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Disney studios saying that hey,

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And you saw merchandise with this character and his motorcycle and his flapping cape

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Behind him. You also violated the right of publicity under Nevada law.

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And so the district court dismissed the trademark action under the lanimac and the Nevada state law and then K and K who's evil can evils,

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Owns the right appeal to the ninth circuit.

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We apply the tests at fourth in Rogers Vega Maldi and we we've talked about Roger V. Grimaldi, mini, mini times.

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In the ninth circuit because there's a circuit split which I think is,

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Only comes into a fact after they've done the Rogers analysis,

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Two step which is one

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The use of the trademark is not artistically relevant to the work.

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Hey war that usage explicitly misleads consumers as to the source of the content of the work.

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So, the court looked at Duke Kaboom who if you look at it, his costuming is different. His facial expressions, he has facial hair.

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People can evil didn't have facial hair that's all different but the court did say there was artistic relevance which makes me wonder well maybe they found there was some similarity then.

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And then it went on to look at misleading,

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Evil Knievel did and to the extent which Disney.

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And that's really what they hung their hat on for that the characteristic,

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Well, evil.

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There's added significant expressive content.

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Which is different from evil by creating a character with a different name, appearance, and a different back story

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Disney did not in any way suggest that evil can evil was involved in toy Story four or was his name mentioned in the film and

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And for all of these reasons the court said that K and K did not stay the plausible claim that survives the Rogers test and dismissed,

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In the district court dismissed the landmark claims as to write a publicity under Nevada law.

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Disney claim that Duke was a transformative use.

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K and K claims that Disney violated the writer in and at the claimers bar the right of publicity claim.

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The court said they consider various factors to balance the dependence first amendment rights when the plains claimed right a publicity.

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So the court said these factors favor Disney because the Duke Kaboom action figures,

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More than a mirror lightness or literal depiction of evil canable.

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The character might be reminiscent of canable. So, this is where cameras interjecting cameras opinion again.

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I don't think there's anybody besides him.

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So, if I remember correctly, this character in the movie, you know, he's he's wearing motorcycle garb with a cape that has, you know,

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Stars in red, white, and blue motifs and those kinds of things. All those these portrayed as Canadian and the movie as well. So, but.

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You know so to me it feels a little bit like a trade dress kind of a vibe.

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So, I looked at the picture side by side. So, evil canable is famous for wearing a red, white, and blue.

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So, at the generic level or descriptive level, they're the same.

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But when you get into the actual detail of the two they're not.

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Let's just finish this the analysis so even if the character is generically reminiscent the district court properly concluded not a literal depiction and shares these general common features that are basic to stuntman,

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And then they look at the economic value of the toy action figure.

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But it reflects the success of the toy story franchise and it's popularity among children and frankly just the Disney brand.

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I think that's the right ruling.

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But for evil can evil would this character exist?

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Well, yeah, I mean,

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The people who were the first.

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No I mean it's almost like I mean I don't know who who is with the character,

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Woody based on. I mean, you know, is that for Rogers?

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You're right. I mean how far do we do we take this and they're probably other famous motorcycle riding dare devils who are,

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Nothing. Well, no, I'm not famous motorcycle riding there. That was. Let's talk about the Disney, the toy story a little bit more because there are some things in there that do raise some questions like the the toy dog that's a slinky. You know, the. Oh,

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Or the mister potato head character do the creators of those toys have brand rights that are.

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In order to be in those I suspect yeah.

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Although it's not a trademark use when you have mr potato head and missus Potato Head has characters in your movie,

28:54

I think it is the exact same analysis but don't you think they went and got clearance from,

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Asborough or whoever owned those rights?

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This is not going to be because I don't think,

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This comes down against Disney.

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Right because in other jurisdictions they first say is there a likelihood of confusion?

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Bin,

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In the ninth circuit they do Rogers Veg Gramaldi,

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Then they do the analysis but I don't know that they've ever reached the likelihood of confusion analysis once they do Roger to be grammality so,

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I'm sure there have been cases that have gone. But have not met Rogers,

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Let's talk about epic and the dance move,

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Litigation back in April you may remember we we talked about professional choreographer Kyle Hamagami

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Who has worked with the likes of Britney Spears and in Saint and other pop superstars filed a copyright infringement suit against epic games another one of these lawsuits for ripping off an element of one of his dance routines,

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Hanagami whose choreography of the I don't know how to say Charlie's last name. Is it? Okay, Charlie Puth's song, how long?

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The video has over 35 1 million views on YouTube.

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This choreographer claimed that epicame stole the hook section of the dance for its

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It's complicated emote in Fortnite without its consent and emote is a dance move or other action that Fortnite players can purchase for their characters to perform within the game.

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So Anagami's choreography debuted in 2017 and the it's complicated emote was released in 2020,

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Lawyer showcased a video displaying the similarities between the choreography and this emote,

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And district court judge didn't buy it. Stephen Wilson

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The judge instead found that the two works didn't share enough creative elements,

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For the used to be considered infringement and dismissed the lawsuit

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Choreographic works are the subject to copper protection but the protection doesn't extend to social dance steps and simple routines.

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Even if they contain,

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Epic successfully argued that the moves in the two works were too generic to be protected by copyright and relied on some guidance from the copperhead office and in making that argument

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So Judge Wilson relied on the fact that the copper officer said previously rejected the claims regarding other dance moves they the floss and the carlton dance,

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But found protection for steps incorporated into larger bodies of work and the judge here said

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Epic cannot copied enough of Hanukkah's routine for it to be considered infringement so so it sounds like sort of a diminimus argument

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No. We've talked about the dance moves issue with Carlton when that was all came out back in episodes one 0510 7116

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And I did put into the show notes copyright office circular 52 which talks about the distinction between social dance

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And choreography that's.

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Protectable. Yeah.

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Dancing the Charleston or the Carlton,

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Probably, well, they are. The court has said they are not. That's social dances. So, I guess that means like the boost scooting boogie line dancing isn't protected. I know that we've talked about that before.

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What's interesting because you know in this instance the choreographer created the dance moves what created the dance,

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For use in a music video so it's in in the context of creating an artist working more like the drum robins work for for.

33:27

It sounds here like Judge Wilson is saying, yeah, even so, it wasn't enough. It would, you know, this was.

33:33

A social kind of lifting of a little tidbit.

33:37

And I don't.

33:44

They did a fair use analysis which to me would go into the you know the four prongs of how much of the hole did they take,

33:52

They didn't I obviously they didn't feel like they needed to get to the fair use analysis,

34:04

Sort of.

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Not copyed enough,

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To justify this loss. Yeah. That sounds pretty interesting.

34:30

Are we back today? It's okay to take six bars. Yeah. No. Okay. That is not a true statement.

34:44

Well what's going on with the purple rain.

34:48

This was just interesting for a lot of reasons that I went down a rabbit trail but the princess state prevails on trademark litigation at the trademark trial and appeals board over.

35:01

Purple rain both the registered and unregistered aspects of purple rain,

35:08

Enterprises because they own kinda different parts of the equation one owning the

35:17

Right to publicity the other owning a trademarks.

35:31

B A N G is the maker of energy drinks and diet supplements.

35:38

Who I guess JHO is their parent company sought to register the mark purple rain

35:43

I'll know USPTO,

35:57

Caffeinated supplements you would put into

36:05

Dieter supplements rather than beverages for some reason. No.

36:16

So this company that defendant is known for its ticktock and YouTube collaborations boasting over 18 1 billion views on TikTok,

36:30

Hey application for purple rain in class five for dietary supplements paisley park who owns the rights in the NIL

36:40

Prince Rogers Nelson,

36:54

Also known as Bang.

36:58

So let me give you a little history before it gets,

37:08

Dietary supplements.

37:12

And it it had some other issues unrelated to confusion with the with purple rain in France. It actually got,

37:20

Held up because it was confused with a feed supplement,

37:27

And in addition to the ongoing issues with Purple Rain Monster energy drink has also

37:33

Filed claim against these guys. They've got a lot of issues happening. So, anyway, it was raised as a purple rain and princess mark raised likelihood of consumer confusion, delusion, faucet of a connection to Prince,

37:50

So, at the TTAB, you know, they are raising common law claims so they can present common law evidence. In addition to their registered trademark usage.

38:03

Purple rain what does it bring to mine,

38:05

Princess iconic album 13 times platinum 15 1 million copy sold in the US 25 1 million in the world all of the awards that go with the album the recognition by the library of congress recognition of the fame

38:20

143 rank number 143 on rolling stones list of 500 greatest songs

38:26

The motion picture the academy award for the best original score for the motion picture

38:46

And then I did a survey in 80% of people said they're familiar with Purple Rain and 66. Three% said oh he said purple rain,

38:56

That must be Prince the song or movie it's all about Prince so.

39:01

The expert witness the phrase purple rain has high recognition among the general consuming public and a substantial majority of respondents as expressly associated phrase with the artist prints his song or movie,

39:14

So, you know, lots of evidence connecting it to Prince.

39:24

You know, they had to show that purple rain. There was approximation of that use with princess name and identity.

39:36

But then are they the opposers are not connected with the good sold by applicants so,

39:42

The prince camp is not associated with the good sold by this Jay Joe company,

39:53

I don't know. I feel like we went a long way down the path to say we all think that.

40:02

You know, you're you're crossing a line.

40:11

Sad and that there was plenty of unreview unrebutted evidence as to Princess Fame.

40:21

And.

40:25

Hey consumers would it as soon a connection between purple rain and France okay I think this was clearly decided I went back and said okay if I was the examining attorney at the PTO.

40:40

I don't know what all.

40:43

NPG your paisley park has filed registrations related to purple rain obviously they gonna have them for class nine probably.

40:54

Class, 25 which is clothing so we're reported product entertainment services clothing.

41:10

I don't know from an examination standpoint is an energy drink.

41:16

Hey.

41:22

Cheap purple rain but yet had it been for Nike,

41:27

Well, that's interesting. Do the examining attorneys have the discretion to decide on their own that,

41:33

A brand that's not registered in a class that's you know related goods is a famous enough brand I I guess they could I don't know if they can make that decision on saying it doesn't.

41:46

I don't know. So so that's,

41:57

Hey supplements and obviously the paisley park camp doesn't think purple rain feeds supplements were an issue or maybe it's been on the registry for a long time,

42:07

They are also fighting a battle on another front against monster energy drinks because they have a line of energy drinks with rain or.

42:16

Oh Paisley Park and I hope,

42:26

Because of using rain in their drink supplement.

42:32

Interesting just this whole file there's over 450.

42:38

Wow. Not for purple rain but filed by this JHO. Okay, so there,

42:43

A big IP. Well, holding company is the name. I guess so. Most of them are filed as intent to use.

42:56

The question it raises for me is and I don't know this answer and I need to go check is can the examining attorney like you said raise a claim.

43:06

I know they can organize it raise a claim on related good so this tells me.

43:11

925 and 41 is not automatically related goods to class.

43:17

Five which is diamonds supplements I don't think it and then I don't think I necessarily would be either.

43:24

Do you think that it cuz I I just looked at the at the website for bang and most of their products are sold in cans so they're fluid.

43:32

Do you think that the decision to register to apply for the registration in the dieter supplement class rather than the beverages class was a.

43:44

Calculated decision.

43:48

Looking at all of the filings I've made I don't think you just calculated but that's my yeah I mean and if if the examining attorneys have thought it was in the wrong class they would have done something about that as well so,

44:01

And it was found as an intention to use,

44:08

Powder dietary supplements but they submitted a can they would have said.

44:13

Yeah.

44:27

And,

44:33

Hey.

44:44

Hundreds. I didn't look at all but the 400 something filings this company has made.

44:50

Do i think they picked purple rain intentionally.

45:00

Oh, it's interesting. Hey, I think they just been following a lot of stuff and seeing what sticks. Interesting.

45:07

Do we see another case by the Hendrix estate or proposed.

45:17

Things. You know, we we don't know. We don't know and I don't wanna.

45:21

Maybe I shouldn't be. Oh, interesting.

45:30

Been on the wrong the receiving end of of a decision that probably doesn't make a very happy you may recall that we've talked about this case a little bit before Sean Hall and Nathan Butler,

45:42

Are suing Taylor Swift. We first talked about this in 2019.

45:50

They have filed suit against Taylor Swift for the use of the the common phrase is what shake it off,

45:58

Yeah, she just can't shake this one off. Right.

46:05

Anyway, this is the the they had filed this suit back in 2019.

46:11

Made a motion the case was dismissed by the judge judge Gerald before being reversed by the ninth circuit court of appeals which deemed the issue of originality

46:21

Is still a matter of fact for the case to for the

46:25

Judge Edward for the jury in the finder fact to decide and so that the lower courts dismissal of the matter has now been overturned.

46:32

Then Taylor Swift tried to get another dismissal claiming that even with additional evidence and discovery the plan is claims were still baseless.

46:40

And the court has again ruled no,

46:44

This is going to trial. Starting in 2023 and ultimately, the jury gets to decide whether players gonna play in haters gonna hate.

46:52

Is a sufficiently so it's not shaking off it's the players gonna play and haters gonna hate quotes.

47:07

But it's in the song shake it off yes correct.

47:12

So we'll we'll have more to report but procedureally it's been interesting has gone back and forth. A couple of times and we'll be looking for what happens at trial.

47:21

Next year sometime. Okay

47:33

You may recall this is the case's net choice LLC versus Ken Paxton in his official capacity as the attorney general of the state of Texas and the case cases heard in the US quarter of appeals for the fifth circuit.

47:47

Net choice and the computer and communications industry association are two trade associations that represent companies operating platforms covered by Texas' law HB 20.

47:58

They sued the state attorney general back in September of 2021,

48:06

The statue.

48:16

And the law plays to social media platforms that have more than 50 1 million monthly active users,

48:23

Function as common carriers are affected with a public interest are central public forms for public debate and have enjoyed governmental support in the US

48:32

The Texas legislature further found that social media platforms with the largest number of users are common carriers by virtue of their market dominance.

48:41

The two sections of the statue that issue or section seven and section two section seven says a social media platform may not centre the user users expression or users' ability to receive the expression of others,

48:53

Based on viewpoint. Represented the viewpoint of the user or person.

49:08

Section two Says the platforms must allow certain disclosure and operational provisions. They have to disclose how they moderate and promote content and publish and acceptable use policy, a biannual transparency report.

49:21

Anime must maintain a complaint and appeal system for their users.

49:30

2021 issued a preliminary injunction finding that both sections of the statute are facially unconstitutional,

49:38

And that HB 20 falls fails on any level of hidden scrutiny

49:42

They reasoned that undersection seven platforms engage in some level of editorial discretion by managing an arranging content and viewpoint based censorship is part of that editorial discretion.

49:54

Add further help that the editorial discretion is protected by cases like the Miami Herald Publishing versus Tornillo from 1974 Spring Court case that with section two,

50:04

The disrecord found that the disclosure and operational provisions are inordinately burdened some given the unfamically unfathomably large numbers of posts on the sites and apps.

50:15

And moreover that section two will chill social media platform speech by.

50:23

So Texas filed an appeal back in May there was a stay of the preliminary injunction,

50:29

And on May 31 the Supreme Court vacated this day,

50:38

The platforms are back in court in the fifth circuit.

50:47

First the court rejects the platform's facial over breath challenge because section seven doesn't chill speech if anything it chills censorship.

50:55

It's an interesting distinction.

51:05

And the supreme following supreme supreme court president the court says section seven doesn't regulate the platform speech at all it protects other people's speech and regulates the platform's conduct.

51:16

Distinguishing conduct from speech. That's interesting.

51:21

And they say section 230 of the of the communication season see accurate reflexes judgment that the platforms are not speaking when they host other people's speech.

51:33

And they look at the the common carrier doctrine which gives the Texas legislature the power to prevent the platforms from discriminating against Texas users and finally even if all that is wrong in section seven does regulate platform speech.

51:46

It satisfies the intermediate scrutiny that applies to content neutral rules.

51:51

Astro section two the platforms argue that they're entitled to pre enforcement relief against section two of HB 20 but the court disagreed finding that,

52:01

Section two requires platforms make certain disclosures that are purely factual uncontroversial information about their services and the fifth circuit said that their review of these disclosure requirements is controlled by this supreme court's decision in the,

52:15

Zauderer case. Having trouble with pronunciation today.

52:31

And the Texas law are dissimilar in many legally relevant ways much of the 11 circuit reasoning is less consistent with or irrelevant to

52:40

Our resolution of the platforms claims. So, the circuit,

52:43

The fifth circuit held that the law is constitutional because it neither compels nor obstructs the platform's own speech in any way and the preliminary injury injunction is vacated. So,

52:57

And Daniel yeah maybe there's a distinction between the two laws but what do you think.

53:04

So it it's interesting that it didn't make a whole lot of.

53:09

Local news maybe. Oh interesting.

53:22

A whole lot.

53:28

Hey.

53:35

Do the platforms just don't want people to tell them what to do.

53:40

Well the platforms want to maintain their freedom and ability to deep platform a user who is,

53:47

Misbehaving their view to,

53:56

In the view of the platform in either inappropriate or contain what's possibly misinformation or you know those kinds of this is all in the wake of,

54:06

You know, the the, well, G platforming Trump.

54:16

So, I, this is where I just don't know enough about all the.

54:25

20

54:28

Why?

54:37

For the platform to add comment to this page.

54:42

Which didn't become the platforms.

54:51

This communication stream that we make public unavailable to our users is our.

54:59

The content that we're putting out there.

55:10

Yeah, I don't get to make a TV show in NBC to put it on their network.

55:20

But if I'm if I'm a social media company apparently under this law.

55:34

You can't stop them.

55:43

Some otherwise. So, let's say it was something that was promoting. Well, maybe that's maybe a hate speech statutes and things like that. Hate speech or terrorist statue thing.

55:55

With a wow or pornography statute. Yeah. That would allow that extent to be,

56:02

Pull down but I'm I'm not familiar with it enough to know but my.

56:08

My

56:15

It's just the taking it down that's the issue.

56:26

Legitimacy or the accuracy.

56:36

Maybe not. I mean, it depends on how the law defines that term I suppose.

56:43

What in a what? Well,

56:55

And they have to the the other section that disclosure about how they moderate and promote content and the publishing that biannual transparency report is you know he give us the ammunition to come after you.

57:12

Right so we're kinda telling you everything you need to know to

57:20

Yeah hey we put all these messages over here or we put this little logo next to them to to

57:27

To flag but hey, this may be controversial or this is a trigger warning for certain people. Those kinds of things. That may be enough to be considered censorship because there's a stigma attached to.

57:37

A message that has that trigger warning on it,

57:47

Well, I mean, I think it's interesting the two states that have passed these bills. Yeah, just some, this is some commentary I at the end of it,

57:59

Platforms for removing quote offensively. Violent material.

58:03

Or penalizing companies for blocking criminal activity.

58:17

Slippery slope that it's setting this up.

58:28

You know how I'm,

58:35

Yeah that common carrier idea and,

58:47

Quite as as a.

58:50

Town but.

59:00

There is a,

59:07

Or closer to a common carrier than AA content service like Facebook or for that matter Netflix,

59:14

Okay, did we decide? Did we?

59:25

Oh goodness I don't. I don't recall.

59:37

You know it's certainly seems to me that that.

59:42

Companies these platforms are doing business in interstate commerce.

59:52

What they do need to carry and what they don't remember the must carry laws and and,

1:00:02

And those were all lifted mostly,

1:00:05

I think voltarily would you know without court rulings that they were in constitutional but.

1:00:15

It does seem like for speech to me. Yeah. The the court here says no it's not. We're just forcing him not to censor.

1:00:22

But seems to me that the decision of what to carry and what not to is speech.

1:00:32

Appeal.

1:00:45

Hey Facebook,

1:00:53

Miss Vera what was your name?

1:01:01

Yeah, it's gonna be set up for an allegedly professional plaintiff is gonna be suing.

1:01:07

Well I think we still have grounds for an appeal at this level you know there there is a case in controversy and there's this a,

1:01:16

A splitter authority so it's it's ripe for supreme court action it's just a question of.

1:01:22

You know, how when does that happen and is it an appeal from this or yes? You said, maybe somebody has to sue on. Is this a civil right of action?

1:01:33

Well, again, kinda like that. FTC thing. Yeah, yeah, yeah.

1:01:48

We have one more quick quick take for you just to let you know if anybody is in the DC area you may want to check out this exhibit on the fourth floor,

1:01:58

Of the James Madison Memorial building in DC

1:02:03

An exhibit on the history of the copyright office and putting a number of exhibits and artifacts on display including materials from Mark Twain's catalog cards and the i have a dream speech to kermit the frog and video games like Super Mario Brothers if you can't go in person you can check it out on the

1:02:19

On the exhibits website I found pretty interesting they actually had a an image of the very first.

1:02:29

Oh, that's cool. Yeah, which was like a handbiller something.

1:02:36

If you poke around@populate. Gov,

1:02:40

And get into the old files.

1:02:53

Filings. Mm hmm. We were trying to find something from the 50s or 60s and low and behold.

1:03:00

We found we found the original copyright. Card, card catalog card. Wow.

1:03:07

That's cool.

1:03:19

Yeah. Interesting.

1:03:22

Well,

1:03:32

But let's say thank you to you our loyal listeners for spending your time with us and if you have any feedback and we we welcome it leave it for us on the voice widget on the website at Entertainment Law update. Com or you can email it to us entertainment law update at Gmail dot,

1:03:47

Or tweet.

1:03:54

Yeah, and I think we, I don't know if we have an entertainment law, update handle for Instagram, but we're both on on there as well. So,

1:04:02

And LinkedIn so anyway folks can find me

1:04:18

Dot com.

1:04:27

G Firemark is where you'll find me on most social media websites so

1:04:40

Brenna Arbuckle carnivalson and David Tobus

1:04:43

All helpless with putting these episodes together and we thank them we're a grateful for that help,

1:04:54

And.

1:04:57

Music.