@unite4copyright: Google v. Oracle: Supreme Court Hears Oral Arguments in “Copyright Case of the Decade”

Terrica Carrington at the Copyright Alliance brings us a must-read first rate analysis of oral argument before the Supreme Court in the Google’s appeal of its loss to Oracle in the Federal Circuit. (Full disclosure, I co-wrote an amicus brief supporting Oracle in the case on the fair use question.)

Read the post on the Copyright Alliance blog.

Bear in mind that the now-eight Justices on the Supreme Court will meet today (October 9) to vote on the cases like Google v. Oracle that were argued before the Court on Tuesday and on Wednesday (when the Oracle case was argued). After the vote, the most senior Justice in the majority (or one side in case of a tie) will assign the task of writing the opinion for the majority, and the most senior Justice in the dissent (or the other side in the case of a tie) will do the same among the dissenters. Concurrence opinions assign themselves essentially.

Opinions in the decided cases for the 2020-21 term will probably be released in mid-June 2021.

If confirmed, Judge Amy Coney Barrett will not vote on the Oracle case because the vote will have already occurred before she is seated. That means that there could be a split decision in Oracle which would probably mean that the Federal Circuit ruling below in Oracle’s favor will be affirmed by the tie vote. (There actually were two rulings by the Federal Circuit in Oracle’s favor, so both would likely be binding on Google.)

This would probably bind Google to the $5,000,000,000 payment to Oracle required by the Federal Circuit decision(s), but likely will not be binding precedent in other cases including other cases yet to be brought against Google or otherwise.

If they lose or there is a tie vote, Google will almost certainly engage in their usual lawfare shenanigans to get another bite at the apple. One manifestation of Silicon Valley rage might be to ask for a rehearing on the merits before the Supreme Court if the current vacancy is filled before the ruling is handed down in (presumably) June 2021.

It would be unusual for the Court to grant a rehearing on the merits (as opposed to denying an appeal on a per curium opinion or a writ of certiorari which is the more common rationale for requesting a rehearing). It would be particularly unusual when the case had been fully briefed and argued before the Court as is the case with Oracle.

There is a long line of similarly situated cases where a rehearing was requested after the death or illness of a Justice that created the vacancy–and most were denied. The Court often held the subject case over the Court’s summer recess, holding oral arguments months later which obviously did not happen in Google v. Oracle. (See Halliburton Oil Well Cementing Co. v. Walker, 327 U.S. 812 (1946), 329 U.S. 1 (1946); MacGregor v. Westinghouse Elec. & Mfg. Co., 329 U.S. 402 (1947); Baltimore & Ohio R.R. v. Kepner, 314 U.S. 44 (1941); Home Ins. Co. v. New York, 122 U.S. 636 (1887) (granting rehearing February 7, 1887), and 134 U.S. 594 (1890) (reargument March 18-19, 1890); Selma, Rome & Dalton R.R. v. United States, 122 U.S. 636 (1887) (granting rehearing March 28, 1887), and 139 U.S. 560 (1891) (reargument March 25-26, 1891).

However, since the Oracle case was fully briefed and argued and then some, requesting a rehearing seems a fruitless exercise, which of course, doesn’t mean Google won’t pull up their big-boy fruitless of the looms and give it the old Silicon Valley try. Granting rehearings on the merits because of a vacancy would not be a good precedent for the Court as there are going to be lots of cases in a procedurally similar situation, and they’ll all want it just as a matter of drill.

Rule 44 of the Rules of the Supreme Court of the United States provides:

Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.

Spotify’s Got Another Artist Relations Issue: Joe Rogan

Remember when Spotify bought Joe Rogan’s podcast and signed him to deliver futures? Big money, big press release. Big chuckles in some quarters, why? Welcome to the world of artist relations, Mr. Ek.

Here’s a suggestion. When you sign an artist who you know is controversial going in, expect…you know…controversy. Is that really so hard to figure out? And understand that whatever that artist does, their brand is potentially going to be wrapped around your brand.

In Spotify’s case, there are plenty of controversial recording artists who have been distributed by Spotify. None of that has blown back on Spotify. In Joe Rogan’s case, however, Spotify is essentially the label. Remember all that guff from Daniel Ek about middlemen and gatekeepers? Well, guess what? Spotify is ostensibly Joe Rogan’s gatekeeper, but nobody told Joe Rogan. Which is problem #1 for Daniel Ek.

I seriously doubt that Mr. Rogan gives a hoot what Mr. Ek or any of his employees think of Mr. Rogan. I’m not a listener, so I have no idea how genuine the outrage is, but even if it is the most genuine outrage, Daniel Ek signed up for this. Daniel Ek paid lots of the shareholders’ money for this. Daniel Ek has the company’s governance structure rigged so he’s both president for life and also controls the board. Which is problem #2 for Daniel Ek–he brought this on himself.

So here’s a little unsolicited advice. When your artist comes to you with a recording that you simply cannot bring yourself to release, what you don’t do is tell them to change it. What you don’t do is censor them. That is, as we say in the trade, a chickenshit move. And I don’t care which or how many employees are offended.

What you do is you offer the artist one of two options, both of which are financially painful but ethically healing. First, you have a frank conversation with the artist where you explain that you are not putting out their record but you respect their right to say what they want to say. And if you don’t actually believe that, then you are in the wrong business and you have problem #3.

Then you tell the artist, I will let you go and you don’t owe me anything. This is the clean break option.

If the artist doesn’t want to leave–and notice that money has not come into the conversation and isn’t going to–you tell them they are free to take the record somewhere else and Godspeed and you’ll work with them on their next record. You want nothing more than to preserve your relationship with the artist whether on or off the label. You should want this because if you thought highly enough of them to sign them in the first place, and if they thought highly enough of you to sign with you in the first place, then that relationship is what matters, not the cash.

The cash is rarely significant and soon will be forgotten…well, you’ll definitely take grief from the bean counters, but screw them. What people remember is how you conducted yourself in the situation. That’s what matters.

And that is what seems to be lost on Mr. Ek. Be honest–are you surprised?

Not the Happiest Place on Earth: Kevin Mayer Resigns as TikTok CEO

Shanghai Disneyland it ain’t: According to the Financial Times (and according to HITS Magazine according to the Financial Times), former Disney honcho Kevin Mayer has resigned as CEO of TikTok. This should be a lesson to everyone who is negotiating favorable deals with tech companies only to jump ship–sometimes you can’t go home again.

According to FT, Mayer said:

“In recent weeks, as the political environment has sharply changed, I have done significant reflection on what the corporate structural changes will require, and what it means for the global role I signed up for. Against this backdrop, and as we expect to reach a resolution very soon, it is with a heavy heart that I wanted to let you all know that I have decided to leave the company,” Mr Mayer said in a letter to employees. “I understand that the role that I signed up for — including running TikTok globally — will look very different as a result of the US administration’s action to push for a sell off of the US business,” he added.

The smart money seems to be on an imminent sale (i.e., not waiting the full 90 days that they were given by the government), so Mayer is either getting out while the getting is good or may have been pushed out. Bear in mind–Bytedance CEO Zhang Yiming must be well aware that pre-acquisition review by the U.S. Government’s Committee on Foreign Investment (CFIUS) is a standard procedure which Bytedance chose not to pursue when it acquired Musical.ly.  Had Bytedance submitted the Musical.ly transaction to a pre-acquisition review, TikTok might still have a version of the current problem, but it would have to come from a less legally solid ground and the government probably would not be able to use CFIUS to force a sale.

But that would have required opening the kimono, so to speak, and that would have been out of character.

Another lesson to be learned about entertainment industry executives switching sides and going to work for big data lords is that you have no idea what they are really doing with the user data being scraped every minute of every day and stored who knows where. But you can bet on one thing–it’s pretty horrible stuff and it’s probably illegal. (TikTok already got caught and fined by the FTC for exploiting children in violation of U.S. law.) Not to mention that TikTok is a massive copyright infringer. Child advocates complained to FTC accusing TikTok of ignoring the prior FTC settlement, which should come as no surprise because it’s just too tempting and they get to scrape all that data. (Another reason why it made sense for TikTok to want a Disney person for the CEO spot since Disney also makes tons of money off of kids, so Mr. Mayer had all that “good” training.)

Given all of TikTok’s problems with scraping data on young children and other disgusting practices, it’s hard to believe that this government-mandated unwinding transaction (aka fire sale) is going to go down without a lot of transparency. Which does not bode well for the data lords because there are two things they will simply not tolerate: transparency and getting caught.

Also remember that Kevin Mayer comes from a background that on a certain level is very well suited to dealing with authoritarian regimes. But he was not ever subject to the laws of an actual authoritarian regime. Disney is a nasty place, but the executives don’t carry guns at the office if you know what I mean. Having looked into the abyss of the coming deluge, Mr. Mayer may well want to make a quick exit before getting pulled down the maelstrom. Remember, Chairman for Life Xi Jinping (call sign “Batman”) is good buddies with Crown Prince Mohammed bin Salman (call sign “Bonesaw”) (for example, Batman is helping Bonesaw build nukes). There’s no oxygen in that room for Kevin Mayer.

Bonesaw (L) and Batman (R)

It’s also worth noting that Mr. Mayer’s phraseology is quite reminiscent of another Bytedance executive who reconsidered his life after “reflection”. (Bytedance is the parent of TikTok.)

According to his Wikipedia page, Bytedance CEO Zhang Yiming understands what happens when you don’t toe the Party line:

ByteDance’s first app, Neihan Duanzi, was shut down in 2018 by the National Radio and Television Administration. In response, Zhang issued an apology stating that the app was “incommensurate with socialist core values“, that it had a “weak” implementation of Xi Jinping Thought, and promised that ByteDance would “further deepen cooperation” with the ruling Chinese Communist Party to better promote its policies.

So there’s a whole lot of reflecting going on at Not the Happiest Place on Earth. Good for Kevin Mayer for getting out. Hopefully, they’ll let him. What’s a few subpoenas among friends, anyway?

@Playback_Austin: “Stay Gold” Club’s Landlord Threatens Club With Half-Million-Dollar Lawsuit

An attorney representing the landlord of Eastside music lounge Stay Gold threatened its operators with a breach of contract suit totaling roughly half a million dollars. The warning, following strained negotiations, arrived after the tenants were five days late on August rent.

Dan Castro of Castro & Baker LLP sent an email on Aug. 5 informing Stay Gold owners Nathan Hill and Will Tanner that their landlord, David Contreras of El Leon Cantina, Inc., “has chosen to accelerate the rent due for the entire term of the lease.

“You now owe in one lump sum the entire amount that would normally be spread out over the entire length of the lease, plus attorney’s fees,” Castro’s letter specified.

Hill estimated rent for the remaining four years of the lease totals around $500,000. He and Tanner paid full rent April through July while staying closed because of COVID-19. During extended attempts at renegotiating the lease amid the pandemic, both sides drafted offers the other found unsatisfactory.

Each potential lease addendum involved reducing monthly rent during state-mandated bar closure, though to significantly variant amounts. The landlord’s initial offer involved the Stay Gold partners paying the reduction back in full. Castro says he convinced his client to forgive roughly half of that unpaid balance in a followup offer.

Hill described that offer as merely “extending the possibility of us shutting down later.” He and Tanner, meanwhile, sought an overall rent reduction that would scale back between 28 and 33% over the next four years. Hill, who co-owns a neighboring bar called High Noon that pays a far lower rental rate, has devoted much consideration to how much debt is worth taking on to sustain a venue during shutdown.

“What really matters is how much time you have left to pay back the debt,” he reasons. “At the White Horse [which he co-owns], I still have 10 years [on the lease], so I can still take on debt because I have time to make that back. For Stay Gold, with four years, I have to hope for the best, but plan for the worst, which is that we won’t be open until 2021 and maybe we can’t have bands.

“By that time, we have three years left and I’ll be in as much debt as it took to open the bar originally, when I had 10 years of lease to look forward to and no global pandemic looming.”

As Austin’s small-business community awaits a wave of evictions, Castro’s letter provides a glimpse into possible future scenarios involving landlords.

“Mr. Contreras may not be able to evict you right now, but he certainly can sue you personally for breach of contract, and file a motion for summary judgment for a quick win,” Castro wrote in the missive.

Read the post in the Austin Chronicle

Require Twitter to Disclose The TikTok-Twitter Connection for Your Fans’ Data

TikTok Marked

When you are driving your fans to TikTok, think about this:  Twitter is rumored to be in the hunt to acquire TikTok, but Twitter has long been supporting TikTok’s massive data collection and interference capabilities.  In addition to accessing a trove of your user data that you may have thought was private, Twitter has allowed the TikTok app “Make Your Day” to take a variety of actions on your Twitter account.

And these are the ones they tell you about.

Twitter should be required to explain why in the world any app, much less TikTok, needs access to all this data and functionality and what happens to the data once it is collected from your fans in the background.

Another reason why TikTok would be a fit for Twitter is due to the massive copyright infringement on both platforms.