Big Tech’s Litigation Era

I have never seen so much activity in so many different areas.

“So lawyers will always have a job as always.”

Hopefully. I'll have one too. Are you well? Good job! Hi everyone from New York Magazine in the Vox Media Podcast Network.

This is on with Kara Swisher and I'm Kara Swisher. Today, we're talking about all things tech media and legal with Eric Gardner. He's a founding partner and national correspondent at Puck who mostly writes about legal affairs and I am surprisingly illegal walk, and I read him all the time. He's an expert on these issues and he'll be our guide as we cover some of the biggest

stories on his beats starting with the latest on the proposed 11 billion dollar paramount

Warner Brothers merger. Back in February, Paramount Skyna and CEO David Ellison won the bidding war to acquire

“Warner Brothers and it's been chaos ever since.”

The deal is currently on hold as Ellison faces an anti-trust lawsuit brought by California and 11 other states plus a lawsuit from the writer's guild of America. A trial date has been set for next March and the stakes are high. Among other things, Paramount could have to pay $650 million per quarter in so-called ticking fees if the deal isn't wrapped up by September 30th of this year.

In the latest development that broke after we taped on Monday, Paramount has asked the 12 states and the writer's guild to post a nearly $1.9 billion bond that's money Paramount would collect if the states blues the case and the company wants it to cover the ticking fee. We also look at the politics behind Warner Mount and Larry and David Ellison's relationship

with President Trump. Then we get into FCC Chairman Brendan Carr's ongoing battle with Disney. After we taped, Disney's ABC sued the FCC alleging it has "waged or retaliatory campaign

“against the network and violated its first amendment rights."”

Earlier this year, the FCC launched a probe into the talk show The View, it later called for an early review of licenses for Disney's local ABC stations. Finally, we'll wrap up with a discussion about AI Copyright litigation and the landmark social media addiction rulings and a series of even bigger upcoming trials. This is a really interesting time.

There's so many legal issues, but they all point to people wanting to sue tech, obviously the elephants are in tech, obviously open AI. All these companies are facing a lot more pushback on a lot of issues when before they sailed through. Because Congress did not do a study and create guardrail regulation that was adequate to

control them. And now you're seeing this through the courts and so Eric is a great person to talk to right now. Our expert question comes from Democratic FCC Commissioner Anna Gomez. Lots to get to today, but it's also fun.

So stick around. I promise, law is fun. One more thing before we get into it, I'm going to be doing a live taping of on at the audio experience conference in San Francisco on September 2nd, you can register for the conference on their website.

We'll drop the link in the description for this episode. Hi, it's Kara Swisher. You know me as co-host of Pivot, but for August, I'm flying solo and I've lined up some

incredible guest hosts to join me.

Mark Cuban, Chelsea Handler, Caitlyn Collins, and a lot more you won't want to miss. Already out, my conversation with Hillary Clinton, among many other things we get into redistricting fights, reshaping state politics and what Trump's golden makeover of the presidency actually means. And it's not good.

Trust me, you don't want to skip this one. Find Pivot on YouTube or wherever you listen to podcasts. Tracking macros has a bad reputation. People think restriction, obsession, and overwhelming food math. My experience has been the exact opposite.

I'm Ravana Sun, VP of Fitness Programming of Peloton, and learning my macros is what finally taught me what enough actually looks like. This week on Project Swagger, how tracking gave me more food freedom, not less, the mistakes it revealed, how I feel now, and how to know what's right for you. Follow Project Swagger now for the full episode wherever you get your podcasts.

Thanks for having me. For people who don't know, I'm a huge fan of Eric's writing. I'm not a lawyer. I don't play one on TV. I don't do anything like that, but everything he writes, I didn't either know about or

understand quite the way, so I really appreciate your work. I appreciate that.

“I'd love to know, like, how did you get started writing about legal issues on Puck?”

I've written about legal affairs. I've been going back decades, and for a while I thought about becoming a lawyer, but then I decided the last thing I wanted to be was a lawyer. I thought about maybe teaching law to at a university or going into public policy, but what I really love doing was writing, and to me, law was the ultimate way of getting a venue

for which to write about.

There's always drama involved, and also I feel like my one skill is puzzle-solving, and

law is a great place to go as a puzzle-solver. A hundred percent. But let's start with the big case right now. The proposed Warner Mount merger, along with other mega mergers, have benefited considerably from Trump administration's friendly regulatory environment, but the deal is facing opposition

namely a lawsuit from 12 states, given the landscape how much runway is left in the consolidation wave, and will Warner Mount be one of the last attempted media mergers, or do you expect we'll see more? And we'll talk specifically about Warner Mount in a second, but overall, is this the high point of these things?

It wouldn't surprise me to see another year or two, especially as the Trump administration kind of winds down for some other media companies to try to sneak in under what they see as a favorable regulatory environment for clearing their mergers, Comcasts has spun out. Some of their assets, and there's rumors that Universal could be up for sale, you know, Lions gates up.

I know that's not as big as Warner and Paramounts, but I wouldn't be surprised to see

a few more mergers, you never know whether the tech companies will try to swallow some

of the entertainment ones, or whether Netflix is still in the market, I mean at one point they were about to buy one or rather so what's their next move? But overall, I would expect that in a few years, this M&A frenzy to die down a bit. So let's get to Warner Mount itself. I think a lot of people are surprised, I'm not so surprised, given they're quite arrogant.

They were quite arrogant in how they were wandering around the environment, up to having

“a dinner for Trump, which I think everyone was sort of gobsmacked, that's how arrogant”

they were. So earlier this month, the federal judge set a March 2nd court date. This was after Paramount struck a deal to delay the closing until June, last week Paramount Chief League Officer, Mick and Delrahim, whom I know, just for people to, to full disclosure, told Politico that all options are on the table when negotiating a possible deal with

agencies, and some took that to mean, maybe selling CNN, but he wasn't specific.

And California Attorney General Rob Bonta said to me that it's not about CNN, he said,

he reiterated it again this week. And Paramount supposedly said it's not on the table, I'm not sure what make him was talking about. I don't want to talk about the sales CNN. I don't think that's what the biggest deal here is even though Paramount people

would like to focus on it, David Ellison wrote an entire op-ed that said, I'd like to focus on CNN and then didn't, or no, anything that was going on at CBS, but took a little bit about where we are right now. Yeah, I think there's a really anti-trust case.

“I mean, you look at the complaints, CNN hardly comes up at all.”

Does politics at all animate this case, maybe? Yes. You can't take away the context or the calculus and everything like that. These are blue states that are doing this. That's what their argument is.

Yes. And I'm sure they have in mind, you know, like, who's CNN's going to wind up with, but that doesn't explain the fact that they went after a live nation ticket master or they intervened in all these other merger cases. Obviously, they have an anti-trust theory.

They like to protect labor markets and they have a real case involved. Is it the biggest slam dunk case? It is not. They are trying to slice and dice this marketplace in terms of blockbuster movies and what is defined as a blockbuster or wide release.

The market obviously is not the same as it was decades ago. Back in the 1980s and 1990s, it would be inconceivable that one of the brothers in Paramount would merge. Those two companies had the largest share of the market. But we're not litigating what Hollywood as it was, we're litigating it as it is now.

And there are, you know, lots of other new companies out there, Netflix and Amazon and Apple. And so Paramount probably has a good case to be made that the states are. Things have changed. Things have changed. I actually think that their economic case is better than their PR case that this is all

politics. But it's not a slam dunk in either direction. Especially around cable. Yeah. So let's take a step back and look at the lawsuit itself by Bonta and 11 other states

attorney general to block the merger.

I can tell you that. And they also thought it wasn't going to happen for a little bit, which was interesting. Because they had won all over the world and they kept saying, "We won all the world. I'm like, so what?" Like, I was like, and, like, it doesn't really matter, like a lot of it is it doesn't

really matter. The rest of the world is also analyzing something different. I mean, in the rest of the world, they're looking at distribution markets whereas California is much more interested in production. And so it's New York and New Jersey and others.

So you described it as a fairly conventional anti-trust challenge. You said it's notable and this is from you for what it embraces and what it avoids. People who don't know what exactly are they alleging and the overall strategy and what did

they leave out that was critical?

Yeah, I mean, they basically alleged monopolization in three markets to them being related to theatrical and specifically wide-release ten-pot films, so blockbusters. And then the third is the cable television, basically, that they have enough must-have cable networks that they have so much leverage over distributors and they can exact tie prices that.

So prices for consumers, right, the states still have to prove that they have not only enough of this market and it is a market and it's not forgetting important things like streaming, but also that there are bad competitive impacts to making this merger go through, you know, whether that means decreased output, decreased films, less jobs, that sort of thing. And the other thing I want to point out here is that this isn't really just one case.

It's actually two cases and no one should forget the writers' guilt case because they are also suing and that case has mostly been consolidated and even if the states decide at some point that they're going to settle, the writers' guilt still has to see that the table and they will, you know, have an important voice, too. So they don't have to settle.

They don't have to settle and that's really what complicates.

“It's this one topic I think people are kind of overlooking, it's that writers' guilt case.”

So their strategy is winning on at least one of these, correct? Because they're quite discreet, the choices they've made. Yeah, the states don't have to win on everything. They can win on one thing and win it all, right? But what's being left out, I would say, you know, from Paramount's perspective, they say

that the states haven't done a good job defining the market. They say, you know, look at these 10-pult films, you counting studios, but what does that not count, it counts, some of the biggest films out to see are backrooms or lines gets Michael, that's where I think. And so they can say, like, even with this kind of manipulated market thing, you say that

we have 27% share of the market, well, 27% is actually not that big. Usually the presumption of, you know, illegality comes after 30%, so even with the manipulated markets, 27% and then you get to the studios that were in counted and maybe that pushes it down to 20% and then you start talking about how the industry is changing, artificial intelligence is coming up, the industry is shedding jobs, you know, theaters are hurting, and so maybe

there's pro-competitive reasons for the merger comes up. Now, I'm not saying I buy all this. Well, that's their new one, if this takes too long, they shift it from their dumb stuff, and this is their new one. I've noticed, like, if it takes too long, it'll hurt everyone, well, guess what?

Again, I was like, okay, and I think it's their trying to push California into settlement. And one of their ways is brute force, your colleague Matt Bellany reported last week that David Ellison confirmed his plan to move Paramount's guidance out of California to Tennessee, Texas, Georgia or another state. I think it's Tennessee is one of the things he's looking at.

“That's what I understand, according to real estate people.”

If they don't reach a settlement, here's what Rob Bond did tell me about Paramount potential

moving out of California on pivot the day he filed the lawsuit last month. I mean, it feels like a potential monopolist trying to bully a state that is doing its job to regulate them, and it feels like a last ditch, desperate effort to try to blackmail California and 11 other states into not enforcing antitrust law into allowing an illegal proposed merger to go through.

And that's not going to happen. It didn't work. We're not doing that. Why did he do that? Just some rumor that they're going to move CNN also out of New York, which was hair on fire

there last week. I can tell you, what are these threats for?

And they first, they started with the op-ads, and then you had Ari Manuel, feels like he's

going rogue for them. Then you had Chris Wallace inexplicably writing a piece.

“But the threat of leaving is I think their biggest move so far.”

Yeah, it's a leverage play. I mean, it's putting political cross wins in there. I'm sure Rob Bond is going to hear from governors, or... Yeah. The editorial candidate, Havier Bessera, also said the party should settle, but he was

unspecific. Paramount issued a press release, pressing for settlement, or in the state of turn, generals to quote, "engage and us with good faith."

Like that kind of thing.

“I think it only works for so long, right?”

You only have so many moves to be made.

You put the threat out there. Some points, maybe they'll put their lot up for sale, maybe move their headquarters or something like that. It stops having effects, and when things I might expect is that they will move on to something else.

A different threat. Maybe they'll put out the fact that CNN could be sold and wind up in worse hands than their own. Elon. Exactly.

Exactly. I think that's where we're going to go. Private equity, acquiring CNN, Elon Musk acquiring CNN, really just getting Rob Bond to think like, "Okay, well, maybe it's time that we come to a deal here and start negotiating." Well, that would be something.

That would, I think that would blow up in their face, I suppose, but maybe not. Maybe not. Do you think any of these work?

“Bond is already kind of one with the trial way out into March, correct?”

You don't have to win. You just have to get to March, essentially. Well, I think that getting to March was a big thing. The outside date on this merger is next June, right? And so, you know, putting it to March makes it really close to June, who knows when

the judge comes back with a decision, whether it is going to be a time to appeal or not. I'm sure the judge will try to get her decision before June.

It's possible that there could be some emergency appeals last second.

I'm sure Paramount would prefer to have the trial much sooner. They proposed November. So yeah. But, you know, Bond doesn't seem like he's in any rush to negotiate. From a legal point of view, why would he, right?

And Bond has said he considers structural remedies to resolve the lawsuit, but dismissed behavior of remedies. New reference, the live nation, ticket master, break up cases example of behavioral remedies ultimately being inadequate. What does a settlement look like?

And if not, I have said Paramount has to saddle. There's just no other way around this and soon, if they can.

“What do you think the settlement could look like and what something Bond would accept?”

And that Paramount was willing to do? I think the framework of a deal starts with a divestiture of some of their TV assets. The CNN, or maybe broader than that, the Turner things, I think there would be kind of nice villages and to the fact that, you know, like Turner, TBS and CNN, may have to be divested because that was exactly what the DOJ under making Delaware him tried to stop

AT&T from buying a few years ago. Could there be some sort of structure where David Assen holds onto a minority share and spins it off? I don't know. But I think that's where it starts.

But that's not enough because it doesn't really get to the heart of the complaint which is theatrical. I think that there would probably need to be some ways to ensure that Warner Brothers and Paramount remain independent studios run separately. I don't think it would be divestitures, but it would have to be some sort of, you know,

board level, operational, Chinese wallish sort of things. I don't know precisely on top of that. You layer in behavioral concessions, jobs, right? This whole number of movies may seem insane, like they could just put out like a cartoon, right?

Yeah, yeah. So you start layering all this stuff together and you get to maybe the beginning parameters of a deal. But even then, I start thinking, okay, well, then what does the writers' guild need to settle their end to the case?

Because remember, Paramount agreed not to close their merger until five days after a decision in both cases. So even if the states settle, then the writers' guild are going to want something and maybe they want some sort of, not just the assurances of her jobs, but maybe they try to bring back Finston.

Explain that with that as. They used to be back in the '70s and early '80s before the Reagan administration. There's really some of these rules about distribution of content that you owned and produced.

It's basically rules to manage vertical integration.

And so if you're going to have a company that owns much of the production lines, like, you know, one of brothers in Paramount, and then they have this big platform, like Paramount plus in HBO Max, you need rules to establish that writers come in, talent comes in, and they can still get a piece of the back end. It's especially independent productions, right?

If they want to pipeline, they want to make sure that there's no foreclosure as economists call it, where, you know, if you're an independent voice out there, there's still pipelines for you to get your product out there. So when you think about what's going forward, there's also obviously the politics and David Ellison wrote a defense of the merger, and it says the issue is whether it can be trusted

as Stewart of Warner's CNN, and there's been, quote, speculation, I politics, my little things, my intentions. He went on about it. And of course, he's been sucking up to Trump, rather, a lot, so is his dad for years and years, you know, Larry Ellison, didn't initially support Trump to be fair, but he gave

money to Democrats also.

Talk about the political issue here, and now that possibly the Democrats are coming back

to power, I'm hearing from them, like they haven't even figured this one in, like the political elements.

“That's away from the legal issues here, but it certainly counts, correct?”

Yeah. Actually, I don't think I blame David Ellison for this. I blame Trump more for this, because he's the one who's kind of put this feeling out there that if you kiss the ring, you get approval, so they were just doing what kind of the message that was put out there to be on the good graces, and you could see why this like pissed off

the Democratic establishment in the long run, it doesn't look good to have someone who, you know, your mergers before them, like in the same room together, and they're used to be all these, you know, hard lines about independence of the Justice Department, and now there's not, and this is the price of that gets paid. Now, some DOJ lawyers objected to the steel, and it went right through them.

They are career prosecutors, they're people who just, you know, work there, they are not political whatsoever, and they analyze it on the merits, and maybe they did analyze this deal, and maybe this deal, you know, deserves to be approved, but the fact is that because the Trump administration has been paying favors to people, and we saw what happened

“in the live nation case, there was a lot of law being there, and so, you know, people”

can't help but look at something and wonder, like how much did politics play a part in it, and not law and law, and so the perception kind of fuels the reality, so regardless of whether or not the deal was approved on its merits or not, there are suspicions out there and there. Plus, he said it, plus he said it several times.

Yeah. I can't wait till it changes, there's rumors have gotten promises. Now, it also, by the way, people don't realize the deal also still requires FCC approval because Paramount holds licenses for local television stations, a recent public investigation found that two out of three FCC commissioners, Chairman Brendan Carr, whom I call

Amoran and Commissioner Olivia Trusty, whom I don't, except it luxury gifts from Paramount, while FCC was reviewing her about to review major Paramount business decisions. Carr reportedly accepted honors, Galluch tickets from CBS Paramount eight times since 2017, totaling over $75,000 in gifts, and it seems like the total value that gives might actually have been much more.

Could anything come of these ethics complaints against these commissioners? Is it a problem? So, the FCC already approved skydances control of the Paramount portion of it, and Paramount don't see BS in all that.

One or doesn't actually have any licenses, but, first of all, there are some edge satellites

in this and also as part of this process, there's some foreign money coming in. I don't expect the FCC to cap a fuss, but this is a company that continues to do business with the FCC, and so if Brendan Carr wanted to put his foot in the gears of this and climb it up, maybe he could, but I don't expect it.

“I think mainly right now, it's a court case, right?”

Right, it's a court case. He usually says to be gone, essentially. So where is your over and under on this? Where it's going to go? I mean, it obviously isn't good that it's going to take till June.

I assume there'll be a settlement because they're financially speaking, they're fucked if it keeps going, essentially. I mean, the economics collapse. If I had to put money on it, I would probably say that settlement too. I just can't imagine that this actually gets the trial, but I don't have the biggest

conviction on it. If it did get the trial, I wouldn't be shocked. These are parties that are really digging their hills in on some of this stuff. I wouldn't want to play poker with Rob. I'd have to because it's hard to read them right now.

These seems like he's going full tilt on this stuff, and then as I said, WGA has its own complicating factor. That's a really good point to me. That being said, when I book my ticket to Oakland, it will be with the option to get a refund.

It'll never be fine, right?

It'll be fine, right? Because just like with Justin Beldoni and they seem very angry and told, they settle. Right, a lot of these things settle on the eve of trial, that's for sure. I'll be back in a minute. Support for the show comes from What Not.

If you have an amazing product to sell, but aren't sure how to cut through the noise and reach your customers, what not might be the answer. What Not is the largest dedicated live shopping platform, whether it's beauty collectibles electronics, luxury fashion, even cookies, sellers are building real thriving businesses. Anyone can sell whether your business is big small or yet to exist.

People selling on What Not sell 10 times more than on any other major marketplaces. That's because you're not just listing products or building real connections with buyers.

What Not Buyers spend more than an hour a day in the app.

They're not just browsing their engaged buying and coming back. One of our producers tried What Not and this was a totally new buying process for her. She loved being able to request different angles of a product in the seller's live chat room and the sellers were interacting with her in real time. She says that now after spending some time on What Not, she's definitely picked some favorites

and she checks in with her favorite sellers every now and again to see what they've got on the market. And you can too search What Not, WHAT, NOT in the App Store, Download and you can start selling or buying right away. Support for the show comes from groans. Summer can disrupt our routines with busy weekends that are full of travel and events

“and with everything going on, it can be hard to remember to stick to your wellness habits.”

Well groans is one of the wellness habits you don't have to think about, it can be the easiest tastiest part of your busy schedule. Groans are convenient, comprehensive formula in one delicious daily pack of gummy bears. This isn't a multivitamin, a greens gummy or a prebiotic. It's all of these things and then some of the fraction of the price and it takes great. They're able to pack in 20 vitamins and minerals in a daily pack with 16 ingredients, all of

which include nutrient-dense and whole foods. A greens pack also contains 6 grams of prebiotic fiber to help you visualize it that's equivalent to more than 2 cups of broccoli. Groans and ingredients are back by over 35,000 research publications. You can't fit the amount of nutrients groans does into one daily gummy which is why it comes in a pack. Say 52% off with a code [email protected]. that's code [email protected].

“on app website or digital tool, kera@ybautis and with one click it's life. Domain and”

sicheres hosting of europaishensurvan inclusive, yet turn up 9 euro promonats start on yonars.de/app. Yonars, digital and your site. Every episode we get a question from an outside expert. Here's yours. Hi, it's FCC Commissioner Anna Gomez here. As a loan Democrat at the FCC, I've spent a lot of time thinking about what's happening to local broadcasting as a result of media consolidation.

Eric, I've been following your reporting at puck and I wanted to ask this question to you directly. Local broadcasting is going through a lot of change and there's no shortage of ideas about how to help survive and to stay competitive. For me, the priority is protecting the localism, meaning real local journalism from stations rooted in their own communities.

I don't think the answer is letting big national companies take over and call it local news.

So what changes do you think? Could make local broadcasts stronger while keeping that local focus intact? Thanks and I look forward to your answer. Yeah, I mean, this is a great question and I totally agree that local public broadcasting is quite important and special and really just you know, taken for granted. And I wish I knew the answer to this. What I do know though is that brand and car is solution of just lifting ownership caps and letting the sink layers in next

hours of the world take over everything, defunding PBS and NPR. That the solutions don't exactly seem to me like it's going to let that marketplace thrive. I would hope that there's lots

“of competition out there that there's, I think we should cherish it. I really wish I had better answers”

for that. No, but talk about the case that Disney and the FCC going forward. Yeah, I mean,

what brand and car is doing, he's just like basically, you know, censorship regime right here,

you know, doesn't like a joke. This is Jimmy Kimmel. He puts their licenses up for review. It's trying to kind of reinvigorate the fairness doctrine, which honestly was something that the Reagan administration decided that couldn't stand the test of time. So on the merits, I don't think that the FCC, I don't think brand and car has much of a case. I think that that thing that the courts will agree with Disney on this. But there's a cost to just having this

float out there and hanging over Disney's head and, you know, having this in hearing and taking discovery and all that. And I think that's basically what brand and car is after it is basically just to keep a dark cloud on this. And I don't think that this is particularly healthy, because on the long run, the Democrats will retake power and they will try the same things towards Fox and towards next RNs and Claire. And so it's just not a great cycle. I mean, on the merits,

the thing is so disastrous. I just wonder if it's some sort of like Trojan horse for getting

fighting back so hard. Is he surprised that that Disney's fighting back so hard? I don't know.

“I think he loves the attention. He think he's ambitious. And the fact that Disney fights it,”

makes it him look good in front of Trump. Like it makes him seem like he's doing doing something ultimately, he's not going to cancel Disney's license. I don't see that happening. Disney will win this one. So let's shift to another topic. Speaking of President Trump, the defamation case is that you cover, as you call them, one of his favorite past times, the non-profit watchdog citizens for responsibility in ethics and Washington reports that Trump has filed lawsuits and claims,

demanding over $70 billion since the second term candidacy announcement. Some of the more recent

targets include the BBC, the New York Times and the Wall Street Journal. You recently wrote about the legular that may put the breaks on Trump's many defamation cases. I mean, he's after everything. Like, there's one against how the Pulitzer Committee awarded their prizes. I mean, a lawsuit against the Wall Street Journal and his friend, Rupert Murdoch, over a birthday letter to Jeffrey Epstein, on and on. I mean, it's just ridiculous. I mean, like, these lawsuits are, you know,

what do I put the breaks on this? I mean, better policing, I think, of jurisdiction. Right now, he's filing everything in Florida, because he sees that it's a favorable place for him. Anti-slap laws that make him pay if he loses, make him pay the opposing sides legal costs, tighter gay keeping by judges at the front end of things. Those are things that I don't know what's stopped. I don't think anything's going to stop him, right? I don't know about the unitary executive

theory and how it could actually prevent Trump from filing more lawsuits. Yeah, there's some a theory out there that as president, because he's part of the government, that if you can't sue an officer in the government for defamation there, immune, that it should go both ways, where as long as you're, you know, you have an office of the government, you can't really

“sue in your individual capacity and therefore you should be, you know, forbidden from,”

from basically suing. So there's some, you know, thoughts out there that could be one of the

fences that's next tested. Unfortunately, I don't think that that would be resolved before he gets out of office. So it might affect Don Jr. more than Don, Senior. You also noted that the media outlets and their reporters should consider going on the offense and liable cases more often. This seems counter-due to make a case for that. Well, a couple of things first of all, I don't think that there's anyone who is, you know, under the bleeding gun like those in the media.

I mean, our reputations are attacked. This is the suggestion that all we're doing is biased reporting, making up facts. This is liable per se. I think that there is like a case to be made that journalists can, it should be collecting damages sometimes for kind of like the, the worst criticisms of their work. The other thing I think is that these liable laws and liable

defenses are seen as kind of gifts to the media. When really, it's a first amendment defense,

that's a gift to everyone and people have forgotten that and I think that by putting some of the critics of the media on the defensive, it might remind everyone, might remind courts about, you know, why we have some of these defenses. So I think that one of the ways that people who defend the media should be thinking more is going on the offense, litigate our reputation as much as our legal rights. What would that entail from a legal perspective? That would mean suing is someone suggests that

you made up a story to advance your career. It would mean putting that person in the defensive seats of the court room and trying to collect damages there. Look, I don't think that it's appropriate in all circumstances for journalists. It would open the door maybe to discovery of who their sources

“are and so as a journalist, you have to be careful about those instances and there are lots of”

considerations, but I think generally there might be more instances where journalists start thinking about going on the offense and I don't know. To me, the CBS case was the perfect example and of course they were sort of pressured into selling it to finish the deal that with this was the 60 minutes editing and I know some of the people involved and you know, the executive settled but the people quit over saying I'm sorry, refuse to say I'm sorry, which was their only

ability to protect themselves, I think, but they couldn't control the company from settling. Yeah, I mean a lot of people and I'm sure a lot of newsrooms have been under the gun with, you know, suggestions like this and so yeah, I would just punch him back as you're punching back. Punching back legally is a classic bullying. Punch him in the nose and he backs off. We'll be back in a minute.

court side. She was wearing a t-shirt that read trans kids belong. I think this was an epic move and I have so much respect for that. Go Cheryl, this week Cheryl is on Meghan Repino's new podcast. Why are you like this? Meghan asked Cheryl, why her t-shirts are more than just a fashion statement. There's just so many things that we could really champion for women and more other marginalized groups and I just heard from so many people what it meant to them and so we've continued that.

The conversation with Meghan gets into why Cheryl is the WNBA goat from being one of the first

openly gay coaches in the WNBA, just standing with her players during Black Lives Matter.

“She also recently became the winningest coach and WNBA history. You should check it out.”

Why are you like this? Wherever you get your podcasts and on YouTube. Life has been as pissed at the government as I am now that Flock cameras exist. Americans are going to war against Flock AI surveillance cameras and people are going around and literally sign them down absolutely destroying them. An AI surveillance apparatus goes against the very essence of freedom and the core values of our country. It's not right, it's not conservative

and it sure is held in America. Flock surveillance cameras have popped up all over the nation every state but Alaska, but this year dozens of cities and counties across the country have cut ties with Flock and on today explained from box we're going to tell you why. Let's shift to copyright litigation against AI company starting with Disney last December

“Disney announced a $1 billion investment in opening a allowing saw it. It's now defunct video”

tool to use Disney characters as he didn't move forward with the investment after opening and I pulled the plug on to our earlier this year. Talk about these approaches to AI and the licensing

first. What does it tell you about it? So far by the way, it was not very good for anyone who saw it.

And I thought this investment was apparently a marketing announcement that would go nowhere. But open AI has made several content licensing deals with major publishers including news Corp and Axel Springer. The New York Times has ongoing lawsuits, though, against open AI and Microsoft and Proplexity. And when I asked New York Times CEO, Meredith Kuppet, levian about the lawsuits and why some publisher making deals with AI firm. She pointed to

the New York Times content licensing deal with Amazon and said they're absolutely open to it.

“So talk a little bit about these cases and where they're going for publishers, especially the”

disjointed way publishers are working their issues. And by the way, just this week, we have the Hollywood studios making a deal with the TikTok sonar and by dance and over AI and all that. So a lot of times that there are threats made and there are settlements and they call them licensing, but it's really like the settlement of potential litigation. And the other thing I would point to is that these feed into each other because when you go into copyright litigation against AI

companies, one of the things that gets analyzed when the question of like is this fair use, is well, what's the market? Is the market being harmed? And if you can say, well, yeah, there's a big licensing market for training AI and all these other companies have made deals,

but this company has not, that's powerful evidence. So it doesn't surprise me to see

publishers make deals. Also, it's big money. I mean, this is like a line item for open AI and a lot of these companies to do these licensing deals. But for the publishers, they're in a business that's tough. Why are they so disjointed and is the lawsuit in effective ways, such as the New York Times lawsuit, an effective way to do that? I mean, it's kind of a carrot and stick approach. If you don't make a deal with us, we're going to sue you. I mean,

that's a time-tested approach to doing these sort of deals, especially in copyright matters. Yeah, well legal threats are a settlement talks. But I also think that, you know, a lot of this stuff is really new. And so it's hard to kind of figure out what licensing parameters should be. For instance, you could say that the New York Times should sell with open AI and maybe open AI wants to do it. But, you know, it's from an open AI's perspective. Is the New York Times

about the same as any other publisher? Because we might think of the New York Times as being prestigious and more influential in how we appreciate the news, but when it comes to training

very complicated and how it's approached. And again, it's all over the place. Yeah, I mean, all the AI companies have been sued. Why New York Times is picking on open AI in particular? I mean, I think has to do with, you know, they were the most visible company in the space. It was the path towards the big ticket damages. It was more of a text chat bat, bat versus other AI systems, which were more visual in nature. There are a lot of different factors.

But, you know, I think that New York Times has a few lawsuits out there, not just against open AI. Right now, I think we're talking about somewhere between 80 and 100 lawsuits in total. Yeah, no, none of these AI copyright cases have made it to trial in the US yet, though.

And last month, anthropic reached a $1.5 billion settlement with authors who accused

the company using pirated books to training its cloud chatbot. It works out to $3,000 per book they stole. Should we expect more settlements or will any go to trial?

“Both. I think that there will be lots of settlements. And what's the difference?”

Whether or not it goes to trial and not. Trials are big. The stakes are large. Juris get involved. You know, it will be influential in how the next generation perceives these legal threats, how seriously they take them. I think that the exposure is something that I love that tech companies are, you know, want to avoid. But at some point, they are going to take their chances. They're going to look at the demand and say that's just

unreasonable. Like you did. Yeah, we like the facts pattern here and we're going to take this as the test case. I think that, you know, some of these cases are nearing the summary judgment phase and what the judges decide will be influential in the calculus about whether to take it to trial. Also, keep in mind that it isn't just binary. It isn't like, you know, is training legal versus is training illegal. It's where did you acquire the data in the first place?

“How do you warehouse the data? How are you waiting your models? What does the output look like?”

These AI companies can win on four of the five of the issues and then lose on the fifth issue and decide that that's the issue that they want to take up. Meanwhile, you know, we have, at least one case, the West law case, which has to do with legal head notes and all that, that's on appeal right now in the third circuit. You know, it could, you know, maybe get to the Supreme Court next year. There are going to be things like Supreme Court decisions that impact

the calculus on whether it goes to trial. Now, I expect that we will see at least one trial in 2027. Have a big one of. One of the things that reminds me during the YouTube days, when I was covering Google in the early days, I was around when they did the book stuff. They just

tired them out. They tired the publishers out, ultimately, and got what they wanted. And I'll never

forget walking around Google with Larry Page and they had a room full of televisions. They were taping all of television to get close captions searching and they didn't have any deals with any of the television companies. They just did it. Yeah, and the other thing I would point out is that, you know, the plaintiffs have to decide to deal too. For instance, you know, you talk about that one point five billion dollar deal that anthropic made with book offers. But some book authors,

like John Carrier, and they didn't want to take the deal. They don't want to take the $3,000. And so they opted out of the settlements and they're pursuing their own claims right now. So how do you settle with them? And so maybe those will be the cases that end up at trial.

“But then you have to go through them. Their theory is to tire you out with all their money,”

right, that they will ultimately beat you down. That's what happened with YouTube. It really did. They cheated until they didn't cheat. And then, you know, everyone's happier now. I guess same things with Napster are saying, you know, it's kind of their their pat in a way.

Let's go to the most important thing for me, social media addiction litigation and a new lawsuit

against Netflix, by the way. Section 230, broadly speaking, protects platforms for being held liable for content posted by their users is long. But the focal point of legal theories about the responsibilities of these platforms. But now plaintiffs are succeeding in addiction litigation against meta and YouTube with a different tag product design liability. It's a the center of another landmark trial against meta that begins week, which is quite troublesome.

I think to talk about this legal strategy in your thoughts on it, we'll get to how it's expanding beyond social media at the moment. Yeah, let me put it this way. I mean, there are ways in which I feel comfortable with what's going on in other ways that make me uncomfortable. And when you think about, you know, social media and the way it's given to the users, you can think of it two ways. One is it's like a cigarette. It's compulsive. It's addictive. It harms you. And that's, you know,

basically what all these plaintiffs are trying to show that, you know, the playbook kind of rhymes with the old nuisance suits against tobacco makers. Right. Which took a long time for people.

And I guess the question is, is it like, you know, those wrap albums from the 1980s that

“Tipric works right to ban. You know, and so even stuff like algorithms is just editorial”

curation in, you know, digital form. And so the question is, how much of this do we see as product design and how much of this do we see as speech? And when we look and we break down the features, like infinite scroll or autoplay or notifications, does that go more towards design elements or does that go more towards editorial curation and how a newspaper decides what goes in the op-bed page or a parade organizer decide to marches with you. And so these are tough questions and

we're, you know, gang to these trials. Where do you see it heading? Obviously, public opinion is against these companies. It's moving very heavily against it. And, you know, they are timely, but section 230, which I doubt will be overturned. It would be disaster. From a, it would be the lawyer employment act of all time if they overturned section 230. It's almost impossible to do so

“from what I understand from various experts. What is the move product liability has to be the move?”

Yeah, though section 230 is not going away and isn't being repealed. There was an important decision

by the 9th Circuit a couple weeks ago that says that basically it's not immune. It's a defense.

So that means that these cases against tech companies, against social media companies, will continue to flow. There will be these product design and new sense suits that put a huge amount on the line. That the case that's beginning this week in Oakland, the one that's being brought by a few states against meta. I mean, they want, I think $1.4 trillion, which is the market cap of meta. They want structured changes to how the platforms run. And so I see a lot of these cases

ticking on. They'll be appeals. They'll certainly be some settlements as well. But this is going to be in the background for years and years to come. Years ago, I interviewed Mark Benioff and he said they're like cigarette companies and he's changed not that particular opinion.

But when you think about that, that did take a long time and ultimately it didn't kill the

cigarette companies, but it certainly put them in a line of decline, right? It seems to me that a lot of this, especially around the lawsuit, around data centers, around this is all of the same feeling of these people need some rules. Yeah, I would say that there are, you know, a lot of similarities, but there are some differences. We should keep in mind the differences too. cigarettes were

“addictive and they hurt everyone who touched them. As far as social media goes, I think some people”

are okay with using social media and some people bear the brunt of it. Some features are probably good for society to have and other features are not. So, you know, it's easy to take it look at the stuff and say at large, oh, you know, the tech companies, they're all evil and they should all go away. It's not exactly go away. Let's see some controls, right? Right. And so that's the answer to it. Like age verification, things like that, like let's have some rules,

which you have none of. Right. There should be disclosures, common sense rules, stuff like age gating, if they, you know, can think of it and make it reasonable. I don't see why they would resist it. At some point, hopefully we'll get to a point where some of the stuff can exist without constant litigation, but we're not at that point yet. That's because they wouldn't cooperate in the

first place. They wouldn't do anything in the first place. But in me, this is an interesting case,

which is a related text to Attorney General Ken Pax and Final lawsuit against Netflix, alleging the streamers spying on users, including children profiting from their data and using quote, "dark patterns to keep kids engaged." What's Netflix's defense here? It's a broader issue and the limits of the product liability argument when it's applied to a streamer, because this could go a lot of directions. Well, the first of all, Netflix, you know, is responses that

Ken Pax doesn't know what the hell he's talking about. He doesn't understand the system more. It's just, you know, junk, junk science in his complaint, but pushing past that. The point that I've made is that there's not a huge jump to be made moving from social media to, you know, how digital entertainment operates. We're still talking about algorithms and deciding which content gets first on your scroll. Look, it's recommended to you. So if you're going to make the case that

a Facebook or Instagram is addictive, someone can easily make the case that Netflix is doing the same thing. I guess they have a response would be, "Well, this is even more connected to speech. There's even broader first amendment considerations here. We're not just pushing third-party

If you stop us, you're really endangering the first amendments. You're giving the state

“the viability to control what you see. And so the first amendment implications are pretty broad here.”

Is that the same thing with Facebook that the defenses they should have or where they, in these, I'm using Facebook overall because it's a bunch of different product liability losses, including with kids and chat bots? Yeah, I certainly think that Facebook has their first amendment defense that they're pushing. It's not just section 230. They are saying that this is our speech, which is kind of funny. In some ways they say it's someone else's speech, but it's also our

speech. And so, yeah, I mean, courts have to deal with that. And that's something that's going to come up with the trial in the next few weeks. It's going to come up and the appeals down the line. I love this is very unsettled. I mean, this Supreme Court nods to this a few years ago in some of their cases, they were like, well, if the algorithm is doing the heavy lifting here, is it actually speech or is it not? And that's a question that really hasn't been settled yet.

And that ultimately, these cases do go to the Supreme Court, presumably. Oh, yeah. Correct. All of them, which is the one you think makes the most vulnerable, probably this one kicking off this week? Oh, yeah. I mean, there's also one in Tennessee that's going on right now. But yeah, this case that I mean, it's hard to be the trillion dollar case that has these stakes. But, you know, just behind it, there's a case brought by a consolidated

school districts around the nation. There are cases against other social media companies, TikTok was smart enough to try to, like, sell it. It's way of the California one, but it's just going to go on and on. And now that the plaintiff's bar has found product designers away to at least be 230 on the front end of things, not have their cases quickly dismissed, it incentivizes them

“to come up with similar theory. This is, like, money to be made here. What is the Tennessee case?”

Uh, Tennessee is a nuisance case similar. I'm kind of saying, which I think that they're going to be caught in litigation. This is not good for them. By the way, for people who don't know Netflix, it's also been hit by a number of high-profile defamation lawsuits for shows, including baby reindeer when they see us and inventing Anna the last two were settled. But Netflix's defamation case when making shows about real people, is that a plaintiff's attorney opportunity?

Not really. I mean, the funny thing, most people don't realize this, but if you add up all of the defamation lawsuits from, like, Fox News and New York Times, those are symbolically important, but Netflix is that the defendant in work cases, than any of them. Why? Because they love this, the documentary drama, fictionalization of true events. Basically, they say, okay, we're going to take something that actually happened, but make up stuff. And once you get that, it collides with an

area of law, which, you know, makes it tough to say false things about people. So if you identify a documentary about you and telling audiences stuff that you didn't actually do and harms your reputation, yeah, they're going to sue over it. And so Netflix finds themselves in an incredible amount of a number of these cases. And some of them, they've won, but others, they've struggled with. And so they're making lots of interesting law on this topic. And I see them as probably

like the most important, liable defendant going these days. Really, interesting. All right. So we've

covered a lot of ground today, but looking ahead, what do you think will be the most consequential cases stories in the next year in the media that people should pay attention to or should be paying more attention to? If you pick out tech media, you know, any of these, because you write about so many esoteric cases to the suddenly make me think are actually really important, including ownership of people who've died, things like that. Is there any cases that are like, hey,

this is going to matter? That are completely under the rate. I mean, I don't think that you think

“are the most important one. I think that competition is a big issue these days in just so many”

different kinds of forms, whether it's the challenge to emerge or challenge to the way that non-competes work in the workplace, even these copyright cases against the AI are essentially competition cases. You know, copyright gives you an exclusive right to leverage your own works, your creative authorship. It's supposed to incentivize you to create. And here are, you know, these tech companies out there saying you can't have them monopoly over this stuff like journalism.

And so, you know, I think all this is important. And is there any unusual case? Do you think

it's coming that people should pay attention to? I'm always on the lookout for these unusual

cases. I think, you know, the Justin Baldone thing, Selv, but that was a kind of mind that one. Yeah, it was the fun one. It had to do with how PR works and how employment works and you kind of post me to era and yeah, it's speech and it's kind of purest form and like whether you can

useful. This has been really interesting, Eric. I will keep reading your stuff and look for more strange and weird cases. But I do think your correctness, this is the time of litigation against

tech companies coming forward. I have never seen so much activity in so many different areas. So

“lawyers will always have a job, as always. Hopefully, I'll have one too. Are you well?”

Anyway, thank you so much. My pleasure.

Today's show was produced by Nishat Kerwam, Michelle Aloy, Catherine Millsoft,

Megan Bernie, Madeline LaPlante, Dooby, and Katelyn Lynch. Special thanks to Dave Shaw.

“This is so up. Aiming well in Jim Mackel and Minolo Moreno. Our engineers are Fernando”

Aruda and Rick Juan and our theme music is Bike Tracidemics. If you're already following the show,

may all your mergers and acquisitions be forever blessed. If not, you're stuck with a $650 million

quarterly ticking fee. Go wherever you listen to podcast search for on with Kerris Wisher and hit follow. Thanks for listening to on with Kerris Wisher from podium media, New York Magazine, the Vox Media podcast network, and us. We back on Monday with more.

“It's there, but let's go to the time and program you know. Why?”

The Jonas Kerri Abron sidebuilder sets their ideas fast and simple patched a game on app, website or digital tool. The Kerri Boutes and with one click it's live. Domain and sicheres hosting of Europäischen Zörvern Inclusive. Now let's start a new EuroPromonat start on Jonas.de/app, Jonas. Digital on your side.