OA34: The "Fallout" Over Copyright

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello and welcome to Opening Arguments. This is episode 34. I'm host 1 of 2, Thomas Smith, and there's host 2 of 2 Andrew Torrez. How are you doing, Andrew?

0:01:27 Andrew: Hi, I'm great despite being demoted to host two.

0:01:30 Thomas: Oh, no, see, that was in order of appearance. It was not, yeah, so you're fine.

0:01:33 Andrew: Oh, okay. Yeah, all also alphabetically. So there we go.

0:01:37 Thomas: Oh, by last name? Well, sometimes we'll change it up. We'll do alphabetical, but, you know, we'll change it each week. It's fine, but for now, yeah you're very clearly 2 of two, but how are you you doing? Despite that hit to your ego.

0:01:38 Andrew: Yeah. All right. Yep. Other than that, other than that I am fantastic. How about yourself Thomas?

0:01:50 Thomas: Oh, I'm doing great. Happy to be back. And I believe once again, we can just go right into it.

0:01:57 Clip: He who questions training, only trains himself at asking questions. What?

0:02:05 Thomas: This is from Sue Barnum. Andrew, can a list be copyrighted?

0:02:11 Andrew: And this, this is a question that has a straightforward answer. And that answer is yes. And in fact, one of the earliest, um, of cases involving, uh, copyright was over various, uh, phone directories, uh, so if you think back to sort of the dawn of recorded time, uh, when people used to get actual phone books delivered to their house Um, and and you would do something with them as opposed to just throw them away or

0:02:35 Thomas: Yeah. I was going to say, because sometimes that still happens and there's just a good 10 minutes of confusion of just like, what is this document? Him. Like, what is this? And then I go, oh yeah, it's one of those weird books. And then you throw it away. That's pretty much it.

0:02:40 Andrew: Yeah. Yeah.

0:02:52 Andrew: In the pre-information age, you used to have individuals were gathered together by name and address and listed in various phone books. And it was such a lucrative business, apparently, that there were competing phone books And so when you have a list of names, right, like it, are it, two ways in which you could compile a list of names. Right. Like you could compile a list of names by conducting surveys and going out and doing all the painful hard work, or you could just take someone else's phone book and steal their list of names.

0:03:27 Thomas: Change one phone phone company would come up with a list and the other would would grab the list and then just kind of change the formatting a little bit and in Microsoft Word and just make it look a little different and then print that off as theirs you're

0:03:38 Andrew: Yeah, this is about 100 years before Microsoft Word, but yes.

0:03:41 Thomas: Right Typewriter soft word.

0:03:45 Andrew: Right. Yeah, it would, you know, you would just steal another phone book's list and then, you know, slap your cover on it and, you know, sort of reformat it a little bit. And so care to take a wild guess as to how phone company A would stop their competitors from stealing their lists?

0:03:45 Thomas: Yeah, yeah. Oh.

0:04:04 Thomas: To actually stop them, like, not just to, like, catch them doing it, but actually stop them from doing it

0:04:09 Andrew: Well, to catch to and deter.

0:04:10 Thomas: Because I was thinking maybe put some fake names in there or something, so that they know. Yeah.

0:04:13 Andrew: That's exactly right.

0:04:14 Thomas: Okay, yeah. But

0:04:14 Andrew: Yeah. So that's exactly what these phone book manufacturers would do is, you know, every X names or so they would put in a fake name in, you you know, in alphabetical order.

0:04:25 Thomas: What if I really want to get a hold of IP freely, I thought I, you know, I see that. Yeah.

0:04:25 Andrew: Uh, right. And, uh, and so, and then what you would do is you would hire, uh, staffer to take your competitors phone books when they came out and you would go search down through their list. And if you found any of your fake names, you would then sue that phone book manufacturer, uh, for, uh, infringement on your copyright. And you would have a very good evidence because the only place that they could come up with that list of information would be from your materials. You know, this is, I would be, I know about this from the phone book cases. Obviously phone books are, you know, we might as well be talking about buggy whip manufacturers, but but I would imagine that there's probably similar in place with things like vacation guidebooks, right?

0:05:19 Andrew: When you're listing like the 11 attractions at Disneyland in, you fall in, this particular area, you would throw in, right, like a list of 11 things. You have a copyright in how you have assembled that list, but somebody else could claim, oh, no, no. I'm not infringing upon your copyright. I just assembled that same list in in that same way. And so the way in which you go about one way in which you can go about proving no, no, you didn't, is if you insert false information, or something like that, then you can say, yeah,

0:05:52 Thomas: Wait for the fake attraction they put in there that's like Space, Splash Mountain Land, Star Wars area, they're like, oh, oh, that's not real.

0:05:56 Andrew: I would imagine you would probably do it a little more subtly than like, you know, by the way, enjoy, Enjoy this attraction that does not exist. But yeah, in proprietary information, yeah, right, right.

0:06:04 Thomas: Yeah.

0:06:13 Thomas: Some little bit of information in there that if they copied, you'd be like, ah, there's no way you could have known that. Okay.

0:06:21 Andrew: Because that's one of the elements of a copyright claim is proving that they copied your design. Now, I should be clear here that there is a phone book case that goes the other way. That case is called Feist Publications v. Rural Telephone Service Company, and I'll link it in the show notes. But that case really illustrates the principle that I'm talking about, which is that the requirement for copyright is that some minimal amount of creativity has to go into the work. So in the Feist case, you had a rural telephone company that was required to reproduce all of the names and phone numbers in alphabetical order. And then a commercial company copied the data, but rearranged it. And the Supreme Court held that just the data that was required to be compiled by the phone company was not copyrightable.

0:07:14 Andrew: But amusingly enough, that the subsequent rearrangement that has the artistic quality of deciding how to present that data is copyrightable. It's a really, really minimal threshold.

0:07:27 Thomas: What about things like, I dunno, Rolling Stone, I hate their list, but Rolling Stone greatest rock guitarist of whatever, are they, can they copyright that list in itself, like can there be a uh National Geographic greatest 100 guitar players of all time, or can they, or are they just copywriting whatever their procedure is for formulating that list, or the the actual contents and the order that they're in themselves, or all of that, oh,

0:07:56 Andrew: Yeah, and we're going to talk about this in more detail in the main segment. But the answer is that you are copywriting the list itself. You are copy writing the artistic or literary expression. And so the question that goes into a copyright is whether you have engaged in, quote, an original work of authorship. A fairly large body of case law as to what constitutes an original work of authorship. But certainly, you know, taking a list of names that you have arranged in alphabetical order is considered an original work of authorship. So without a doubt, taking, you know, 500 guitarists and ranking them from 500 to one and then like, you know, stupidly getting all sorts of the top 20 wrong because, you know, you've got nothing but hipsters who have to be, you know, oh, man.

0:08:00 Thomas: Okay. Yeah.

0:08:47 Thomas: In the the best songs will usually I could complain about this for hours, but the best song, there will be the the best, just the best Beatles song will be like Hey Jude, you're just like, no, just this list is completely So can we sue, that that's what I'm asking, can I sue them for, no, it's just an original creation that I can't uh complain about

0:08:54 Andrew: Oh, gosh. Right. Yeah. Yeah. Yeah. No, definitely. Definitely I was going to say the, when the best songs list has uh Nirvana Smells Like Teen Spirit at like number nine, like that's just, that's that's a crime yeah it should, it should be more like 85,000, uh, it was a crime against humanity to have that in the top 10 but so So it is

0:09:09 Thomas: Oh you're right, it should be like like seven probably, oh my god well anyway, we used to have listeners but uh, once uh, Andrew started talking about his, no, I, yeah, well, we could compromise, call it number 40 or something, anyway, yeah no, it's those lists are so stupid

0:09:38 Andrew: That the riff is the riff is badly stolen from Boston's More Than a Feeling. But anyway, it's true. Topic for another show.

0:09:39 Thomas: Oh my, okay, new episode yeah, yeah Yeah.

0:09:49 Andrew: So answer to the question. Yes, you may copyright a list.

0:09:53 Thomas: Let's stop this. Let'S stop this fighting.

0:09:55 Andrew: Stop the madness. Why can't you two just get along?

0:09:57 Thomas: Yeah. Yeah, okay. So, cool. So if you've created a list, and it's a, I guess the term you used was some sort of original work of what creativity, what was it? Original.

0:10:09 Andrew: It is original works of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, so

0:10:25 Thomas: Ah, there you have it. That can be copyrighted. Right. Time to get to our main segment of the day, Andrew. I'm curious to see see what you have to say about this. I saw this retweeted a lot. CNN, in an effort to cover the Russian hacking stuff, used a screenshot from Fallout 4 to explain hacking. It's just, it's like a sort of a green, people can probably see the image in the show notes. It'll probably be the image for this episode, or well, I don't know. Will it be the image für this episode? We'll find out.

0:11:00 Andrew: Yeah.

0:11:00 Thomas: But it's sort of a green computer screen with lots of fancy-looking hackery text on there. Boy, if there's any podcast called Opening Hacking Computer Mints, whatever, the hacking equivalent, I would love to hear an expert talk about how stupid our conceptions in the media of hacking are. But anyway, all that aside, what have you to say about this, Andrew? CNN using this screenshot from Fallout 4.

0:11:25 Andrew: And so the, the question is, um, did CNN violate, uh, Bethesda Softworks' copyright in, uh, Fallout 4 by using that screen from the game and trying to pass it off as if this was, uh, an illustration of hacking. And, and likewise, I would love to see Opening Hacking, uh, out there, because if you haven't played Fallout, and I'm not, I'm not a huge, uh, gamer, I know neither are you, but the, the Fallout series is kind of a tongue-in-cheek, you know, sort of post-apocalyptic but retro, uh, game.

0:11:46 Thomas: Yeah. Oh, it is? Oh, I don't know anything about it. Oh, it does look retro. So that's why this looks kind of old school.

0:12:02 Andrew: And so. Yeah. Yeah. It's, it's, it's, uh, I know a little bit about it. And so the, the reason right Yeah.

0:12:10 Thomas: Okay, I gotcha.

0:12:11 Andrew: And so And so that's the idea. Um, also, uh, the the other

0:12:14 Thomas: It also says on the top, it says Robco Industries, Termalink protocol, enter password now, two attempts left.

0:12:15 Andrew: Yeah. It, it, it is, it's very clearly, you know, know, sort of does not, right.

0:12:27 Thomas: The DNC, part of the parent company of the DNC is Robco Industries.

0:12:32 Andrew: Um, you, you know, there was a lot of discussion back and forth as to, uh, whether this violates, uh, copyright. So I thought, um, this might be a good time. We have been asked, you know, our intro question was a question about copyright, you know, there's a, there's a theme to this episode. Um, and I thought it might be good time to kind of go through sort of the basics of what copyright right law is. Um, and then, you know, we can apply that to the case. So, um, as, as we said in the introduction, um, copyright is pretty broad. Um, it applies to any original, quote, "original work of authorship." Um, and, uh, that is then further defined by law, that this is the, um, the, the act that is in place now is the Copyright Act of 1976, uh, which amended some earlier legislation, but that's the, the current structure, the recent Copyright Act of 1976. Um, And, and the act, um, then gives us some definition in, um, eight sub parts, as to

0:13:27 Thomas: I have to stop you and say that may be our first call forward ever. So look for that, guys. Anyway, back to the show.

0:13:28 Andrew: Yeah. Uh, eight subcategories as to what constitutes an original work of authorship. And those are literature, music, drama, choreographic works, pictorial, graphic and sculptural works, motion pictures or other audiovisual works, sound recordings, and architectural works. OK, so any of those things can be copyrighted. And what does it mean to copyright something? What it means to copyright something is that you have created something unique. And so the law, in order to encourage you to produce unique stuff, gives you a bundle of rights that attach to the work that you generate. And so, you

0:13:34 Thomas: No,

0:14:19 Andrew: So This represents another compromise in the law, that in general we would think we want information to be as free as possible, right? And so when you have a piece of information, we would want that to be widely disseminated. When you own a copyright in something, you get the exclusive right to control all copies of that work. You get the right to create what we call derivative works from that. So, for example, if I write a novel and then I want to produce the movie based on that novel, right, this is why motion picture studios have to go to the author and negotiate the derivative right to create a motion picture or a TV show or a play that's based upon it.

0:14:19 Thomas: The

0:15:07 Andrew: Um, and then, you know, there are other rights to, to perform and display the work and, and, and distribute copies and, uh, and all of that. Um, but by and large, um, when you get copyright, that means only you can exclusively profit, uh, from the distribution of that copyright. Like you, the control is with the artist. Um, so the reason to have that protection in the law is to encourage people to produce unique works of, of art, literature, uh, that sort of thing. And so that's, that's kind of why that balance is struck. Um, well, I mean, why don't I, why don't I pitch the question to you this way. Um, can you see any problems in giving people the absolute right to control what they create? Yeah.

0:15:52 Thomas: I I mean, the only thing that would come to my mind is like critiquing it, you know, doing like movie reviews or or that kind of thing. I'm not sure where you're going, but but being able to reference it in the news, I, because that's what I was wondering about, this tying it back to CNN. I did, I would figure this is fair use, but I'm not sure if that's the direction you're going.

0:15:52 Andrew: Yeah. Yeah. No, that's, that's exactly right. And the, the primary defense, uh, that most people raise to copyright infringement. Look, like, so there's some things that, uh, it's a no-brainer, is copyright infringement, right? So if I download, if I pay for and download, uh, a movie that is just released for a digital download, right, uh, and then I copy it and give it to all my friends, Right, that's very very clearly copyright infringment I have paid for a single download the owner of the movie uh has authorized me to copy it once and instead I've copied it a hundred times and giving it out to my friends. That's a violation of copyright law. Are not very many good defenses to that.

But what about I write a book that advances a a controversial thesis you know let's say that um say the thesis of intelligent design this was in the news recently so that says uh you know there are these problems with uh the theory of evolution and uh that can only be explained by postulating a unique designer And then I go through and I make these sort of sets of arguments. And then a biologist comes along and wants to say, yeah, Torres's book is absolute nonsense. Well, if I have the absolute right to control all of the distribution of all of my work, then I could potentially sue the biologist for quoting my book and

0:16:35 Thomas: Right right Right. Right

0:17:38 Andrew: Refuting it, right? Right. So what we developed was a defense to copyright infringement. It's an affirmative defense. We've talked about this before. So the infringer bears the burden of proof. And that is called fair use. It is a statutory defense. So we're not it's not dependent upon what the courts have said to come up with, like the balancing test. The actual test itself is a four part test that is set forth in the text of the Copyright Act itself.

0:17:49 Thomas: Right. Oh,

0:18:08 Andrew: OK. Yeah. And I would point out.

0:18:07 Thomas: Okay, so it wasn't Sandra Day O'Connor's, what you're trying to tell me. Yeah.

0:18:11 Andrew: No. Yeah, and I would point out that the doctrine derived from it, was, it was statutorily codified, and that the pre 1976 cases, by and large, used versions of this test anyway. So, that's an example of something that often happens, which is the law will take a court opinion and then codify that, uh, into the statute itself. And that's, and that's what happened here. Um, so there are four factors that come into play in determining whether the use of copyrighted material qualifies as fair use. Okay. So the first is the purpose and character of the use itself. Okay? The second Second is the nature of the copyrighted work. The third is the amount and substantiality of the portion of the original work that's used. And then the fourth is the effect of the use upon the market or the potential market for the original work. So the paradigmatic case that I learned in my copyright case in law school is Siskel and Ebert at the movies. So that helps pin down when I went to law school.

0:18:12 Thomas: Sure Yeah. Right

0:19:23 Andrew: When both Siskel and Ebert were both still alive. And if you think about that, that really helps illustrate four of those prongs, right? What So would happen is throughout a Siskel Ebert movie review, you would would show clips from the movie itself, okay, in, in almost all of those cases, since it was useful, uh, for movies to appear on a movie review show, uh, you know, it's unlikely you would have a lawsuit anyway.

Uh, but Cisco and Ebert, there were plenty of movies that Cisco and Ebert, you know, really trashed. So the question is, you know, if, you if they gave a bad review, could a movie theater, uh, come back and sue them for copyright infringement for showing how bad the movie really is? And the answer is no, right? Because, Uh, because that's the classic example of fair use. So, so number one, um, the purpose of the use is educational or informative, right. It's to tell you, okay, hey, that's, that's what, this is what this movie is about. This is, I'm, I'm reviewing the movie and I need to show parts of it in order to tell you whether I'm going to give it a thumbs up or thumbs down.

Um, the nature of the copyrighted work, um, uh, it's a fairly strong protection because the, uh, copyrighted works are fictional movies with a high degree of creativity. Um, the amount and substantiality, very, very small. You use about four minutes of the movie, of a two-hour movie. So, um, you know, you're using a really really tiny portion, uh, and then the effect upon the market or potential market. Well, uh, it, it It could be variable, but by and large, the effect of movie reviews was to increase the overall market for people going to movies.

0:20:06 Thomas: And

0:20:59 Andrew: So when you think about like all of those tests, it's really clear why. I mean, it is not a close call to say a movie review is obviously fair use, right? Right.

0:21:13 Thomas: When you said Paradigm, paradigmatic case, this wasn't an actual case because no one bothered, or is this, and actually, Cisco and Ebert v. uh, something he

0:21:14 Andrew: Right. Yeah. No, that's exact. Good. Good to seize on my, um, equivocal use of the word, uh, paradigmatic there, because I, I do not mean it in the sense that there was a case, uh. There wasn't, I mean it, in that it was the illustration of how the act was applied. Like it's so cut and dried that no one would have sued Siskel and Ebert. Um, and relatedly, like, that's why on the news, you know, you can show, you know, various clips of, you Know, what is otherwise, you potentially late, right? Like the news can say, uh, remember when, the um, cast of Hamilton called out Mike Pence, right? Like, and they showed the cast Of Hamilton calling out Mike Pence and part of the show. And, you know, and again, that that's potentially copyrightable. And some of them actually included some copyrighted material from the actual production of Hamilton. But again, it's clearly part of the news broadcast, right? Like

0:21:35 Thomas: Gotcha. Yeah.

0:22:15 Andrew: Hamilton was the story they're showing. This is what Hamilton is. And, uh,

0:22:25 Thomas: The Law recognizes that the, your, your Channel three News is not trying to compete with Hamilton there and like sell and like profit off of the fact that, you know, they're Just reporting what's going on and being able to illustrate that, yeah.

0:22:32 Andrew: You Yeah. Yeah. Right. But but let's let's give you the other extreme of that, which is, suppose, under the auspices of critiquing a document, think about how you might fisk a blog post online, right? Like, you you would take a blog post, you would you would copy it, and then go line by line and respond to every single line of it. Right, that's a that's that's a pretty common approach in online argumentation. Even though you are informing the public, and even though might be – doing a maximal amount of work, right? You're doing at least as much creative work as the original author because you're responding to every single line of the original work. The fact that you've reproduced the work in its entirety would make that a challenge in a copyright action because now the person no longer has to go to the original source, right?

0:23:36 Andrew: Like I can assemble the original resource from the secondary source. Now, again, most fisking of blog posts does not rise to the level of invoking a copyright action because, you know, there's – well, and there's no – it's not worth it. There may or may not be a commercial context. And remember, implicit in this is that we are protecting your copyright rights, our commercial rights, right? They are the right to distribute and profit from the use of the rights. And so it

0:23:50 Thomas: It's not worth it. So If someone's making like no money on their blog, then they don't really have a

0:24:13 Andrew: Becomes

0:24:13 Thomas: Is that what that means, or

0:24:16 Andrew: Part of the factor. That's why the effect of the use upon the market or potential market for the work is one of the factors to balance that out against. I paused a little bit because one of things that makes copyright tricky to litigate, and I have litigated copyright cases, but one of of the things that makes it tricky is that, um, the act provides for statutory damages. Uh, but those statutory damages can be hugely wide ranging. They can range from, uh, like $750 to a hundred thousand dollars. And it's, and that's per infringement. Right. So, um, makes, it puts an incredible amount of discretion in the hands of the judge, uh, to try and determine, you know, what those damages are. But you do not have to show the difference between statutory damages and actual damages is maybe obvious from the name, right?

0:24:17 Thomas: Okay. Okay.

0:25:12 Andrew: Actual damages are you have to Show that you were harmed. And because because copyright law has looking component to it, right? It says, we want to preserve your rights to distribute and profit from your work. And we understand that if somebody, you know, copies it wholesale and destroys that market, that you might not be able to show, you Know, what your market would have been, right.

0:25:37 Andrew: You know, think about that in the classic copying case, right, like, suppose you and I put out, put out this episode of opening arguments, which contains the disclaimer at the end, that this is copyright, opening arguments, media, LLC, and that we reserve all rights, right? And when we say we reserve all rights that means we are reserving, among other things, our rights to distribute under copyright. And then suppose, yeah, they have to pay us.

0:25:37 Thomas: And I know some Hollywood producers were just about to make a movie based on our podcast, but nope, sorry, we reserved that right. Talk to us. Yeah, they'll have to, you know, negotiate. Okay. You Know what, email us, Open Arguments, Gmail, we'll We'll talk.

0:26:09 Andrew: But suppose, yes, we are willing to negotiate. But now suppose that the unscrupulous producers, and by the way, this is strictly hypothetical, please do not sue us, uh, you know, Serial, right, like, that that that, uh, a huge podcast with, you know, twice as many listeners as us, I mean, a truly huge podcast. So uh yeah uh like Serial comes along and says, hey, why don't we just take, uh, word for word, everything that was on that opening argument show and just make that season three of Serial, right, and so, uh, and then you know, Cereal has Because, yeah,

0:26:20 Thomas: Oh, Yeah. Massive.

0:26:41 Thomas: Be Better than season two. By the way, anyway, go on.

0:26:46 Andrew: I agree. I totally agree. And then and then Serial has 10 million listeners and they go, and now the Hollywood producers go to Serial and say, hey, we want to make a movie based on season three of Serial. And and we're looking at it going, um, that was episodes 1 through 33 of Opening Arguments, like, come on. And and we would not be able to say that we have suffered millions of dollars in damages to date, but we may have been deprived of a million dollar opportunity because the folks at Serial stole our, uh, our content, passed it off as their own, and they got the call from the the Hollywood producers. So, so there's a subjective element of what counts as damages, uh, in copyright, and that's why, uh, there's...

There's statutory damage so you don't have to prove, uh, a direct line of actual damages, uh, because the law wants there to be that flexibility to look at that situation and go, yeah, you know, I get, I can draw that line and I can see how, even though it's speculative, and even though we we may not be able to prove it, uh, based on my my judgment in this case, you know, I want to award, you know, a larger set of damages here.

And then the flip side is, you know, the judge is also free to award, you know, smaller statutory damages if it looks like, you know, there isn't really a good commercial market for this.

0:26:46 Thomas: Yeah. Yeah, okay. Yeah.

0:28:06 Andrew: It's part of what makes copyright litigation kind of unpredictable because there is, you know, in a lot of cases when damages is an element of the the tort, you can look at somebody and say, haven't been harmed by this, so therefore, you don't have a case even if you're right on the merits, right? And in copyright, there's a wrinkle to that because even if you can't prove that you're harmed, you can say, no, well, I'm still going to get statutory damages. It's still important for me to sue and vindicate my rights.

0:28:09 Thomas: Right.

0:28:34 Thomas: Okay, well, in this case, to bring it back to where we started though. Now I'm wondering, should we try to apply that to this? Because it doesn't, this is kind of weird, because I was, this just an accident? Did they not know that they were doing that? Or is this the kind of thing where, like, CNN, end with their ever decreasing budget or something, it just has some intern googling this stuff, and googled hacking, and then just put it up? But it's not as though this is a significant percentage of the game, or this is affecting the market, or, you know, the the other tests that you talked about, it doesn't seem like this applies here, but am I missing something?

0:28:38 Andrew: Yeah.

0:29:11 Andrew: So you make two really good points right there. And I want to deal with both of them. The first is you said, I presume, well, I don't know, did CNN do this intentionally? And the answer to that from a copyright inquiry is it doesn't matter. There is not an intent-based test. Now, why is that important? Because you can be a downstream distributor of a copyrighted work and you can be sued for breach of, for infringement on a copyright. And even if your defense is, well, I didn't intend it to be, it doesn't matter, right?

0:29:24 Thomas: Doesn't matter, okay. Oh.

0:29:45 Thomas: Okay. Well, let me ask you one thing, though, because actually the reason I was thinking of that wasn't because because of intent. It was because, and this may also be something that doesn't matter, which is why I want to ask you, but I was thinking, did they credit them or not? Like, did they know to say this is from Fallout or whatever, or does that not even matter?

0:30:04 Andrew: So it would, it absolutely would matter. And the answer is no, they didn't, right. As far as I can tell, right, CNN just sort of passed it off as, you know, well, this was a graphic that our boys cooked up on yeah, on what what hacking looks like um, right, right, um, so, no, was, my understanding, no credit, uh, that went here, uh, and no, no transformation, no comment, no news, right, like, if if CNN wanted to run a story on Fallout 4, they probably did do a story when, I, because you know, when Fallout Four came out, like, on the one of their soft news segments, perfectly perfectly reasonable to be, oh, hey, look, one of the, one of the season's hottest games is Fallout Four.

0:30:08 Thomas: Ah, here's something we made up with an old fashioned computer screen that we decided to do that makes no sense. Oh my gosh. Credit. Okay, at some point.

0:30:46 Thomas: Check

0:30:47 Andrew: Here's a screen from it. There's a, yeah, there's a little hacking minigame in it and have at it.

0:30:47 Thomas: Out this hacking screenshot. Yeah. So what later on, someone was going through the the Dropbox folder and saw, like, hacking.jpg, I was like, oh, okay, I guess this is what we used, like plausible.

0:30:54 Andrew: Yeah. Yeah, I, I would bet. I mean, that's, that'S a shockingly plausible explanation for, for what happened. Um, I so, and I, um, I tend to to think that, um, that there probably wasn't fair use going on here, um, even though the the amount

0:31:04 Thomas: Yeah. Okay. But What kind of damage, because, like, what what economic impact would this have on Fallout

0:31:16 Andrew: Yeah. That's right right and that's and that's why I went through so so let me go through the full analysis. There's they use a very very small portion which ordinarily is a strong argument in favor of fair use, but they do literally nothing to it, right, and they pass it off as their own, uh, and sort of misdirect people away from from Fallout, which has designed the screen as a parody as part of its game. Now, what effect does it have on the market? Probably none.

Um, or in fact, now that the news is leaked, like, you know, it's, if anything, it's spurred people to go back and and and play the game. Um, but this is where I think the, uh, the statutory damages component of of copyright comes out. I'm not suggesting that that Bethesda ought to sue CNN over the use of the graphic. But in playing out in my mind, you certainly could do so and would say, hey, you know, your use of this graphic, we're going to get statutory damages that, you know, we can't prove that it's caused any harm to us, but the Copyright Act doesn't require us to prove that's harm. The Copyright

0:31:23 Thomas: Okay. Okay. Yeah. Yeah.

0:31:50 Thomas: Positive. Yeah.

0:32:18 Thomas: Hmm. Yeah.

0:32:24 Andrew: Act requires us to approve that you made an an unauthorized copy of some or all of our original work, and we can do that. And then when you try and advance the affirmative defense of fair use, you're going to lose because you, you didn't do anything to it, right? You, you, didn't transform this in any way.

0:32:38 Thomas: Okay. And That Makes Sense I don't mind that, just uh, talking about like kind of rationally and how the law should maybe match our intuitions. I don't mind that, just even though if it didn't cost Fallout any money or the company, which was what, Bethesda, is that what you said?

0:32:53 Andrew: Yeah. Bethesda softworks.

0:32:54 Thomas: Bethesда? Just as sort of a slap on the wrist to CNN. I mean, I'd be fine with that. Be more careful, you know, like make sure maybe this time it didn'T matter or didn'T affect the company. But being careful about the sources is something I would want to encourage in fair use. So

0:32:55 Andrew: Yeah, right. And I think there are two more areas that we should talk about with respect to copyright. The first is, I know you've heard the term of entering the public domain. And what that means is originally, and it remains the case today, that copyright copyright attaches for a fixed term um when you have created a work, you have the exclusive rights over that work that we talked about for the copyright term. And after that time has expired, it automatically goes into the public domain. There's no dispute. It has nothing to do với, you know, how popular or common. And so this has been amended over time.

Uh, but the simplest way to think about it is for anything that is before we talked about that, this is the copyright act of 1976. Um, anything before 1976, uh, has a maximum, uh, initial term of 28 years, and then you could renew it once for 28 more years. That would be 56 years. Um, so you can subtract backwards, right? Anything before 1922 is now in the public domain, right. So that means you can make copies and you can, you know, distribute and, and, uh, plenty of things that are produced in the fifties and sixties, right, have entered the public domain because the copyrights were not renewed. So, for

0:33:21 Thomas: Yeah, yeah. Yeah. Oh. Okay. Okay. Right. Yeah.

0:34:39 Andrew: Example, I looked at this question with my dad over the holidays. My dad is a big fan of old-timey radio shows from the 40s, 50s, and 60s. And there are a number of sites. He asked me this question.

He was like, yeah, our computer club in the community where he lives, you know, had a website and he was linking to another website that had uh copies of all of these um old-timey radio shows and he said is that am I stealing is it you know am I violating their copyright and we looked it up and as it turns out um most uh if not all of those old-imey radio shoes uh did not renew their copyrights and so they lasted for 28 years and then you know look like there wasn't a whole heck of a lot of market for, you Know, the, the Shadow in 1985. And so they just, they let them lapse. Uh, and now those radio shows are in the public domain. So it's perfectly okay to reproduce them in full. You don't have to show fair use. You can just, uh, you can just reproduce them on, on your website. Um, for recent works, um, the copyright protection is, um. Usually, uh. The life of the author plus 70 years for the estate, so significantly longer, right, and

0:35:23 Thomas: Yeah. Right.

0:35:52 Andrew: That I think reflects the fact that we have, you know, more storage and more ways to copy and and everything, and it just, you know, we've, we've changed the law because we think there's a different sort of continuing enduring market for um for copyrighted works, uh, but things that are of a sufficient age can pass into the public domain, and that becomes an absolute uh defense against copyright infringement, there's... there's no one left to bring the claim, um And that, and that gets to sort of the last point, um, which is, you you have not asked the question that I thought you might ask, which is, well, what about the like clips from Futurama and the Simpsons and you know that we use on our show? No, we haven't paid.

0:36:34 Thomas: I We Weren't Talking about That because we were clearly In violation of the law, so I didn't, you know, uh, isn't That fair use, I thought you already covered that, or is it because we're not reporting on it that doesn't fall under Fair use, hmm.

0:36:35 Andrew: Yeah, it it it. So I would, I would say this. I think we have a good argument for fair use on the clips that we use because we do transform them by by commenting on them in the segments. We're not doing a lot with it, we're also not using a lot. Right. So when you do sort of a minimal transformation and you have a minimal use, I would say that differentiates us from the CNN case where they've literally done nothing, right? Like they've tried to pass this off on our own, whereas we've said, hey, look, this is a, you know, public media commentary on a ridiculous aspect of law that, you know, we are using ironically to set up a segment. But there's also a kind of a more legal realist question here, which is something I often will say to my clients. Sometimes the question, what would a law school student writing an essay, you know, preparing for the bar say in response to this isn't the right answer to a question, right? Sometimes the questions you want to ask is, if I do X, what's going to happen to me, right.

0:37:00 Thomas: Yeah. Yeah, yeah,

0:37:46 Andrew: Right. And and the answer to if using these particular clips, what's likely to happen to us, again, don't take legal advice from a podcast, you know, make your own determinations if you're a podcast creator out there. Realistically, the likelihood, like I said, I think we have a good argument on fair use. If of the copyrights of the clips that we use, then I would certainly advise us to comply with that order and stop using the clips. Do I think that it would be profitable for somebody like that to bring a lawsuit against us? Uh, I, I don't think that would be a particularly probably, you know, notwithstanding they could go for statutory damages or whatever, but like, you know, you know that this podcast is, you can't get blood from a stone on this podcast, you know, so you know it, the, the it practical application here is, you know, very likely that, um, you know, we are proceeding in good faith on fair, fair use of, uh, of those clips.

0:37:46 Thomas: Yeah.

0:38:45 Andrew: And, you know, we would stop if, if we were asked. Um, I think that's the right conclusion. It's why I wanted to end with this. I think that's the right solution to the CNN question. I don't know if Bethesda has issued a cease and desist. I don't know if, if CNN, you know, issued a retraction in a pod. I haven't seen it. But if I were the lawyer for CNN, Uh, and we got a cease-and-desist notice from Bethesda Softworks that says, we want you to issue a retraction and apologize for using the screen from Fallout in our news broadcast, I would absolutely do that, right? And I would tell them, Hey, look, like, that's how you make this right again. And, you know, and so I think this, again, goes to sort of illustrate one of our continuing themes here on Opening Arguments, which is, you a technical answer, but there is also a legal answer that makes makes sense and sort of serves The public Good, yeah.

0:39:17 Thomas: Yeah, it's like a practical answer. All right, well, fair enough. I'm worried now we're going to get sued because, you know, just for troublemaking purposes, but because we're such a big show. No, and I would say, yeah...

0:39:35 Andrew: Exactly. We Are Nothing If not transparent on this show. I

0:39:46 Thomas: In terms of transformational and like actually using it, I would Say we're covered on the belted lawyer jokes and on the criminal lawyer ones. We got to start... I think the answer is that we need to start incorporating recuperating those clips more and talking about them more. Maybe that's what we need to do.

0:40:01 Andrew: I Would say it is not a complaint I have received from our listeners that we talk insufficiently about the Simpsons and Futurama, I agree.

0:40:13 Thomas: Yeah. All right. Well, cool. Thanks for taking us through that. I think it's more funny than anything that CNN did this, but it turns out there's also, you know, potentially legal consequences.

0:40:21 Andrew: Yeah. But we and And and I thought it was a good uh backdrop from Which you know to to, to talk about copyright law, which is we get copyright questions all the time. Um, and so, you know, that's a, that's a pretty good primer on, uh, what copyright is and what fair use is. And, you know, you can apply that sort of rule of reason. Again, don't take legal advice from a podcast. Uh, if you're going to use copyrighted material, you know, consult the a lawyer. But you can conceptualize might go about evaluating your particular use by sort of following the model that we've set forth.

0:40:28 Thomas: Yeah.

0:40:52 Thomas: That's what I did.

0:41:04 Thomas: Yeah, all right.

0:41:06 Clip: He who questions training, only trains himself at asking questions. What?

0:41:14 Thomas: Time for For listener question number two of the day, and this comes from Damian Kumor. Andrew, it's been requested that you rank courtroom shows, or I guess just law shows in general maybe, by accuracy, or at least which you find the most entertaining, one or the other. Maybe throw in some of the older ones, Matlock, or how about the Simpsons episode with the gummy Venus de Milo trial?

0:41:31 Andrew: Oh.

0:41:42 Thomas: So where does that rank? Is it Before Or after Smells Like Teen Spirit? Yeah.

0:41:41 Andrew: Call me Venus de Milo? Yeah. Uh, well, first, so, you know, if we were to create a list, that could be a copyrighted list of best shows. No, I'm also curious about your shows. So for me, I have plugged this before on numerous occasions. I don't think there is a better run of legal drama on television for accuracy than the first six or seven seasons of Law & Order. Um, part of what made that show so good, uh, is not just the, um, the courtroom, uh, reenactments, which were, um, which had a pretty high level of of accuracy, um, but the little things that they did. So, for example, um, when the district attorneys would, uh, have a piece of evidence excluded for reasons that were crucial to the plot but were kind of stupid, um, you would get this kind of, it wasn't quite a breaking the fourth wall, but I

0:41:52 Thomas: Oh. Without

0:42:39 Andrew: You know, we used to interpret it that way in law school, as, like, sort of a wink and nod to us of, you know, they would rail about, I can't believe, you know, judge so-and-so threw out this piece of evidence, like, no sane judge would throw that out, and you know, the, uh, well, No, they would say it, they would, saying, I can't, I can't believe that, you know, this was ruled inadmissible as, you so, for example, like, there would be a questionable search right under a search warrant, and then the defense would move to exclude the evidence. And what made that plot central to that episode is the judge would exclude the And in reality, there'd be very little chance that the judge would exclude the evidence, right? So the district attorneys would openly complain sort of to

0:42:52 Thomas: Saying What It was, oh. Okay. Oh.

0:43:05 Thomas: Yeah. Oh.

0:43:26 Andrew: The camera, like, I can't believe, are you kidding me? 99 times out of 100, that piece comes in. And so, you know, there was, I thought there was a lot of, that was really the right way to go about making a legal drama.

0:43:26 Thomas: I See, okay. Like They're actually talking to the screenwriters like, what?

0:43:41 Andrew: Yeah, right. And by far, one of the things that I almost never see on legal shows, but is a reality of the legal world, we've alluded to this before, but 99% of all cases settle. Settle. And so, and they settle in the civil arena, which is where I practice, uh, and, and but they also are pled out in the criminal arena almost all the time.

It's not quite 99 on criminal cases, I'm not a criminal lawyer, but it is, it is over 90 percent, uh, and so you constantly had in the first seven or eight, uh, seasons it was Stephen Hill playing, uh, the, uh, sort the of crusty old elected district attorney who was always telling the detectives, make the deal, and that was sort of his catchphrase, the way, you know, my catchphrases don't take legal advice from a podcast, and and, you just don't see that in in, uh, legal shows, and it is absolutely, you know, a fundamental reality of, uh, of t of of the actual practice of law, which is, um, your case is going to settle. You go to trial when there is such a mismatch, a civil case, when there's a mismatching on expectations, and in a criminal case when you have nothing to lose, or the prosecution thinks its case is so slam dunk they're not willing to compromise.

Minimize, um, uh, but even, even a very, you know, a very well evidenced case, there's going to be tremendous pressure from the top down on a district attorney to, uh, enter into a plea bargain with the criminal defendant. So, I, I love that, um, other, other shows that I liked, um, I had to look this up because I forgot the name of it, this, this was a show that aired on Fox for, um, 12 episodes in 2006. I really love this concept,

0:43:41 Thomas: Huh, okay. Yeah. Yeah. Right. Yeah.

0:45:33 Andrew: But apparently I was the only one. It was a show called Justice. OK. And it was a an L.A. based, or California based anyway, law firm, kind of a Hollywood style, you know, that that took on and was clearly kind of in the wake of the O.J. Simpson trial, you know, meant to be a, you know, know we defend, uh, you know, celebrities, and, and, and we handle, and it kind of, uh, talked about all of the, um, know, media handling aspects of a case, and you know, some other things that you don't always see, but what this show did that I really, really liked was, um, you pieced together the what actually happened from the testimony of the witnesses that came into to the law firm. Um, and then at the end of the show, and so that took, uh, not counting for commercials, right?

0:46:20 Andrew: So that took the first 50 minutes of an hour long show. And so they, they went from start to finish. Uh, you had criminal defendant come in, you'd have the lawyers go, gosh, he's saying X, what do you think that means really happened? You know, and they would test out theories or whatever. And in the last 10 minutes, uh, they would run, you would see what actually happened.

At the end, so instead of seeing, you know, like in in Law and Order, right, you see the crime happen, and then, you know, the drama is, uh, know, what are they going to, you know, convict this person, you know, whatever, and this, you as a lawyer, it was really, really interesting, you sort of had to piece together, what do I think happened, based on what you knowthe witnesses on the screen are telling us, knowing that they could be unreliable, and then at the end they sort of ran what really happened, and you got to see if you got it right or not, um, it appealed to me a lot, but, uh, the show got such low ratings that they ordered, they ordered 14 episodes, uh, they only produced 13 and they only aired 12 in this country, uh, so, uh, so maybe my recommendations on law shows do not match up well with, uh, commercializability, um, but

0:47:33 Andrew: I thought I I thought that covered some interesting angles, it was a Jerry Breckheimer, uh, production, it was called Justice, so, um, and then we have talked about this before, one of the reasons, uh, that we will not do, uh, My Cousin Vinnie on Lawd Awful Movies, uh, is because, a, My Cousin Vinnie is is pretty funny, um, and, uh, and B, B, the despite played for maximum humor value, and despite having the grandpa from the Munsters as the judge, the trial procedure in My Cousin Vinny is very, very good.

0:47:32 Thomas: That could be Yeah.

0:47:51 Thomas: Oh.

0:48:05 Thomas: I never would

0:48:05 Andrew: And Yeah, it's it's really sort of surprisingly accurate, uh, it's played with a wink and a nod, but, uh, but it, but it gets that right, there's nothing for me to make fun of with with respect to that, so, um, so those are

0:48:06 Thomas: Have thought that, huh. Well What Okay, when we're talking about TV shows, though, what's like the worst one off the top of your head that you can think of right now?

0:48:20 Andrew: Um Mason Matt, I mean, the classic shows are just, they're just terrible, right, like, I mean, we have, you know, that's part of what makes the Lionel Hutz character from The Simpsons delightful, is that, you know, the one I found myself quoting actually to a client the other day was the, I'm going to introduce a bevy of surprise witnesses, each, each more surprising than the last. And, and, right, the reason that's funny is because, no, no, you're not going to introduce surprise witnesses, right, like, that's not how trials work, you know, even criminal trials, it certainly is not how civil cases work.

And the, you know, it's, it can Exist if you can show reasons why a criminal case, if you can show reason why a particular witness was not disclosed to you, because the prosecution, prosecution has a duty when they discover exculpatory evidence, they have to disclose that evidence to the other side. Okay. They have to expose that to the defense. Um, and sometimes prosecutors don't do that. And so if you independently discover that the prosecution, prosecution knows about a defense witness and that happens the close of discovery and after you have exchanged your witness lists, you can go to the judge.

0:49:01 Thomas: Yeah. What is this? OK. I got to ask, does that exist?

0:49:52 Andrew: And when somebody's, you know, life or liberty is at stake, you can say, judge, we should have known they were required to tell us they knew about this witness. They didn't disclose it. We're going to call this witness tomorrow, uh, and the judge may allow it in that situation, but by and large, you know, that's again not a, not a criminal defense lawyer, so I invite, uh, if I know we have criminal defense lawyers who list, who listen, if there are other scenarios, uh, in which, uh, you've had a surprise witness come up, please email us at openarguments@gmail.com, uh, but, but that's my understanding. I have never seen it. I have attended.

0:50:11 Thomas: What, that it worked right is there normally an audible gasp in the courtroom when this happened, like yeah yeah to see who it's going to be like a reveal

0:50:36 Andrew: Yeah. Everybody turns to look, you know, as the right. Yeah, right. Yeah. And it absolutely does not happen in, in a civil, in a civil trial, because in a simple trial, like everything, I mean, this is sort of worth repeating. We've talked about this before, but in a simple trial, you go through a discovery period in which both sides have to produce the evidence that they're going to use at trial to each other. And that is, in my view, I mean, it's the thing that people least expect when I tell them about my job.

0:50:41 Thomas: Yeah

0:51:09 Andrew: And it is one of the things that think I helps people understand and have confidence. I mean there are a lot of problems with our legal system.

0:51:16 Thomas: Because why would you ever call a non-surprise witness if that were true like why would just everybody's a surprise, yeah

0:51:18 Andrew: Them but right yeah exactly yeah you You you exchange your lists and you prep out and you know, you know what you're going to cross-examine the other side's witness on, and they know that. And, and I think this sort of plays into a fundamental theme we've talked about on the show, right? Like what makes for, in my mind, bad drama, but what some writers think of as good drama is You know, oh, look, look, like there's a huge gap between what's fair and what's expected and the law as, you know, gold fringe minefield. But in reality, you want the law to match up with our intuitive notions of justice as much as possible.

Like, otherwise, you wouldn't have that, right? Like if people, you know, if we had a system that, produced results such that 80% of the country was dissatisfied with the results of criminal cases, you know, then like we would immediately change that system, right? Like one of the fundamental points of having a criminal justice system is to make the public satisfied that justice has been done. And so the reality is that the non-surprise system because that ensures that the outcome is more predictable, more understandable. There's not a, gosh, I would have won if not for this neat trick that he pulled at the last minute. We don't want people to have that sense about the courthouse.

0:51:43 Thomas: Yeah yeah Yeah.

0:52:46 Thomas: Yeah. All right. Well, cool. I guess that, that gives us answer. Those, those classic ones that we know and love that I actually haven't seen at all because I'm not old, like some of us. Those are the ones that are, I don't even know what Perry Mason is. I've heard the name, but I've never seen it. That's

0:53:00 Andrew: Oh man Um, and, and, uh, you know, I could add, I could add some, some recent stuff on there. Um, you does anybody need to know that Ali McBeal was not particularly, uh, reflective yeah

0:53:11 Thomas: Recent. That was at least 10 to 15 years old, right?

0:53:13 Andrew: Oh god I know it's yeah, well, you know, um

0:53:17 Thomas: You got any other early 2000s shows that you want to recommend as recent? Well, my favorite gimmick, because I'm obviously not an expert like you, but my favorite thing about these stupid shows is whoever is the subject, they do everything. Like if it's CSI, what the crime scene investigators do, like if they're the focus, they go and they pick up all the evidence. They go and like arrest people. They'll be in court. They just do everything, whereas in reality, I imagine it's a little more regimented, regimented, like they probably have one little job they do, and then occasionally they go testify as an expert or something, but it'll just, they'll have guns, they'll be, you know, chasing people

0:53:18 Andrew: Recent yeah Yeah. I was trying to come up with much, much derided legal shows. And yeah, like.

0:53:42 Andrew: Yeah. Yeah,

0:54:07 Thomas: Down. They'll do all this stuff, and and it's, that's what's funny to me. And then the same will be true if it's like a show about the prosecution, like they'll doing all this, you know, it's just, it's crazy.

0:54:07 Andrew: Right.

0:54:18 Andrew: Yeah. No, the best implementation of that in a hilarious way is, of course, David Caruso in CSI Miami, uh, who I believe has cross-examined witnesses in court despite being, uh, a crime scene investigator, right? You know, um, there, there, there, is it's worth bringing this up because, um, there was a law review article, um, that, uh, was published in the past, recently, so in the last 10 years or so, um, which that like Yeah.

0:54:31 Thomas: Yeah. I was gonna say in the early 2000s Yeah.

0:54:45 Andrew: That I should, I should add "recent" to a lawyer, right? Like when I like when, when I'm citing a case, I'll be like, yeah, a recent case, in 2003. Like, it's not just that I'm it's not Yeah. So there was a fairly recent law review article that tracked not guilty verdicts in criminal cases and hypothesized a, quote, CSI effect. And actually, the author interviewed jurors and said, you know, people are so used to the multimedia graphics presentation.

0:54:49 Thomas: Okay. It's like it's like geological time. Yeah.

0:55:08 Thomas: Yeah. Yeah.

0:55:19 Thomas: Like computer animation, like this piece of evidence was here. Yeah, oh my gosh, gosh, yeah.

0:55:20 Andrew: Right. Yeah. Yeah, and like, you Know, make sure we get six points of view from the, you Know, shot of the can and, you Know, like that and and real life forensic evidence is considerably messier than that, Right. Like it is not you do not have the, you know, computer showing me like 13 points of matching and, you know, and everything else. And you can't, you know, zoom in and enhance the photograph and all that good stuff.

And so the thesis of the of the article that, it drew no conclusions, but it, you know, advanced the thesis that I thought was fairly, uh, interesting and worth exploring, was that, uh, juries were less impressed with actual scientific evidence in an era in which, uh, you know, CSI was popular, and, um, that kind of scientific evidence was being displayed in a way that's just not available to, you know, your average underfunded prosecutor's office, um, so I thought, I thought that, I thought was a neat, um, know, know, aspect of how, uh, how art is influencing life. Um, I do want to add, I had this in my notes and I forgot to to mention it, um, the other, in my view, um, great kind of dinosaur era, um, courtroom show, uh, was the, uh, Harry Anderson comedy Night Court from the 1980s, um, which, uh, focused on a small claim, like kind of traffic and misdemeanor

0:55:30 Thomas: Yeah yeah Oh. Okay.

0:56:43 Andrew: Court. And so it was comedic and everything was super informal, but that's kind of what the practice is like in that sort of a court. One of the things I tell people all the time over very small claims and traffic tickets and things like that is, hey, look, you're going to have an opportunity to go into to a court that is super informal. There are very few lawyers. You'll be able to just get up and tell your story to the judge and just, you know, do that. Don't be afraid of representing yourself and and and just be clear and concise. And and you Know, so I think it's worth a night court was pretty funny show that I watched as a kid and be, you you know, to, to emphasize that there is, you know this sort of informal courts, that there's this informal court that kind of sets a level below the level where we're typically talking about on this show that handles, you Know, petty misdemeanors and, you Now, traffic citations and and small claims and stuff like that. And that, That, That is a very informal environment.

0:56:44 Thomas: Yep.

0:57:48 Thomas: Right, so thanks for giving, in addition to like an older show like Night Court, you also gave us Ali McBeal, which ran from 1997 to 2002, so we got both ends of the just the other day, Ali Mccbeal just as recent as could be

0:57:55 Andrew: As a as and let me, and let me point out, Alan Beale just as terrible as everyone says it is, right? Like I remember watching the like first or second episode, and, you know, she was ostensibly a, like, third year, lost, you know, a third year, three years out of law school, a third year lawyer, and and I was a two or three years out of school at the time, and, you know, she was trying cases, and I was in the basement at Covington in Burling reviewing documents.

0:58:04 Thomas: Okay. Well.

0:58:27 Andrew: You know you know that is that is, well, back then back then I did, you know, it was, oh well you know

0:58:26 Thomas: I mean, you didn't look like that though, is that, oh yeah that's true, you, back then you wore the skirt and everything, you looked uh, like, nice and sharp yeah Uh, okay, awesome, I like that question, it's kind of a fun one, and, uh, we get to show, you know, how, uh, what Andrew thinks of as recent, and that's always hilarious to me.

0:58:37 Andrew: Yep. Yep.

0:58:47 Thomas: But uh, someday we'll have to rate the uh, Gummy Venus de Milo episode of The Simpsons, maybe we'll do that. A lot awful, uh, Simpsons episodes, but it's hard, you know, just to point out, some people have requested certain movies and it's my thing is like, it's harder to make fun of comedies. That doesn't really work that well. And like some people Have requested some of these comedies and it is like I, if it's funny, like you can't, you can make fun of something being funny. You know what I mean? It doesn't, unless it's like really bad. So it might be hard to do that, but, uh but anyway, we'll see. And of course, now is the time we've got to thank our top patrons, our Hall of Fame patrons for being our very best supporters. Why don't you start us off, Andrew?

0:58:55 Andrew: Yep. Yep.

0:59:27 Andrew: Yeah, thank you to Roger Metcalf, to Danny Rosari, to Eli Bosnick, Dave Doubtful Podcast, Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, LaBibliotecatrice, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew you vernon thank you to violet page hall and thank you to john bodley thank you so much yep

0:59:53 Thomas: And also Heath Enwright, Jeffrey Maynor, The Wayward Willis, Matthew Maxson on the case, Leon Hartley. Thank you, Kay, Matthew Hillier, Zena, Hunter Ash, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Pro Panic, Philip Stromberg, Michael Schaefer, and Michaela, Rob V., Michael, Frederick Elstromer, Sammy, Conrad, Mickles, Zabby, and the Inciting Incident Podcast. Thank you guys so much. If you'd like to be one of our top patrons go to patreon.com/law enjoy all the benefits there the Law'd Awful Movies uh andrew's updates newsletter lots of good stuff and uh check it out I hope you like it

1:00:34 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:40 Thomas: All right. Well, uh somehow I don't know how you you rope me back into this, Andrew, but I guess I'm going to keep taking the bar. Um, even though I thought, you know, I could just do three out of five is a good sample. We can just apply that going forward. But, uh, but no, I, apparently I have to answer another one of these things. So here we go. I'm dreading losing my streak of two in a row. Wow. That's pathetic when you put it that way. I thought it feels like more, but now it's just two. Let's see if I can carry that On. Oh,

1:01:07 Andrew: All right. And this is a family law question. So. So.

1:01:12 Thomas: Yeah. Let me point out, not my specialty, but Okay, but I'll give I'll give it a try anyway. Oh,

1:01:16 Andrew: Oh, well, yeah. OK, so, Thomas, two people who have been cohabitating decide to get married. The man asks the woman to agree that all of his property that he now owns will remain in his name if they ever get divorced. She agrees to that, but demands a written document. Agreement, however, they got, they get married without having signed anything. Three months later, the husband leaves the wife for another woman. He sends her the notice to vacate the home due to their prenuptial agreement. When she doesn't move, the husband sues, asking for the enforcement of the oral prenuctial contract. Will the court likely enforce the husband's claim? Okay, so straightforward forward question. Oral prenup, is the court going to enforce it? Here are your options. Okay, A, yes, because the consideration for the contract was the marriage and the consummation of the marriage made the contract complete and enforceable.

1:02:12 Andrew: B, yes, because prenuptial agreements are given the benefit of the doubt when it comes to enforcement decisions. C, no, because a contract in consideration of marriage must be in writing And the prenuptial was therefore not legal so long as it remained oral. Or D, no, because the husband did not live up to the promise to put the agreement in writing and therefore he was guilty of fraud.

1:02:37 Thomas: Yeah, it sounds like, so it sounds like to me, either A or C, because those were the the most rational to, in my mind, of each of the yes or no, um, because D sounded, I don't think it would be fraud. That sounds pretty ridiculous to me. And, uh, B I don't remember what it was, but it didn't sound plausible. So I, I'm going to say, I, I feel like that's gotta be in writing. I don't know. I know there's, there's a, I remember in business law, it was surprising that certain things, a lot of stuff didn't need to be in writing. Like there were a lot of oral agreements that worked. But I just, I don't know. I feel like this is such a contentious thing. I'm going to just go out on a limb and guess that it's got to be in writing and go with C.

1:02:39 Andrew: All Well, we will find out that answer on next Thursday's episode, that is OA35. And remember, as always, you can play along with Thomas Takes the Bar our exam, just quote uh our tweet announcing the episode and in your quotation include the reasons for, include your answer and include the reason for your answer. You can do a screenshot, lots of people have done some clever stuff in trying to exceed the 140 word count and we always have a lot of fun uh reading those answers and we we think you guys are having a lot of fun playing along with us and see if you can do as well as Thomas.

1:03:55 Thomas: Yeah, not hard.

1:03:56 Andrew: We

1:03:56 Thomas: Well, I think I'm going to get burned on this one. I feel like, because it is kind of the same as that one question where just bringing the money was enough to kind of show consent to that contract. But I don't know. I just feel like marriage is so, things could get so messy during divorce proceedings. I feel the law would have wanted you to write everything down and sign it and stuff. So I don't know. We'll see. Anyway, yeah, lots of fun, thanks for your responses as always and look forward to seeing who gets that one right. So that's it from me, uh, thanks for another great episode, Andrew, uh, I appreciate you taking us through all that and we will have have to see everybody next week and find out, will the hot streak end? Will I go back to being a just plain old 50-50 on the bar exam? Well, I'm worried.

1:04:39 Andrew: Yeah, thank you, Thomas, I had a great time and um we will see everyone next Tuesday. Yeah.

1:04:51 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.