Social Media Is a Defective Product

Transcript

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

0:00:00 Clip: Thank you.

0:00:00 Thomas: Couldn't we just be like all right no ai content no addictive algorithms no you still have the products but they would be like how they were back when they started and they were actually kind of good back then it'd

0:00:17 Matt: It's a defective product. It's designed to do this. It is doing this. It's creating addiction. It's creating kinds of physical and mental health issues for young people, especially, uh but really for all of us and they know it and they're allowing it to happen. So

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1247. I'm Thomas Smith. Over there is real life attorney Matt Cameron. How are you doing?

0:00:40 Matt: I'm missing the seagulls, Thomas. They're gone.

0:00:42 Thomas: They're gone?

0:00:43 Matt: They've disappeared. Yeah, so far today. They are fickle creatures, I'm sure they'll be back.

0:00:44 Thomas: What? Oh, yeah, man. That's, I feel like I've lost a loved one. Really? No seagulls?

0:00:53 Matt: I've become so accustomed to their voices.

0:00:54 Thomas: Yeah. that'S a news to drop on me. I'll try to keep it together for the rest of the recording, but yeah, geez. Okay. Hopefully they'll be back. If they're out there, if you're out, if they're listening to this, they can hear the sound of my voice. Please come back. I didn't mean it. I didn't say the first time that I heard you. No, we got a lot of stuff going on today. A lot of stuff that I'm really glad you're going to cover because I don't understand it. For example, we got social media trout. There's been a lot Of them.

0:01:23 Thomas: It seems like good news, but I never know with those things how that's going to turn out. That's good.

0:01:23 Matt: Yes, I think it is. Happy to

0:01:29 Thomas: And then also we've got ice in the airports. I do not know what's going on there. I've seen very, very conflicting reports on that. So Matt's here to straighten that out.

0:01:29 Matt: Talk about it. Yeah. A lot of worried clients on this one. A lot of calls asking if it's safe to travel. So I'll talk about that. And then also a program that kind of slipped my attention is allowing ICE to basically hire cops as bounty hunters. Not great. But on the other side of things, we're going to put the fetish back in footnote fetish. And we have got a really fun one footnote today about a romanticism plagiarism case.

0:02:00 Thomas: Romantasy.

0:02:02 Matt: So romance fantasy. We've got werewolves, half werewolvs, half witches. Had everything.

0:02:08 Thomas: Like Twilight type crap, but worse. That boy.

0:02:10 Matt: But worse, I think. May get to do some dramatic readings. I might have some excerpts for you.

0:02:16 Thomas: Worse than Twilight, is that? That's a big claim.

0:02:19 Matt: Read it, but it seems like it's badly written and the standard is pretty low for this stuff, I thing.

0:02:24 Thomas: Didn't know they had made a neologism or whatever. What the hell is the word for a new word? I think that's wrong. What is it? Yeah, something like that. Yeah, didn't realize they had done that. That's cool.

0:02:28 Matt: Yeah, neologism. Think whatever. Yeah. Romantasy.

0:02:35 Thomas: Romanticy.

0:02:36 Matt: We got listeners who know a lot more about it than I do from what I've heard, but I'm going to do my best here. Wade into it.

0:02:41 Thomas: Right, well, we'll take our usual break and then we'll get to it. Hey, support the show patreon .com slash law get yourself the lot awful movies that was a lot of fun uh also the early still time to get the second Jenessa episode on subnautica early it's still early because that'll come out on uh monday so still time for you to get that thanks for supporting the show and you avoid the ads uh so much for uh pledging and also maybe you can't pledge that's okay please spread the word about the show tell somebody about it we'd really appreciate it. All right. We'll take a break and then we'll get to it.

0:03:15 Thomas: Okay. So tell us about this, uh, social media decision. That's hot off the presses, right?

0:03:20 Matt: Yeah, this is a big one. As of the day we're recording, just a few hours ago, the jury has come to a verdict after a week of deliberations and found against Metta, the parent company of Facebook and YouTube. And so I want to talk about what's in here. I've been tracking this one for a little while, and we've talked about some of this stuff with the social media lawsuits. This is the first big one, this really groundbreaking, and I think this may really set the pace. I hope so, honestly.

0:03:42 Matt: One thing that's notable about this is it is a state case. It is not a federal case. I was a little surprised by that, but it's a resident of California suing California Silicon Valley companies. That keeps it in the state. And there are, as we'll talk about at the end here, there are a lot of federal suits pending that have been conglomerated into one from the attorneys general around the states. Similar arguments to this one. I think it's worth getting into. Media companies have been able to try to dodge most of these kinds of lawsuits over harm that they have caused because of Section 230, which is infamously the section of law that allows platforms to have a defense, pretty much an absolute defense. If people are just using this platform to publish things, we don't edit the content, we just let people publish things. Things. Obviously, we look for extreme illegal content. We look for things that are extremely harmful and remove them. But for the most part, we are not an editorial board, and this is not a publication. You're just publishing things. Suit takes a different tack and comes after it as a defective product, which I think is a pretty good idea.

0:04:38 Matt: They're saying that essentially they're using the logic of the litigation. We all remember from the 90s, early 2000s, where they're suing the cigarette companies for making a knowingly addictive product is kind of the leading thing here. They're alleging that this addiction has caused depression, anxiety, self -harm. Talk of at least one of these plaintiffs potentially taking your life or trying to. Got strict liability, essentially, the way that you would approach a chainsaw that was badly built or something. It's treating it like a dangerous product. And then you've got failure to warn because there's no disclaimers on this, that it could be addictive, it could lead to these things. There's negligence in the design, there's negligence in the way it's failure to warn. We're talking about the algorithms, we're talking about infinite scrolling, we're talking about autoplay and videos. Should point out, the plaintiffs already reached a settlement with TikTok. So me, TikTok is like the crack of this. I mean, it really seems like the most addictive version.

0:05:27 Thomas: So is it just TikTok was the one that was willing to like make a good enough offer or something?

0:05:32 Matt: Think they saw where the wind was blowing. I mean, they were going to lose on something here with the jury, because so much internal correspondence in these companies that shows that they know, right? They know what's going on. Read the book Careless People last year by Sarah Wynne Williams, who's an executive of Facebook. And it is startling. A lot of what she's talking about to be true already, but just hearing from a firsthand account of a top executive of Facebook who quit basically of what's she'd seen. And that's one ongoing theme is that these people don't let their kids use it. They think it's bad for people, and they're making it more and more addictive. Do you have a social media policy in your home?

0:06:03 Thomas: They're too little to be on that um watching too much uh youtube that's for sure um it's hard because they do like it and then you know but yeah no they're they're not old enough for that I do think that if we got back in the you space of actually regulating and Think there's a way I I think we should get rid of a lot of stuff but that's my cranky old man opinion I would at least think there's got to be some basic stuff around addictive algorithms the scrolling the the um ai content like couldn't we just go ham on that couldn't we just be like all right no no ai content no addictive algorithms no whatever like you still have the products but

0:06:05 Matt: Not sure. Have Sure. Sure. Yeah. Yeah,

0:06:40 Thomas: They would be like how they were back when they started and they were actually kind of good back then it'd

0:06:45 Matt: Yeah. That might be where it lands.

0:06:47 Thomas: Be nice Nice.

0:06:47 Matt: Tell you about where this is going, but that might actually be what we end up with is a much more humane social media because...

0:06:52 Thomas: Because of civil lawsuits. Right. Not because of like regulations.

0:06:56 Matt: Goodness of their hearts. No, it's going to have to be judges that order it. And yeah, it's very hard to regulate with the money that can be thrown around in DC over this. Another lawsuit that we found out of Nebraska they had all kinds of discovery where they know what something like TikTok's algorithm is a slot machine, that it's just giving you those little bits of hits and a little dopamine as you go. They understand that their is app addictive. They're well aware and they're trying and it keep faces on screens. And that's what Facebook is doing too. You said, if we could dial down the algorithm, if we can dial down all the stuff that they have been introducing to make this higher and higher potency and more addictive, and that's one of the main things in here is that it is actually addictive and they have expert testimony and it seems pretty convincing to me and to the jury. This is overdue, I think, and I think this is the right direction.

0:07:36 Thomas: Just realizing that because of another, podcast I heard about this, someone had mentioned this. I had changed my phone to black and white because the color is like a big part of the slot machine feel that makes that work. And I did that and I had it for like a few weeks and then I just realized I forgot. So at some point, like sometimes when I'm actually trying to look at something I need to see, I have to like turn the color back on. And I completely forgot that I did that. And then forgot that I'd ever didn't do it. Like, it wasn't like, oh, I want the color back. Like literally in the moment, as you were talking, I was like, Oh my God, I had it off for like weeks. And then I just totally forgot. So that's another thing that I've done.

0:08:15 Matt: Got my phone set to go black and white after 11, so just to try to minimize my social media use.

0:08:20 Thomas: But your phone is from the 1930s. So it is already black and white just because it's you have a vacuum tube phone somehow. I'm not sure how.

0:08:24 Matt: It does run Android somehow. Just a Blackberry. It wasn't that long ago. Blackberry does run an android and so I you can do that though you can set it to run and that's a great idea for everybody because you're totally right that there's part of the slot machine design is those little colorful notifications that you know we're all susceptible to this nobody's above it and I certainly love my blue sky and I try to really limit it basically under an hour a day on anything I'm looking at um skies from what I understand like it's nothing compared to the way that facebook and tiktok have manipulated these algorithms and the people using them. Also alleged fraud and negligent concealment on and Instagram, and well aware of this. This is interesting, they're claiming sex and age discrimination, saying they're intentionally targeting young women more than others and giving them body issues, which I think is pretty reasonable.

0:09:09 Thomas: That's interesting. Do you feel about that? Because like with cigarettes, I mean, it's not like they would have been able to say like, well, more men are smoking. So I more men like use a product, for example, or more women maybe use it. Or is it that it's it's not the uses difference that it affects women differently or girls differently well that's what I'm saying they didn't okay sorry my assumption is this didn't happen when it came to cigarettes there wasn't a like discrimination kind of yeah

0:09:28 Matt: In the case of cigarettes, they were aggressively marketing to men. Aware of a claim like that. Yeah, that's interesting. That's

0:09:40 Thomas: I guess that's what I am saying like if they didn't use it for that and do you feel about that element of it that seems tough to me but I don't know yeah

0:09:47 Matt: Guess I'd want to know more about the data in the discovery. Obviously, I wasn't there for the trial. Just what I know about Instagram, which is also owned by Meta, it imagine being a women in the society using Instagram and, you know, just comparing yourself to what you're saying.

0:10:01 Thomas: Like you say a good point maybe there's something in the discovery that's like oh you know targeting women more in a way that would make this this work better that's interesting okay wait

0:10:09 Matt: It's fascinating stuff. Um, and it really is such a simple, straightforward complaint and cause of action that it's just, it''s a defective product. It''s designed to do this. It is doing this. IT''s creating addiction. It's creating all kinds of physical and mental health issues for young people, especially, uh but really for all of us and that they know it and they're allowing it to happen. So was held over nine days and the jury delivered 3 million in compensatory damages. Another $1 .2 million in punitive damages. So they had a separate phase of trial. There's a second sort of day where they went into the evidence about punitive damage. YouTube is paying out $1 ,800 ,000, and that is nothing, obviously, for these companies.

0:10:44 Matt: But the point is, there could be real reform.

0:10:43 Thomas: It's could be. Why? Can more people like sue under this theory then? And that like opens up.

0:10:51 Matt: Yeah. In California, this is a very good precedent. Obviously, that's where all these companies are.

0:10:54 Thomas: Oh, so we should all cash in. Right. We can all.

0:10:57 Matt: That is right. Every California resident, let's go for it.

0:10:59 Thomas: Is that kind of how it works? Because I feel like that's what it was with the cigarette companies. Right? It was that there it was going to open them up for all these lawsuits. Is that kind kind of what you're expecting or so is there going to be any formal process of change that this or is it just like they know they need to change otherwise they're going to face a bunch of this yeah

0:11:16 Matt: Be clear, the attorney's general suit is more like the tobacco litigation. So that'll be on behalf of all of us in the States. This is just on behalf a group of plaintiffs. This was not necessarily a class. The suit is a precedent and then there's going to be the big one this summer and we'll see more, but I think this is the end of this one. Obviously, they're going to appeal it, but this is one to watch just as a precedent. A lot to work with here, though, for pointifs, because I it's pretty well understood at this point that these are products that are not great for kids all around. And it really says a lot that these executives don't want their own kids using the product they make. I think that really should tell us everything we need to know. Are so many different pending suits. As you said, there's about 1 ,600, I even just in California alone. And then you've got this massive combined suit that all the attorneys general are bringing. And I think the first one of those from what I saw is going to trial in June. So I think that this is just the beginning of what could be a big change for social media, I hope, to bring them in. Know, Because it's really a problem. We've got 13 states that have been allowed to proceed on this. And from what we've seen in some of these suits that have gotten somewhere, There's one in New Mexico that was very dark, where they were showing the way that Facebook, in particular, is enabling child sex abuse and

0:11:48 Thomas: Kidding so oh wow oh

0:12:22 Matt: Creeps to contact kids with inappropriate pictures. About 100 ,000 children per day receiving online sexual harassment. Just unimaginable. $375 million. That was actually just decided this week as well, $3 for New Mexico. In that are obviously even so much greater. Hoping to talk to a representative of the Social Media Victims Law Center, which has been bringing these suits all over the country. That's a nonprofit. They're also suing ChatGPT for a number of these extremely damaging things that have happened. I think that'll be an interesting conversation. I want to see... We're really just hitting this crest now of these suits, and I think it's going to get us somewhere.

0:12:33 Thomas: That's what I'm thinking of okay that was the one I was thinking of yeah yeah well so all right well good stuff um a bit of good news there and uh couldn't happen to a more evil group of people well right we'll we'll break and then we're gonna talk about out ICE. Lots of unknowns here. I'm really curious what's going on. So after this, we'll get to that.

0:13:17 Thomas: Matt, we got ICE in airports. Then I saw a thing just today that was like something about someone was tipping them off or something. What is happening in the airports? What are they supposed to do? They were there. Originally it was like, well, they're going to go help out with security. It was like the lines were too long. So ICE was going to start doing their job. That was kind of the implication. And then pretty quickly, I think it was no.

0:13:40 Matt: That they're going to be running metal detectors and patting people down and stuff, but they're not trained for that. Yeah they should. I mean, make themselves useful, right? But TSA has suffered a lot of attrition. So just to remind everybody, we are in the middle of a DHS shutdown. It's a very specific shutdown. We talked about this in LA last month, but can't shut ICE down because ICE is independently funded it at this point with a massive trust fund, essentially. Have to go after the rest of DHS, which means unfortunately that TSA, the Coast Guard, these other agencies, SISA that does cybersecurity stuff, it's get more of that.

0:13:42 Thomas: Should, they should. Stuff we might want can shut down, but the thing nobody wants can't shut down. Cool. More

0:14:13 Matt: Yeah. And we get it in places we didn't have it before. Yeah.

0:14:13 Thomas: Of it. Oh my God. Oh

0:14:16 Matt: Yeah, been getting a lot of calls about this this week. We've got clients who want to be able to travel by air.

0:14:22 Matt: I It's a little bit of a risk, but ICE doesn't go to domestic airports and look at domestic flights. You know, if you're traveling with a serious warrant out for you or you have a deportation order, it's possible they could intercept you. It has happened before for people that are in pretty serious situations where they've actually gone on to flights and pulled people off. But generally speaking, immigration agents have never just randomly patrolled airports or looked into what's going on in travel stations. Last week made this threat about how ICE was going to provide security like we've never seen before, which think we saw that in January. We don't want any more of that. Shooting people is the security we've ever seen before. For. It was weird because it really, to me, it underscored ICE's new role. And they've always kind of thought of themselves this way, but essentially as the president's personal paramilitary force that was saying, hey, look, you can't reached a settlement on this DHS shutdown, I'm going to send in my Goons.

0:14:51 Thomas: Cause we don't have enough of, yeah. Yeah, you Right.

0:15:10 Matt: Do you want some Goons? We got Goons, got a lot of them. It started off with 13 airports. I was at least able to send my clients lists when they're LA actually wasn't one of them. I was surprised. I just had a client who was trying to fly there, but I'm sure it'll be added soon enough. Lots of other big airports are.

0:15:25 Thomas: Wait.

0:15:25 Matt: This is scary. I mean, it it's an undetermined kind of role. At the same time, we've had TSA agents quitting, understandably, because they haven't been paid in quite a while. We've got call -outs of like 51 % now at some of these airports every day. So that's what these long security lines up to three or four hours have been.

0:15:44 Matt: They've got food drivers and fundraisers and Coast Guard and everything else. Delta actually revoked their specialty privileges for members of Congress, which is a pretty good comeback, I think. Make them fly like the rest of us. Do think they need to reach a resolution here. I actually saw that Mark Wayne Mullen, potentially the new head of DHS, was open to one of his settlement terms being that ICE would have to have a warrant to go to people's homes, which should not be a major concession, but

0:16:09 Thomas: Could could that be a settlement term when that's already what it is? Right.

0:16:12 Matt: Constitution, yeah, I know. But we're at the point where I think Democrats are going to consider that a big win because they're already doing that right now. That's maybe a good sign for Mark Wayne Mullin that he's indicating that he is more willing to at least to say that he he's following the constitution?

0:16:23 Thomas: Like if we go to a negotiation and we're like, all right, what do you think? And then you bring out something from my house that you grabbed and you're like well I can offer this. Like what?

0:16:33 Matt: I can promise not to kill you. Is that okay? How does that work? Yeah.

0:16:35 Thomas: Well that's not that's not a negotiation.

0:16:37 Matt: Does that work for you? Be a deal coming, I hope, because this needs to be resolved, but this is appropriate for Democrats to hold the line on because it's the only leverage they have over DHS, and DHS has to change. ICE has to be reformed. There's no other way to do it. I mean, it needs to abolished, but realistically, what they're going to do right now is at least get rid of the masks, bring on ID, make sure they're using warrants, like all the stuff that would at least limit this. And also, as we talked about in Gabble Gabble recently, getting body cams on everybody, which Kristi Noem had claimed they're going to be doing, but hasn't happened yet because they claim they just don't have the money and they're $75 million. Is a lot of research on body cam, as I'm sure you know, that shows that cops are much more likely to conform to regular societal standards if they know that that could be watched later. It does actually work. Know, it's not the solution.

0:16:37 Thomas: Yeah yeah yeah. Long as they make them do them. Yeah there we're all on board that this is obviously not, enough and not where we need to be, but I at the very least, couldn't we make it so that if you ever turn your body cam off, you're just fired. Like, why would that ever be a thing we'd be okay with? If somebody manually like purpose messes with their body cam, stuff like that is like, I feel like everyone, Like most people would agree with that. Like it's just, and they probably figure it's probably one of those things where most people had figured there must already consequences but they're just like not

0:17:33 Matt: Easy enough. Sure. No, it should be so easy. And anybody should want police to be accountable, really. And conservatives used to care about that kind of thing. Tweeted actually just today on Truth Social. He said that I don't know, I really do enjoy the style of these sometimes. I know it's so stupid, but it. The public is loving ICE. So the Democrats unwittingly did us a favor. The public is Loving ICE. What an expression. What a thing to say. Just can't get enough of that ICE, folks. We all love ICE, don't we, folks?

0:18:08 Thomas: They're loving ice the public is loving ice god it's so funny

0:18:16 Matt: Oh, it gets better. They are capital G, capital A, capital P, Great American Patriots. They just happen to have much larger Larger and and harder harder muscles than most.

0:18:18 Thomas: What what who iced up what yeah

0:18:30 Matt: President's just sitting about his beefcake special paramilitary force. Larger and harder muscles than most. And then he says, which is what they're supposed to have. I've

0:18:36 Thomas: So ice has a bunch much larger muscles than most which is what they're supposed to have.

0:18:47 Matt: Normal folks, those steroids that you're seeing.

0:18:49 Thomas: Is happening?

0:18:51 Matt: Public is loving ICE and their larger and harder mussels.

0:18:53 Thomas: The public is loving that. God, what a stupid world, Matt.

0:19:01 Matt: Yeah, I meant not to mention congratulations to Stephen Miller, who now has polled as the lowest ranking, least popular public figure in America polling when compared to... The Obamas are still leading as the most popular political figures in America. Trump is still a little too high there.

0:19:14 Thomas: That's so weird. Yeah.

0:19:16 Matt: Trump was actually tied with Kamala Harris in this one I just saw. RFK, weird.

0:19:20 Thomas: Why would Kamala Harris be that low? Is wrong with people?

0:19:21 Matt: Yeah, I don't know where these people are. Right.

0:19:24 Thomas: The who tried to you about all this and tried to stop it, That's how much we hate women in this country there. She's still tied with the dictator. Oh, my God.

0:19:35 Matt: Yeah! It's pretty bad.

0:19:36 Thomas: Unreal. Other good news along those lines is the worst senator in the world is. You see that? Fetterman's approval rating went has gone down a knit hundred points like been a hundred point swing, which still not enough. Like it should be yeah it's that that's the worst that that guy and universally we all hate him nobody likes him there's you can't pin this on like democrats or something he lost his mind we wouldn't nobody likes it uh just a tough l that happened sometimes it happens

0:19:49 Matt: Well deserved. Yeah, not actually on this list. So no, ICE, the public's loving it, can't get enough. I will say, just to anybody listening who is concerned about this, I wouldn't fly at all if you couldn't help it right now. It just seems like it's pretty bad. ICE is now doing more and more more security stuff because like actual TSA, the pictures I'd seen at first, they're just milling around doing nothing, just standing there being menacing and staring at people. Know, they have full, obviously full authority to stop anybody in the airport and ask them for papers and proof that they're traveling legally. And there are stories now, 94 % increase, by the way, in public, being arrested in airports by ICE in this year, this past year. I said, it just didn't really happen that much. And it's been much more prevalent already. So if we get used to them in the airports, I think that's a very bad precedent. And I hope the shutdown can end so we can get them out. Mean, I don't want them back to what they were doing, but they shouldn't be in airports either.

0:20:50 Thomas: Oh wow I didn't think about how this is a good way to incentivize the shutdown ending that is kind of interesting pressure there yeah

0:20:57 Matt: Yeah, that's what he's doing. And that's literally, you can tell from the way he phrased that, that it's very menacing kind of post of like, you want to shut down, this is what you're going to get.

0:21:05 Thomas: The public loves ice the public's loving ice then

0:21:06 Matt: That' s right. And they're large muscles, can't

0:21:10 Thomas: I then shouldn't we want it to never end I want the shutdown the fun should never end what is yeah so stupid yeah

0:21:16 Matt: There's a conservative influencer who posted about how actually the corporate media is getting this all wrong and ICE are in there lifting spirits. She didn't give any examples, but I can't imagine. They don't even stand up in the lines. I don't know.

0:21:28 Thomas: Like cheerleaders like they're got like signs go citizens who are flying okay

0:21:33 Matt: Spirits. Well, I've got another ICE story as well we should talk about. So we've talked talked before about the 287G agreements. That's the USC 287 G and the Immigration Nationality Act. And these are the agreements by which ICE can do what they call a force multiplier, where they make contracts with state and local authorities. One thing I've been telling you throughout this is that state and legal authorities are voluntarily taking this on at their own expense. So you have to count on the reddest, most racist jurisdictions that want to waste their time and money having their people who already have other things to do go be immigration agents.

0:22:05 Thomas: I do remember it was the kind of thing where we're like hey you check on your local fascists and see if they do this because it is something that yeah

0:22:11 Matt: More more so now. So Ken Klipsenstein got an exclusive on this. He's been getting a lot of government leaks over the last year. And actually was very relevant to my practice this week because I had a client I've known since 2011, really great guy, really nice family. Sheriffs, not ICE, came to his door a few months after he was with unlicensed operation. He has no other record. He'd been here for a long time. He was working hard, got great kids, great family, very strong ties to his community. And they took him to the Manchester field office in New Hampshire. And the Manchester ICE agent told the sheriff in front of him, we don't want this guy. We didn't want him at all. We're not looking for him.

0:22:43 Matt: And they still took him in and detained him. And we had to get him out in a habeas within the last two weeks. And it's one thing to be able to tell your client, it's going to be okay. We know we can get him Out. But it's just the stress of their whole lives around their schedules the way that they were and taking care of the kids. And, you know, they're just completely two weeks of disruption. So this was just because of 287G that you've got New Hampshire sheriffs are able to go and play immigration agent and decide even when ICE doesn't want somebody that they can do this.

0:23:07 Thomas: What's that part of it so

0:23:09 Matt: That part of it I'm starting to realize is because as of September, I actually missed this announcement, but DHS announced that it's going to start reimbursing police departments for this. They're system. Yep. So So this is a great way to get your numbers up, because then you can justify having a full -time salaried person that you pay, that the government pays. So they're going to pay the salary plus 25 % over time, which is pretty good.

0:23:18 Thomas: As you teased it's like a freaking bounty system wow that

0:23:33 Matt: Is also potentially, I think, illegal. I went back and looked at 287G for what it's worth. I think that there may be a potential lawsuit here because this could be interpreted differently, but it says specifically about these agreements that the state and local authorities may carry out such function at the expense of the state or political subdivision and to the extent consistent with state law. It seems to be indicating the federal government can't pay for this. And I'm not sure what legal authority, and I couldn't tell from the announcement what they're relying on or the theory that they're working on to say that they can. And they could just say that that's a floor, not a ceiling. It says may carry out such function at the expense of the state. So this, there's at least 400 departments that have been receiving leaving money since October, including stipends for transportation. And even there's a special designation, think about this, to have police officers deputized to hunt down immigrant children specifically.

0:23:31 Thomas: Is bad hmm what what

0:24:18 Matt: Yeah. So they can do ISIS dirty work and find kids, unaccompanied alien children.

0:24:21 Thomas: Are you talking about really Really?

0:24:23 Matt: Yep. Yep, the minors, UACs. Yeah, I was very surprised to see that, honestly, even with all this. They do it in the name of trying to protect kids that they up on kids, basically, because these are minors. So So many of them are orphans or have parents who have abandoned them. And they're living with guardians.

0:24:37 Thomas: So they're saying it's like, oh, it's bounty extra, because of the sensitive, you know, is it that kind of thing? Are they trying to incentivize it in

0:24:44 Matt: Or that you can help check up on because you know that these these QAnon types think that all these kids are being sex trafficked, right? Because that's, you Know, and they're not, I know a lot of these kids. Have loving guardians, youknow, family members and extended friends and family that are taking care of them. Of the reasons that I've been a little bit optimistic about the 287G, even though it's expanded rapidly, like a thousand percent, and I should point out that this is also the task force model. And the reason I'd been more optimistic about it coming back is that Obama had abandoned it. In the first term, I believe, didn't bring it back and now has brought it back with a vengeance. And that means that instead of just doing paperwork for ICE or just helping to facilitate jail transfers, that you've got literal task forces that are are deputized as immigration agents that can go out and do the dirty work. So that's very concerning. And one reason I've been more optimistic about it is because they at least would have to do it at the department's expense. And that is politically unpopular in most places, even for conservative people. So this is something to look out for because it does seem like they actually have this bounty system now and quite a lot of money, at least for our departments, like I said, but this is growing quickly.

0:25:39 Thomas: That's really terrible, Matt.

0:25:41 Matt: If you hear about anything like this, and there's a database we can link to, there's an entire database. There's a complete eyes. It out if you think that you're, yeah,

0:25:50 Thomas: Wait, how did we get that? Was that the Klippenstein thing or how do we know?

0:25:52 Matt: Klippenstein Lake. Yep. That's an Excel And, need to get that attention out there because there's a lot of really small towns. There's one really tiny little place that has like a hundred thousand people where they were employing multiple officers or, you know, just, it's ridiculous.

0:25:54 Thomas: Boy, that's that's really good that they got that. Okay a hundred thousand people is tiny you're not from a small town are you

0:26:11 Matt: Guess I live in Boston. I don't know. My neighborhood has 40 ,000 people in it. Something I just learned about today that I'd completely missed this announcement. Even as somebody who keeps up on this stuff professionally, it's easy to miss. So to watch and something to make sure that your local jurisdictions are not participating in.

0:26:26 Thomas: Right. Well, we'll take a break now. We're going to have an extra meaty footnote because we deserve, we deserve nice things. And, uh. The, the fascist news was not great, Matt. That was bad fascist News. So, uh we're gonna have a fun footnote.

0:26:32 Matt: That's right. Let's clear our pallets with 6 ,000 pages of romanticy. Let us do it. We got time.

0:26:42 Thomas: We're just going to read the whole book to you. It's an audio book reading.

0:26:45 Matt: Extended bonus for patrons. That's right. Get ourselves sued.

0:26:47 Thomas: All right. We'll take a break and then I'm getting all excited.

0:26:55 Thomas: Okay. Uh, lay it on me. What, what's going on? What have you been reading lately, man? Is this the counteract all of the Pete Hegseth in your life?

0:27:03 Matt: Yes. Oh my God. I would rather read all 6 ,000 pages of what the judge had to read than read another chapter of a Pete Hickseth book. I'll tell you that.

0:27:11 Thomas: Yeah. Do you think the judge had to read a whole book? Do way

0:27:14 Matt: She read a lot. Oh no, she makes it very clear in the footnote that she read multiple times and there's multiple drafts. Oh, no, let me tell you about this decision. This This is incredible.

0:27:21 Thomas: My god oh okay this is wow holy

0:27:24 Matt: 6 ,000 pages. There is a 252 -page appendix, multiple appendices, in which the judge, it's

0:27:28 Thomas: Crap this is lively baldoni levels of crap what

0:27:32 Matt: Incredible. Just in these appendices alone, she gives the most detailed plot summary you're ever going to see of a book in a federal decision.

0:27:39 Thomas: Is she a fan oh

0:27:41 Matt: I think she came to like it or her clerk. I'm guessing, my guess is that there's a clerk who actually got into both of these books and really got into this whole thing. Because is this SDNY? I mean, this is the mother court, right? They look at the biggest stuff. And this is a pretty fluffy case.

0:27:42 Thomas: That's so funny oh

0:27:54 Matt: It's fun and it's interesting, but as I'll describe, the legal standard involved here, and the reason I want to spend a little more time on this footnote is the law is actually super interesting because is a plagiarism case. This is an allegation that we've got one author who was unpublished who had submitted multiple drafts to her agent, and who was published and had what the record calls the Crave series, which has actually been published. I listened to a bit of it on Spotify just to get a taste, and, you know, not great. Didn't like it very much.

0:28:19 Thomas: Have ruined my spotify by the way I am suing your ass I was like car in not two hours ago three hours ago I was like, oh, I'm going to put on some music with Lydia, open up Spotify. And now Spotify does, again, another really useful thing where for some reason it decides to just play whatever the last thing I was playing was. And it just starts playing Pete Hegseth, assaulting my ears with Pete Hegsheth. How dare you, Matt? How absolutely dare you for what you've done?

0:28:22 Matt: You should see mine. To almost the entirety of both books, so I'm

0:28:50 Thomas: But that's, look, what you do in the privacy of your own home is no business of mine, but this my problem. Oh, my God.

0:28:59 Matt: Going to get Stephen Crowder and everything else is going to recommend all kinds of nutty stuff for you. Got these two authors, and the unpublished one not even realizing what was going on, bought the book that is in question. Then unpublished author is named Lynn Freeman, and the published author's pen name is Tracy Wolfe. Freeman suddenly says she had a panic attack because she's reading this and thinking that agent must have, because the agent had been telling her about how this book for Tracy Wolffe was kind of a group project. And then it turns in kind of a usual suspects thing because she's like, well, there was a poster of a chessboard on my office wall, and there's a poster for a chess board in this office wall. It's like all these little things. Court has to go through and do a really detailed factual analysis to try to figure out the substantial similarity test.

0:29:41 Thomas: Yeah, because that's not easy to do with something like a novel, right?

0:29:45 Matt: And especially when it's a novel full of tropes because there is, as you may know, entire entire genres that are just like werewolves and witches and gargoyles apparently um

0:29:54 Thomas: My impression is correct me if I'm wrong. Like it's it's It's harder than the average person might think to sue someone for maybe copying your book. Right. Because it's like you can't really copyright like the ideas of it. Right? You can't just write like, here's my star Wars, you know, I'm going to write a little bit of, there's gotta be some line somewhere and I don't totally know where that is.

0:30:14 Matt: But as the judge points out you can write a story about An orphaned child who discovers special powers and trains on them and then goes to defeat evil in a galactic battle, right? That's Harry Potter and Star Wars and everything else.

0:30:25 Thomas: Can and do every time. Every book is that that's

0:30:27 Matt: A lot of those stories. That's right. Some weird coincidences in this one, starting with the fact that both characters moved from San Diego to Alaska. That is very specific. Freeman story is set in Anchorage, which is obviously one of the only major cities in Alaska, and the in Alaska which I don't think is a thing. Accessible home by snowmobile.

0:30:48 Matt: Yeah, I've never been, it's a big state, who knows, it might be full of gothic castles.

0:30:47 Thomas: Gothic castle I I didn't know they built those there yeah maybe that's where they all go they say it's like the most heavily populated with criminals of any place because they're all on the run there or something that's where all the gothic criminals go yeah

0:30:58 Matt: Sure, great to hide out in a gothic castle. Makes sense. When you kind of break it down, even though there's lots of weird little details that do kind of match up. The stories are completely different. The themes are different. And the appendices established that the characters are very different. I mean, I'm telling you, when you're telling the judge recaps, I really think it was a clerk that got into this, but just ridiculously wrong long recaps of these books. There's kind of a funny part here I wanted to send you where the judge does a little chart to compare some of the cliches that are used, some of these expressions.

0:31:31 Thomas: The work put into this okay all

0:31:33 Matt: I want to have you do some dramatic reading here of what the audience decide.

0:31:38 Thomas: In my mind it's yeah somebody's a fan and they're like really defending it's not even close to the same because they've got fast vampires this one Slow Vampires yeah

0:31:48 Matt: And only part gargoyle instead of all gargoyle. I mean, literally, that's one of these things. Go to page 42, check out the chart. Just to be clear, that there were five drafts of one, and then she sort of changed it in the sixth draft and called it Mask and kind of made the story a lot different, was

0:32:03 Thomas: Are we okay. So Crave is the thing that is alleged to have been copied. No.

0:32:07 Matt: Crave is the alleged plagiarism, and

0:32:09 Thomas: Okay, sorry, I thought the drafts were the other way. I switched it. So, wow.

0:32:12 Matt: Judge read all of the drafts too. That is incredible. I

0:32:15 Thomas: I hope they gave like some notes on, like, Like, I think the character was weak here. I think you should probably, uh, they also, in the decision, there's like some writing advice. All right. A long moment of intense silence descends between us. His fingers locked around my wrist. Okay. Then the crave one, an awkward silence descends between us and I honestly don't know.

0:32:15 Matt: Know, I know. Yeah, totally. An awkward silence apparently is a protectable trope. Is that a little too much, a little cliche?

0:32:41 Thomas: Descends between us though is like, that's really, I don't, I wouldn't think of that. Wording. That is very specific wording.

0:32:48 Matt: Yeah, that is specific.

0:32:48 Thomas: Now, I don't know legally if that matters, but that to me already is like, that's close enough that I would be surprised if there's not copying going here. Descends between us? What does that even mean?

0:32:58 Matt: Yeah.

0:32:59 Thomas: Okay. Does a silence descend? Not only does it have a direction downward, it also is in an area between.

0:33:07 Matt: Yeah it spreads out, yeah gazes

0:33:08 Thomas: Okay, here's another one. A shiver skitters down my spine. That's a little more generic. The other, okay, so on crave. And then Then our gazes collide and there's a lot of just physics based stuff that I'm not. It's really weird to me. And a shiver of fear skitters down my spine. Hmm. Wow. To the other one. Merit and I walk for what feels like a mile until we come to a large set of golden double doors. All right. Well, this is not worth copyright. So the judge is like, not worth it. Uh so the other one says either way we either way we walk down a really really really long corridor until we come to a pair of gold double doors

0:33:26 Matt: Collide yeah no yeah golden double doors so that that one is just golden double doors um the published one the really really really long corridor that got published

0:33:57 Thomas: On the side of the person who did not publish they're still working on drafts because it's so terrible wow okay uh there's more should we go let's see yeah

0:34:08 Matt: Yeah there's a couple more of my favorites coming yeah

0:34:10 Thomas: He reached out with his thumb and forefinger tilted tilted my chin up, forcing my gaze to meet it. That's a pretty common movie type thing. Maybe Hudson reached out and tilts my chin. And tilts. My chin, uh, different tense. You're in a different tense there. Okay. Uh, my chill with his finger until he's holding my gaze in his fathomless blue depths, uh, holding my gaze in his fathomless blue. Yeah, that one's tilts, I guess. So it's tilting his chin up the thing. Okay.

0:34:42 Matt: That's like you said pretty standard romance though I don't think that's

0:34:45 Thomas: I took a slow breath as I tried to do the math in my head. That means he's like over a thousand years old, give or take a few years. Well, that's just from Twilight probably. And then the other one is, so then how could she be a thousand years older and still look at least not until I start to do them in my mind? I about that. Can smell the demon in you. Compare that to, I definitely smell the gargoyle in you. Those aren't the same thing.

0:35:00 Matt: One's my favorite oh yeah one smells like sulfur and one smells like rocks yeah

0:35:13 Thomas: True. And then, finally, something sparkly caught the light. Tattoos! They were, exclamation point, and they were moving on his fingers, swirling in a strange dance. Then the other one. Captured by the tattoo that's so bright now, it's practically blinding as it swirls and dances up and down the biceps and forearm. I don't know what either of those means. And it's so weird that it does seem, look, I don't know, legally, we can all agree what that one copied that one because the stuff is too specific and dumb, but I donT know if legally that's enough to be anything.

0:35:46 Matt: So the question becomes the substantially similar test so those are sort of examples of phrasing and like trope ideas the judge goes through an incredible exhaustive length and I can't say I read all of it I sped read a lot of this very quickly and then I went and looked at the appendix to get the idea but you know things like here's one each heroine also has a biracial gay male friend both of whom are charismatic and charming and occasionally provide comic relief, but none of these traits is copyrightable.

0:36:10 Matt: At an abstract level, Freeman is correct that both characters are winged, at least in some of her drafts. It just keeps going. All of this stuff about all of the specific plot points and details and characters. But the question is, in the substantially similar test, and she says she doesn't even need an expert opinion because she's an ordinary reader, and it's actually not just the ordinary reader. It is the more discerning ordinary observer, because what we're talking about is both protectable and unprotectable elements. So things like the idea of a final showdown between the villain and the hero is not a protectable element.

0:36:40 Thomas: Way.

0:36:40 Matt: That's every story like this. Ideas of your hot, smoky vampire boyfriend, it's not... She names a number of these things that are just not protectable elements, love triangles is one she was trying to claim, or that's right.

0:36:52 Thomas: It'd be funny if you had to use a different shape each it's a love rhombus uh god we're

0:36:56 Matt: Totally different.

0:36:56 Thomas: Running out we can't I need to write a book and I can't there's no other more shapes I ran out of the shapes yeah

0:37:00 Matt: The concept of a teenager who has suffered the loss of a beloved parent or parents discover supernatural identity, that similarity is not protectable, right? To be protectable it has to truly be original to the author. So to do this, when you've got a work in which you have both protectable elements and non-protectable elements, you have to do the more discerning ordinary observer test. And that's how the judge has to look very carefully and read all 6,000 pages multiple times.

0:37:05 Thomas: That's everything yeah holy

0:37:23 Matt: The protectable elements standing alone are substantially similar. So when she narrows it down and finds then that's when it gets to it. And you have to look at the total concept and feel and not just the fact there might be a few places where it overlaps or some of those phrasings that might be little suspect, which

0:37:22 Thomas: Crap matt has the court system ever been like you know we're good actually this is uh just figure it out we don't care this I'm not reading this yeah this is not whatever I'll pay you I'll I the judge will pay whatever Whatever it takes to not have to read this.

0:37:45 Matt: Is too much reading, too much homework. Let me find the footnote actually where she acknowledges how many times she read it because it is pretty funny. Can't tell if she's complaining.

0:38:01 Thomas: Yeah, are you happy about it?

0:38:03 Matt: Took me about eight weeks to read all of the plaintiff's drafts and the defendant's novels, though my reading was intermittent. Yeah, so she has to be a judge all day and then come home and read this trash, and not just one draft, but six drafts to determine because she's saying the agent had all these drafts, and that potentially this could have been. There's also the fact that The drafts are like 100 and 200 pages each, and the book series is very long, of pages. So that's important too. But don't know that she necessarily needs the plot summary and the character summaries. I think she's having a great time. But also, if you're going to appeal this, which I'm sure she is, the court needs to be able to see your work, needs to understand that you actually looked very carefully through each element of this thing. Just a lot funnier than the usual substantial similarity test.

0:38:05 Thomas: Way. No way. Yeah, no kidding. So, wait, what was the, are we at the final? What happened? How does it end? What is the vampire? Does the gargoyle marry the girl?

0:38:51 Matt: I couldn't tell you how the book ends, but the lawsuit ends with the judge inviting the defendants to submit a summary judgment motion, basically saying, here's what you're going to do. I'm going to narrow this down, and you're going to tell me why you think that this should be dismissed based on what I've told you here.

0:39:04 Thomas: Should be dismissed.

0:39:06 Matt: Because she found that these are not substantially similar works.

0:39:08 Thomas: Oh. It's not like the decision yet. It's like you you need to do a summary judgment what the hell I do extra credit she's like hey I read ahead in the story I know we're not there yet court wise

0:39:18 Matt: There's a whole bunch of pretrial litigation that she's summing up in this. So this is one of those lengthy orders that covers a lot of nonsense. We've got the decision order granting defendant's motion for summary judgment, denying plaintiff's cross-motion, denying his moot defendant's for summary judgement on plaintiff claim for actual damages, et cetera, and motion to strike jury demand. And it's a case that is easily disposed of once one reads the allegedly infringing works against each other in light of the well-developed law in this circuit. Friedman's novel and Wolff's Crave novels are indeed similar, but only in the ways that all young adult romanticist fiction novels are similar to one another.

0:39:48 Matt: At the granular level, looking at their unique creative expression, they are substantially different, not substantially similar.

0:39:48 Thomas: If I were this judge I would have read three paragraphs and been like yeah I've seen enough these suck not worth it uh they're not good so there's no way I'm gonna say one of these ripped off the other because they're both not even worth the paper they're printed on. So, uh, nope.

0:40:00 Matt: I'm not reading the rest of this. Yeah. This is actually combined litigation for quite a number of different suits that were brought around this whole thing. So, know, these Crave novels have made good money, apparently. These are something that you can go buy in any store. Defendants have 30 days to file a motion to dismiss, limited to the issue of some substantial similarity on the fifth and sixth novels specifically. A subsequent newer case and she's deciding, I guess, on the first four.

0:40:12 Thomas: Is there that much money in these things? Are they big? Oh, wow. Like, those were my favorites. Uh, what

0:40:30 Matt: Yeah. And I want to talk about them some more. We're doing a book club.

0:40:33 Thomas: If she's like she wants to get them changed or something? She's, like, all right. She was like, I don't like how this one ended, so I'm going to say you copied, so you have to change that one.

0:40:39 Matt: I need an injunction to keep you from killing off my favorite character halfway through the book. No spoilers.

0:40:48 Thomas: That's you copied. That's you gotta do something else yeah

0:40:53 Matt: As funny as this all is, I'm very impressed. And again, obviously, Lockwork's had a lot to do with this. But I'm very impressed by how seriously she took this. I mean, no matter what we might think of the literary merit, it is somebody's work. It is creative. It's a bunch of money potentially on the line. And this woman may have had a point about the fact that they had the same agent and her agent was very familiar with her story, and maybe it could have subconsciously influenced in some of this. Way this is being set up with these lengthy findings, it's not going to have much of a chance on appeal because this is very well -reasoned. And you can't say that she didn't do her homework.

0:41:23 Thomas: I hear you but also like doesn't everybody have better stuff to do than this I get the court there's a lot of court stuff to happen I

0:41:29 Matt: The Southern District of New York? I don't know. In Wall Street?

0:41:32 Thomas: My judge should have listened to my podcast a little bit is what you're saying like I guess we probably didn't get far enough maybe you would have I don't know yeah

0:41:42 Matt: I'm sure they would have liked it.

0:41:43 Thomas: Well that was fun I'm in a better mood now from all the fascism you know I'm over all the fascismo it's like it never happened no um worried about flying actually because not only do we have the fascists there we also have no staffing people quitting we got that accent that just happened I'm supposed to fly somewhere in a month or two. I don't want to do it. I'm canceling. I know. I don't wanna go.

0:42:07 Matt: Hoping that shutdown's over soon. I mean, it really seems to be a lot of pressure right now. I think it is building to the point that they're going to having to do something. But I do appreciate that Democrats holding their ground on it. It is well worth, as the health care one was as well. But, you know, this one really for the future of this country, we have to rein in. We have to do something.

0:42:23 Thomas: They better make it worth it. At least we know they aren't folding right away. So that's yeah, that's something but

0:42:28 Matt: It's been weeks now. So,

0:42:29 Thomas: Thanks for the breakdown Matt and uh I know you have some novels to read. Um so I'll let you get to your uh your your readings. You gotta read all the drafts and everything.

0:42:39 Matt: Have to figure out how gargoyles have sex. I don't even understand that part. So I've got some deep study to do here.

0:42:42 Thomas: That's very simple, really. I could show you. It's pretty easy. I'll diagram it out for you. I'm an expert in this.

0:42:50 Thomas: All right. See everyone Monday for that part two of Subnautica. It was great.

0:42:55 Matt: Oh, yeah, that'll be good. Later.

0:43:00 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.

0:43:32 Thomas: I heard seagulls I heard them.

0:43:34 Matt: They're back.

0:43:35 Thomas: They're back.

0:43:36 Matt: Yeah, I think I just heard them too. Yep, yep.

0:43:37 Thomas: You're not just saying that, right.

0:43:41 Matt: One smells like sulfur and one smells like rocks yeah public is loving ICE and their larger and harder mussels.

0:43:48 Thomas: Matt's