Weekly Docket
Dive into the world of law with 'Weekly Docket,' hosted by Silberman Law Firm's Phil Silberman. Get the latest on landmark cases, practical law, and a unique perspective on the legal landscape. Join us for a weekly exploration of law like you've never heard it before.
Weekly Docket
Nike's Sues The Shoe Surgeon, Google's Search Monopoly, Self-Driving Car Laws, and Rising Cannabis Crackdown
Join Phil Silberman and Austin Black in Episode 30 of the ‘Weekly Docket’ as they dive into Nike's lawsuit against the renowned sneaker customizer, the Shoe Surgeon, for trademark infringement. Explore the implications of a federal judge's ruling that Google violated antitrust laws by maintaining a monopoly over online search markets. Get answers to legal questions about the laws surrounding self-driving vehicles and the legal ramifications of lying under oath. Plus, hear a rant on how rising cannabis use is leading to increased police crackdowns on impaired driving. Don't miss this episode filled with legal insights, expert advice, and lively discussions!
Welcome to Silberman Law Firm's Weekly Docket, Episode 30, where we talk legal news and practical law. Today is August 8, 2024, and I'm your host, Phil Silberman, owner of the firm. I'm joined by my co host, Austin Black, who works in our Dallas office. How are you doing today, Mr. Black?
austin_2_08-08-2024_112839:I am doing well trying to stay indoors because it is so hot outside, but,
philip-silberman_2_08-08-2024_122840:yeah, that's, that's going to be the norm for a little while, and then we get a break. Okay,
austin_2_08-08-2024_112839:watching the U S and the Olympics. We're doing so well. It's crazy, especially. And I know we talked, I think a little bit about, fencing, maybe one of our earlier ones, but like the women's foil team just swept it. we took gold in women's flow for the very first time ever. The US.
philip-silberman_2_08-08-2024_122840:and that's really cool because you like to fence one and then two, I noticed that like the entire fencing team, I'm not sure about the women's fencing team, but it's comprised of Harvard, fencing team, I think is what I saw. Did you know that?
austin_2_08-08-2024_112839:I think for the women's one, I know, I think Lauren Scruggs, on the team event. I think she was with Harvard's fencing team. I know Lee Kiefer, who won the gold individually in foil as well, goes to Duke Medical School right now. yeah.
philip-silberman_2_08-08-2024_122840:Okay, so we're talking about it. It's an elite and very intelligent sport. I've heard it described as chess with swords,
austin_2_08-08-2024_112839:Yeah. Yeah. Physical chess. That, that, that is it. Term people like to use. I'm not sure how accurate it is, but yeah.
philip-silberman_2_08-08-2024_122840:what about Snoop? Have you been seeing Snoop at the Olympics? Are you a Snoop fan?
austin_2_08-08-2024_112839:I watched, some of Snoop's commentary on the horse, events, He was commentating that with Martha Stewart. It was very
philip-silberman_2_08-08-2024_122840:Ah,
austin_2_08-08-2024_112839:yeah. Like I did you watch when he did that in the last summer Olympics.
philip-silberman_2_08-08-2024_122840:no, I, I didn't see that. I was just thinking about the dynamics of Snoop and like Martha Stewart, who's a convicted felon. And, All that
austin_2_08-08-2024_112839:it's really funny and, she, when they were commentating on it last, Olympics, I remember Sup was like watching the horse, he's that horse is crip walking out there, the horse is like dancing, so it's really funny.
philip-silberman_2_08-08-2024_122840:Stewart was like, yeah. Did they ask her like when she was locked up? Did she go bloods or crips? did that, was that the question?
austin_2_08-08-2024_112839:I don't think that was the question. I'm not sure. I don't think that was the question though.
philip-silberman_2_08-08-2024_122840:Okay, All right, we have an update. We've been talking about, before we get into the docket, we've been talking about, the NBA media rights deal and Warner, has this deal where they were going to, they host all the, they host a big block of NBA games, through TNT. That's the whole Charles Barkley and, Kenny Smith and Shaquille O'Neal thing where they do the commentating. And I'm, not sure Warner's going to get that deal anymore because Amazon paid big bucks. The NBA decided to go with Amazon over the money and the deal. Warner has sued the NBA saying Warner has a right of first refusal to match that deal. And last episode, we were unsure about what the facts were, right? Like, why is this so complex? surely these are sophisticated lawyers representing the NBA. And Warner, why can't they see who has a right of first refusal? And there's some facts that came out. And here are the facts that I think are really interesting. The NBA was most excited or interested in accepting the Amazon deal because Amazon has the ability to cross promote the NBA games on its NFL telecast. So the Amazon already has these deals where they're broadcasting NFL games, streaming NFL games, and the idea being that guys like me that are into sports were watching an NFL game If they if I see an advertisement for the NBA game that night, I'm more likely to watch that NBA game. You follow me because the only people who are watching ads now that are working are people watching live sports. That's how valuable live sports are right now. that was a very intriguing value play to the NBA, and that, that was why they went with, a big part of why they went with Amazon. Now the other thing that's interesting is from a financial security standpoint, Amazon offered to put three years of the deal in escrow. So all three years of everything Amazon's gonna pay, this huge sum of money, I can't remember what the exact sum of money was that Amazon was gonna pay. But all that's going into an escrow, escrow account. And as the deal progresses, the MBA gets to draw from that escrow, escrow account. So you get a huge amount of financial security there. And all that Warner did was a, was offer a letter of credit. we don't see letters of credit very often in our practice, Austin, they're more associated with kind of these gigantic businesses. We tend to represent mostly small business, medium sized business. Have you ever come across a letter of creditor? Do you know much about it?
austin_2_08-08-2024_112839:I have, obviously much smaller ones than this.
philip-silberman_2_08-08-2024_122840:Right?
austin_2_08-08-2024_112839:it's like an IOU. like if they miss payments on here, then they can draw the funds. That's the way it works.
philip-silberman_2_08-08-2024_122840:Yeah. A guarantee. It's a bank guaranteeing that Warner is going to pay the money. And the NBA said, I'd, instead of the letter of credit, I'd rather have, the money drawn off, drawn in escrow.
austin_2_08-08-2024_112839:yeah, of course. cause then, you're, you probably have to fight with the bank to get them to pull it in the event where Warner doesn't pay the bank. Isn't going to instantly turn over all that
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:yeah,
philip-silberman_2_08-08-2024_122840:of course, if you could get in a fight with an escrow agent as well,
austin_2_08-08-2024_112839:Sure.
philip-silberman_2_08-08-2024_122840:see this a lot of time in our real estate deals where a seller and buyer get, yeah, seller and buyer get in a fight and Austin, you just can't call the title company and be like, Hey, give me the money. The title company's not going to do it
austin_2_08-08-2024_112839:Everyone thinks you can do that, but no, you, they're like, aren't they supposed to give me my earnest money? Okay. Yes. Like I always give people the legal answer and the practical answer, right? Legally. Yes, that's true. Practically the title company does not, is not going to be the arbitrator of that. But there's a fight. No one's signing the release. They're going to hold onto that until kingdom come or a lawsuit resolves it.
philip-silberman_2_08-08-2024_122840:Yeah. same principle here. I think if really, if the MBA gets crossways with Amazon and they bring the escrow agent in, all the escrow agent is going to do is interplead the funds. And that's just, hey, send the money to the court, however much money it is. Wasn't it like billions of dollars or something crazy? Billions of dollars interpleaded with the court, you go fight it out. That's what the escrow agent is going to do. I don't see the letter of credit being, Significantly, inferior to the escrow deal, but that's what the NBA is saying. And I think most of it, though, is there's this intangible that Warner can't provide with the NFL cross promotion. that's going to be the position. Warner's going to say, hey, you've got to give us the opportunity to match this bid. and we're matching it. I assume that's what Warner's going to say. And the NBA is going to turn around and say, no, you're not really matching our bid because there's an intangible there that you can never match. Now, I don't know, I've never seen that play out in a right of first refusal case. Because it's almost always about money. When you're dealing with real estate, money is money. I'm paying you money. so you've got this intangible thing that's cool there. So it's interesting to see how that plays out. And then you've got Warner's, by the way, scrambling in the background. It's like they think, what if we lose this NBA deal? They're trying to buy up more and more live sports and they're trying to figure out, what do we do with Charles Barkley? Who's this insanely, you may not, you may or may not be a Charles Barkley fan. I don't know if you are or not, Austin, but,
austin_2_08-08-2024_112839:I don't
philip-silberman_2_08-08-2024_122840:no.
austin_2_08-08-2024_112839:that is.
philip-silberman_2_08-08-2024_122840:Oh my goodness, Austin, I'm sorry. you, surely you must be kidding me. You don't know who Charles Barkley is
austin_2_08-08-2024_112839:Who is this? It's,
philip-silberman_2_08-08-2024_122840:the round amount of rebound.
austin_2_08-08-2024_112839:former basketball power forward. Oh, yeah, no, I've seen this guy before. I know what his name was.
philip-silberman_2_08-08-2024_122840:Okay. All right. for our listeners, if he, if you're tuning into the show for the first time, Austin is a youngish millennial. Okay. Who is a very nice man and a very intelligent man and a great lawyer, but he's not always the best with sports. And he likes fencing. And an Asian ping pong players.
austin_2_08-08-2024_112839:also a fan of the Pentathlon.
philip-silberman_2_08-08-2024_122840:Okay. All right. Yeah, but not Charles Barkley.
austin_2_08-08-2024_112839:Barkley
philip-silberman_2_08-08-2024_122840:When Charles Barkley joined the league, he was they call is this round guy. he's great he was a hall of famer, but he's not he doesn't have the typical NBA body for a power forward
austin_2_08-08-2024_112839:quite rotund, yes.
philip-silberman_2_08-08-2024_122840:he was six foot five. That's small for a power forward in the NBA, but he was so he was beastly strong and he was an incredible competitor. Never won an NBA championship, but no doubt Hall of Famer when he first got into the league, I think he played for the Sixers and the coach for the Philadelphia Sixers said, Charles, you need to get into shape. And Charles said, Coach, I am in shape. I'm round. ha.
austin_2_08-08-2024_112839:That, that
philip-silberman_2_08-08-2024_122840:But later, this is the last little Charles Barkley story I'm going to tell and then we're going to move on, but, and later in life he was doing TNT, he was doing the announcing, he's an incredibly popular celebrity, he's just a funny guy, people love him, TNT want, they want to keep his personality and they're thinking about having him do a sports show, he's that popular,
austin_2_08-08-2024_112839:huh.
philip-silberman_2_08-08-2024_122840:just like Snoop is, everyone loves Snoop now, Grandma loves Snoop, and, your generation loves Snoop and my generation loves Snoop. It's like Snoop can do no wrong over there. What kind of celebrity are you going to get that can cut across all of these different generations, right? That's how they feel about Snoop. Nevermind that Snoop rapped for decades about, hoes and, women and drugs and all that kind of stuff. So nevermind that.
austin_2_08-08-2024_112839:rapping, Phil.
philip-silberman_2_08-08-2024_122840:All right.
austin_2_08-08-2024_112839:I rap about hoes and drugs, in the morning, in the showers, I'm sure you do It's just, see, it's what they can do, Yeah.
philip-silberman_2_08-08-2024_122840:Grandma loves Snoop. Okay, people, Charles Barkley kind of has that character as well where he's loved. But he's on TNT,
austin_2_08-08-2024_112839:I did remember I've seen him before. So yes, I do
philip-silberman_2_08-08-2024_122840:yeah,
austin_2_08-08-2024_112839:yeah,
philip-silberman_2_08-08-2024_122840:and he has this terrible golf swing. But anyway, he got fat, and the, and,
austin_2_08-08-2024_112839:but
philip-silberman_2_08-08-2024_122840:No, this, he has the worst golf swing, they tried to fix it, he got really fat. And I noticed in the last, year or two, he lost a bunch of weight. and I think someone asked him, I think, why'd you lose all that weight? And he said, he said, I went to my doctor, and the doc, and the doctor told me, he said, Charles, there are a lot of fat young people, but there are no fat old people. And that, that resonated with him so much, he decided to lose the weight. So he's same personality, but just physically less of, of Charles Barkley out there.
austin_2_08-08-2024_112839:I don't know. Phil, that sounds really fat phobic to me.
philip-silberman_2_08-08-2024_122840:fat phobic. Okay. is that a thing now? Am I now offending? Am I not?
austin_2_08-08-2024_112839:not know that? That actually is a term people use.
philip-silberman_2_08-08-2024_122840:this is how we, this is why we're a good team. This is why we educate each other. you tell me about fencing. Now you tell me that there's really something called fat phobia or whatever. And that's not scared of being fat. We're just
austin_2_08-08-2024_112839:is fat phobic.
philip-silberman_2_08-08-2024_122840:moving on. Since I'm still the owner and the boss, I get to control the content on this show a little bit, okay?
austin_2_08-08-2024_112839:We could put that in a ranted rave later.
philip-silberman_2_08-08-2024_122840:Yeah, alright, let's move on. That was our update on the TNT Warner thing. What's on our docket today, Austin?
austin_2_08-08-2024_112839:so today we are going to be talking first about Nike. so keeping an, in the sports theme, they filed a lawsuit, relating to this, sneaker customization scheme. so we'll be going over that. I personally have used, I think I told you before the show that I've used their sneaker customizer before, Nike's before. so
philip-silberman_2_08-08-2024_122840:Okay.
austin_2_08-08-2024_112839:that lawsuit. And then. Google been found to have violated an antitrust law with a monopoly on the search function. Apparently not enough people were using Bing. I love all those memes, right? Where like you search something on Google, you search something on Firefox and they search something on Bing and it's just like a completely left field and result. Yeah, those
philip-silberman_2_08-08-2024_122840:Okay.
austin_2_08-08-2024_112839:and then legal questions, moving on to that first. What are the laws around self driving vehicles? Because we do have some of those. They're quite rare. only, I think, in certain cities in the U. S. and then answering whether lying is illegal. Just, Is lying illegal? Okay, probably not, but is lying under oath illegal? We'll let you know, okay? Then finally, our Rant and Rave section, we'll be talking about cannabis use, and how that has driven a police crackdown on impaired driving. So if you are driving around in your little Volvo listening to Bob Marley, And smoking, maybe that won't work out so well for you anymore, but we'll let
philip-silberman_2_08-08-2024_122840:Hey, why do you gotta be listening to Bob Marley while you smoke weed? couldn't she can, can't she be listening to classical music like Beethoven or something while you get high?
austin_2_08-08-2024_112839:or Snoop, right? There's a wide range of music you could listen to while you're correct, yes.
philip-silberman_2_08-08-2024_122840:for certain. Alright, that's our show for the day. I'm actually super excited about this show. A lot of great content here. Google is probably the biggest news around this, so we'll get to that momentarily. But let's start with the legal news section with Nike filing a lawsuit against a sneaker customizer. I did not know this was big business or a big thing. But apparently it is. Austin, I didn't know you were into customizing Nikes. It is.
austin_2_08-08-2024_112839:not, I wouldn't say I'm into it. when, the way I am with running shoes is for me, they last a long time. I that says about how much I run, but they last quite a long time for me. And the time before, not the shoes I currently have, but the ones before that, I think when I was living and working in DC, I got some like Nike running shoes that I use their sneaker customization, software. And it was pretty cool. Like you could visualize, like you could see the sneaker on the screen, right? you can change the colors you wanted, like different, like breathable things. you could change the insole. If you're. If you had high arches like I do, or you were from our
philip-silberman_2_08-08-2024_122840:Okay.
austin_2_08-08-2024_112839:yeah, it was interesting, but yeah.
philip-silberman_2_08-08-2024_122840:I don't think we're talking about that kind of customization. I think we're talking about like really like far out, like artistic customization here.
austin_2_08-08-2024_112839:no, Nike does that too. And
philip-silberman_2_08-08-2024_122840:Oh, really?
austin_2_08-08-2024_112839:like expensive custom things. Cause I think that's why they're suing. Yeah,
philip-silberman_2_08-08-2024_122840:they did used to collaborate with this guy, but for our listeners that don't know, like me, apparently you can go buy some Nikes and, You could go anywhere. You go to various customizers out there that maybe not be affiliated with Nike and you can pay to have these things customized. there was this guy, I guess it's a guy named Dominic, sham Brony. I'm guessing that's how you pronounce it. So
austin_2_08-08-2024_112839:that's the guy in the Fast and the Furious movies, right?
philip-silberman_2_08-08-2024_122840:I don't know. Are you being serious? I have no idea.
austin_2_08-08-2024_112839:no, I'm joking. The guy that Vin Diesel plays is Dominic. I just
philip-silberman_2_08-08-2024_122840:Okay.
austin_2_08-08-2024_112839:of that whenever I see this.
philip-silberman_2_08-08-2024_122840:When you hear Dominic, I, yeah, I think of a time now hungry for Italian food is what I am. but he's known as the shoe surgeon and she and Boney has been customizing Nike shoes for years. He takes classic designs like, some Air Jordans or whatever. And he. He makes these very unique artistic. Austin, what is this word? Bespoke creations? B S P O K E. Are you familiar with that word? Bespoke.
austin_2_08-08-2024_112839:I see it used much more often when talking about like bespoke suits and things like that, where they are just entirely made for one specific person.
philip-silberman_2_08-08-2024_122840:I see. thank you. I've gotten a vocabulary lesson on this show. So that's incredible. he's done some cool stuff. Gold dipped sneakers for LeBron James. he's done some other custom designs for, Tom Brady and Kim Kardashian, gained some significant reputation. Are you laughing? cause I missed, I mispronounced Kim Kardashian.
austin_2_08-08-2024_112839:no, I was just wondering what he dipped in gold for Kim Kardashian.
philip-silberman_2_08-08-2024_122840:oh, I, yeah. I'm going to leave that one alone.
austin_2_08-08-2024_112839:I
philip-silberman_2_08-08-2024_122840:he did work for Nike on various projects, but, that relationship has since soured because Nike just hit him with a big trademark infringement suit. Nike's claiming that, the shoe surgeon, Giambrone transitioned from creating sort of these one off artistic type things. These designs is now like this larger scale operation and it's violating Nike's trademark. It's infringing on Nike's trademark. So company Nike seeking 60 million dollars in damages, alleging that, Chamboni's practices have harmed its brand. So these customized shoes, Austin, I don't know what you paid for yours, but they're not cheap.
austin_2_08-08-2024_112839:mean, mine were nowhere near this sort of a thing. I think they were like around 200. yeah,
philip-silberman_2_08-08-2024_122840:Okay, now these are, the average for these things are like four or five grand. For this year's just so we're clear You think it's a trademark? Do you like that idea of trademark infringement? I mean you buy that no
austin_2_08-08-2024_112839:I don't, I, unless it's like going off of the idea that he can't like resell Nike products, but I'm, I don't even think that's the,
philip-silberman_2_08-08-2024_122840:the art the argument, you know your gut instinct of okay. no, you don't buy It doesn't sound like trademark infringement your gut instinct may not be incorrect You're allowed to buy a product and incorporate it in another product. The example I use is Barbie. the Barbie movie came out, it was wildly successful. It's a brand owned by Mattel. You probably knew who Barbie was, what Barbie was, even though you don't know who Charles Barkley is. Okay, obviously Charles.
austin_2_08-08-2024_112839:been a Charles Barkley Barbie as far as I know, or can
philip-silberman_2_08-08-2024_122840:Okay, wait, you wait. And you, if you're a parent and you've got a little girl, you're going to call up to the baker and say, Can you bake me a Barbie cake? And the answer to that is, is no. If you're Kroger or Randall's or wherever you are, or Shaw's or H E B, wherever you are, you cannot just start making Barbie cakes. That's a violation of Barbie's trademark, right?
austin_2_08-08-2024_112839:have a contract with Mattel.
philip-silberman_2_08-08-2024_122840:Yes. then you're not violating anything because you have a license to use the trademark. But what you can do, Austin, is you can go down to Walmart, I would say Toys R Us, but we don't have Toys, maybe Toys R Us isn't around in that same way anymore. You go down to Walmart, buy a Barbie doll, make a pink cake, and then stick Barbie in the cake, right? Actually stick the doll. You can do that. Is that the same? Is that what's going on here? he buys some Nikes. And he sticks his own kind of thing on it, whatever he's doing, no?
austin_2_08-08-2024_112839:I don't know much about trademark law. I, I think the closest I've gotten to that is like an administrative law class. I took, and then some trademark filings that I've done in the course of my practice, but never, litigation involving trademarks.
philip-silberman_2_08-08-2024_122840:okay.
austin_2_08-08-2024_112839:I'm just, I'll say I don't care at all about Nike. Anything that makes them lose money, I'm happy with, to be completely honest. I think that Nike didn't like how much money this guy was making, and are wanting a piece of the pie. I think that's all that's happening here.
philip-silberman_2_08-08-2024_122840:that's probably the practical.
austin_2_08-08-2024_112839:right? There are many smaller people who do things like this.
philip-silberman_2_08-08-2024_122840:there's probably the practical aspect of it and Nike's going to go after the biggest one. the standards of trademark, if you're thinking about trademark infringement, you have to have ownership of the mark. Nike obviously owns Nike. There has to be a likelihood of confusion. if you're in front of a jury, because our firm does do trade, we file trademarks, we do some trademark litigation. If you are imagining yourself in front of a jury, you got 12 people there, and you hold up like the classic Air Jordan, And then you hold up like the gold dipped Air Jordan with, sparkles on it.
austin_2_08-08-2024_112839:encrusted on its heel
philip-silberman_2_08-08-2024_122840:it.
austin_2_08-08-2024_112839:by Nike? I don't think so.
philip-silberman_2_08-08-2024_122840:Yeah. Okay. Alright. that, that's, Nike's gonna try to argue otherwise, but.
austin_2_08-08-2024_112839:if Nike had something where they created, where they had creations like this. I get it, like that would make more sense to me
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:this is, but as far as I know, the only time Nike has ever done anything like this on their own is when they are doing like a special promotional thing for a celebrity or something, and they just send it to them for free. So
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:think they ever sell anything like this. I could be wrong, but I don't think they do.
philip-silberman_2_08-08-2024_122840:Yeah. that, the main element that we always Fight over in trademark litigation is likelihood of confusion. the other stuff is gimme's, the ownership, the, the, you obviously used it in commerce, selling the shoes and there was an unauthorized use, so it's all going to come down to likelihood of confusion. there's a whole list of other people to Austin's point that are doing this as well. This is, this guy's big, Nike's going after him. The, before we move on, the question I'll ask is Austin, what about copyright? Why not copyright? and do you believe that a Nike shoe is a work of art, is a copyrightable, like a work of art, a design, or you don't think it gets there?
austin_2_08-08-2024_112839:I, I think it's like a mass produced product and I'm not sure if this would be something. their design is copyrighted as far as I know,
philip-silberman_2_08-08-2024_122840:it's an ambiguous thing. And I ask you to elicit a point. if you're mass producing a widget, okay, if you own a factory that makes nuts and bolts,
austin_2_08-08-2024_112839:wait, a widget. Is that like a fidget spinner?
philip-silberman_2_08-08-2024_122840:Yes, very close to that. If you mass produce a product like nuts and bolts, something benign, boring, your design of your nut and bolt is probably not copyrightable, right? Maybe you can get a design patent on it, and I'm not sure if Nike has any design patents on its shoes. It probably does. The patent violation thing, I don't think that's gonna, that's gonna work here. I don't know if the shoe rises to a, it's if the shoe fits, wear it, right? But if the shoe rises to the level of artistic design,
austin_2_08-08-2024_112839:shoe rises, you probably can't wear it in the NBA, right?
philip-silberman_2_08-08-2024_122840:Right, that'd be an illegal piece of equipment. Yeah, if your shoes like this work of art, this design, maybe you can get a copyright. I did look up, if you're thinking about, other products, I looked up a Ferrari. If you think about the movie Ford versus Ferrari was a very popular movie and this idea that this Italian man who owned, Ferrari at the time, and he considered Ferrari a work of art, right? And in Italy that played out because there was a court An Italian court said that the Ferrari, the 250 GTO, is a work of industrial design, and that shape was eligible for copyright protection. Is Nike's shoe the same thing? I don't know. Probably not. But, probably not. if,
austin_2_08-08-2024_112839:Now I will say that just a brief like thing. So and Adidas are the two major shoe companies that make Exclusively fencing shoes. so there, they're, and I used Nike's, fencing shoes. They're called the Nike Balestra. A balestra is a fencing move. there's some specifically made for that.
philip-silberman_2_08-08-2024_122840:I had no, I had no idea you needed special shoes to go fence it.
austin_2_08-08-2024_112839:you don't. But these are made for the sorts of like quick foot movements that are used in fencing. they did feel great. They're really light. and, Adidas focuses more on like high tops. Inventing. Whereas, Nike's are more close to the ground. So
philip-silberman_2_08-08-2024_122840:Okay.
austin_2_08-08-2024_112839:make a lot, they do make a lot of shoes that are for like specific purposes, but even those I don't think would rise to the level of like works of art here.
philip-silberman_2_08-08-2024_122840:Okay, we'll see if Nike prevails in this case for what happens if it's just they end up settling or whatever. We'll keep everybody updated on that. But Let's go ahead and move on to the probably the biggest legal news of the last week or two. Google gets popped for antitrust. There's a judge, I believe it's out of the District of Columbia. I think the judge's name is Amit Mehta, which is hugely ironic, but it's not spelled like Mehta Platforms. It's spelled Mehta, M E H T A. But this judge says,
austin_2_08-08-2024_112839:Sure.
philip-silberman_2_08-08-2024_122840:So the judge said Google is absolutely a monopoly. And Specifically their search business. So Google has the most dominant search business in the world. Austin was making fun of just how bad Bing has failed at trying to compete with Google. this was started out as a Department of Justice lawsuit. The DOJ are the ones that bring antitrust. the judge found that Google maintained its monopoly by engaging in exclusionary practices. mainly the deal with Apple. and also this number blew my mind. But Google pays Apple 20 billion so that when you buy an iPhone, Google is the default search engine on that iPhone. do you have an iPhone?
austin_2_08-08-2024_112839:did not know. So you're saying if I like open up Safari, is the engine.
philip-silberman_2_08-08-2024_122840:yeah, you don't even know, you're just typing something in the address bar for our,
austin_2_08-08-2024_112839:Yeah. It's just Google. Yeah.
philip-silberman_2_08-08-2024_122840:it's just Google, absolutely, yeah, I'm shocked that,
austin_2_08-08-2024_112839:I use the reason I didn't know that is I don't use Safari. I use the Chrome app on my don't use Safari. So obviously it makes sense that Google is the default search engine on Chrome. but I the default for Safari as well. It's interesting.
philip-silberman_2_08-08-2024_122840:yeah, that's the deal. Apple, I didn't know that. Apple and Google are fighting just, are just, they're just frantically trying to work together and appeal this. And Apple's not part of the lawsuit, but Apple stands to lose a ton of money, right? and prior to this, in many ways, Google and Apple have been sworn enemies. Like I, I think Steve Jobs at one point threatened to go thermonuclear If Google launched its own, its own phone operating system, and then of course, what happened, we get Android, right? But now, Google and Apple have been in bed to bed with each other for many years on this 20 billion deal. And this threatens to basically destroy that deal.
austin_2_08-08-2024_112839:I think the windows phone is going to make it come back.
philip-silberman_2_08-08-2024_122840:huh, yeah, yeah, maybe. Okay, Google is, they're gonna appeal, they're in trouble. the judges, said they are definitely monopoly. People are starting to speculate
austin_2_08-08-2024_112839:And
philip-silberman_2_08-08-2024_122840:what, what's gonna happen.
austin_2_08-08-2024_112839:This was just at the first federal level where this ruling was made.
philip-silberman_2_08-08-2024_122840:gonna, it's gonna be appealed. This could go all the way up to the Supreme Court without stopping at an appellate court. There's something special within federal law. And that's what, you're too young to remember Microsoft, Austin, but Microsoft was sued for monopoly in 2000. And it was, that was an illegal tying agreement.
austin_2_08-08-2024_112839:Yeah.
philip-silberman_2_08-08-2024_122840:and then they ended up settling they ended up settling that suit back in I think 2000 or one or whatever but Very similar to what happened to Microsoft people are speculating You know what the judge if Google loses this what might the courts do some have said they could force Google to spin off Chrome So Chrome is automatically, comes with Google search.
austin_2_08-08-2024_112839:huh.
philip-silberman_2_08-08-2024_122840:So they could force Google to spin off Android. it's operating system for the phone. The idea being that if you spin it off, then there's going to be choice with search engines and they could kill the Apple deal. You didn't even know that you could select on your, on Apple, your default search engine.
austin_2_08-08-2024_112839:I knew I could select on Apple, my default search engine. I didn't know that the default search engine on Safari was Google
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:use Safari.
philip-silberman_2_08-08-2024_122840:Yeah, so big deal. Big deal. this could have a big impact on Google's business on its share price on it, on its value. all kinds of speculation on what's going to happen here. It will likely be appealed. This will take years to play out. it gets me thinking about, different other arrangements, right? And this DOJ, this Department of Justice has been very aggressive, in its prosecution, but you're, you shop at Costco, don't you, Austin?
austin_2_08-08-2024_112839:I do not have the
philip-silberman_2_08-08-2024_122840:Oh, let's pretend, let's just pretend you answered yes to shop.
austin_2_08-08-2024_112839:girlfriend has one though. So I go there with her, but yeah,
philip-silberman_2_08-08-2024_122840:Okay, there you go. so Costco has a deal where they sell Pepsi exclusively at their food court. and pay for that deal. I don't see. Is that different than this? is that, monopolistic? No, is,
austin_2_08-08-2024_112839:considering Costco is losing money with their food court, I don't think so.
philip-silberman_2_08-08-2024_122840:well, I asked that question in jest because it's the same concept. it's just how big is too big. you're, and really who cares about who, who cares about sugar water. But, This has far reaching implications, so lots of examples, out here, of other companies that have these business arrangements. Google's position, and the attorney for Google was quoted as saying, Okay, we, the judge admits that Google has the best search engine. Nobody, an attorney saying, no one is questioning that we have the best search engine. We're just being punished for marketing it, for providing it to people. that's Google's position.
austin_2_08-08-2024_112839:I, I can just imagine some federal judge being like, In interest of competition, 1 of the US must now use Bing. Google will be blocked
philip-silberman_2_08-08-2024_122840:Which one,
austin_2_08-08-2024_112839:of these states.
philip-silberman_2_08-08-2024_122840:punish, you gotta punish me. I don't think Bing is that bad. You think it's that bad, huh?
austin_2_08-08-2024_112839:I don't think it's actually that bad. It's just funny. It's just funny that like it's AI is really bad. I'll say that it's AI is very bad. I think like we talked about that, like towards the beginning of this podcast, of starting this podcast, It was like, How bad beings like AI, like you would ask it for suggestions on dealing with depression and it would recommend suicide.
philip-silberman_2_08-08-2024_122840:jump off, no, jump off.
austin_2_08-08-2024_112839:Yeah, no.
philip-silberman_2_08-08-2024_122840:That's one way, that's one way to deal with it. all right, let's go. We'll let, we'll keep everyone updated on the Google thing as it plays out. But let's go ahead and answer some legal questions right now. And the first thing we're talking about, self driving vehicles. I'll say, have you ever been in or ridden in a self driving vehicle? Like an actual fully autonomous, I'm not talking about adaptive cruise control.
austin_2_08-08-2024_112839:I think I'd remember. I don't think I have.
philip-silberman_2_08-08-2024_122840:Yeah, I have not either. And here's where they are. They are a thing and they do, they are being marketed and people are using them. you've got Waymo in San Francisco, which I, by the way, I think is a Google backed company, if not completely owned by Google, I don't know. Waymo in San Francisco, Phoenix, and then LA, Los Angeles and Austin are coming soon. And then you've got Cruise by General Motors and Cruise was actually suspended. in October of 23, but then they relaunched again here in May of 24. And then you've got Baidu in China and there are some others out there. So people are going, are,
austin_2_08-08-2024_112839:why was
philip-silberman_2_08-08-2024_122840:you know, they had some accidents and some negative press. So they, they purposely suspended the program and I guess they feel like they've got things going again, got things moving again here in May of 24. So would you get in? if when it comes to, if it comes to Austin, would you be comfortable taking a self driving taxi? By way, Mo,
austin_2_08-08-2024_112839:I would.
philip-silberman_2_08-08-2024_122840:you would.
austin_2_08-08-2024_112839:the, so in China, Baidu is in 11 cities, including Beijing, Luang, Sichuan, Shanghai, so a lot of really large cities there. It's interesting.
philip-silberman_2_08-08-2024_122840:Yeah, I don't know. I'm not sure I'd be completely comfortable taking one at this point. But,
austin_2_08-08-2024_112839:There are some more comfortable in a self driving car than I would be in one driven by, a human. especially in cities where I'm, like, as if I was a tourist there, I'd be more comfortable getting in a self driving car, and going there than renting my own or having to A driver there because I've seen for instance, Paris, I hate drivers in Paris. My gosh, I hate them so much.
philip-silberman_2_08-08-2024_122840:it's it seems like it'd be impossible to have a self driving car in Rome where there's really no where there's no order of traffic or anything like that. So
austin_2_08-08-2024_112839:car in Honduras. That sounds like a
philip-silberman_2_08-08-2024_122840:what?
austin_2_08-08-2024_112839:idea.
philip-silberman_2_08-08-2024_122840:you would never go anywhere, you would just, because the sensors would be going off all the time as the mopeds like, circled you like sharks, Alright, so all of this is regulated, and I did not know this, but all of this is regulated by the National Highway Traffic and Safety Administration, that's NHTSA.
austin_2_08-08-2024_112839:huh.
philip-silberman_2_08-08-2024_122840:and they have all of these requirements that you have to fit, manufacturers have to submit. a safety self assessment, list to this organization and how their autonomous vehicles comply. And, you get all, you have these 12 priority safety factors. You got design elements, it's operating design and, event detection, all these very technical things. So you assume that, our NHTSA is doing a good job. I don't know if they are or not. There's some federal legislation out there that wants to get the DOT, the Department of Transportation, involved. That's under, Pete Buttigieg, So maybe he steps in, they do some administrative rulemaking trying to further regulate this thing. I don't think that is quite taken off yet. So all of our regulatory, scheme, or all of our regulatory laws are coming off of this, coming from this NHTSA. So the state regulations are quite varied. As you would expect maybe in some of the more conservative states are that promote business are a little bit more lenient. Some of the more progressive liberal states are a little bit more restrictive.
austin_2_08-08-2024_112839:think that, right? You would think that, but in Texas, we still can't sell Teslas,
philip-silberman_2_08-08-2024_122840:is that right?
austin_2_08-08-2024_112839:Yes,
philip-silberman_2_08-08-2024_122840:because we have to protect our dealers.
austin_2_08-08-2024_112839:have to protect our this state where we talk about being such like a great promoter of business We're like, no, we can't sell Tesla's here because we have to protect little GMC. Oh, it's
philip-silberman_2_08-08-2024_122840:Yeah, we're,
austin_2_08-08-2024_112839:I
philip-silberman_2_08-08-2024_122840:It's it's Bill Smith Chevrolet or something. Gotta protect the dealer. But,
austin_2_08-08-2024_112839:about Bill Smith Chevrolet I want Bill Smith Chevrolet off of my billboards and off of my commercials. It's so annoying. I don't
philip-silberman_2_08-08-2024_122840:argue.
austin_2_08-08-2024_112839:do not care
philip-silberman_2_08-08-2024_122840:All right, can't sell Tesla. But okay, so if anyone's curious, Texas does follow just the national policy. They defer to the, the national body there. the, Texas does defer to the, NHTSA. and we follow that federal regulatory scheme. And so when Waymo comes to Austin should be no, no problems there. They're, Other states out there that are not so lenient, there's been some terrible crashes, some cases, Uber had a self driving car accident in 2018, where an Uber autonomous vehicle struck and killed someone in Arizona, and that, yeah, that's bad press, it's obviously a terrible tragedy.
austin_2_08-08-2024_112839:Kind
philip-silberman_2_08-08-2024_122840:And then you've got a lot of Tesla autopilot cases as well,
austin_2_08-08-2024_112839:Oh, okay. so I have not, and Tesla obviously isn't entirely self driving, but I have been in a Tesla that was on autopilot. It was really interesting. Like the driver was just sitting there. Now they were paying attention to what was on the road, but it was more, it was much more in depth than normal cruise control.
philip-silberman_2_08-08-2024_122840:Yeah, that's a, even that is a lower level than what we're talking about here. But even those can be dangerous. And, if you're talking about Cadillac SuperCruise, for example, or Ford BlueCruise,
austin_2_08-08-2024_112839:Yeah.
philip-silberman_2_08-08-2024_122840:those are lower level autonomous driving, technology or features. The idea is you're supposed to, it actually scans your eyes, and you're supposed to keep your eyes open, and if you, look away or doze off or fall asleep, you're supposed the vehicle will slow down to some low rate of speed and just go very slowly. yes, so the, yeah, that, but we're talking about something, we're talking about robo taxis. Tesla, much of the share price in Tesla is built around Elon Musk's new launch of his Tesla robo taxi. And we're waiting, he keeps delaying the push, he wants to really wow us. on how great this thing is going to be when these self driving vehicles cause a tragedy or hit somebody or an accident, you're now no longer squarely within the traditional negligence arena, we're not car accident attorneys, but if you're a car accident attorney or personal injury shop. You, you are all about negligence and that you're suing the driver. This is different. This is products liability. And with products liability, Austin, when that machine doesn't work, when the product doesn't work, you just have to prove a design defect, like a software defect.
austin_2_08-08-2024_112839:is a lot harder than
philip-silberman_2_08-08-2024_122840:in some ways, but if you prove, if you simply prove that there's a design defect, then you automatically have strict liability And when you have a strict liability standard, then you don't have to prove the intention of the defendant. So in many ways, it's easier than a negligence lawsuit.
austin_2_08-08-2024_112839:I'm more meant for the normal person, right?
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:you are friends, if you get hit by someone, then obviously there was something usually there's something wrong with the person who hit you.
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:situation, if you're bringing this sort of lawsuit. need to get like extra witnesses, et cetera. So the cost of litigation here could be higher. Yes, it might be
philip-silberman_2_08-08-2024_122840:Yeah.
austin_2_08-08-2024_112839:run, but the cost of litigation could be a lot higher up front. So
philip-silberman_2_08-08-2024_122840:Yeah. And you've got deeper pockets. You're suing Waymo and Tesla and Uber and that kind of thing. that's the 30, 000 foot overview of autonomous vehicle law. So that was incredibly interesting to me. Hopefully the listeners found it interesting as well, as we make this foray into autonomous vehicles. That brings us to our next legal topic, which is lying illegal? And Austin, you did a spoiler, alert for us. Obviously lying is not illegal, but You would be surprised how many of our potential new clients, how many people call us and they're like, so and so lied to me. And we have to call them now and say, Mr. Mr. Smith, it turns out that lying is not actually illegal. But outside of some other circumstances, right? Like for example, if you're testifying under oath or if you're engaging in some sort of business deal, like you're selling a house. that can be fraud. Fraud in many ways is a type of lying and deceit. when you're, when the bottom line is when you're doing things out there like signing affidavits, or you're sworn testimony in court, or you're in a deposition, all those are things are under oath. And I don't know if they do this in court anymore. In many courts they've taken where you put your hand on a bible and you say, do you swear to tell the whole truth and nothing but the truth? So help you God on a lot of courts are not they're leaving the God part out of it. So
austin_2_08-08-2024_112839:just have you raise your hand. yeah, so
philip-silberman_2_08-08-2024_122840:yeah it wasn't so long ago that you would still swear on a bible. Did I ever tell you my story about the pathologist austin?
austin_2_08-08-2024_112839:did, but feel free to tell it to our listeners.
philip-silberman_2_08-08-2024_122840:I'm gonna tell it again for the listeners. So there was this one. this one old country lawyer in court and You he was examining, he was actually cross examining the witness, rather. And the witness was just lying. just lying through his teeth. just everything was a lie. And the old country lawyer turned to the judge and said, Judge, this is what happens when you tell a lie. You tell one little lie, and you gotta tell another little lie to cover that up. and another lie. And by the time you know it, judge, you're a pathologist. Now, obviously the, guy was trying to say he's a patho, a pathological liar. So now the biggest joke I have around now when we're talking about lying under oath is if you lie too much, we joke that you might become a pathologist. So that's my story on lying in court. But did,
austin_2_08-08-2024_112839:than going to medical school for eight years.
philip-silberman_2_08-08-2024_122840:yes. So you absolutely do not want to lie under oath. you don't want to commit fraud. Can you give the listeners the elements of fraud real quick, which
austin_2_08-08-2024_112839:Yeah.
philip-silberman_2_08-08-2024_122840:you have that then?
austin_2_08-08-2024_112839:fraud. so usually six elements for that you need to make a material misrepresentation. so or you could just say you make a representation and then the representation was false. it needs to be false when the representation was made and when it was made, the speaker needs to know it was false or recklessly without any knowledge of the truth of the statement. it needs to be made with the intention that the other person act upon that statement. and then the other person needs to have acted in reliance. Upon that representation. And then finally there need to be damages, which is the situation in most torts.
philip-silberman_2_08-08-2024_122840:Yeah,
austin_2_08-08-2024_112839:yeah,
philip-silberman_2_08-08-2024_122840:so fraud is a type of lying. it really is. you can't commit fraud. There, there is criminal fraud. There's civil fraud. We're civil lawyers. we talk about civil common law fraud. We talk about statutory fraud. and you can't commit perjury. If you lie under oath, you're, you, there's a Texas Penal Code section 37. 02. It's a Class A misdemeanor, punishable by one, one year in jail at 4, in fines. So then you've got this aggravated perjury standard, which is a false statement made in an official proceeding. that's Texas Penal Code 37. 03. That's a third degree felony, two to ten years in prison. bad deals. People don't lie. it's, don't lie anyway, but Don't lie under oath, don't commit fraud, but lying in itself is not illegal, although we don't condone or encourage it on the weekly docket or at the Silverman Law Firm. All right, that brings us to our rants and raves section, and we're talking about marijuana again, or cannabis. Seems to come up quite a lot in today's law, but there's a lot of people out there that are, I don't, they're not smoking and driving anymore. They're vaping, they're driving while impaired, and this is a big problem. There was a study, since marijuana legalization, occurred, it's contributed to over 1400 additional traffic fatalities in the U. S. more people are using cannabis products than alcohol. nowadays. there's just a trend away from alcohol. Alcohol being, it's bad for your health, it's bad for your much worse health side effects. people have migrated.
austin_2_08-08-2024_112839:yeah.
philip-silberman_2_08-08-2024_122840:into the, to the health mecca that is cannabis.
austin_2_08-08-2024_112839:no. I was, I was in a Uber in Atlanta recently and my driver was high as a kite, man. Like
philip-silberman_2_08-08-2024_122840:Okay. Did you,
austin_2_08-08-2024_112839:got to where we were going safely. I was just like, what is going on with
philip-silberman_2_08-08-2024_122840:That's scary. that's my rant about this. we, you've gotten all, Oh, marijuana is great. And cannabis is great. Take these gummies. It relaxes you and everything. Marijuana is not a bad.
austin_2_08-08-2024_112839:He was quite relaxed.
philip-silberman_2_08-08-2024_122840:Yeah. Yeah. he was there. and you, these are the, these are just, this is just one example of the crazy consequences of cannabis and marijuana use. And it's having a direct impact on our society and all of the, all of these progressive district attorneys, and politicians, they're not reporting on this stuff. They're not really looking at. the actual consequences of these traffic fatalities, and it's terrible. And the police are having a problem, Austin, because apparently you can't just, it's not like alcohol. If you catch someone drunk and driving, they can, you blow into a breathalyzer. The it measures the blood alcohol, can be measured. It measures impairment. There's no real surefire way to test for cannabis impairment.
austin_2_08-08-2024_112839:I don't know that there is. Police officers need to have, some flamin hot Cheetos and see if the driver can resist them or not. And if they can, then no, not enough impairment. If they can't, then straight to jail.
philip-silberman_2_08-08-2024_122840:you make a joke about that, but some of the stuff that they're doing to try to prove to try to build evidence of impairment is just that whacked out. so here's what they've coached officers all over the country to do. And I guess this works. I don't know. If you get high, apparently your sense of time becomes distorted. so if I were to ask you, Austin, they're saying, okay. You've just been pulled over. We suspect that you're impaired by cannabis. We want you to put your head back and we want you to tell us when 30 seconds have elapsed.
austin_2_08-08-2024_112839:Okay.
philip-silberman_2_08-08-2024_122840:and they say, because you're like in a time warp or something that when you're high, your sense of time, that some people just 10 seconds, like I'm here, I've spent 30, or they'll be there for two minutes. And that's how you know. And I don't, I'm not sure, I'm not sure if, me being completely sober, I'm not sure, put your, you're not allowed to count, you're not allowed to count, put your head back, tell me when 30 seconds is. I might be 10, I might be 15, I might be a minute, I don't know. But,
austin_2_08-08-2024_112839:and it's
philip-silberman_2_08-08-2024_122840:but certainly that's, if you're on a jury, is that enough to convict someone for driving impaired?
austin_2_08-08-2024_112839:no idea. Yeah. Yeah.
philip-silberman_2_08-08-2024_122840:that can't be the standard. these scientific tests, they don't work if they give them an oral, a saliva test because they could have smoked two or three days ago, and it's still in their system,
austin_2_08-08-2024_112839:I dunno.
philip-silberman_2_08-08-2024_122840:and it doesn't really measure impairment. so the police officers out there, they're just completely lost. The district attorneys are scrambling. Yeah,
austin_2_08-08-2024_112839:for so long, and a lot of people are aware of this, police officers will use the quote unquote smell of marijuana as some proxy to try to get to, to bypass, your right, to an, to resisting an unreasonable search and seizure of your car. They like, say they smell marijuana so they can start searching the car and look for something else. and Now that marijuana actually is a problem with impairment. I feel like juries might even be more like predisposed to not believing an officer if there actually is impairment.
philip-silberman_2_08-08-2024_122840:yeah, it's crazy out there. I, They're, they're telling the cops, look for bloodshot eyes, look for slow movements, look for poor attention span. And it's what if someone who suffers from ADHD, you know, didn't get any sleep last night?
austin_2_08-08-2024_112839:Or what if
philip-silberman_2_08-08-2024_122840:So
austin_2_08-08-2024_112839:if they have pink eye and they're just stupid?
philip-silberman_2_08-08-2024_122840:yeah, this is really whacked out, kind of stuff. I guess if you look for all of, you highly suspected your Uber driver was high in Atlanta.
austin_2_08-08-2024_112839:no, I know he was, he actually was listening to Bob Marley, by the way.
philip-silberman_2_08-08-2024_122840:Okay, so that's what's that's what the criminal jury trial is going to look like when they prosecute your uber driver It's going to evidence. What was he listening to what were his eyes bloodshot, and you're going to where were you before Do they're going to tell you how it was he impaired the jury's going to have to decide about a third of all drivers don't believe it's dangerous to drive after using marijuana. So, it's also, this also makes it really hard because if you vape marijuana, The amount of THC in your blood drops by half every 17 minutes.
austin_2_08-08-2024_112839:much faster than alcohol.
philip-silberman_2_08-08-2024_122840:Yeah, so it's just really hard to catch this. This is a huge problem. Nobody has a solution for this. Law enforcement doesn't have a solution for it. The district attorneys don't have a solution for it. Yet, as a society, we are pushing forward with marijuana, That brings our show to a close. I've been your host, Phil Silberman. Austin Black has been my co host. Like us, follow us, review us, wherever you get your podcasts. Nothing in this show is to be considered legal advice. This has all been for entertainment purposes only. Please don't, smoke marijuana or vape while you drive. it's a really bad thing. If you have a legal question, you're welcome. Be sure to send us an email, info at sylblawfirm. com, I N F O, at sylbsil, be like boy, lawfirm. com and say you want it publicly answered in the podcast. Everybody have a great rest of your week.
austin_2_08-08-2024_112839:guys. Bye.
