The Vergecast - A-lister antics and Schedule A shenanigans

Episode Date: July 22, 2025

Summer blockbusters like the new Superman and Jurassic World movies may be doing great at the box office, but promoting them is more complicated than ever. The old celebrity playbook of magazine profiles, TV chat shows and press junkets isn’t enough in an era of audience fragmentation. Publicists now have to strategize which podcasts to make time for, and whether their clients will eat chicken on YouTube with Amelia Dimoldenberg or Sean Evans. This week on The Vergecast, guest host Mia Sato talks to Vulture’s Fran Hoepfner to break down the ever-changing new media circuit, whether you’re a beloved A-lister, a formerly-beloved A-lister, or an aspiring A-lister. Then, we take a deep dive with Sarah Fackrell into a controversial legal tactic brands are using to go after online sellers hawking everything from grumpy cat T-shirts to closet hooks. Finally, Victoria Song joins Mia to answer a Vergecast hotline from a listener wondering whether an AI translator will be able to keep up with his partner’s Colombian mother. If you’ve got a question for us, call 866-VERGE11 or e-mail [e-mail]. Further reading: Box Office: ‘Superman’ Surpasses $400 Million Globally, ‘Jurassic World Rebirth’ Nears $650 Million Milestone The Celebrity Press-Tour Road Map Fame and Frustration On the New Media Circuit Sydney woman who sold a cartoon cat T-shirt told to pay US$100,000 in Grumpy Cat copyright case How Does a Mom Get Slapped With a $250,000 Judgment Over $380 of Homemade Luke Combs Merch? Experts Cite ‘Cottage Industry’ of Mass Counterfeit Suits in Illinois A SAD Scheme of Abusive Intellectual Property Litigation Learn more about your ad choices. Visit podcastchoices.com/adchoices

Welcome to the Vergecast, the flagship podcast of talking about other people eating chicken on other podcasts, but we don't eat chicken on this podcast. I'm Mia Sato, and I'm going to be taking over the Tuesday show while David is on parental leave for a few weeks. On today's show, we're talking about summer blockbuster seasons. There's movie after movie coming out and celebrities want to get their project in front of you. Or maybe they just want to put themselves in front of you. We're going to be talking to Fran Hopner, a newswriter at Vulture, and a friend of you. And a friend. of mine who wrote a really excellent piece back in June about the crazy hoops that celebrities now have to jump through in order to get attention in an age of fragmented media consumption and at a time when linear television is on the decline. After that, we're going to talk about the flood of cheap knockoff and copycat products that you have no doubt seen online before. In an age of cheap copycat products, brands have found a way to go after dozens or even hundreds of storefronts that they say are infringing on their IP rights. But what happens when someone is wrongly accused of IP infringement? There's a new crop of lawsuits called Schedule A that's something of a legal trend right now.

We're talking with law professor Sarah Fackerel about what these lawsuits do and how they could hurt competition online. Later on, we'll have my colleague V. Song on to help me answer a question about AI translators. But first, I have to go unbox 20 Laboo Blonde boxes. This is a Vergecast. We'll be right back. Support for the show comes from Retool. Too many companies run critical operations on duct taped spreadsheets, Slack workflows, and whatever else they could cobble together. Not because they want to, but because building internal tools means weeks of waiting on someone else's backlog.

That's where Retool comes in. Build custom internal tools just by describing what you need. Prompt something like, Build me a revenue dashboard on our Salesforce data. And Retool actually builds it. On your company's data and your cloud with enterprise security built in. Go to retool.com slash Verchcast. We all need to retool how we build software.

What's up, y'all. I'm Skyler Diggins, seven-time WMBA All-Star, Olympic gold medalist, and mom. And I'm Cassidy Hubbard, host and reporter for nearly 20 years, covering the biggest names and stories in sports and mom. And this is Am Mom, a community for athletes, game changers, and moms of all kinds. DROpping May 14th. Tap in with us.

Do you ever wonder what's in your lotion? If you look at the back of the bottle, it could contain more than a dozen ingredients. And they may not all be regulated. The threshold is so high that only 11 cosmetic ingredients have been restricted by the FDA since 1938. This week on Explain It to Me, the chemicals lurking in your cosmetics.

New episodes, Sundays, wherever you get your podcasts. Welcome back to the Vergecast. My first guest today is Fran Hofner. She's a newswriter at Vulture, and she did a great piece back in June about all the weird ways celebrities try to get our attention in an age when audiences are fragmented into a million pieces.

Since it's summer blockbuster season, I thought it would be a great time to talk about how celebrities are navigating this new media circuit and all the highs and lows and weird moments that this has created. Fran, maybe just like describe what is the new media circuit?

Who are the main players? Where does this content live? What does it look like out in the world? The new media circuit lives 98% on the screen of a phone. It is vertical video interviews and video podcasts. Such as this. Such as this. We're on the new media circuit right now. I have to eat chicken after this. And it's talking with a lot of the time a kind of internet celebrity that, exists somewhere between civilian and fellow celebrity that actors and musicians and people on press tours now talk to. So we have the chicken shows, chicken shop day. Can I ask you a question?

Oh, yes. What's it like doing this all the time? What do you mean all the time? I do other things. Do you ever eat anything other than this? No. Hot Ones. Hey, what's going on, everybody?

For First Week Feast, I'm Sean Evans, and you're watching Hot Ones. It's the show with Hot Questions and Even Hider Wings. And today we're joined by Owen Wilson. There are more reels and TikTok-centric shows like Subway Takes. So what's your take? Fundamentally, everyone is a good person. 100% disagree. I can think of countless examples of bad people.

I'm not even going to rattle them off. People are not bad. They're infected. And part of the new media circuit is to show that the person promoting the project is a person. We're so normal. Completely. I'm completely normal. It's actually totally, it's frequently at least, project agnostic.

They almost don't even ever talk about the project at hand, but instead just talk to whatever host about whatever inanities that they want to talk about. Sit down and open up vibe. Sometimes or sit down and be silly. Yeah. Anything to more further the name of the person on the show than the project. Because maybe movies aren't selling as well. Maybe people aren't watching TV how they used to. But if that person can stay in the zeitgeist, maybe there's still another movie to do or another TV show.

And it's all about trying to establish or reestablish sort of like, who are our A-listers? Who are people who are getting people to engage with things? And this circuit is both trying to cement that, but also kind of spreading everyone out in a way where almost no one is able to stand out. Yeah, that's so, it's interesting because like the level of celebrity feels like it, has really been through the ringer or like the levels of celebrity, what makes someone an A-Lister versus just like very, very saturated or famous or known. So we'll talk about that a little bit later. But how does a new media circuit interact with like what we would think of as the traditional media circuit? You go on daytime television, you do a late night show, maybe you do like a glossy

magazine cover or a spread. Like how do these things kind of collide to celebrities do both? Do they do mostly the traditional thing with a sprinkle of, you know, a TikTok takes show. Like, what is the structure? I think they're doing about half and half, but it's been interesting to watch the more traditional forms like late night and daytime TV and even legacy magazines now also have to adhere to the new media circuit. Like, you want the late night clips to make it onto TikTok or Instagram Reels. Vogue, Wired, Vanity Fair, all have to. have their own video series that are also on TikTok and Instagram. Such as the Vergecast.

Exactly. Yeah. This clip will be going around on TikTok. Thank God. And going viral, I'm sure. We're offending the traditional media circuit, actually. That's right. By doing this podcast.

So true. I think about what is it, the spirit tunnel on the Jennifer Hudson show. Oh, my God. Yes. That's like built for scrolling. Yes. So stars are still having to do these circuits, but now those traditional circuits have to adhere to what goes on the phone. I think almost the only unchanging medium to some degree is

SNL, which used to be the main place people would go to make fun of themselves. And now it feels like everything is designed to prove the person in question can make fun of themselves. Is there like a winning formula for this? We'll talk about sort of what you laid out in your piece. And I actually have a case study that I think you nailed. But like how are PR teams and publicists thinking about like the ingredients to like a winning press tour. A winning press tour, it really depends on the type of person on the press tour. For younger stars and especially musicians, there's a kind of blanket strategy. Anything they can do, they will do.

They'll do the newsletters. They'll do the video podcasts. I think traditional media to them, glossy covers and late night sets, feels like the furthest away. So you'll see those people way more on your phone than you will in those traditional mediums. But I think by the time they usually hit traditional mediums, it feels like it's too late. I feel like by the time I saw Chapel Rhone on Colbert, I was like, this is already a famous person. She maybe doesn't need to be doing this. The more established celebrities will do a mix of both. But there usually winds up being at least one silly thing. Usually it's

chicken-related, hot ones. It's so weird that it's all chicken. I know. And it's like you kind of only get to do your chicken thing once, I would like to say. So it's like you do it and then you got to do something else next time. You get to eat chicken once in your life. Yeah. No more. Yeah. You have to, you have to decide when you're going to play your chicken card. Yeah. Like some of the people who are hosting these shows, writing these newsletters are celebrities in and of, right? Like, they are That's sort of what's become interesting is like I don't think we can keep feigning that someone like Amelia de Moldenberg who does chicken shop date or Britney Broskey who does Royal Court and a ton of like YouTube stuff. These aren't like regular people in terms of like how you and I are.

Yeah. Sort of, I don't know. They're also not media really. And they're not media, but they're doing interviews. And so there's this weird in between where maybe it's supposed to be kind of jarring to see like Timothy Shalame and Brittany Browski in conversation, but that actually makes perfect sense. These are just two famous people. Yeah, absolutely. It's all become almost kind of the interview magazine thing of celebrities,

interviewing celebrities. Yeah, yeah, just like for the video scurly era. Yeah. Yeah. In your piece, you laid out like a couple different types of celebrities, such as the fresh-faced aspiring A-lister, the redemption seeker, the, like I said, the kind of buzzing. politician. So who is the redemption seeker? We're going to talk about a current redemption seeker on this circuit right now. But what described the redemption seeker? The redemption seeker is not necessarily a canceled person, frequently is not a canceled person, but someone who has a perhaps less than savory public relationship. Maybe they've gone through a divorce, maybe there was a cheating scandal, maybe there was some kind of legal scandal that they were in. There's been

drama on the sets of one of their films or TV shows, their press tour has to become a kind of gentle mea culpa. They can't just run through that thing and pretend like none of that ever happened. There has to be some kind of tacit acknowledgement or I think people just hound them. Maybe they don't see it, but in comments, they'll be like, what about this? Talk about this. And so there's a kind of gentleness that lets this person be like, hey, I'm human. but also maybe be able to laugh about what's going on with them a little bit. Yeah. And in your piece, you laid out a game plan for the redemption seeker.

So there's podcast Pond. I love the names also. There's podcast Pond. Then you do Guys Being Dudes Peak. Chicken Coop after you are Guys Being Dudes, then Cover Story Creek, then Daytime TV. And there's someone who I found was pretty much matching this beat for beat. bar for bar, and that's Brad Pitt. Yeah.

He is promoting his F1 movie, and he has hit a lot of these things. He did the podcast interviews, a sort of sit-down, serious video podcast interviews. He was reading thirst tweets on a BuzzFeed show. I think we have a clip of that that we can roll. This is like guys being dudes peak. Let's see what it looks like. I have an overwhelming urge to lick Javier Bardem. You know I say that one, too?

I just say that's one, too, one you're open. All the time. Overwhelming urge. Just a lick. That's a lick. Front, side. I just top to bottom. Comparing how Bradem

approached the F1 press tour was very interesting. Talk more about that. Javier Bardem did sort of this circuit where he's sometimes very silly, but he also went on the view to talk about Gaza and spent a lot of time on red carpets invoking Gaza and made it very political in a way we have not. seen stars of that caliber do quite yet. I think it's maybe a little different for Javier Breden because he's ostensibly like a European star that he doesn't have to maybe totally play by the

same rules or he doesn't care to play by the same rules. But comparing that to Brad Pitt playing Frisbee Golf with Jimmy Fallon in tie-dye pajamas creates quite a strange contradiction. Yeah. Of men of a certain age, especially. Right. Yeah. It kind of suggests to me, too, that Brad Pitt is the redemption seeker, and Javier Bardem is like maybe more of like the legend type category. Also, like, on guys being dudes peak, I was like kind of struck by how exact your prediction

or your prescription of this was because he literally did like a broie video with Ladd Bible. You know what I mean? It's just like, this is guys being dudes. It's Adidas, not Adidas. It's Adidas. I know. It's what I just said.

It's biscuit, not cookie. No, biscuit. And gravy, man. Mate, it's chips. You ever had biscuits and gravy? You are so American, man. Yeah. Don't s'it.

He has done sort of the glossy magazine thing. He did a GQ story that I kind of skimmed and then Command a F for Angelina Jolie and kids. And there was like one mention and it's completely non-specific. Yeah, it's where he said his divorce being finalized isn't actually that major. Yeah, which is crazy. And it's like, okay. It's like the main thing. I believe you.

Yeah. Why do you think that the new media circuit, I mean, I guess in this case, this was a traditional media thing, but across all these different stops that he made, Angelina Jolie does not come up, really. And it's interesting because, like, we call it media, but mostly it's just like hanging out with friends. And your friends are not going to ask you on camera about allegations that you, like, abused your wife. So it feels very much like it is just an extension of. his own personal marketing. There's like no, he's not really bumping up against any walls or like uncomfortable conversations. Absolutely. I think his team is probably keeping him very,

very protected from any question he doesn't want to answer. And by doing something like reading Thirst tweets, it looks like he's being a kind of vulnerable, talking to Dax Shepard about addiction. That's a kind of vulnerable. But it's not actually addressing the elephant in the room. And I think with Pitt specifically and with celebrities who I think have some kind of legal thing attached to whatever they're seeking redemption from, it's very possible that they like actually cannot talk about what's going on in XYZ terms as part of whatever settlement that they've agreed on. But with Pitt, it's that then everything he does is so silly. And he did this Fallon skit, which is so funny in lieu of like even talking to Fallon. Yeah. So tell us about the skit.

They were playing frisbee golf in the park. Fallon is like, I had like an awesome weekend playing frisbee golf with my buddy. And like we did some crazy shots and I'll show you the video. And it's supposed to be, even then, it's supposed to be like surprising that like Brad Pitt would even like talk to Jimmy Fallon. It's like, again, these are two extremely famous people. And they're both in these like tie-dye jammies. And they're doing these really edited and manipulated crazy frisbee golf shots. Here we go.

420, Pink Pony Club, character shirt, cat rescue, My Mon Stilts, and finally, hit that idiot on the back of the head. BOL, best of luck. And what it's showing or proving is completely incomprehensible, to me, especially because they're only in the shots where they're throwing and catching the Frisbee, respectively. So it's also not even really with or about them. But it just becomes like another silly little thing to prove that, like,

serious Brad Pitt is not above having fun once in a while. I think that also kind of goes back to your earlier point where often these appearances on these sort of the sort of like third rail shows or podcasts or whatever are not about the thing that they're actually working on. It is more just like them as a person we need to saturate your feeds, right, with Brad Pitt's face. I wanted to say also like looking through all of these stops on the, New Media Press Tour, it is so, so, so striking how much it's mediated by, like, third-party platforms, like, TikTok and YouTube. And I'm curious, like, how much of the, quote, unquote, algorithm comes in here, right? Like, is it enough that celebrities just show up on chicken shop date and show up on subway takes or show up on recess therapy? Or is there, like, some level of

you throw all these things out there and see what hits? Are there any, I guess, show appearances that you've seen that did not work, whether it was because the algorithm didn't like it or because people didn't like it or because it just was a weird fit? Yeah, absolutely. There are shows that don't work all the time. I think, I mean, they didn't need something like this, but I think Hugh Jackman and Ryan Reynolds doing chicken shop date, very unfuny, very strange, no rapport. Does your wife know they're on a date right now? She does. Yes.

Okay, good. And the only reason I'm a little bit. And here is that, you know, she's your number one fan. Ooh. Oh, my God. That is right. Brooke from Gossip Girl loves you. Serena.

Serena. Blair. Blair. Serena. I mean, a movie like Deadpool does not need that. But I also think about, say, Kate Blanchett doing her press run for BlackBag. She's an amazing actor. BlackBag is a great movie.

really hit the new media circuit this time around. She went on Las Culturistas. She did subway takes. And she spent a lot of time on those shows, either kind of not finding the right tone of how to be on those shows, or just reiterating old bits that she's done. I think people talk about when she gripes about leaf blowers in every single interview. And it's like, I don't know if this is like as charming or as relatable to complain about her landscapers as she thinks it is. There's one thing. It's like, I don't understand leaf blowers and I don't understand golf. No, see, this is the thing. Not only a leaf blow is ugly and their noise polluted, then your neighbors hate you.

If I see a leaf blower, I will, I go from naught to a thousand. I just, I cannot. It's all that is wrong with the human race. It's not really her fault. And I don't think it's like Las Culturista's fault either. But she's not media trained to be silly on camera and podcast. for a whole hour. She's not an especially silly person. And what she does is come off as kind of try hard and disingenuine and it just doesn't really hit. There's nothing that stands out from it. And I think that happens all the time. I think a lot of these publicists and teams are just trying to blanket their person as far and as much as their client is willing to go. And then you just have to hope

something hits. Yeah. At that point, who is benefiting from like Kate Banchett being on Subway Takes or whatever? Is it Subway Takes having like a massive win or is it her kind of getting in front of maybe a younger, more online audience? Like who is winning here? I don't think anyone is winning in that situation because I think younger audiences are not caring about her on that show. And maybe Subway Takes is benefiting slightly, but she's using recycled material on there. And that's sort of what became frustrating for many watching late night is you would just hear the same stories over and over again. And I think part of what the new media cycle purports to do is that by like making people work in these weird structures or games or these really long-winded conversations,

that something notable will come out of this person pretending to have their guard down. Yeah. But if there isn't that moment, it just, it kind of just doesn't happen. Yeah. I want to talk about another case study, Charlie X-E-X, her stock went up massively in the last, like, year and a half. Tell me if I'm wrong. I would put her in your structure as maybe the fresh-faced aspiring A-lister-ish. She's been around.

She's definitely been around, but I think that category also appeals to someone who's trying to jump up a level. And I think for a long time, she was a kind of niche celebrity. I would put someone like Carly Ray Jepsen in that category, too, which is, like, she has fans. She's been around forever. but she is no sort of Taylor, Beyonce, stadium type of artist. Yeah. So what was Charlie XX's cycle promoting her album Brat like? What is the strategy there?

She said yes to everything. I'm hard-pressed to think of something she didn't agree to do. And I think part of what was so interesting about the Brat remix's album, which I think is great, is she kind of tacitly acknowledges like, I'm so tired. Yeah. I've been like... I'm milking this thing.

I'm milking this thing. I'm exhausted. I've sort of lost what this thing is actually about, which felt even more honest than some of the confessional nature of the original brat. But she agreed to do everything. And sometimes that really worked for her. She had a great New York magazine cover. Yes, she did. And, you know, sometimes she's like on Howard Stern, which is sort of like, are the Stern listeners listening to Charlie XX? The Howard Stern interview is crazy. I'm actually going to play a clip from my computer because I was like cackling watching this. It's like a generational clash. Charlie X-X is here. Very excited to speak with her, Charlie's out on her sweat tour. Wow, great to see you. Do you like Weezer?

Are you hip to Weezer? Me? Yeah. Yeah. How do you feel? I've worked with Rivers once before. No kidding. When was that?

It was back in... Was that on soccer? It was, Howard, yes. Yes. Yeah, and he was really cool, actually. And I love that song that you were just playing. So, yeah, I think they're pretty cool. They're pretty good.

And this goes on for an hour in 10 minutes. And it's like, compared to her on Los Culturistas, it's just... I'll play a clip from that, too, because I was like, this is actually crazy how different it is. We're recording this. We're going to release it.

I'm closer to the album release, but you're going on Seth with Troy. Yeah. And then watch what happens like. Are you on with the housewife? Do you know? No, I'm so sad about that. You're just on solo?

No, it's another man. Okay. I couldn't tell you who it is. Yeah, exactly. And I love that we will find out later who it is when the episode airs and we'll be like, oh, that's who. And I'll be like, I love you. I love you.

I'm such a fan. Summer House, Martha's Vineyard. Yeah, exactly, exactly. No, I don't know. I think his name's Joe. Joe. Joe Biden. He sounds crazy. It's you and Joe Biden.

And honestly, he's going to ask you to be VP. Yeah, it's going to be amazing. They're going to really burn it down. Even the way she is sitting is different. Completely. And she's wild. With all love and respect, she seems exhausted in both of those, but in one, she's tired and having fun. Yes.

How much of the new media circuit and appearances live strictly online never to be talked about in person? almost all of them. Almost all of them. It's a really online format. I think it's rare that even some of these get extended cuts beyond their requisite minute and a half if they're really little things also. Yeah, that's part of the new media circuit that feels really unique is that like, like you said, a lot of these things are recorded for the cut, right?

For the TikTok cut. And people will have quote unquote seen it, but they actually saw like 45 seconds of that interview. Nobody's watching. Well, maybe people are, but I think most people are simply scrolling to it and then scrolling away and not going to YouTube to watch the full thing or whatever. Yeah. And I think what's interesting about a lot of these forms, there are certainly some that are the exception to the rule. A lot of these you can really only do once.

Yeah. And most people are only doing them once. There are a couple formats like letterboxed four favorites where they'll hit people multiple times and maybe they'll be like a day. different metric. I think that's a really great, like, recyclable format. And I think some games that people have to do, there's a great, I mean, I guess it's more of a radio show, but there's a great BBC radio game that I've started to think is maybe the most genius of all of these new media things that I didn't get to include in my piece, which is they play a game where the guest has to call three different famous people in their phone and the host have to guess

whether the person when they pick up is sitting or standing. Oh my God, that's really funny. It's so simple. Yo, yo. Are you standing up or sitting down? I'm sitting down right now. Yes! I said he was going to be sitting down. I'm on the BBC Radio Breakfast show,

and we are playing this game called Stand Up, Sit Down. Whoever they call is always so annoyed. They're like, what do you what? And then they just get the answer and then they're like, okay, see ya. It's really quick. And it's like this shouldn't work as well as it does, but it is actually quite endearing.

Yeah, it's also just, I can't help but think it is made for short form video. Completely. Like, that is a structure. The structure is, or like, I guess the mission is come up with a show that is like 30 seconds or less and just do it, recycle it over and over and over. Yeah. Something we were talking about with like red carpet coverage at Vulture specifically is like,

if someone is coming down that line and sees the Vulture microphone, do they know what is going to come out of like my mouth? Because if they don't know that, maybe they don't want to. stop by. When they see that letterbox microphone, they know what's going to happen. Yeah. It feels like a sort of an extension of a issue or reality, I guess, that I think a lot about, which is like the line between news and media and journalism and then everything else. And increasingly, it's just one bucket. Like when I was doing research for this show, I learned that Kiki Palmer had decided not to run an interview she did with Jonathan Majors. In her public statement about why they

decided not to run it, she was like, I'm a journalist and people should be able to trust that like, I'm coming from a neutral place. I give people a platform to like say what they do and I don't judge. And I was like, that's crazy. You're not a journalist. I love Kiki Palmer, but you're not a journalist. No, not at all. And it's interesting to me that like the thing about the Voltramike, you don't have a quick, are these people sitting or standing thing? Like you might ask a real thing. Yeah. Yeah.

But you might ask a real thing, right? Yeah, absolutely. And sometimes like when I've done red carpets, you know, publicists will often come down the line first to be like, so-and-so's coming, you have two questions, blah, blah, blah. And sometimes they'll specify, we're not doing silly questions. Don't do silly questions or don't do anything adjacent to the movie. Sometimes we have like New York-based questions. New York Magazine. And they're like, don't do it, movie only. And one time it was also told, like,

this person is funny. My client is funny. But you don't need to prompt them. Let them be funny on their own terms and don't set them up with a silly question. They don't want to do that. And it was like, okay, I won't do that. And lo and behold, like a serious question got a funny answer from this person. But I think the teams with these people keep them really protected from anything that they don't want to be doing. Yeah. Does the existence of the new media circuit change how you work as a journalist? I think it puts a lot of pressure to come up with questions that have relatively short answers that are not yes or no, but are also not too long-winded or heady.

I think people are not really caring about the answers to those questions, which is a shame because it's questions like that that make me want to be a journalist. and probe and question like why things are the way they are. Red carpets are really stressful because there's so little time. Everyone is like jockeying over each other that it's not always the environment for something serious. But I think that's also why like Javier Bardem talking about Gaza on the red carpet is like he only really has like 90 seconds with some of these people and he's using that to do that, which I think is great. Yeah. There's also the, I feel like maybe something we touched on a little but didn't say.

say directly is that like when people go on these shows, a lot of what is discussed is very controlled. You show up to the, you know, the person comes on set and I'm assuming a lot of these people are told do not ask about this thing, right? Like these are not organic in the way that maybe we would hope or maybe, you know, it's just more scripted almost. Yeah, completely. I think many of these things are set in stone, prearranged. Me, Karim, who does subway takes, recently told the story of how Kamala Harris was supposed to be on. They had a pre-approved take that she was going to do. And then at the last minute, they switched it up, and it all went sideways, and it never ran. Yeah. And so it's also that these properties and these teams are not equipped to improvise.

Yeah. And that often is bad for everyone. Yeah. They also, it feels like these teams of, you know, the people who run these shows or do these shows, often they're small, young, scrappy. And they're not equipped to push back either for the most part. Like this is a structure, you know, we talk a lot about like access journalism and the way that that can skew coverage, but this is like the final boss of that where like your guess, the reason you make the show, the thing you put produce, depends on you having access to these people. And if you go off script or if you break some sort of like agreement or if you insist on maybe holding their feet to the fire in a way they don't like, Like that ends that, right?

Yeah. Yeah. Our version now of holding someone's feet to the fire is making them feel uncomfortable in a very controlled way. Yeah. Whether that's eating very spicy chicken or a kind of stilted awkwardness that comes with some of these, like, more modern new media figures like Harry Daniels, that's holding feet to fire. But it's not in actual sort of content of what we learn from these people. Does all of this go away if, like, a platform implodes? Like, what is the future of chicken shop date or hot ones if, like, YouTube changes in some significant way? I think we're seeing it a little bit with Chicken Shop Date, where we're seeing Amelia de Moldenberg get brought on as, like, an official red carpet spokesperson for the Oscars and other awards shows.

It's been interesting that they've been kind of pivoting her, like pushing her into, like, an entertainment tonight space or like a talk show kind of space. And I think that's a great fit for her, honestly. I really like what she does. And I think that show has a very clear ethos. And I think she has a really combative ethos that like, obviously it's not David Letterman, but it calls to mind sort of the combative nature going on Letterman. Yeah, it's fun to watch. Yeah, absolutely.

I think YouTube is only getting bigger and bigger. I don't know at this point what could happen to YouTube that would change the metrics of some of these shows. You and I were at the YouTube up front. And they were saying people are watching YouTube on their TV. It's not just a phone thing. So I think we're going to get longer and longer YouTube things. I mean, I semi-recently watched a five-hour YouTube video over many days. Like, that has become a very regular way to consume media.

Yeah. So to close this, let's say you are a guest host of a popular tech podcast who is filling in for your coworker who is out on parental leave. What would you suggest? I would, maybe it's like a fresh-faced want to be A-list or what shows should they go on, hypothetically? Well, I think you need to go on call her daddy. Yeah. I think you need to be playing up maybe sort of a woman in STEM angle

to be like, yeah, you know about tech and you know about computers, but like, hey, like, you also love clothes. I'm relatable. Yeah, completely. And maybe you want to do like a perfectly imperfect list and newsletter could pull in like a younger audience, but also show that you're sort of out there perusing, have kind of taste. I think for fresh-faced people, a lot of what they need to do is be a kind of cultural

tastemaker or prove to some degree that they're both kind of approachable but also a real head about their field. So maybe you could go in the criterion closet too. I was going to say, should I go in the closet? Why not? Yeah. I would love to go into the criterion closet. I wanted to ask you, but I kind of forgot about that, too, like the way that brands,

or existing companies like manufacture a moment like that. Like Criterion definitely got it shit together and figured out a way to make the closet a thing. Letterboxed too, Ruth, with the... They did a great job of it, and I think what they've done is kind of create a non-gamified interview form that lets the person in question be as smart as they are or want to be.

And there's no wrong answers. Yeah. They're doing something where they can, can say absolutely anything. It'll look good. It'll look cool. There's that great clip of Malcolm Washington and John David Washington in the Criterion Clause. And Malcolm Washington is like talking about, I think, like, Romare or some French director and like really going long. And then John David Washington just goes like, Jackie Jen box said, know what I'm saying? And it's like, yeah, those are both right. Those are two correct ways to be doing that kind of thing. And I think

those are what I'm most impressed by when I watch because it's both less. letting the subject have a ton of control, but I do think a lot of the time they say really interesting things. Yeah. And there's also, I think, in those cases, the audience receives it well, no matter what you do, really. It's like a structure that because there are no wrong answers, viewers will be like, so true queen. Yeah, yeah, yeah, yeah. Like you took Pride and Prejudice starring Kira Knightley. Or they'll be like, oh, eight and a half. Like, you know what's up. Oh, they're serious. Yeah, yeah, yeah. Yeah. Is there any. one of these shows you would want to be on where you're like, ooh, that would be fun for me?

I was thinking about this, prepping for this because I find, I don't think I could do a podcast. It's just simply way too long. Like with you, this is fun to talk, but like I don't want to be in, like, snuggled up in a chair with Alex Cooper. I feel like Timothy Shalame did the thing where he just like went and bought records with Nardwar. Yeah. Right. Yeah. I would do that. Yeah.

That would be really fun. I would do the criterion closet. I'm not eating chicken on camera, simply not doing that. So I think I like these things where there's like an activity that you go and do. What about you?

What would you be on? I want to go on Marin so bad. And now it's ending. Oh. It's kind of the worst news for me. But I really love him and I think he was kind of a pioneer in the space,

a la Howard Stern. But I think Marin kind of pioneered what like the Dax Shepherd guys being dudes thing is now, which is like, confessional and sensitive while also being kind of masculine. And I just think unlike many people

doing what he does now, he's a really great interviewer. Yeah. Yeah, I know. A lot of people are bad at interviewing. He will push back and he will make people uncomfortable and the best episodes of that show are when both of them are so uncomfortable. Yeah. I guess I would also like to be on Duolipa's Book Club podcast or whatever. Yeah. She actually seems like obviously again, these are controlled and she's definitely getting a list of things not to ask about, but I would talk books with Duolipa, I think. And you heard it here first. We're available for bookings if anyone wants

us. Who wants me? Who want me? Thank you, France. Thank you. We have to take a break now, but when we're back, we're going to talk with Sarah Fackerel about a questionable legal tactic that is all the rage in Chicago for some reason. We'll be right

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All right, we're back. So what do a woman selling cap pattern t-shirts on Red Bubble, a fan of the country music star Luke Combs, and a random Amazon seller called the accents all have in common? They've all been accused of allegedly infringing on someone else's trademark or design patent. But these lawsuits aren't just your run-of-the-mill intellectual property law cases. They're just a handful of examples of a unique type of lawsuit that have become something of a trend in the last few. years. The woman who is selling t-shirts online was sued by the owner of the Grumpy Cat trademark. I don't know if you remember this. There was the kind of sad-looking cat that spawned a million memes and a movie. She earned one single dollar from selling a t-shirt and later found out that she was

being ordered to pay $100,000. In the Luke Combs case that went viral a few years ago, a Florida-based fan who was selling homemade drink tumblers on Amazon with Combs-likeness on them was or ordered to pay $250,000, and she didn't even know she was being sued. In the case of the Amazon seller accents, the China-based company had $50,000 in earnings frozen in their Amazon seller account over products that a judge later ruled likely didn't infringe on a design patent at all. So how exactly does this legal tactic work and who benefits and who's at a disadvantage? Welcome to the weird and ruthless world of Schedule A cases. And to help me explain what's going on here, I have Sarah Fackerel, a professor at Chicago Kent College of Law at Illinois Tech. Let's get into it.

Okay, Sarah, so why are these cases called Schedule A lawsuits? Where does this name come from? Well, that's a name that just sort of bubbled up from the way that the main players started naming their cases. Stepping back a little bit, this is a relatively new form of mass defendant. I'd litigation. And the original cases started, there was something like Big Brand versus Do's one through 100 or something, right, like a John Doe lawsuit you might have heard of. And then eventually they started saying, well, it's Big Brand versus the defendants that are listed on Schedule A, which is just a separate document that was filed separately apart from the complaint, at least in some courts. And so what they were doing was instead of saying, this is Apple versus

Samsung, and that's right there on the face of the complaint, they were saying, here's Apple versus a bunch of people, and we're not going to tell you who their names are, at least not publicly, at least not at first. And so a lot of people, myself included, started calling these Schedule A cases because it was just an easy way to refer to them. And this model, even though in practice the case names can differ, that separate document can have a different name. For example, some of them call it Exhibit A or whatever. It can have a different name. But the major players started captioning these cases Schedule A. And so that's the name that seems to have stuck, at least with practitioners and judges here in Chicago. And on the Schedule A form, it's not just like

a couple storefronts or defendants named, right? It's like dozens, sometimes even hundreds. What have you seen there? Yeah. So I will say I have not been able to exhaustively, empirically study all of these cases yet. It's a fire hose. It's literally impossible. It's literally impossible. to keep track of everything. But what I've seen for my precise, imperfect efforts to pay attention to what's going on is I've seen anywhere from a couple dozen on the low end, maybe even fewer, sometimes even maybe three or four, but usually the dozens is the low end to over a thousand. And they don't sue the defendants using their legal names. This is another big difference between a Schedule A case and a normal case. So in a normal case, if you want to sue someone, you have to figure out

what their actual legal name is. And if it's an individual, what's their actual name, which can be hard if you're suing like a celebrity or something. And if it's a company, right, is it Starbucks Corp or Starbucks Inc or whatever? You're supposed to figure that and sue them under their proper name. In these cases, though, the plaintiffs say, well, we don't know what the real names of these sellers are. So please let us use their online storefront name or some other similar signifier as an alias. So they're suing people under aliases. That's where these names. names come from that you'll see when the defendants are able to show up. It's usually their storefront name, and then eventually we may or may not actually learn their real name.

Mm-hmm. What does putting all of these storefronts onto one copyright or design patent suit do? Like, what is the benefit the plaintiffs get by throwing them all onto one form, whether it's called Schedule A or Exhibit A or whatever it is? The reason why you want to sue a thousand people together instead of filing a thousand different lawsuits is because it's saves you money. Classic. It saves you money and perhaps time and effort, right? But money's the big one. You're supposed to pay a fee of about $400 for a federal lawsuit. So if I file one lawsuit against 100 defendants, that's a lot cheaper than filing 100 defendants of 400 bucks pop. So they want to save money is the big thing. And I think that's why bundling these cases is so important to this

business model. They could literally sue everyone separately. but not if they want to make money. I want to back up a second and just be like, I think we should say that people can agree that the internet does have a lot of cheap junk. There are products for sale that infringe on someone else's rights. We've seen, you know, designers or businesses complain about this constantly with valid reasons to be upset.

And, you know, the knockoffs or the dupes or the infringing products are everywhere. But Schedule A suits work differently than maybe a traditional. trademark case might. So what are the different moving parts here that actually make these suits so effective for plaintiffs? Absolutely. And this larger question of how do we police our IP rights on the internet has lasted as long as there's been an internet, right? This is not a new question. This is just a new evolution as Professor Eric Goldman has written about who studied sort of the evolution on the trademark side. We've also seen on the copyright sites and people who used to file mass copyright lawsuits are now filing Schedule A cases. So you've done, you know,

you're right that this is an old problem, but this is a new solution, and it's actually pretty clever and sophisticated when it's done right. So the heart and soul of a Schedule 8 case is the asset freeze. The lawyers who perfected this litigation model figured out a way to convince judges that they should not only allow them to sue hundreds of people altogether, not only let them sue them without knowing their real legal names, not only let them sue them in the form of their choice, which is often but not always Chicago, but also to let them freeze the accounts of these defendants before they even know they've been sued. In legal language, we call it as an ex parte TRO or a temporary restraining order. And they come in and say, hey, judge, look, these defendants,

we have reason to believe that they are all bad and nefarious Chinese counterfeiters or at least foreign counterfeiters, but they often call them Chinese, which is a separate issue in these cases, right? They say, we have reason to believe that these are all not. the furious foreign counterfeiters and judge, unless you freeze their Amazon seller account right now, unless you freeze their eBay account right now, unless you freeze their PayPal account right now, they are going to abscond with their ill-gotten gains and just disappear into, you know, the far reaches of the internet. And for a variety of reasons, they've been able to convince judges that this is correct, even when the defendants don't actually fit those profiles. And so this key

that they go in, they find a bunch of sellers on, you know, name your platform, eBay, Etsy, whatever you have. And they say, Judge, we think they infringe our rights. Here's a little proof. And please freeze all their accounts so we can figure this out. And most of the time

that's working, right? Most of the time the judges are like, sure. Yeah, we're still, I'm actually working with a co-author trying to get some good empirical data on this, but just anecdotally, it seems like a rubber stamp. A lot, not all judges. Some judges become skeptical, but a lot of judges for quite a while now seem to have accepted these cookie cutter boilerplate complaints. I said, oh, here's another one.

And we're going to freeze that and freeze that. And you can imagine this is a really, really, really powerful remedy if you're in a lawsuit. You have their money. And they often usually freeze the whole account, not just whatever you sold. So let's say that I sold one, accused product for $4.99, but I happen to have $350,000 in my account. That's what gets frozen. And it's sort of just luck based on the disbursement schedule. And so you could imagine if you were a defendant and you've got your money tied up, varying degrees, maybe it's, you know, nothing because you just got a disbursement. Maybe it's a thousand bucks. Maybe it's $100,000. That's not normally how we start litigation. Normally you find out that someone sued you and we

have these little steps we take. But these defendants, often, I'm told, find out they have been sued when they notice their accounts frozen. Yeah. And the platform's like, hey, go talk to plaintiff lawyers. Yeah. And it might not have even seen the complaint or the papers or have had any notice at all. And that's extraordinary. Yeah.

I wanted to pick up on one of the cases that I mentioned earlier, this Amazon seller accents, which I should clarify for listeners that it's spelled not like accents. It's spelled ACCC, capital E N, CYC. And I had to go to, like, the attorney that represents accents to be like, can you please tell me how you pronounce this name? But it's called accents. It is a China-based Amazon seller. They sell, like, really random things that you might need around the house, you know, hooks or, like, sticky, like, suction cup things for, you know, hanging something or whatever. And what you were describing, this TRO, this temporary restraining order, happened exactly to them.

They were selling one hook that was like you put it on in your closet and you can hang a handbag from the hook. It's like a double-sided hook. They were selling those hooks and they got an email saying, hey, there's an issue with this listing. We've taken it down. And also your seller account is frozen. The money ended up growing to like $50,000 because they were still making sales on their other products, which were not affected. They just couldn't get their money out. And like you said, they had no idea that they were being named in a Schedule ASU. until it was kind of too late for them, right? Already their business is being thrown in disarray. It's around the holidays. They can't get their earnings. So I wanted to ask just like, is this something that should be happening? Is this normal? I guess like you said, for Schedule A, it kind of has become extraordinary,

but a temporary restraining order like this, like you said, is only supposed to happen for very, very specific reasons and very rarely applied. Yeah, in theory, a temporary restraining order is supposed to maintain the status quo. So we can figure out what's going on, right? So to take like a real property example, if a company was going to demolish a building where I'd painted a mural and I thought I had a right to have them not demolish my mural, if I wait until they demolished the whole building, it's too late. So I might go to the court and ask for a temporary restraining order and be like, hey, don't let them bulldoze the building until we can figure out the art law issue. That's sort of a classic example of a TRO. This is different because, again, normally, defendants are allowed to use their money while litigation's going on.

And sometimes these TROs are written incredibly broadly. Like, sometimes they're just like, okay, you can't use your Amazon account. But I've seen some recently that are more like you can't spend any money in any bank account. How do you live? That's a thing, right? How do you buy food? How do you hire a lawyer, more importantly, right? So what happened with accents is not unusual on its facts, but what's,

unusual about it is they were able to get a lawyer. Yeah. That doesn't always happen for a variety of reasons. Yeah, that's something I wanted to talk about too is just, you know, it feels like there's a real power imbalance in a lot of these cases because there are, sometimes they're big companies, but sometimes they're not that big who are actually going after all of these sellers. But by and large, from what I understand, the people being named as defendants are like individuals selling something they're making or foreign companies who maybe like don't speak the language, don't know any lawyers in Chicago that they can hire to defend them. And Accent's attorney told me that, you know, most of the time you go to court and there can be

hundreds of defendants named and there's not a single person, right, in the courtroom there to represent these people. It's just the plaintiffs kind of pushing things along. Yeah, we don't actually have a lot of good information about who the defendants are, actually, because they're named using aliases and because of all the secrecy, a lot of these records remain under seal for quite a long time, if not forever. And so we can't really know systematically who's being sued. But like you said, as far as we can tell, it's a variety of companies. Sometimes it's a little company. Sometimes they're in America. Sometimes they're not. We don't really know as outsiders, right? I mean, maybe some of the plaintiff's lawyers have some insights that we don't.

So that asymmetry in these cases is really, really striking. And even when there's a hearing, it's often pretty quick. I've seen judges say, okay, plaintiffs, you can have your TRO, we're going to have a preliminary injunction hearing, which is what you're supposed to do if you want a longer initial freeze. And sometimes they only have a matter of days. And so imagine that you are who the plaintiffs always say these defendants are, right?

You are someone in another country who is selling products online. And you find out in the middle of the night that there's going to be a hearing in two days, in some city you've never even heard of in the middle of North America, right? Like, how do you even start to defend yourself? I mean, I wouldn't know what I would do if I was in the other shoes, right? If someone sued me in China, and I'm a lawyer, I'm a law professor, I have connections. I don't know what you do if you are just a normal person.

And so these cases move so quickly because they're motivated by this narrative of, you know, bad, nasty, nefarious people need to be, you know, clamp down on or it'll just be whack-a-mole on the internet forever. But what happens when that's not the case? Parties can't always fight every bad claim, even the ones that lack merit. Sometimes it's just not worth it, right? Hey, that hook wasn't making us money anyway. Let's just quit selling it, right? Or that t-shirt, no one bought it anyway. We don't care. We'll just cancel. We'll quit. So there's a certain threshold of how much even has be frozen before rationally, economically, if you're in a position where you can make those sorts of judgments, it even makes sense to call a lawyer.

Something that struck me in all three of the cases, the Grumpy Cat, Luke Combs, and then Accents case is that the actual earnings that these defendants, at least who are responding to the suit, are reporting, are so small. The Grumpy Cat T-shirt seller made literally $1. She sold one shirt, and it didn't have, like, the photo of the grumpy cat on it. It was just like a cat that looked kind of sad, an illustration of a cat that looked kind of sad. The Luke Combs fan, which that story also kind of blew up because he, I think, tried to make it right afterwards. But the Luke Combs fan sold like $380 of homemade merch. And then accents sold less than $500 of these handbag hooks. It's not like their main seller. I don't think care if they sell these handbag hooks. But the plaintiffs are seeking sort of enormous default judgments.

So, you know, $100,000, $250,000, $900,000, I think was the, accents case for, you know, 500 bucks of hooks that a judge later found likely weren't infringing in the first place. So, like, how do plaintiffs justify this? That's a great question. And it's actually another really big concern with those phrases that I talked about before. So what the plaintiffs do is they say, hey, we're entitled to do this freeze because we could get this kind of remedy that qualifies, at least theoretically, under their theory of Supreme Court precedent, which hasn't really been strongly tested yet, certainly not any court appeals that I know,

but we are eligible for potentially this type of damages, so you should let us freeze their assets, is the argument. But then they turn around at the end and ask for a totally different kind of damages, ones that would not justify that initial asset freeze. And a number of judges, well, at least a couple of judges, have started to really bristle at that, right you're coming in and saying you want this but then you're asking me for that and so there's this

sort of mismatch and perhaps a feeling that there is perhaps some kind of bait and switch going on or something like that in addition to just the extraordinarily large numbers because these big numbers are statutory damages but the problem is is there's a really big mismatch between actual harm being done and the damages being awarded which is bad on a couple of levels, right? First, it just seems really unfair. And that's a problem beyond just for the parties involved, because I think it makes our courts look bad, right? Our judiciary and our legal system depends, at least in part, on being trusted and respected. And when you go around saying that someone's got to pay half a million dollars because they sold one $5

widget, that isn't a great look for the court system, let alone for just larger more pure ideas of justice. And so I think that's why cases like the Luke Combs case, why like the Curtis case, the grumpy cat catch a lot of people's attention, because it just seems and is fundamentally unfair. I guess we could talk about like the status of the grumpy cat case. Yeah, the grumpy cat case, actually, I just checked. So, so one thing when we're talking grumpy cat and schedule A is you have to clarify which grumpy cat schedule A case. They're very litigious, right, the owners. I did a docket search and I found over 60 cases. Wow. Schedule A in the Northern District, which is a lot. And you know, in that one, a couple of the defendants had fought back, including pro se, right, without a lawyer.

And the judge actually did end up granting those three defendants' motions to dismiss. So really great news for those three defendants. Yeah. Not so great news for all of the other defendants who were faced with identical allegations that the judge said, that's not good enough to be sued in my court. But because they didn't fight back, I assume there's going to be default judgments entered against them if there aren't already.

And that's just kind of extraordinary to me. I don't think once the judge has decided that's insufficient as a matter of law, I don't think cast to accept it. And that's added on top of the fact that like you alluded to before, the merits in that case were not particularly the strongest. So in that exact one, the Curtis one that you mentioned, you know, they have this wordmark.

They've registered the word grumpy cat or the phrase grumpy cat for use and connection of various products. And if you look at their filings, they say that exactly what she did wrong was call it a grumpy cat pattern in the description of the product. So I've got this fabric or shirt that looks like a cat who is grumpy. That's not the kind of thing the trademark laws was to stop you from doing, right? you're allowed to call a grumpy cat, crumpy cat, as long as you're not doing it in a way that makes people think that that was made sponsored or approved by the grumpy cat company,

which I'm always surprised was a real thing. Yeah. Also, I should say that the real grumpy cat has named his, I'm not sure if it was a he or she, tartar sauce died several years ago. Like, RIP tartar sauce, but grumpy cat is, you know, for all intents of purposes, not really a thing anymore. Yeah, so you had this meme that became monetized by a company, and now, like you said, the cat has passed on and the trademark remains. So, I mean, lots of questions there. But again, only the three defendants who showed up got relief. And that's unfortunate.

Most people probably aren't familiar with Schedule A cases. And certainly a lot of the people who are actually being sued aren't. But there's one group of people that is very familiar with Schedule A cases, people practicing in the Northern District of Illinois. I have a couple numbers from Eric Goldman at the Santa Clara University School of Law. So he counted 7,700 cases, 40% of which were filed after January 1, 2024, naming 1.5 million defendants. And by his count, 88% were filed in the Northern District of Illinois. And it's kind of become an epicenter of these kinds of cases. What is going on in the Northern District of Illinois? What's happening in Chicago? Well, I mean, that's the billion-dollar question, right? And I don't think anyone really has.

as one single answer. I think we're seeing a lot of cases here because the judges let them happen here. So what do I mean by that? The Schedule A model depends on convincing judges to exercise their discretion at various key parts of a case in very specific ways. You have to be able to convince the judges to exercise their discretion to, for example, let you freeze the assets. You have to convince them to use their discretion to let you serve the defendants by email, which is another key part of this. You have to convince them to use their discretion to join a whole bunch of defendants together, to sue a whole bunch of people together. And it varies other points. It's all about convincing judges to use their discretion. And so as a very practical matter,

they're filing cases here because the cases work here. And why exactly do the cases work here is the harder question. Yeah. If one piece of that breaks, does Schedule A kind of fall apart, or can they try to figure out ways around that? Well, that's a great question, and we're starting to see some natural experiments to some degree on that. So it's hard, right? So the North Town District is actually a pretty big federal bench. There's a lot of judges compared to certain districts. So even if you've got two or three or five who are skeptical, there's still like 20 who are totally okay with this, right?

The question is then how do you respond? And we've seen defendants respond in different ways. Sometimes we've seen them dismiss their cases and refile and hope to get a new judge in the same district. And we know this because other judges have noticed and called them out for that. Judge Tharp has done this quite a bit here in the Northern District. We have seen cases where they go and they file in a completely different district, right? Fine. You don't like my joinder judge. I'm going to go file in Pittsburgh. And this is interesting because the idea of forum shopping to a certain degree is totally tolerated and okay under the law, right?

If I have a case that under the relevant rules could equally be filed in Chicago and Pittsburgh, normally I ask the plaintiff get to choose. There's not anything inherently wrong with that. Where it starts to get messy is like this case we recently saw where plaintiffs filed their case in Chicago get a judge they don't lie. dismiss the case and refile against the same defendants and maybe other people somewhere else. I've seen a fair number in Atlanta recently. Nike, for some reason, likes to file in Atlanta. As far as I can tell, we've seen a number in Pittsburgh. I just saw one in Kansas. Huh. That was the first one I saw. It's about salt and pepper shakers. And the, yeah, the judge just granted the TRO. Yeah, one thing that really drew me to schedule A cases and really fast.

fascinated me was that it kind of flips the script a little bit. And we think of infringement and counterfeiting, obviously, as problems that exist online. We understand that rights holders want to protect what they've created. And even alleged infringers, alleged counterfeiters, they do deserve due process, right? They should have their day in court. They should have the opportunity to respond to allegations, because sometimes they didn't really infringe at all. So what is the danger of sort of allowing Schedule Asus to proceed at the current clip, to proceed sort of how they're working right now. There are a lot of reasons to be concerned. As a really practical matter, right, we've talked about how individual defendants can be wrongfully caught up in these drag nets.

Now, I'm not totally sure how different plaintiff's firms come up with these cases or who's vetting their claims. And we can't know for sure what percentage of the, infringement claims have merit and which ones don't. But we do know for sure that an alarming number of them completely lack merit. And that's not something I say lightly. I think as someone who is a due process absolutist, a proceduralist, I would be concerned even if these were all perfect infringement, right? They actually had merits and you're actually an infringer. I would still have concerns about this litigation model just from a due process procedure perspective. But when you add in the fact that a lot of these defendants are very, very clearly not infringers, let alone counterfeiting.

And again, I can't quantify that as a percentage because of just the volume plus the secrecy plus all these other problems we've talked about. But I've seen enough to be very, very, very disturbed. And again, this is a problem not only for the individual defendants, but also for the integrity of the system, right? What does this say about design patents in particular, right? You know, that's my thing. In design patents, it's maybe particularly concerning because you can get a design patent really easily and really quickly. for not enough lot of money in the scheme of things. And so we've seen allegations of people saying that this plaintiff went and got a design patent on something that already existed on Amazon that they

didn't create, and then they sued all of us in a scheduling case. And if that's true, that's incredibly disturbing, right? And the part that is additionally disturbing to me is that it's plausible. Design patent examiners at the PTO are really hardworking people. Everyone I've met is really dedicated and smart and doing the best they can, but they only get a couple of hours. You can't search all of Amazon in the couple of hours, let alone do all the other work you need to do on your file. And so we have a system where in theory, even if you have a design patent, if the applicants are not being scrupulous, there is room for additional exploitation, which again puts the entire system in the disrepute, not to mention being enormously unfair

at all the people who are being targeting. And then there's the public, right? let's say that I wanted to buy a purse hook, but the best one out there was taken off the market because they got threatened by a Schedule A Plaintiff, even though they didn't infringe. There's a harm to competition in consumers because while online infringement is a problem, online choice is a good, right?

And so I think there's a lot of people who get hurt here in a very practical way, in addition to all these sort of more maybe abstract-sounding concerns about do you process or procedure or, you know, law? Is there any indication that judges are beginning to question this tactic? I know there was an order coming down from a judge in the Northern District of Illinois. Walk me through what he said.

So Judge Ness, so it looks like starting in about March, Judge Ness started issuing these orders in all his Schedule A cases where he said, look, I've become concerned about this litigation model and especially these certain parts where I'm being asked to use my discretion in these certain ways. So I'm going to hold all these cases in abeyance for now while I figure it out, which is completely my, I've never heard of a judge doing anything like this. Like, this is wild. Just saying we got to shut this all down so we can figure out what's going on, right? Judicial version. And this is pretty extraordinary. And that's added to a rising number of cases where we've seen other judges on issues like Joinders say, hey, look, I know that other judges have accepted this, but I don't hear why. There was a case filed by Toyota where Judge Daniel issued

his decision that's become very persuasive. I see that cited by other judges. Even judges will say, hey, look, I used to do this, but this has changed my mind. We've seen judges with those assid phrases. There's a case Judge Seeger issued involving the character Zorro. I love these sites. They're all the most amazing. So in the Zorro case, he kind of identified that sort of turnabout game. The plaintiffs were playing with the asset freezes where they say, I'm asking for this, but then I'm going to get that at the end of the case. And he said, I'm not freezing it.

I'm not doing it. I don't believe you anymore. Which, again, is pretty extraordinary for a federal judge to just be like, I don't believe you anymore. And we have seen at least one judge start citing that Zorro case more frequently. I believe that the plaintiff's lawyers have been fighting back. I'm not sure exactly how successful they've been. And so it does seem like there, again, and this is just in the Northern District, that there has been some pushback from newer judges from judges who've been seeing a lot of these

and maybe are we thinking it. But that's not all of them. Again, this is a big bench. If I like it here, you have a perfectly good chance of finding a friendly judge. Yeah. Or they could go to Kansas or whatever. We've got to take one more break and then I'll have Vion to help me answer a question about AI translators. See you on the other side.

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Terms and conditions apply. Buzzwords like progressive and affordability are thrown around all the time in politics. But what do they actually mean? For me, being a progressive means at least two things. One, being willing to unite lots and lots of people, all of the folks that are getting screwed over against the powers that be. that are making your life worse. And then second, being progressive

is essentially a hopeful enterprise that you think, I think, that the world can be much better, that we don't have to settle for crumbs or settle for the status quo. And is there a difference between what it means to the elected officials and what it means to the people?

So money is essentially the root of everything. I don't care if you're gay, I don't care if you have all that. That's like secondary, third. Like, that doesn't, that's not a priority. That's this week on America Act Let's begin. Hey, y'all, we're back.

Let's get to the hotline. As always, the number is 866, Verge11, and the email is Vergecast at theverge.com. We love all your questions, and we try to answer at least one on the show every week, so keep them coming. And today I have Victoria's song to help me answer a fun one about AI translator apps.

Hey, y'all. Long-time listener, first-time caller. My name's T.J. I'm an American, currently living between Mexico and Cleveland. Columbia because of my relationship. Shout out to love and immigration law. So here's my question slash rant slash cry for help. I am a huge user and fan of AI, both in my personal life and professionally, but I still don't have a good real-time, natural feeling translation tool. My partner's mom and I

spend a lot of time together, and she doesn't speak English. So I've been relying on chat GPT voice mode, which is genuinely amazing, but Google Translate and Apple Translate still feel like robot interns and advanced voice mode is pretty limited for like everyday use. So I want something that can do live back and forth translation revivably.

Like subtitle a real conversation, let us actually talk. I've been searching everywhere and I'm almost ready to drop $500 on meta-ravens just for the translation feature. But like, do I trust Lama to handle emotional new ones with this Colombian mom, I do not. So my question is, is there anything out there I'm missing? Are there tools worth trying?

Or are we still in the almost but not quite territory for live AI translation? I would love your take, honestly. Thanks all. Love your pod. Okay, I was thinking about this, V, and I think we both speak Japanese, so maybe we should just do it in Japanese and have everyone AI translate. Oh, my God. Just kidding.

Yeah, yeah, that. Yeah, choka. Anyway, so this is a good duo to tackle this. I personally think, I mean, I just have a hard time with any translator things because language is so dynamic that it changes day to day, week to week, month to month. And, like, I have used translator tools for my entire life for various reasons. And, like, it has never gotten to the point where it can keep up with the way that people speak casual. Yeah. Yeah. Slang, like, just forget about it. Yeah. And I have used a lot of translation tech just because I, like, I, like my Japanese, pretty decent. My Korean, not great. Even though those two languages are quite similar, like almost grammatically, not almost, they are grammatically identical. And a lot of the vocabulary is the same. It's just I'm not great at speaking it, understanding it. I'm Korean Chubaka and my family. Just because I speak English, they speak Korean. And we understand. each other just fine. So to that point, there are times where I have wanted these kinds of tools. And so I've tested a bunch of them with my family. And I regret to tell you, listener, T.J. They're not, you are coming up against what all of them struggle with. Like, they just can't handle slang. Yeah. And if Colombian mothers or anything like Korean mothers and auntie figures, they do be talking at the speed of, like, they do be talking at the speed of, like, they're not.

Yeah, and like the precision is so important when you're talking across languages and across cultures. And like one thing that I've always found very difficult is so like I grew up in Japan and I haven't been like living full time in Japan in a really long time. And so a lot of like my vocabulary in Japanese is almost like stuck in time with the slang or the way that people spoke at the time I last lived there. And that is something that I think. think no translator app AI or not could ever help me with. You need to be actively speaking and engaging with people in this moment to really pick up on the nuance like TJ was asking about. Yeah, there's like so many examples of that. Like my family immigrated from Korea to the U.S. a long-ass time, like over 50 years ago at this point. And one thing that I learned growing up with the word for bathroom, we called it Piansa, which is apparently like ancient colonial times still living under Japan levels for the word bathroom. And I was just like, oh, I didn't know that.

And that explains why when I went back to visit family and I was like, oh, penso, where are like, do you mean hajongshu? Which is the actual, like the actual word for it. So, you know, is a translator going to be able to handle skibbitty toilet? That's my example that I use all the time. That's a litmus test. That's a litmus test because those are the things. I remember when I was in high school and taking Japanese, my Japanese teacher was losing her mind because of the slang that the Japanese kids were using, which was Makuru.

Because she's like, that means to turn. And apparently no, it meant teens were saying we're going to McDonald's. Yeah, that's so interesting. It's like these things where it's really hard. But I do think, TJ, that you maybe are in the perfect situation in real life to get. get over some of these shortcomings with like the tech option. Like in my opinion, when you are trying to speak with, you know, your partner's family, like that's a great time to ask about the nuance. I assume that you probably have some language capabilities, but, you know, maybe you

use that opportunity to be like, you said this word and I'm not quite following. Like, can you help me understand what it means? I actually had a great time doing this with some friends from Japan who were visiting the last couple years. Like, they would teach me. me all of the new things that the kids were saying, like, even younger than we are. And they're like, I don't really know where it comes from, but this is what the kids are saying. Like, the tech is never going to keep up with that. But if you have people around you who can explain that context and explain the meaning, like, that's golden. That's a great opportunity. Also, if you are living between Mexico and Colombia, that's like a great chance to be immersed in that. And you can use

the tech to kind of help you learn certain things while you're getting up to speed. I think at the level where the tech is now, it's very friendly for people who are tourists. It's not really useful in family situations. It's not necessarily useful in any situation other than, I don't know how to read a menu. Yeah. But you kind of can't just scan it to read a menu and then not learn what the words are because, you know, I've used the translation feature for Spanish, actually, on the meta ray bands. And it couldn't handle slang. one, it couldn't handle slang.

And then if we were, I was speaking with someone who was fluent in Spanish and English, and if we were switching back, because it was just easier for them to explain something in English, I had John Cena's voice because you can make the meta-AI sound like John Cena and why not? That seems distracting. You do hear them in your ear at the same time and you're having that problem. So I think it's okay in a pinch if you're going around town and you just really need help for, I don't know how much. much this cost. Can you tell me how much this cost? Like those things the translation can handle. Every day, like, bonding and getting to know someone, these things can't really do it. And if you use it as a crutch, I think you're arguably missing out on connecting with your partner's mother. So I think a lot of people who are speaking with a non-native speaker actually love explaining

words. Another thing I was just thinking about here is like there is a lot in Japan and Japanese that is very reference-heavy. Like, if you watch Japanese television, like, late-night shows or whatever, there are so many references that, like, I don't even, if I had a subtitle machine, I don't even think it would be helpful. Yeah, it's, like, I almost, you know, in college, I had a two-second dream that I was going to be a translator. Same.

I think that's just, like, yeah, canonical. A thing. Weird idea that we have at some point. For whatever reason, I was like, yeah, I'm going to be a translator. And then I was like, oh, my God, I don't. Because when you have the subtitles, you actually have a character limit as to what you're going to say. So you were going to lose out on all the context and the nuance there. And, you know, Japanese and Korean are both, I think, high context languages.

So to your point, everything's referential and it's about what's not being said. And there's no AI that's going to be able to, like, you know, if someone goes, they're saying no. Like, there's some like, you know what I mean? It's like, it's not what it means. It's not. It's not what that means, or it's just like, I think my favorite video about how weird Japanese can be is like all the things that Dajjö can mean.

So true. It's just like, oh, Dajonob. Dajonu. Yeah. Right. Right. It's like, it all means different things. Yeah.

So, like, Spanish is not the same and each language has its nuances. But, yeah, if you were going to try something, there is something called Time Kettle. There, I keep, I know all of this and I keep going, well, maybe, this one will be different. So I got a pair of Time Kettle earbuds. I'll try it. We'll see. But don't rob yourself the chance of fumbling through all the funny things that will happen due to this translation with your Colombian mom.

Once you make some of these mistakes, you'll never forget it. You know what I mean? You'll never forget what's right. Oh, God, there's so many things in language learning. Like, I will never forget Tsutumotase, Japanese. Yeah. Because it was like an example that my very enthusiastic Japanese teacher was like, how would you read this kanji?

It's at this advanced group of Japanese readers and in college. And we were like, Bejin Kjoku, a beautiful person office. No, it's a badger game. And she's like, it's Tsitsomotase. It's not read in any way that makes sense. So weird. And it's a badger game. Such a weird language.

It's, yeah. Don't rob yourself of finding all the weird crap. Yeah. Yeah. Agree. Yeah. Thanks so much for your question, TJ, and thanks, B, for helping me answer this one. Okay, that's it for the Vergecast today.

Thanks to everyone on the show today, and thank you for listening. There is a whole lot more stuff from this conversation at theverge.com. We'll put some links in the show notes, but also read theverge.com. Maybe even subscribe. You can find our bylines, how you find everything online. As always, if you have thoughts, questions, feelings, you can always email us at vergecast at the verge.com. Or keep calling the hotline.

866, Verge 11. We love hearing from you, send us all your thoughts and questions and ideas for what we should do on the show. We do a hotline question every week, so keep them coming, call in. This show is produced by Eric Gomez, Brandon Kiefer, Travis Larcich, and Andrew Marino. The Verge cast is a Verge production and part of the Vox Media podcast network. Jake will be back on Friday to discuss all the news from the week. Goodbye. See you next time.