Happy Monday, I’m Eriq Gardner.

Welcome back to The Rainmaker, a private email about money, power, fame, and most of all, the law. (Was this email forwarded to you? Click this link to subscribe. And if you’re interested in a corporate subscription, reach out to fritz@puck.news.) And a reminder for L.A. readers: Next Monday, Matt Belloni is hosting a panel of the cast and crew behind National Geographic’s A Small Light, after a screening of the limited series. It’s only open to Puck subscribers, so click here to register.

In this week’s edition, a development in an 80-year-old music case, and how this connects to artificial intelligence. Plus: why Peter Thiel is being slammed by a Delaware Chancellor, what law firm Sam Bankman-Fried is now targeting, why James Dolan’s Madison Square Garden is sending pictures of shirtless men to a judge, and the contract language that could prime Donald Trump’s return to Twitter.

But first…

• Trouble for Thiel?: Mark Zuckerberg’s legal problems these days are extensive—everything from an upcoming trial over whether Meta Platforms stole A.I. trade secrets to ongoing battles with Lina Khan regarding whether his company must divest Instagram and WhatsApp. I’ll have more on all of that soon. But there’s not nearly enough attention on a recent ruling in the lawsuit brought by shareholders who want the company’s board of directors to reimburse the $5.5 billion fine that Facebook had to pay the Federal Trade Commission in 2019 for not adequately safeguarding user data.

  According to the lawsuit, the board not only knew and took advantage of a secret backdoor to user data, but then paid multiples more to the F.T.C. just to save Zuckerberg from personal accountability. Earlier last month, Delaware Vice Chancellor J. Travis Laster allowed most of the lawsuit to proceed, but not before evaluating whether it was possible for these board members to stand up to Zuckerberg. Check out what he says about Peter Thiel, who allegedly not only leveraged user data for his own company, Palantir, but is said to have disposed of his Facebook stock based on nonpublic information. “Not a close call,” said Laster. “This case involves the concept of sharing data improperly, which Thiel appears to be a fan of.” Here’s a transcript of the orally delivered ruling.

• Inside the Yeezy Blowup: A public court battle between Adidas and Kanye West over a $75 million advance quickly came and went, but court papers and a hearing (where a judge refused to freeze Ye’s bank account) delivered a peek at an ongoing arbitration between the two over the disintegration of their Yeezy partnership. The arbitration demand and counterclaim are heavily redacted—for now. But Adidas appears to be claiming contractual breaches based on what West has been telling others about the relationship, and also for making racist and antisemitic comments that brought the shoe giant into disrepute. (“Morals clauses” are oft-discussed but rarely litigated.) West, in turn, alleges theft of trademarks, among other legal claims.

  We might know more soon. Adidas continues to wrestle with U.S. District Court Judge Valerie Caproni, who has denied a motion to seal the proceedings and directed the parties to file less redacted filings. Now, even dismissing the case may not stop the public record from getting bigger.

But here’s the thing: Trump’s 18-month exclusivity term ends the first day of this summer so long as he gives notice. If not, and he sits on his hands, then the exclusivity term automatically extends another 180 days. So if the Trump campaign wants to preserve its optionality to begin using Twitter again (in a more impactful way, at least), then the candidate has to speak up soon. Would he really pass on that opportunity for half a year, ceding his megaphone on the platform (faulty as it might be) to Ron DeSantis?

Notably, Trump still has an active lawsuit against Twitter for suspending him in the first place. While U.S. District Judge James Donato dismissed that complaint alleging a First Amendment violation in May 2022—the California judge ruled that Trump hadn’t plausibly alleged Twitter was acting as a government entity—Trump’s legal team has pointed both the District Court and the 9th Circuit to the “Twitter files” and what Musk himself has been saying about government involvement in Twitter’s affairs. They argue these new revelations show that Biden officials coerced censorship.

On Thursday, Twitter told Donato that it’s all moot anyway since Trump’s account has been reinstated. Trump’s legal team argues that it’s not moot because Musk could change his mind. As such, they are pushing to get Donato to at least indicate he’d be willing to entertain new allegations so those could be properly considered on appeal. Ultimately, Trump wishes to move forward in a suit that demands his account not only be reinstated, but also without warning labels. The bid is a huge long shot—Twitter is a private company, after all—but like an old lover who is peeking at a former flame’s social media activity, it shows that Trump very much still cares.

Alas, the legend isn’t exactly accurate, at least not anymore. I got the dirty truth from Katherine Forrest, a former federal judge who is now a partner at Paul Weiss. “The wooden wheels,” she told me, “have given way to computers that do random assignments.”

I began considering the mysteries of judicial matchmaking earlier this year, while following other major S.D.N.Y. cases, including Trump’s battle to move the Manhattan D.A.’s criminal case there; a 78-year-old semi-retired judge weighing Sam Bankman-Fried’s fate; and another judge on the same circuit, Kevin Castel, wrestling with how to handle a pair of lawyers who cited ChatGPT-invented case precedent in a personal injury suit. Then, just a few days ago, I came across an intriguing court order by Judge Louis Stanton, directing a dispute between radio stations and the American Society of Composers and Publishers (ASCAP) to the “standard electronic method of selection of a Judge.” Wait, what happened to the wheel?

But let’s back up. Not all cases are randomly assigned. For example, under something called the “related cases” rule, a judge may get a new case that’s connected to an earlier one. Consequently, some judges have gained dominion over entire categories of controversy. A perfect illustration of this is found in New York, where just two federal judges—the aforementioned Denise Cote and Louis Stanton—wield significant influence over what TV and radio stations pay for music. This power stems from a historical event that happened more than 80 years ago, when the Roosevelt administration became very aggressive about enforcing antitrust laws, particularly those related to price-fixing. Among the cases were lawsuits against music publishers that had ganged together to license their repertory. Those quickly settled with consent decrees, which were subsequently modified multiple times.

As a result of its consent decree, ASCAP is no longer allowed to withhold its songs to those who wish to publicly perform them. A blanket license is readily available, and any dispute over how much that costs is subsequently resolved by a judge in the New York Southern District. A similar arrangement governs Broadcast Music Inc. (BMI), ASCAP’s main competitor.

So for many decades, a single judge (eventually Cote) oversaw all rate disputes involving ASCAP while another (Stanton) oversaw all BMI rate disputes. Throughout the 20th century, this situation remained relatively peaceful, with the judges acting as mediators when disagreements arose regarding what to charge to play songs. However, with the rise of streaming services, the value of music underwent a dramatic transformation, resulting in highly contentious litigation. The song publishing industry became increasingly dissatisfied by Cote’s rulings, and perceived Stanton as slow and unpredictable. (It’s worth noting that Stanton has a history of frustrating litigants, including those involved in the recent Ed Sheeran “song theft” trial, which puzzled many legal observers for having not been decided earlier.)

Eventually, the song industry sought a solution to its concerns about Cote and Stanton. During the Trump administration, publishers successfully lobbied for the assignment of ASCAP and BMI rate-setting cases to random judges, instead. Cote and Stanton kept jurisdiction over other aspects of the consent decree, but the song industry probably felt they had better odds of getting a more favorable outcome if the rate-setting portion happened elsewhere.

But this provision, a relatively obscure aspect of the Music Modernization Act, has become contentious in its own right—and it’s opened up the song industry to something it didn’t quite anticipate. Last year, the trade group representing radio stations recognized through the new judicial assignment process an opportunity to address their own concerns. Specifically, the radio industry felt that ASCAP and BMI had long been inflating their respective market shares in rate battles, resulting in higher royalties. Indeed, they complained that the market share calculation added up to more than 100 percent—which should of course be impossible. If Cote no longer had to preside over ASCAP cases, and Stanton was relieved of BMI cases, then a consolidated case could be tried against both organizations. This might force the song rights collectives to reconcile their math.

Well, that was the radio group’s hope at least. In June 2022, the Radio Music License Committee brought a lawsuit that ended up before Judge John Cronan. In response, BMI countered by arguing that the old consent decrees required a “firewall” separating its rate determination from ASCAP’s. This issue, which BMI said required an interpretation of the old consent decree, went to Stanton, who, after waiting nearly an entire year, finally agreed to sever the ASCAP portion of the new case and assign just that to a random judge other than Cote or Cronan.

Stanton’s May 26 order (read here) hardly explains his reasoning (or jurisdiction), prompting the ratio stations to seek an appellate court’s review of this entire situation. In fact, the Radio Music License Committee swiftly filed a notice of appeal before a clerk could hit whatever computer button spits out a random judge’s name. The radio group will presumably ask the Second Circuit to vacate Stanton’s order and keep the rate fight against both ASCAP and BMI before a single judge, likely Cronan.

However, could this structure of compulsory licensing offer a blueprint for a much more modern problem: the copyright challenges posed by artificial intelligence? At least one prominent legal scholar thinks so. Last week, Tim Wu, who returned to Columbia Law School after advising the Biden administration on competition matters, suggested to The Washington Post that music on the radio could provide the model for how to compensate content creators whose works are being used to train A.I. systems.

Of course, issuing licenses is the easy part; determining the appropriate value of the content is the rub. If it’s anything like the ASCAP system, that means multi-year legal cases exploring theoretical actions by buyers and sellers in an open market. Those cases would also be overseen by judges, presumably human ones, who would probably insist that evidence and case precedent be conjured by something other than a hallucinating chatbot. If that’s the way to go, then perhaps it’s also best that the judicial assignments not come by computer algorithm, but instead, once again, by a wooden wheel. That would be most fitting, right?

• Speaking of music, all the way back in October, I discussed a petition before the Supreme Court to review a case claiming that Google had breached a music website’s terms of service by stealing its transcription of song lyrics. The petition has been in limbo because the justices asked Biden’s solicitor general to weigh in. Elizabeth Prelogar finally gave her view on May 23 that the high court should pass. Here’s the government’s amicus brief.

• Is there a First Amendment right to use A.I. to swap your face with a celebrity’s? This legal brief makes the argument.

• The above legal brief came from Fenwick & West, a law firm headquartered in Silicon Valley with a top-notch reputation for providing counsel to tech startups. I mention that because Sam Bankman-Fried is zeroing in on how the same firm advised him and others at FTX. He’s now demanding “potentially exculpatory” documents from the firm as his lawyers seem to be exploring some sort of “advice of counsel” defense.

• The legal war pitting James Dolan vs. N.Y.’s liquor cops is now featuring selfies of shirtless men. As you’ll recall, Dolan’s use of facial recognition technology to stop plaintiff lawyers from attending Madison Square Garden events has New York State’s Liquor Authority threatening MSG’s license to sell booze. Now, MSG is exploring the connection between the liquor cops and those plaintiff attorneys. MSG has subpoenaed Verizon, and in a petition to make the telecom company hand over records, MSG says the State Liquor Authority’s investigator has been texting shirtless photos of his younger self to one of the plaintiff lawyers. Dolan’s company even provides the picture. (See page 7.) As for M.S.G.’s own investigator, Dolan’s lawyers recently told a judge, “Do you know what the S.L.A. did? They weaponized the NYPD! They arrested our private investigator, took him to a prison, kept him there and then issued bogus charges against him, which they then didn't even follow up on.”