Dan Lifschitz
@lifschitz.esq
184 followers 244 following 222 posts
Civil litigator by day (Gipson Hoffman & Pancione), copyright and entertainment law professor by night (UCLA + Southwestern Law School), husband and MCTT parent by luck (Kim ❤️ + Teddy 💛). If I’m posting, I’m procrastinating. dan[at]lifschitz.esq
![Emphasized text from the second page of Trump's brief to the appellate court: "Many [donated] because they loved the concept of two Great Presidents, one Republican, one Democrat, working together as one — In many ways, a bipartisan relationship!"](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreif676qsussefkcpwmpqjz7e3lms5uvutkxeu5hqlo7rxvtfubiqii)
![A Facebook post dated June 10, 2020: “I need the retainer I paid for [client] back.” “What happened?” “He fucked my wife.” #okay #thatsanewone](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreibm6mkrktlkguuo4rcxjinvxgggzorj7vavdl4goukssc4x24hxeu)
![This case requires us to apply these familiar pleading standards to the third element of an induced-infringement claim: that the inducer took “active steps . . . to encourage
direct infringement.” Grokster, 545 U. S., at 936 (internal quotation marks omitted). Our case law defining “active steps” thus governs the boundaries of a plausible induced- infringement claim. Most fundamentally, “inducement must involve the taking of affirmative,” as opposed to passive, “steps to bring about the desired result” of patent infringement. Global-Tech., 563 U. S., at 760; see also Grokster, 545 U. S., at 935 (requiring “statements or actions
directed to promoting infringement”); Cox Communications, 607 U. S., at ___ (slip op., at 9) (citing lack of “evidence of express promotion [or] marketing” as a reason for no liability (internal quotation marks omitted)). To avoid “trenching on regular commerce,” “ordinary acts incident to
product distribution” are insufficient to support liability. Grokster, 545 U. S., at 937.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreif2ocyq7ntnxn4wopbjvapuwf3bvqdmtfsxrb3emdrfwwde3pi5xy)
![An excerpt of the majority opinion from Effects Associates v. Cohen:
Cohen suggests that section 204's writing requirement does not apply to this situation, advancing an argument that might be summarized, tongue in cheek, as: Moviemakers do lunch, not contracts. Cohen concedes that "[i]n the best of all possible legal worlds" parties would obey the writing requirement, but contends that moviemakers are too absorbed in developing "joint creative endeavors" to "focus upon the legal niceties of copyright licenses." Appellees' Brief at 16, 18. Thus, Cohen suggests that we hold section 204's writing requirement inapplicable here because "it [i]s customary in the motion picture industry . . . not to have written licenses." Id. at 18. To the extent that Cohen's argument amounts to a plea to exempt moviemakers from the normal operation of section 204 by making implied transfers of copyrights "the rule, not the exception," id., we reject his argument.
Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it's harder to backtrack on a written contract than on an oral one.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreiapr2dupuqpetmuuvfn7t2wpgnrxmsi3c2cpkra4noikrwlbvu27i)
![Were that all, the Court would hesitate to find such conduct sanctionable under Rule
11. But as Defendants note, many of the other claimed facts are also "vague, compound, and incomprehensible mixtures of factual assertions and conclusions, subjective opinions, and other irrelevant evidence." ECF 74-1 at 17 (citing P-SUF 2, 5, 6, 8-14, 24-25, 27-34, 36-43, 47-64, 66-69). For example, Plaintiffs' Fact 10 states, without any evidentiary support, that "Defendants undoubtedly had access to [Vance] prior to writing and releasing [Carey] given its wide commercial and cultural success," P-SUF 10, even though access was not at issue in this initial phase as to the extrinsic test. Similarly, Fact 68 cites Sakakeeny's declaration for the bald proposition that "Carey would have had ample access to [Vance]," P-SUF 68, despite Sakakeeny's admission that he was never designated as an expert on the factual issue of copying, ECF 69-4 1 7. Although Plaintiffs withdrew certain legally irrelevant arguments in their Reply, Plaintiffs did not withdraw numerous irrelevant facts in their Response to Statements of Genuine Dispute ("RSGD"). See generally ECF 77-1. At Fact 68, for instance, Plaintiff responds, "As to the disputed portion, Plaintiff (sic) respectfully refers to Sakakeeny Decl." Id. 68. The RSGD is replete with this type of perfunctory response. E.g., id. 7-9, 12, 19, 23-29, 32-43, 50-68. The Local Rules clearly provide that for facts disputed by the opposing party, the moving party's response must include "pinpoint citations including page and line numbers, if available, to evidence in the record... to rebut the existence of a genuine dispute." L.R. 56-3.
It is clear to the Court that Plaintiffs' counsel made no reasonable effort to ensure
that the factual contentions asserted have evidentiary support. Thus, the litany of irrelevant and unsupported factual assertions reflected in Plaintiffs' SUF and RSGD has served only to confuse the Court and the parties.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreia3iczbs7q54xqtkfq3ytmjux477pqts4kpkiq7j5t2qcuvqh53fm)
![Defendants argue that Plaintiffs' Statement of Uncontroverted Facts ("SUF") are improper because they violate the Local Rules and "simply copy-and-paste[]" conclusory allegations from the FAC. They further contend that Plaintiffs' factual contentions lack any evidentiary basis. Id. at 18-22. Plaintiffs accuse Defendants of
"hammering on Plaintiffs' inclusion of facts unrelated to the extrinsic test" and "misstating the background information which Plaintiffs did not include for any nefarious purpose[.]"
The Court agrees with Defendants that the Plaintiffs' SUF violates the Local Rules
and is procedurally improper. The Local Rules require parties moving for summary judgment to "set forth the material facts as to which the moving party contends there is no genuine dispute" with each fact "supported by pinpoint citations (including page and line numbers, if available) to evidence in the record." L.R. 56-1. Several of the purported facts set forth in Plaintiffs' SUF are supported only by Plaintiffs' FAC or statements made in conclusory declarations accompanying the Motion, not evidence in the record. Plaintiffs also fail to pin cite any of the evidence supporting their purported facts. See generally P-SUF 16-69.
Plaintiffs explain that they included background facts from their pleading "for the simple purpose of providing a historical context of the two works .... There is no reason to sanction a party for including more, rather than less, factual information." As explained above, most facts derived from the FAC are cited in support of irrelevant arguments on copying, not as background. Further, irrelevant and unsupported allegations in a pleading are not material facts at summary judgment and therefore do not belong in a statement of uncontroverted facts. The Court finds that these deficiencies alone are sanctionable under the Local Rules.
See L.R. 83-7(a)-(b).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreigqlyenvu53tjfrqtni5xvbckyasttonvl2ip6nh24aqdv5cuqodi)
![Fink also bases his conclusions on the inverse ratio rule, which required "a lower standard of proof of substantial similarity when a high degree of access [to the protected work] is shown." Skidmore, 952 F.3d at 1065-66 (quoting Three Boys, 212 F.3d at 486-
87). He states in his report that a claimed similarity would be significant "given . .. a strong case for access." ECF 73-5 1 6, at 26 (emphasis added). Skidmore explicitly abrogated the inverse ratio rule in this circuit, explaining: "Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary." Id. at 1066. In so holding, the Ninth Circuit
"join[ed] the majority of [its] sister circuits that have considered the inverse ratio rule and have correctly chosen to excise it from copyright analysis." Id. at 1069. The court clarified that it is "not suggesting that access cannot serve as circumstantial evidence of actual copying in all cases; access, however, in no way can prove substantial similarity." Id.
(emphasis added).](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreigslkbtxizjicbpb2wa2kjyj2v5avzqpl73pgbz7fd4r4ivvfu5ee)
![Plaintiffs make no attempt to square their misstatement of the law. In fact, they double down on outdated legal standards and overruled authorities in their Reply. They once more assert, without any legal support, that "[t]he question of' access' is encompassed under the 'copying' element, along with substantial similarityL.]" ECF 77 at 2. That is not so. See Skidmore, 952 F.3d at 1064 (explaining that copying and unlawful appropriation, which includes substantial similarity, are "separate components"). Plaintiffs further claim that "[under Krofft, if the extrinsic test reveals similarities in ideas, the court proceeds to the ... intrinsic test." ECF 77 at 2 (citing Sid & Marty Krofft Tel. Prods., Inc. v.
McDonald's Corp., 562 F.2d 1157, 1165 (9th Cir. 1977)). This has not been the law of this circuit for over 30 years. It is true that in Krofft, the Ninth Circuit initially conceived of the extrinsic test as a "test for similarity of ideas" and the intrinsic test as a test of similarity "in the expression of the ideas." 562 F.2d at 1164. But the Ninth Circuit has long since rejected this formulation, holding instead that "the line [between the extrinsic and intrinsic tests] is more properly drawn between objective and subjective analyses of expression," not ideas. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1473-74 (9th Cir. 1992) (citing Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir. 1990)). That is because "[i]n no case does copyright protection... extend to any idea." 17 U.S.C.
§ 102(b); see also Skidmore, 952 F.3d at 1069 ("[Clopyright does require at least a modicum of creativity and does not protect... ideas, concepts, and common elements[.]").
Plaintiffs' continued reliance on abrogated legal principles confirms that Plaintiffs' counsel failed to conduct a reasonable inquiry into the law.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreicemh6sw2d36yejd5yewln2ujjkqjcvcy22cb3lxdcxels4sklf4i)
![The Fink Report is deficient on its face. It consists of a scant six paragraphs of
"preliminary" findings covering less than three pages without any supporting exhibits. See ECF 73-5 at 24-27. "Brevity alone does not render an expert report deficient, but [the Fink] Report is silent on too many matters to be considered either adequately supported or probative of the [only] issue [at hand]—the application of the extrinsic test." Johannsongs-Publ'g Ltd. v. Lovland, No. CV 18-10009-AB (SSx), 2020 WL 2315805, at *5 (C.D. Cal.
Apr. 3, 2020). At the outset, Fink does not provide any explanation of the principles or methods he relied on to form his opinion. He does not disclose what materials he reviewed in making his findings, apart from a single reference to an unattached, "preliminary transcription" of Carey. ECF 73-5 95, at 24. Nor does he provide an adequate description of the technical terms used in his analysis or their relevance. E.g., id. at 25-26 (referring to "lyrical realizations," "musical style," "root progression," "tonal harmony," "patterns of tension and release," "scale degree," among other undefined terms). Because of these omissions, the Court has no way of determining whether the Fink Report is the product of any reliable principles and methods.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreigryywhxhygye3d6dmnlckjy5x4c7h73rdirkr2o6mw3gdu5xynda)
![The parties agreed that bifurcation would be "the most judicially efficient way to manage this litigation" because "[i]t would provide the parties an early opportunity to determine a dispositive issue[.]" ECF 53 at 2. Consistent with this shared understanding, the Court ordered the parties to conduct discovery and file motions for summary judgment as to the extrinsic test only. Id. at 3. The Court stayed all other discovery. Id.
Despite the parties' agreement and the Court's clear instructions, Plaintiffs, by and through their counsel, inexplicably moved for summary judgment on other elements of their copyright claim, i.e., ownership, copying, and access. See ECF 69 at 10-15.
Plaintiffs' counsel offers no explanation for failing to comply with the Bifurcation Order.
Counsel claims that any reference to issues outside of the extrinsic test was "intended only as background." ECF 78 at 6. This explanation strains credulity. Plaintiffs' Motion devotes an entire section of the argument-not background —to the issues of ownership, copying, and access. See ECF 69 at 10-15. Tellingly, Plaintiffs' proposed order granting their Motion requests a finding that "[t]here are no genuine issues of material fact as to Plaintiffs' First and Second Causes of Action in the Complaint," ECF 69-5 at 2 (emphasis added), not just as to substantial similarity under the extrinsic test. This requested relief defies logic considering the parties have not had an opportunity to conduct fact discovery as to those elements. Plaintiffs' failure to comply with the Bifurcation Order is clear evidence of Plaintiffs' improper purpose in filing for summary judgment. Plaintiffs' counsel, as an officer of the Court, is at fault for this non-compliance. Instead of timely remedying this misconduct, Plaintiffs' counsel delayed and needlessly caused Defendants to oppose irrelevant factual and legal issues that are not properly before the Court.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:6onz2tw3s6qhsnp5las5w7au/bafkreihkax36eyfv6kgfkg2yokh5c33v5i2paw6us3brqniib5sbr3lbtm)
