Haha, did you ever write about it? i would have *killed* to be a fly on the wall during the strategy sessions on both sides. I was one of those people who thought Disney had it in the bag from the outset, but then again, I also thought they’d trounce Florida in their retaliation suit over RDIC. 🫠

An excerpt from Eriq Gardner’s Feb. 12, 2024 article for Puck News entitled “Assessing the Musk-Carano Case Against Disney”: “But Carano’s job wasn’t simply playing Cara Dune on The Mandalorian—she was also hired to be a public face for the franchise, a promoter in addition to a performer. That’s been true since Hollywood’s early days, which is why studios fret over actors’ public personas and include morals clauses in contracts. By embroiling herself in controversy, Carano jeopardized her value to Disney by altering the way that audiences perceive her. Conservatives might sniff double standards, but expect Disney to raise this point as part of its defense. After all, it’s in the image business.” Full article at https://puck.news/assessing-the-elon-musk-gina-carano-case-against-disney/

Great piece. An interesting related topic is the outer limits of MC enforcement. A lot of folks (like @eriqgardner.bsky.social at @puck.news ) expected them to play more of a role in Gina Carano’s case against Disney, for example, yet they ended up settling. www.hollywoodreporter.com/business/bus...

Wait, are you telling me that Trump strongly denying the authenticity of the card didn’t and shouldn’t, by itself, cause the WSJ to entertain serious doubts as to the truth of the matter? Am I to understand Trump has a problem when it comes to the credibility of the things he says? Huh. Fascinating!

It’s funny watching beta grifters like Riley have to act po-faced whenever Trump breaks kayfabe because they’re just as inauthentic as him, but lack the cult of personality necessary to ride shotgun on his blasphemes without exposing their own rear flank.

Not just journalists, but lawyers as well. It’s so reliable that courts will judicially notice its content without hesitation. I’ve used WM captures to defeat motions over personal jurisdiction, establish the popularity of streaming media over time to calculate copyright damages, and so much more.

I was just thinking about the below point (Trump’s word being worthless having ramifications for diplomacy), but it’s funny to see shades of it reflected in the court holding that Trump’s denial gives rise to no “serious doubts” about the article’s accuracy. bsky.app/profile/nich...

Trump Allies Don’t See “Three-Dimensional Chess” In Dinesh D’Souza’s Pardon "More often than not he's just eating the pieces."

That phrase goes back to 2018 and hasn’t gotten any less true with time. The fact that it came from someone on Trump’s own team makes it even better. www.buzzfeednews.com/article/tari...

Trump Spills Crazy Botched Scheme to Arm Iranian Uprising The president claimed the U.S. tried to send the Iranian people guns.

Didn’t Trump literally blurt out the other day that they tried to do this already and got stabbed in the back by their middlemen who just decided to keep the guns? www.thedailybeast.com/trump-spills...

T’was a blip.

MULTIPLE SLURP JUICES

Daily Beast headline: Trump Goon Launches Wild Public Lobbying Campaign for AG Job Byline: Leigh Kimmins Date: April 3, 2026, 8:19 AM ET Subhead: Alina Habba is wasting no time in taking her shot at the big time. First Paragraph: President Donald Trump's former personal lawyer, Alina Habba, is going all in on the administration's newly open Attorney General position.

Oh, she heard you.

Instagram Create an account or log in to Instagram - Share what you're into with the people who get you.

In that case, my vote is for any of the options on Sawtelle in West LA, affectionately known as Little Osaka or Sawtelle Japantown. For my money, Tsujita Annex has the best bowl of noodles in town (the chashu tsukemen in particular). Take it from my friend Katy! www.instagram.com/reel/DQcDCal...

Oh, you’ve *gotta* be more specific than that. Where in LA, roughly speaking? (For example, I would not tell someone in Santa Monica to grab lunch in Pasadena.)

Yup. You still need to check every holding it claims a case stands for, but when you only need a basic legal framework outlined, the Deep
Research feature obviates a lot of tedious terms-and-connectors research and provides a convenient jumping-off point for further work.

Also me in my early twenties.

Jack Smith: "My fear is that we have seen the rule of law function in our country for so long that many of us have come to take it for granted. The rule of law is not self-executing. It depends on our collective commitment to apply it."

Beverly Hills Board of Education member Russell Stuart telling the world via X that it’s okay to call children the r-slur if you disagree with their parents politically.

Per the logic demonstrated here, because Russell Stuart disagrees with my husband and I politically, he would be justified in calling our son the r-slur.

My tax dollars pay his recently (6x increased) stipend wheeeeee 🤸‍♀️

It’s been 2 weeks since a Beverly Hills USD Board member replied “FAFO” to a video of Hope Walz demanding MAGA stop calling her brother the r-slur. He was called out publicly by my husband. He refused to acknowledge or apologize. This man controls my disabled son’s education. A nightmare.

Stipulation for streamlined extension, no proposed order necessary.

Yup. Generally speaking, a notice of supplemental authority is only for new decisions that dropped after your brief was filed (such that you couldn’t have previously cited to them with due diligence), and you’re supposed to explain their relevance to the case. Brito’s notice fails on both counts.

Easiest $230 I’ve ever spent. Mike’s basically an uncredited coauthor on my 2012 law review piece covering ACTA and SOPA/PIPA. He helped shape my worldview *and* gave me one of my first platforms to write about copyright law. My admiration for him has only grown since then. Fight the good fight. ✊🏻

So committed to the bit that she went down for a physically impossible act with the family nanny. Respect.

Joining the Dan Modern Chinese chorus. Great dumplings, but the rest of the menu is even better, especially the three cup chicken and short rib noodles.

Funnily enough, and despite also agreeing with Peter, it’s the back half of the album that I find redemptive. Ophelia and Father Figure do nothing for me, while Opalite’s chorus brings down a song that I’m confident Sabrina would have knocked out of the park if it were given to her.

Anberlin - High Stakes (Official Music Video) YouTube video by Equal Vision Records

As recent an answer as anyone’s likely to give.

youtu.be/dxfMC_-lCyY?...

One of the new members of the Beverly Hills USD school board owns a private security firm *AND* a gun store, and it makes me deeply fucking uncomfortable!

And so a benchslap they got. Case dismissed and sanctions awarded in the form of a pending fee shift. These are the same attorneys who managed to squeak out a settlement ahead of trial in the litigation between 3LW and Taylor Swift over Shake It Off. Quite a reversal of fortune on Round 2!

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.

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).

Fourth, they royally botched their separate statement through poor drafting, inclusion of irrelevant facts, and failing to support what facts actually mattered through evidence in the record. When you make a judge slog through shoddy work product like this, you’re begging for a benchslap.

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).

Rule 11 imposes a non-delegable, "affirmative duty" upon the attorney to conduct a reasonable inquiry into the law before filing a motion. Lloyd v. Schlag, 884 F.2d 409, 412 (9th Cir. 1989). Plaintiffs' counsel did not uphold this duty. As an initial matter, Plaintiffs submitted legal arguments on elements wholly irrelevant to the extrinsic test. See ECF 69; cf. ECF 53. Although Plaintiffs later withdrew these arguments, ECF 77, Plaintiffs' Motion is nevertheless frivolous within the meaning of Rule 11 as to the extrinsic test. The Court agrees with Defendants that Plaintiffs' Motion is predicated on an abrogated legal rule: that "substantial similarity is inextricably linked to the issue of access." ECF 69 at 11 (citing Skidmore, 952 F.3d at 1065-66). As explained above, the very case cited by Plaintiffs expressly abrogated this rule. Skidmore, 952 F.3d at 1069 ("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."). A reasonably diligent review of Skidmore would have made clear that access "in no way can prove substantial similarity" in this circuit. Id. Plaintiffs' reliance on Skidmore for a legal proposition abrogated by that case is as clear an indication as any that Plaintiffs' counsel did not conduct a reasonable inquiry into the law prior to filing the Motion.

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.

Third, they repeatedly relied on expressly overruled legal principles. Some (like the inverse ratio rule) were overruled fairly recently (2020). Others (like the extrinsic test concerning similarity of ideas) haven’t been good law for several decades. I found this part genuinely horrifying.

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.

Unlike the Fink Report, the Sakakeeny Report describes some principles and methods of analysis. Specifically, it is organized into five sections to compare the following musical elements in order of importance: (1) lyrics, (2) primary melody or "hook," (3) overall melody and phrasing, (4) harmony, and (5) rhythm. ECF 73-5 at 29. Nevertheless, it suffers from similarly obvious deficiencies that render it inadequately supported. See Johannsongs, 2020 WL 2315805, at *5. As with the Fink Report, several of the musical elements are left undefined, and their relevance unexplained. E.g., id. at 32 (referring to, among other undefined elements, "harmonic background," "rhythmic placement and emphasis," "the overall 'contour' or direction of the melody," and "harmonic language"). And apart from vaguely referencing prior art and the sheet music, see ECF 73-5 at 29, 35-36, it is unclear what materials Sakakeeny reviewed and relied upon before rendering his opinion. Thus, while the Sakakeeny Report contains some semblance of methodology, the Court still strains to ascertain the reliability of the methods and principles employed

The Court's Bifurcation Order required Plaintiffs to submit rebuttal reports by June 3, 2024.6 See ECF 58. They did not. Now, months past the deadline, Plaintiffs inexplicably attempt to rehabilitate their witnesses by having them respond in their declarations to the Ferrara and Lewis Reports. Plaintiffs make no showing that their failure to timely disclose expert testimony was substantially justified or harmless. Plaintiffs only lament that "[diue to time constraints on the experts, the expert depositions stood in for any rebuttal report." P-SGD 4. The Court is not moved by such excuses. Depositions are not rebuttal disclosures. "A party's inability to prepare an expert report within the discovery and expert disclosure deadlines set forth in a scheduling order does not excuse compliance with the requirements of Rule 26(a)(2)(B)." Wilderness Dev., LLC v. Hash, No. CV 08-54-M-JCL, 2009 WL 564224 (D. Mont. Mar. 5, 2009) (citing Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 (7th Cir. 1998)). Plaintiffs could have, but did not file a motion to extend the rebuttal deadline, and their failure to do so "amounts to nothing more than poor case management and lack of care and due diligence." Pineda v. City & Cnty. of San Francisco, 280 F.R.D. 517, 521 (N.D. Cal. 2012). Moreover, that these rebuttals were inserted into the experts' later-filed declarations in support of Plaintiffs' Opposition, but not their earlier-filed declarations in support of Plaintiffs' own Motion for Summary Judgment, tells a clear tale of too little, too late. Compare ECF 69-3 and ECF 69-4 with ECF 73-3 and ECF 73-4. The Court concludes that the Fink Declarations and the Sakakeeny Declarations are a product of unreliable and unhelpful expert testimony and untimely rebuttal testimony. Accordingly, the Court excludes the Fink and Sakakeeny Declarations.

Second, they relied on two perfunctory musicological expert reports (one three pages, one eight pages) that failed to properly apply the extrinsic test, submitted no rebuttal reports, and tried to sneak rebuttal testimony into depositions and declarations. Suffice to say, it didn’t work.