Dan Lifschitz
@lifschitz.esq
Entertainment/IP litigator @ Gipson Hoffman & Pancione, copyright professor @ UCLA and Southwestern Law School. Would like to stop having to reconstitute my online presence every time a prior platform lights itself on fire.
E-mail: dan[at]lifschitz.esq
E-mail: dan[at]lifschitz.esq
So committed to the bit that she went down for a physically impossible act with the family nanny. Respect.
November 6, 2025 at 3:44 PM
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.
October 11, 2025 at 10:55 PM
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.
October 3, 2025 at 9:51 PM
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
youtu.be
August 31, 2025 at 3:57 AM
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!
March 20, 2025 at 5:16 AM
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!
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.
![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@jpeg)
![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@jpeg)
March 20, 2025 at 5:12 AM
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.
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.
![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@jpeg)
![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@jpeg)
March 20, 2025 at 5:04 AM
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.
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.
![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@jpeg)
March 20, 2025 at 4:58 AM
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.
First, they ignored a bifurcation order that required them to focus their MSJ only on the issue of extrinsic similarity. They dedicated a scant three pages of their moving papers to that issue and larded up the rest with improper arguments about ownership, access, and copying.
![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@jpeg)
March 20, 2025 at 4:49 AM
First, they ignored a bifurcation order that required them to focus their MSJ only on the issue of extrinsic similarity. They dedicated a scant three pages of their moving papers to that issue and larded up the rest with improper arguments about ownership, access, and copying.
We have treaties and trade agreements with foreign countries requiring that certain rights be respected across borders (like intellectual property), so there are floodgates that will remain closed irrespective of how the TikTok case gets resolved.
December 31, 2024 at 12:55 AM
We have treaties and trade agreements with foreign countries requiring that certain rights be respected across borders (like intellectual property), so there are floodgates that will remain closed irrespective of how the TikTok case gets resolved.
This is genuinely something James Austin Johnson would have filmed himself saying in stream-of-consciousness format during an outdoor walk. youtu.be/Vk-ZBYyjsko
Trump complains about Scooby Doo
YouTube video by Max Speedster
youtu.be
December 28, 2024 at 1:20 PM
This is genuinely something James Austin Johnson would have filmed himself saying in stream-of-consciousness format during an outdoor walk. youtu.be/Vk-ZBYyjsko
I have several more examples that I won’t bother to upload, since they’re more of the same, but the real kicker is that the comments on the ads are filled with people saying Meta has ignored everyone flagging them as inappropriate, claiming they don’t violate any community guidelines. Insane.
December 28, 2024 at 2:25 AM
I have several more examples that I won’t bother to upload, since they’re more of the same, but the real kicker is that the comments on the ads are filled with people saying Meta has ignored everyone flagging them as inappropriate, claiming they don’t violate any community guidelines. Insane.
I’ve been seeing these ads proliferate on Meta’s platforms in the last few months. Not only are they extremely gross and indisputably in violation of relevant advertising standards, I’m pretty sure some of the models being depicted are intended to be underage.
December 28, 2024 at 2:22 AM
I’ve been seeing these ads proliferate on Meta’s platforms in the last few months. Not only are they extremely gross and indisputably in violation of relevant advertising standards, I’m pretty sure some of the models being depicted are intended to be underage.
Don’t back down, Wendi. In all the time I’ve known Brett, he’s never helped pass a single Congressional budget. Stay on his ass and keep him honest.
December 19, 2024 at 4:34 AM
Don’t back down, Wendi. In all the time I’ve known Brett, he’s never helped pass a single Congressional budget. Stay on his ass and keep him honest.
Respectable for a public filing. That said, it’s the confidential mediation briefs where you can really test the limits.
December 13, 2024 at 2:12 PM
Respectable for a public filing. That said, it’s the confidential mediation briefs where you can really test the limits.
I appreciate the apology and have retracted my own dismissive words accordingly. I get being angry and I get railing against defeatism. I just want to be sure we don’t allow conviction and righteous fury to tug us towards pure tribalism or lines of thinking that reject basic empiricism.
December 3, 2024 at 11:53 PM
I appreciate the apology and have retracted my own dismissive words accordingly. I get being angry and I get railing against defeatism. I just want to be sure we don’t allow conviction and righteous fury to tug us towards pure tribalism or lines of thinking that reject basic empiricism.
Certainly, I’d be happy to take the conversation private. I’m under deadline on a project this evening, so I may have to pause and pick things back up later, but civil discourse is the entire reason I ditched X for Bluesky, so it’d frankly be weird to turn down.
December 3, 2024 at 11:48 PM
Certainly, I’d be happy to take the conversation private. I’m under deadline on a project this evening, so I may have to pause and pick things back up later, but civil discourse is the entire reason I ditched X for Bluesky, so it’d frankly be weird to turn down.
I appreciate that. If the argument is voter suppression, I think that’s a completely valid argument, but we may have slightly different definitions of what constitutes “cheating” in the context of election subversion. It’s bad, it should be illegal, but it requires a different set of tools to fix.
December 3, 2024 at 11:45 PM
I appreciate that. If the argument is voter suppression, I think that’s a completely valid argument, but we may have slightly different definitions of what constitutes “cheating” in the context of election subversion. It’s bad, it should be illegal, but it requires a different set of tools to fix.