Category: News Feeds

Ed. note: Please welcome Kevin Ring to our pages. He’ll be writing about issues related to criminal justice reform.

Florida’s prisons are so overfilled and understaffed that the system is in danger of imploding. State leaders know it. Republican State Sen. Jeff Brandes has called Florida’s prisons “a ticking time bomb.” Democratic Rep. Dianne Hart said, ”This massive overcrowding is a direct result of our outdated sentencing policies that we continue to apply to this present day.”

Florida lawmakers responded in the recently concluded legislative session by introducing dozens of bills to address the problem –- and passing none of them. Apparently, the legislature could find no inefficiencies, nothing to improve, in a system that has incarcerated people like Cynthia Powell, a 57-year-old grandmother and first-time offender, for 17 years.

Cynthia, a single mother who doted on her family, was on disability because of uncontrollable diabetes. Over the years, as her illness worsened and she endured severe pain in her legs, she began taking the prescription medication Lorcet, which contains hydrocodone.

In the spring of 2002, an acquaintance called her, saying that she had the flu and had heard Cynthia had a Lorcet prescription. She wondered if Cynthia could sell her some pills. Cynthia refused, but the person kept calling. Finally, when money was especially tight, she gave in.

Cynthia agreed to meet the woman at a Starbucks parking lot in Sunrise, Florida. There, in a rundown green van, Cynthia sold 35 hydrocodone tablets for a whopping $300.

As it turned out, Cynthia’s acquaintance was working as a confidential informant for the police. Worse, thanks to Florida’s draconian mandatory minimum sentencing laws, Cynthia’s relatively minor drug sale made her indistinguishable from El Chapo.

For selling 35 tablets -– weighing 29.3 grams, the same weight as a slice of bread -– Cynthia was convicted and sentenced to a mandatory 25 years in state prison.

Cynthia’s sentence was extreme, but it was not unique. There are thousands of Floridians serving excessive prison sentences. These lengthy terms not only destroy the lives of the individuals serving them (and their families), but they divert limited public safety funding from interventions that would actually make communities safer.

Cynthia has now served 17 years in prison. No sentient being believes society will benefit from her serving another day. Even the legislature recognized that some drug laws were producing absurd sentences and passed modest reform in 2014. If Cynthia were convicted today of the same offense, she would be sentenced to seven years. (The fact that seven years seems reasonable shows how the drug war’s punishment inflation has warped our thinking.)

Here are three easy steps Florida could take tomorrow if it wanted to safely reduce its prison population.

First, the legislature should apply any and all recent sentencing reforms, like the 2014 drug law reform, retroactively. I don’t think most people realize that when Congress or state legislatures pass reforms, they almost never make those reforms retroactive. It’s absurd. Typically, lawmakers hear stories like Cynthia’s and are moved to adjust the law, but then they don’t extend the relief to the people who moved them in the first place. That needs to change.

Second, lawmakers should realize that neither they nor state judges are omniscient. When legislators establish a minimum penalty and when judges impose a sentence, no one knows for sure how the defendant might grow or change while incarcerated. The federal judge who sentenced bank robber Shon Hopwood said that Hopwood would never amount to anything. Today, Hopwood is a Georgetown law professor and the judge freely admits he was wrong. Good for him, but we need to bake that humility into the system. Florida needs to give judges and prosecutors a mechanism to review sentences after a person has been in prison for a time.

Florida should adopt a “second-look law” that would allow people an opportunity to be resentenced after a period of time — say, 15 years — if they can demonstrate that they have been rehabilitated. To his credit, Sen. Brandes introduced a second-look proposal this year aimed at youthful offenders, but the legislature did not act on it.

Finally, Florida Gov. Ron DeSantis should use his executive clemency authority to fix some of the extreme and outdated sentences handed down over the past two decades. The state’s mandatory minimum sentencing laws have generated plenty of deserving clemency recipients, perhaps none more so than Cynthia Powell. She should be sent home to her family tomorrow.

Florida leaders have done a fine job of identifying problems in the state’s prison system. Now they need to find the will to solve them.

---

Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

Senator Richard Burr is the chair of the Senate Intelligence Committee and has received daily briefings on the impact of COVID-19 since February. He was also co-author of the Pandemic and All-Hazards Preparedness Act, a piece of legislation that appears to have spectacularly failed, but it is an indication that, among lawmakers, Senator Burr is particularly sensitive to both pandemics and — probably more importantly — how governments and markets react to the idea of a pandemic.

Last night, ProPublica released a report that Burr and his wife “sold off a significant percentage of his stocks, unloading between $628,000 and $1.72 million of his holdings on Feb. 13 in 33 separate transactions.”

In the immediate aftermath of ProPublica’s reporting, three other Senators were found to have dumped their holdings before the markets decided to go into freefall: two Republicans, Senator Kelly Loeffler and Senator James Inhofe; and Republican-In-All-But-Name Dianne Feinstein. Of the four, all but Loeffler sat on the Intelligence Committee.

Before we get to whether or not the “COVID Four” here committed a crime — which they might have — let’s focus on the most important issue here: why are there United States Senators so gobsmackingly stupid that they assumed they wouldn’t get caught? It doesn’t matter if this lands them before the district court or just the court of public opinion, they looked out at the world and thought no one was going to raise any eyebrows when the market crashed and they walked onto the Senate floor carrying a bunch of brown bags with dollar signs painted on them.

The markets keep, like, records of this stuff.

At issue is the Stop Trading on Congressional Knowledge or “STOCK” Act, which extended the crime of insider trading to legislators trading on non-public information they receive in the course of their jobs. Astoundingly, prior to 2012, trading on secrets obtained as a public officer was not only legal but common. Among the handful of Senators who voted against the STOCK Act? Richard Burr. We now have a good sense why.

For his part, Burr’s office is claiming he made his trades based on public information that he heroically was able to wall off from all the closed door briefings he was getting as a lawmaker. That’s undoubtedly the route the rest of these jokers will take too. After all, everyone knew that there was some kind of virus by February, right?

Assuming you weren’t born yesterday — because there probably weren’t enough hospital beds for you — this excuse isn’t all that compelling. Seemingly benign “public” information looks a whole lot different to someone saturated in non-public intel. It’s like secretly knowing your friend is pregnant and then blabbing to everyone “she didn’t order a drink at Margarita hour, so I guess I can tell you all now!” Burr and the gang may be able to pass legal muster pointing to some public disclosure they were able to hang their hat on, but that’s not going to satisfy common sense Americans and it shouldn’t.

Because the critical problem with shrugging this off as “public” information is that the market collapse has almost nothing to do with the actual threat of the disease but rather an understanding of the hidden trigger points that would guide the response to the disease over the coming days. The market doesn’t drop 7 percent on opening because 150 people die from a novel pneumonia-inducing virus, the bottom falls out because there aren’t enough tests to do proper tracking ensuring that local governments invoke drastic lockdown measures. From ProPublica:

His biggest sales included companies that are among the most vulnerable to an economic slowdown. He dumped up to $150,000 worth of shares of Wyndham Hotels and Resorts, a chain based in the United States that has lost two-thirds of its value. And he sold up to $100,000 of shares of Extended Stay America, an economy hospitality chain. Shares of that company are now worth less than half of what they did at the time Burr sold.

On February 13, public health officials were still explaining what remains the best advice — wash your hands frequently, don’t touch your face, keep a reasonable distance from everyone, and avoid vulnerable folks. The idea that America would start banning travel hadn’t hit the radar yet. But it’d probably been discussed in the Intelligence Committee and if it hadn’t then it really makes you wonder what the point of an Intelligence Committee really is.

Making Burr’s case even worse, ProPublica identified a private event where Burr informed wealthy donors that the virus would have a dire economic impact while his public appearances towed the Republican line at the time of downplaying the severity of the illness.

But this administration isn’t going to prosecute anyone over this so it’s altogether moot. Whether these acts were criminal or merely criminal adjacent, the terrifying lesson is that the whole field of white-collar crime — for both the guilty and those who escape liability — is rampant with stupid people thinking they can get away with stuff that is remarkably simple to catch. And this apparently extends directly to the United States Senate.

We’re all going to die.

Senator Dumped Up to $1.7 Million of Stock After Reassuring Public About Coronavirus Preparedness [ProPublica]
Four senators sold stocks before coronavirus threat crashed market [The Hill]

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A keen-eyed Washington Post photographer at Thursday’s Coronavirus Task Force briefing revealed that not only did President Donald Trump once again refer to SARS-CoV-2 as “the Chinese virus,” but even Sharpie’d in a reminder to do so in the notes for his opening remarks.

When ABC News reporter Cecilia Vega asked at Wednesday’s briefing why he insists on using the term when people of Asian descent are falling victim to hate crimes amid panic over the Covid-19 pandemic, he said it wasn’t racist and was “accurate” because the virus originated in China. One has to wonder, does he intend such language as a diplomatic swipe at China, a xenophobic dog whistle to rally his base or a deflection from his administration’s botched response to the crisis? My guess would be the answer to that is “yes.”

But whatever the explanation, it fits patterns of behavior Trump has displayed amid the pandemic that mirror those of the Chinese leaders at whom he points his finger. In both countries, opportunities to control the contagion were squandered, people suffered severe illness and death, economies were crippled and nations brought to their knees thanks to leaders more interested in protecting their images and power than in safeguarding the public’s health and welfare. SARS-CoV-2 isn’t Chinese or, as some Chinese Communist Party figures have tried to suggest, American. It’s an authoritarian virus, and it has infected our respective countries as much as it has human beings.

When I say “authoritarian,” I don’t necessarily mean “dictator.” China is a one-party dictatorship, and the U.S. is a multi-party democratic republic. What Trump and Chinese President Xi Jinping have in common isn’t how much power they have, but their political worldviews and instincts. That’s important to note because although SARS-CoV-2 came from Mother Nature, authoritarian instinct fathered the self-interested inaction by leaders in China and later by Trump that has enabled its spread.

Trump’s social and news media bootlickers have defended the term “Chinese virus,” gaslighting people who have called it racist. OAN journalism cosplayer Chanel Rion was widely panned after she asked at the Thursday briefing if “Chinese food” was similarly racist and more or less accused the mainstream press of being foreign agents, her pseudo-question provoking Trump into an anti-media tirade. Rion’s idiotic, Jeff Gannon-style fawning is a prime example of the authoritarian dynamic at play. Rather than using her highly privileged position as a White House correspondent to hold leaders accountable, she used it as an opportunity to flatter them, acting as the very kind of propagandist she accused mainstream journalists of being.

To be sure, it’s undeniable that the CCP and the culture of censorship and top-down leadership it has fostered deserve a significant degree of the blame for the pandemic. As detailed in a Wednesday report by Axios, the response by authorities in China to early reports of the virus was to cover them up, reprimand doctors who posted information about it online and order labs to stop testing and destroy samples. They waited a whole week to publish the virus’ genome. Despite their more forceful response as of late and reports that China has seen no new domestic infections, a preprint study by the U.K.’s University of Southampton found that had they acted earlier, the number of cases could have been reduced by as much as 95%. And this was hardly an isolated incident: The Chinese government similarly tried to cover up the 2002-2003 SARS outbreak – which happened while I was living in China – persecuted HIV/AIDS activists and only admitted the existence of “cancer villages” in 2013. And it has lately mounted a propaganda offensive to obfuscate its culpability for the Covid-19 pandemic.

But it would be a mistake to think that Trump and his fans’ calling SARS-CoV-2 “the Chinese virus” is any kind of good-faith effort to hold the CCP accountable. If it was, they would be fair-minded enough to recognize our own elected president behaving in the very same way as a dictator waking up to the reality that he can’t censor away a global health crisis. Indeed, finger pointing by either side is little more than “Spy vs. Spy.”

Recall that when he wasn’t dismissing criticism of his administration’s handling of the outbreak as a “hoax,” Trump blamed the Obama administration for the ill-equipped Centers for Disease Control and Prevention and tried to prevent a cruise ship with infected passengers from docking to keep the number of infected in the U.S. artificially low. As he greatly exaggerated the country’s capacity to test people for the disease, the CDC quietly removed the number of people tested from its website, as it became clear we were – and still are – woefully unprepared. He ordered that high-level meetings about the pandemic be classified and that any public communication by officials working on it be cleared by Vice President Mike Pence.

None of these are the actions of a democratically inclined leader dedicated to transparency. They’re the kinds of things you would expect from an authoritarian dedicated to concealing facts that he finds personally inconvenient. So it’s no wonder that, like his counterparts in China, Trump has congratulated himself while failing to acknowledge, let alone meaningfully address, the systemic political problems that led to his inaction. It would simply not be in his short-term interest to do so, any more than would be for the CCP.

Like China’s leaders, Trump’s top priority was making himself look good and saving his own skin, particularly in an election year. As a result, like China, we wasted precious and irreplaceable time to forestall a catastrophic public health crisis in which every day counts. Now, while we hope we can come out like South Korea, which is emerging from its crisis thanks to widespread testing, we’re staring down the barrel of horrors like those experienced in Italy, where doctors are forced to choose who lives and who dies because they don’t have the resources to treat everyone.

Trump’s tone at the press briefings has noticeably changed to somber and serious, but his behavioral impulses have not. At what are supposed to be events to share crucial information and unite the country, he has heaped praise on himself, complained about the news media and taken shots at political opponents. And he has described a virus using a term that, intentionally or not, invokes the longstanding American tradition of casting ethnic minorities – especially non-white ones – as diseased and forever foreign.

The ease by which Trump reverts to his usual media-bashing and self-aggrandizing even in such a dire situation suggests that the only lesson he has learned is that if Covid-19 runs amok in the U.S., many will die as the healthcare system collapses, and the economy will get really, really bad – but above all, that will hurt his chances for re-election.

China’s leaders don’t have to worry about re-election, but they do have to worry about being dismissed, passed over for promotions or prosecuted, and they’re deeply paranoid about social unrest and the power of rumors, amid heavy press censorship, to spark it. In other words, their mindset is not unlike that of the Soviet officials in Pripyat, Ukraine, whose lies and desperation to curry favor with higher-ups enabled the Chernobyl nuclear disaster, while the USSR government tried to conceal it. As The New York Times’ Nicholas Kristof pointed out, there’s a good chance that while he is responsible for gutting China’s civil society and tightening the screws of dictatorship, Xi didn’t even know about the outbreak in Wuhan initially because in countries like China and the former USSR, local leaders default to flattery and good news when reporting to their superiors.

In all these cases, leaders have shown a willingness to court catastrophe for their own short-term self-interest, such that despite the U.S. and China’s political differences and adversarial relationship, both have reaped similar microbial whirlwinds. But again, the virus here isn’t Chinese or American – it’s authoritarian.

In addition to the antiviral drugs and vaccines that we should all hope will prove safe and effective against SARS-CoV-2, the authoritarian virus also requires an additional treatment. That treatment is to remember the selfish leaders who sat on their hands and suppressed inconvenient facts for fear of hurting their own political fortunes and to recognize their concerted efforts to mobilize our countries to combat the disease’s spread – however necessary and successful – for what they are: damage control to preserve those fortunes.

We have some unfortunate news today from New York, where an esteemed member of the legal profession passed away due to complications of coronavirus.

Richard E. Weber, 57, was a partner at Gallo Vitucci Klar as well as a board member of the LGBT Bar Association of New York. Big Law Business has some additional details on his death:

“Everyone at Gallo Vitucci Klar LLP is heartbroken and devastated by the loss of Richard,” senior partner Howard P. Klar said in an emailed statement. “He was a wonderful attorney and shining light at our firm. Our thoughts right now are with his family.”

Klar said the firm’s Manhattan office has been closed since Weber disclosed his symptoms on March 10. Attorneys and staff have been working remotely and the office was deep cleaned and disinfected. No one else at that office or the firm has had any Covid-19 symptoms or a positive diagnosis, he said.

According to Eric Lesh, executive director of LeGaL, Weber had been hospitalized and tested positive for COVID-19. Three days before Weber died, he have a conversation with Lesh where he “convey[ed] … that this was the sickest he’d ever been and that he was recovering and on the mend.” From the LGBT Bar’s Facebook page:

“In an age where we’re trying to focus on social responsibility and taking care of others, that was who Richard was.”

Weber brought “joy and exuberance” to everything he did, according to Lesh. “He was kind, thought of others first, and was always smiling,” Lesh said. …

“We cherish Richard’s memory and hold his partner, Antonio, and family in our hearts,” Lesh wrote in a statement on behalf of the bar association co-authored by board president Kristen Prata Browde. “Richard gave generously of his time and talents to improve the lives of LGBTQ New Yorkers.”

We here at Above the Law would like to extend our sincere condolences to Richard Weber’s family, friends, and colleagues during this difficult time.

New York LGBT Bar Board Member Dies of Coronavirus Complications [Big Law Business]

---

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Leaders in the legal profession always say the right things about diversity and inclusions, so why do the actual numbers lag so far behind?

In this week’s edition of The Jabot, I talk to Sara Eng, VP of Legal Partnerships at InCloudCounsel, about how the industry can make real changes to move the diversity needle. We discuss what it is about law firms that disproportionately limits the advancement of diverse lawyers, how firms can change their hiring practices to improve diversity at their firm, and how alternate work environments can bridge the diversity gap.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

---

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

It comes after the financial enterprise, which is headquartered in London, announced it had been in talks to increase customers sending amounts from US$500 to now allowing them to send or receive up to US$6,000 per single transaction.

The facility means that the company, started by Zimbabwean born techpreneur, Takwana Tyaranini and his business partner Ibrahima Soumano from Guinea, will allow them to pre-fund their digital money transfers to Zimbabwe and 50 other countries soon.

Last year, Senditoo secured a partnership with Banc ABC Zimbabwe. The service allows Zimbabweans to collect US dollar cash pick-ups in all Banc ABC branches nationwide.

Tyaranini said: “Africa is beginning to implement a mobile-led, digital payments structure and since we started, we have seen how briskly the demand for this facility has grown and how the potential of a service like this, is making cross-border payments more enhanced and efficient for customers.”

“Senditoo has significantly reduced the cost and delivery time for cross-border transfers, and our customers are beginning to see the benefits. With our latest partnership, this will significantly change the scope of our business, and in turn improve the customers’ experience.”

The company, which has expanded its services in less than three years, says it intends to be the dominant money transfer firm in Zimbabwe and across Africa.

The new partnership is part of a wider scheme to ensure that customers are not only able to send and receive money transfers quickly but that they are able to send and receive more money than the current restrictions of less than $1,000.

Business partner, Ibrahima Soumano said: “There is a cumulative interest from fintech providers that has seen the need to build on Africa’s digital money network, a setup established over 10 years ago. However, there is still room for progression and we want to fill that gap. Thanks to this defining partnership, we have a chance to make this market both lucrative and successful for the whole of Africa.”

The company has rapidly grown since its launch in 2016, when the purpose of the service was to enable migrants to send instant mobile phone credit to their loved ones in various parts of the world. In less than 12 months the innovative financial provision was in over 140 countries and had secured coverage of over 400 mobile operators worldwide.

Senditoo’s revenue increased by over 600% globally in 36 months and they have progressively become, not only the favourite airtime transfer platform for Zimbabweans living in the UK, but a new digital money transfer organisation that is changing the landscape of the way transactions are done in the southern African country.

Africa is the future

Africa has become a thriving market for money transfer companies as its telecommunication facilities improve. As one of the world’s largest populations, a vast percentage of the continent now accounts for a great share of the global remittance sectors growth in recent years.

Tyaranini said he believes that Africa is the central hub for driving remittances. Stating that, with the advances in technology, the demand to connect more people around the world through money transfers is becoming a sought after way of sending and receiving money internationally, as well as for making swift business transactions.

Post published in: Featured

Last summer, we wrote about yet another post-Blurred Lines decision, showing that any two random songs that sounded kinda a little similar, might be ripe for a court to find infringing. In this case, it was a Katy Perry song, Dark Horse, that was found to infringe on a little known artist named “Flame,” who had a song called “Joyful Noise.” As we noted at the time, the similarities between the song were simply basic and fundamental building blocks of music. As that article points out:

The issue isn’t that “Joyful Noise” or “Dark Horse” are particularly original: both fuse generic elements of pop, trap and EDM—a style that’s come to define the sound of the 2010s. Though in different keys and tempos, both songs feature a descending minor-key progression with evenly spaced B and C notes.

This four-note progression is as basic as the major-scale power-chord riffs in punk, and Perry’s supporters argue that standard songwriting tropes like these should stay in the public domain. Indeed, well-known works like the Stranger Things theme song and LL Cool J’s “Doin’ It (Remix)” use descending minor-scale loops similar to those in “Dark Horse” and “Joyful Noise.”

But, when a bunch of non-musicologist jurors say “hey, that sounds kinda similar,” it seemed to be game over for Perry. Except… sanity may have finally prevailed. Months later, after Katy Perry asked the judge to overrule the jury as a matter of law (as opposed to a matter of fact, which is what the jury decides), the judge in the case has now thrown out the jury verdict, and properly noted that the similarities are not subject to copyright protection in the first place. Somewhat incredibly, it was the plaintiff’s own expert witness who appeared to hand the judge all the evidence that was needed in comparing the two works:

The Court agrees that the uncontroverted evidence points to only one conclusion: that none of these individual elements are independently protectable. It is plaintiffs’ burden to establish the protected elements of their allegedly infringed work… Dr. Decker did not provide testimony that each of the elements he identified are individually original. To the contrary, he testified that “[n]o one single . . . element” caused him to determine that the works contained protected features that were substantially similar…. Any single one of those [elements] would not have been enough,” he conceded, “[i]t’s the combination of them” that supported his conclusion….

Plaintiffs contend that, notwithstanding what Dr. Decker said, he did not expressly concede “that each individual element was unremarkable or commonplace.”… The clear–indeed only–implication of Dr. Decker’s testimony is that, if the two ostinatos are similar at all, it is reasonable only as a result of the arrangement of elements within those ostinatos, not any similarities between the individual elements themselves (which “would not have been enough”). Plaintiff’s burden to present evidence that establishes protectability of each individual element is not met when their own expert provides testimony that assumes the opposite.

Further, Dr. Decker conceded, in substance, that several of the allegedly original individual elements of the plaintiffs’ ostinato are not original: (1) with respect to the phrase lenght of eight notes, Dr. Decker testified that it is “characteristic for a phrase like this [ostinato] to last for eight beats,” … (2) with respect to the beginning of the pitch sequence of “3, 3, 3, 3, 2, 2,” Dr. Decker testified that a repeating scale degree of “3” that later resolves is a technique used for “building up tension that wants to be released” and that, when such tension is released in a song with “strong beat” like “Joyful Noise” it is “released to 2,”… (3) with respect to the way the “Joyful Noise” ostinato resolves from 3 to 2 to 1, Dr. Decker testified that “scale degrees have tendencies” in popular music such that, to make a pleasant consonant sound, “3 wants to go down to 2” and “2 desperately wants to go to 1” because “1 is our home note,” which indicates that the way the ostinato resolves is not so much original as necessary… (4) with respect to the “Joyful Noise” ostinato’s “square and even rhythm,” Dr. Decker testified that this is a “relatively simple rhythmic choice” and agreed that “no composer [is] entitled to monopolize the rhytm of eight even quarter notes,” … (5) with respect to the ostinato’s pingy synthesized timbre, Dr. Decker testified that it is essentially common since it would be “very difficult to monopolize,” … and (6) with respect to the deployment of these phrases as an ostinato (as opposed to some other musical device), Dr. Decker testified that ostinatos are commonly-used musical devices in “countless” musical compositions.

I think those paragraphs are slamming the lid shut on Dr. Decker’s career as an expert witness on the plaintiff side of these cases… though they might open up opportunities on the defense side.

The judge also cites the very recent Stairway to Heaven ruling, saying that the 9th Circuit has now established that when we’re talking about such obvious things, similarity is not enough — the songs need to be “virtually identical.”

For a plaintiff that seeks to apply this theory of protection to “works where there is a narrow range of available creative choices, the defendant’s work would necessarily have to be ‘virtually identical’ to the plaintiff’s work to be substantially similar.” (Skidmore v. Led Zeppelin)

And here, the court says, the songs are not virtually identical, and once again the Plaintiff’s own expert helped make that clear:

The evidence in this case does not support a conclusion that the relevant ostinatos in “Dark Horse” and “Joyful Noise” are virtually identical. There are a number of undisputed objective distinctions that, as a matter of law, negate liability. First, Dr. Decker testified that the pitches on the seventh and eighth beats of the “Joyful Noise” ostinato are different from the pitches on the corresponding beats of the “Dark Horse” ostinato: in “joyful Noise,” the pitch sequence on these beats resolves up from B-A/F, while in “Dark Horse,” the pitch sequence on these beats resolves down from A-E…. Plaintiffs characterize this testimony as signaling a similarity in how the songs resolve, and point to Dr. Decker’s testimony that both ostinatos “share[e] similar musical strategies for how to end.” … But that conclusion is contrary to law: the question is whether the identified and allegedly protected concrete elements of the “Joyful Noise” ostinato are, in their combined form, objectively similar in articulable ways to corresponding concrete elements in the “Dark Horse” ostinato, not whether the ostinatos reflect common “strategies.”… Moreover, the fact that the two 8-note ostinatos resolve using two different pitches despite a tendency to resolve within only a narrow range of pitches… (Dr. Decker conceded that “scale degrees have tendencies” to resolve in a particular manner), indicates an objective distinction rather than similarity. Second, the composition for the ostinato in “Joyful Noise” contains at least six instances of portamento (i.e. a slide between musical notes) not present in “Dark Horse.”… Dr. Decker testified that he does not “hear” these differences “as signicant,” … but that opinion is legally irrelevant. Dr. Decker acknowledged that the presence of slides in the composition of “Joyful Noise” is “a difference” between the compositions…. And third, Dr. Decker acknowledged that the compositions for the ostinatos use different keys, tempos, harmonies, and rhythms.

I don’t think this will stop these kinds of cases from being brought — and this one may still be appealed. But, between the ruling in the Stairway to Heaven case, and now the judge ruling on this issue as a matter of law, it might bring some modicum of sanity back to the world of music copyright.

Surprise: Judge Throws Out Jury’s Awful Copyright Infringement Decision Over Katy Perry Song

More Law-Related Stories From Techdirt:

Two Senators Sold A Bunch Of Stock After Being Briefed About COVID-19; While Telling The World Things Were Going To Be Fine
EU Considering Enacting Right-To-Repair To Return Power To Consumers, Protect The Environment
Body Camera Once Again Catches An NYPD Officer Planting Drugs In Someone’s Car

You know who you really want on your side when the chips are down in a health crisis? Jared Kushner. This guy must know all about spreading health problems, namely because he seems to be doing so much of it himself among the tenants in his sh*tty apartments.

Kushner stepped down as CEO of Kushner Cos., the real estate empire he inherited, when he became a senior adviser to his father-in-law Donald Trump in 2017. He did not divest from all of its properties, however, including Westminster Management. A complaint filed by Maryland Attorney General Brian Frosh (after two years of negotiations failed) alleges Westminster Management and 25 companies whose properties it manages “victimized consumers, many of whom are financially vulnerable, at all stages of offering and leasing.” In addition to financially exploiting tenants, it seems Westminster Management rented out thousands of apartments that were infested with rodents, full of mold and prone to sewage backups. I guess when Trump called Baltimore a “rat and rodent infested mess” last summer, he might have been getting that right from the source.

* A New Jersey lawyer has been suspended from practice for submitting a fabricated law school transcript to Williams & Connolly falsely listing his GPA as a 3.825 when he actually had a 3.269. Kuddos to the firm for catching this! [ABA Journal]

* A lawsuit in New Hampshire is arguing that New Hampshire’s governor does not have the authority to limit crowd sizes to 50 people or less. [Boston Globe]

* A Maryland attorney has been disbarred for convincing a client to invest settlement proceeds in litigation matters at the firm and then lying about the results of those cases. [Bloomberg Law]

* Some government entities are looking to release prisoners who may be vulnerable to COVID-19. [Boston Globe]; [Washington Post]

* A GoFundMe campaign for two University of Michigan Law School cafe workers has raised over $30,000 in two days. It’s good to have a feel-good story in these trying times. [Michigan Live]

---

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.