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JUDGE ORDERED TO GET IN THE MOOD BEFORE COPYRIGHT RULING A judge needs to feel the groove if she’s going to decide whether Mariah Carey stole music for one of her R&B songs. So said a unanimous Ninth Circuit U.S. Court of Appeals panel recently in overturning a summary judgment ruling by Central District of California Judge Christina Snyder. In Swirsky v. Carey, 04 C.D.O.S. 6178, panel judges said Snyder did not properly examine the two songs at issue, calling the judge’s assessment of the pieces “too mechanical.” Songwriters Seth Swirsky and Warryn Campbell sued Carey, alleging the singer and her collaborators lifted elements from “One of Those Love Songs,” which was recorded by Xscape in 1998, and for “Thank God I Found You,” which was on Carey’s 1999 album, “Rainbow.” The panel said Judge Snyder erred in the method she used to determine whether there were substantial similarities between the choruses in each song because she relied upon “a measure-by-measure comparison of melodic note sequences.” “Objective analysis of music � cannot mean that a court may simply compare the numerical representations of pitch sequences and the visual representations of notes to determine that two choruses are not substantially similar, without regard to other elements of the compositions,” according to the opinion, which was written by Senior Judge William Canby. “To pull these elements out of a song individually, without also looking at them in combination, is to perform an incomplete and distorted musicological analysis.” The judge should have also examined chord progression, tempo, rhythm and even the genre of the music, the panel said. The three judges ordered the case back to district court to determine whether Carey infringed on Swirsky and Campbell’s copyright. – Jeff Chorney SMOKE GETS IN YOUR EYES In San Francisco — at least in state court — a dispute between a marijuana grower and a pot provider is just another business deal gone sour. Ed Rosenthal is still trying to get paid for a sale that helped the feds convict him of manufacturing a controlled substance last year. The marijuana guru faced off in a small claims appeal Thursday against Robert Martin, who testified last year that he’d written Rosenthal $4,500 worth of checks in February 2002 to pay for a medical marijuana dispensary’s “starter” plants. After his conviction, Rosenthal sued — the checks had bounced. Martin’s lawyer, ex-San Francisco homicide prosecutor James Hammer, briefly raised the legality of the transaction, but with visible reluctance. “Under federal law, I don’t think [the legality] was ever debatable, unfortunately,” Hammer said. His comments got a rise out of Rosenthal’s lawyer, San Francisco attorney Carol Ruth Silver. “[Martin] was, No. 1, engaged in the same level of illegality, if it was illegal,” she told Judge James McBride. McBride noted that California law shields medical marijuana providers from prosecution, but that “any party [in this case] was a violator of federal law, period.” In the end, though, Hammer dropped that line of argument, saying that as a volunteer at HARM Reduction Therapy Center, Martin wasn’t liable for the checks. Silver countered that Martin had taken over ownership of the dispensary shortly before he wrote them. The venom between the two men was evident in court Thursday. Not only has Martin recently accused Rosenthal of calling him a “snitch,” but one witness, Jane Weirick, said the two got into a fight at her wedding. – Pam Smith DEADLINE SHMEDLINE It seems the woes never end for Littler Mendelson in a Santa Clara County sexual harassment case. The prominent employment and labor law firm was rapped by a Santa Clara County judge and fined nearly $88,000 in May for discovery violations during a sexual harassment trial involving its client, Cypress Semiconductor Corp. The firm appealed the ruling to the Sixth District Court of Appeal — but soon received a default notice from the court’s deputy clerk because it “failed to perform the duties required to procure the record on appeal.” Littler filed its appeal on July 1, just making a 60-day deadline. But according to the July 13 notice, the firm did not file “notices designating court reporter’s transcripts” and a “notice designating a clerk’s transcript” in a timely manner. The firm has 15 days to complete the tasks or the appeal will be dismissed. Littler attorney Michelle Heverly downplayed the significance of the default notice, saying what the firm did was perfectly legitimate. “This code allows you to do this, and this means nothing about the underlying appeal,” she said. – Justin M. Norton CROSSING ‘T’S, DOTTING ‘I’S Vernon Joseph’s case was sunk by a transcript �� a record created by meticulous Alameda County Superior Court Judge Jon Rolefson. Joseph says he spent more than five years in prison because he was set up by a fired Oakland cop who is wanted to stand trial for criminal misconduct in the “Riders” case. But the would-be civil suit had a big flaw: Joseph agreed not to sue the city in exchange for immediate release from prison. Joseph filed a federal civil rights suit against Oakland anyway, arguing that the deal was made in a “coercive environment” and that his defense attorney told him he would be able to sue the city. But in a June 15 order, Senior U.S. District Judge Thelton Henderson didn’t buy it. When Rolefson went over the deal, he carefully spelled out the implications of the pact. Henderson’s order included a hearing excerpt that shows that Rolefson asked Joseph four times if he had felt pressured to make the deal. Twice Rolefson asked him if he had any questions about giving up his right to sue. Each time, Joseph said no. Like many court watchers, Oakland’s attorney on the Joseph case, Gregory Fox, has seen Rolefson carefully go over plea deals �� even with a calendar packed with dozens of defendants. He shuddered when he imagined what would have happened if another judge, pressed for time, had breezed over the case. “You never know what will happen to a case” after the gavel falls, he said. Rolefson said he doesn’t remember Joseph. Going over each case carefully means that everything gets done fairly, he said. “My job is to make sure people’s rights are protected and to make the right decision.” – Jahna Berry

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