1
00:00:00,160 --> 00:00:04,920
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.

2
00:00:17,640 --> 00:00:22,200
Speaker 1: The epic copyright battle over Led Zeppelin's iconic Stairway to Heaven,

3
00:00:22,400 --> 00:00:25,600
Speaker 1: one jury trial and two replays at the Ninth Circuit

4
00:00:25,920 --> 00:00:28,479
Speaker 1: has resulted in a win for the band and for

5
00:00:28,520 --> 00:00:32,760
Speaker 1: the music industry. Joining me as intellectual property litigator Terence Ross,

6
00:00:32,880 --> 00:00:37,520
Speaker 1: a partner at Caton Uchen Rosenman Terry. The plaintiff claim

7
00:00:37,600 --> 00:00:40,880
Speaker 1: the songs were similar based on the combination of five

8
00:00:41,080 --> 00:00:45,120
Speaker 1: common musical elements. What did the courts say about that? Well,

9
00:00:45,159 --> 00:00:48,680
Speaker 1: the Court agreed with the jury's finding that these five

10
00:00:48,720 --> 00:00:52,479
Speaker 1: individual elements were not substantially similar. Court went on to

11
00:00:52,479 --> 00:00:56,640
Speaker 1: say that they were all relatively common building blocks in

12
00:00:57,000 --> 00:01:02,320
Speaker 1: musical composition, and that therefore they really weren't protectable under

13
00:01:02,360 --> 00:01:04,840
Speaker 1: the Copyright Act in the first place. Does that mean

14
00:01:04,880 --> 00:01:09,120
Speaker 1: a few notes sequence can or cannot be copyrighted? The

15
00:01:09,200 --> 00:01:13,399
Speaker 1: Court has specifically said and repeated in this case um

16
00:01:13,680 --> 00:01:18,000
Speaker 1: that they've never used the word never extended copyright protection

17
00:01:18,319 --> 00:01:22,319
Speaker 1: to just a few notes. The argument made on appeal

18
00:01:22,440 --> 00:01:28,520
Speaker 1: here by the trustee for the plaintiff was that it

19
00:01:28,600 --> 00:01:32,520
Speaker 1: wasn't merely a few notes that were copied. It was

20
00:01:32,760 --> 00:01:39,000
Speaker 1: a purportedly unique combination of these five musical elements, which

21
00:01:39,200 --> 00:01:43,319
Speaker 1: each in and of themselves might have been unprotectable, but

22
00:01:43,480 --> 00:01:48,200
Speaker 1: when combined in a unique way, became copyrightable. And that

23
00:01:48,200 --> 00:01:53,440
Speaker 1: that is why Stairway to Heaven infringed the copyright of

24
00:01:53,480 --> 00:01:57,240
Speaker 1: the song Torus. So, now the Ninth Circuit had what's

25
00:01:57,240 --> 00:02:00,840
Speaker 1: called the inverse ratio rule for copy cases for more

26
00:02:00,840 --> 00:02:04,160
Speaker 1: than forty years. Did it reverse that in this case

27
00:02:04,280 --> 00:02:08,799
Speaker 1: and explain what that is? That's probably what the scholars

28
00:02:08,840 --> 00:02:10,920
Speaker 1: will say is the most boardant takeaway from this case

29
00:02:11,000 --> 00:02:15,000
Speaker 1: that the Ninth circuits infamous inverse ratio rule has been

30
00:02:15,040 --> 00:02:19,320
Speaker 1: aggregated completely overruled. Keep in mind that this decision was

31
00:02:19,440 --> 00:02:22,160
Speaker 1: by the entire court of the Ninth Circuit of Big

32
00:02:22,160 --> 00:02:25,040
Speaker 1: Court to start with, but all the active judges eleven

33
00:02:25,120 --> 00:02:28,760
Speaker 1: judges participated in this and so it's a very important

34
00:02:28,760 --> 00:02:31,440
Speaker 1: decision just on that basis alone. But what the inverse

35
00:02:31,520 --> 00:02:35,320
Speaker 1: ratio rule said was if in these cases where you

36
00:02:35,360 --> 00:02:38,160
Speaker 1: cannot prove direct copying where you know the person took

37
00:02:38,240 --> 00:02:40,920
Speaker 1: something to xerox machine and copied it or you watch

38
00:02:41,040 --> 00:02:43,280
Speaker 1: them hand copied it, where you have to show it

39
00:02:43,360 --> 00:02:46,520
Speaker 1: sort of show circumstantial copying, and you have to prove

40
00:02:46,800 --> 00:02:49,560
Speaker 1: that the defendant had both access to the work and

41
00:02:49,840 --> 00:02:53,920
Speaker 1: substantial similarity. If you have a really lot of access,

42
00:02:54,000 --> 00:02:56,679
Speaker 1: which was the case here, therefore you don't have to

43
00:02:56,720 --> 00:03:01,280
Speaker 1: show as much similarity. That's the inverse ratio. Lots of access,

44
00:03:01,760 --> 00:03:07,200
Speaker 1: less similarity, very little access, lots of similarity required. The

45
00:03:07,320 --> 00:03:09,880
Speaker 1: vast majority of courts in the nation have rejected that rule,

46
00:03:09,960 --> 00:03:12,600
Speaker 1: and the Ninth Circuit now joins them and says, you know,

47
00:03:12,720 --> 00:03:14,919
Speaker 1: we've gotten it wrong for all these years, and it's

48
00:03:14,960 --> 00:03:18,600
Speaker 1: twenty plus years now. We've had it wrong all those years,

49
00:03:18,639 --> 00:03:22,240
Speaker 1: and we are now abrogating the inverse ratio rule for

50
00:03:22,320 --> 00:03:25,079
Speaker 1: copyright cases. I thought it was interesting that the Appeals

51
00:03:25,120 --> 00:03:28,919
Speaker 1: Court said that access has been deluded in the digital

52
00:03:29,000 --> 00:03:33,079
Speaker 1: age because so many works are available on Netflix, on YouTube,

53
00:03:33,120 --> 00:03:37,040
Speaker 1: on Spotify. It made a very interesting point, using the

54
00:03:37,440 --> 00:03:41,360
Speaker 1: television show The Office as an example. It said essentially

55
00:03:41,480 --> 00:03:44,360
Speaker 1: that and where you turn, you will find an episode

56
00:03:44,440 --> 00:03:48,760
Speaker 1: of the Office, and therefore these highly accessible copyright it

57
00:03:48,800 --> 00:03:52,920
Speaker 1: works like The Office take advantage of this inverse ratio

58
00:03:53,080 --> 00:03:58,080
Speaker 1: rule unfairly as opposed to other works that aren't as accessible.

59
00:03:58,120 --> 00:04:02,160
Speaker 1: In our digital world, and the copyright law was never

60
00:04:02,320 --> 00:04:06,480
Speaker 1: intended to favor one class of works over another class

61
00:04:06,480 --> 00:04:09,160
Speaker 1: of works, or one type of copyright over another copyright,

62
00:04:09,440 --> 00:04:14,040
Speaker 1: and therefore the inverse ratio rule public policy grounds was wrong.

63
00:04:14,440 --> 00:04:16,200
Speaker 1: And of course this is what all the other courts

64
00:04:16,200 --> 00:04:18,560
Speaker 1: had been saying for twenty years now, and the Ninth

65
00:04:18,560 --> 00:04:21,800
Speaker 1: Circuit just got around to figuring it out. Well, better

66
00:04:21,880 --> 00:04:24,719
Speaker 1: late than never, as they say, right, we've talked before

67
00:04:25,000 --> 00:04:30,040
Speaker 1: about copyright lawsuits at the music industry recently has called frivolous,

68
00:04:30,040 --> 00:04:36,600
Speaker 1: like the Blurredlines trial in Will this decision clear that up?

69
00:04:36,680 --> 00:04:40,000
Speaker 1: Will it make it better for the music industry? Well,

70
00:04:40,040 --> 00:04:43,760
Speaker 1: it remains to be seen. The descent here two judges

71
00:04:43,800 --> 00:04:47,200
Speaker 1: did dissent from the decisions that was nine to two.

72
00:04:47,520 --> 00:04:52,560
Speaker 1: The descent specifically said that this ruling will, as it said,

73
00:04:52,680 --> 00:04:57,440
Speaker 1: weaken copyright protection for musicians by robbing them of the

74
00:04:57,520 --> 00:05:03,040
Speaker 1: ability to protect a unique way of combining musical elements.

75
00:05:03,080 --> 00:05:07,440
Speaker 1: And this goes back to the finding by the majority

76
00:05:07,480 --> 00:05:13,480
Speaker 1: that the way the combination of the five different musical

77
00:05:13,520 --> 00:05:17,240
Speaker 1: building blocks was made was not really something that could

78
00:05:17,240 --> 00:05:21,839
Speaker 1: be sued upon. Here. I think the descent, however, overstates

79
00:05:21,880 --> 00:05:26,520
Speaker 1: the case, the majority did not say, under no circumstances

80
00:05:26,640 --> 00:05:31,200
Speaker 1: could some combination of common musical elements be copyrightable. They

81
00:05:31,200 --> 00:05:33,760
Speaker 1: did not say that. The descent seems to assume that

82
00:05:33,839 --> 00:05:37,240
Speaker 1: they did. What they said was in this instance, we

83
00:05:37,360 --> 00:05:41,840
Speaker 1: did not see at the trial record anything that indicated

84
00:05:42,200 --> 00:05:48,320
Speaker 1: that the plaintiff had demonstrated that these five desperit common

85
00:05:48,440 --> 00:05:52,479
Speaker 1: musical elements were combined in such a way that was

86
00:05:52,560 --> 00:05:56,440
Speaker 1: then copied by led Zeppelin. And so I think that's

87
00:05:56,480 --> 00:05:59,680
Speaker 1: the distinction, and therefore I think um to a certain extent,

88
00:06:00,080 --> 00:06:03,479
Speaker 1: the descent is crying wolf here Terry. A court in

89
00:06:03,480 --> 00:06:06,239
Speaker 1: New York has put off a trial involving Ed Sharon

90
00:06:06,680 --> 00:06:09,840
Speaker 1: waiting for this decision. What are they waiting for? And

91
00:06:10,000 --> 00:06:13,760
Speaker 1: does this answer it? Well, I don't know, um, if

92
00:06:13,800 --> 00:06:16,600
Speaker 1: it will or it will not. They were not waiting

93
00:06:16,720 --> 00:06:19,919
Speaker 1: on the decision on the inverse ratio rule, because the

94
00:06:19,960 --> 00:06:23,680
Speaker 1: Second Circuit had already rejected that. Clearly, they were looking

95
00:06:23,720 --> 00:06:27,680
Speaker 1: at the concept of whether or not a plane of

96
00:06:27,760 --> 00:06:30,360
Speaker 1: should be entitled to get a jury instruction telling the

97
00:06:30,440 --> 00:06:33,680
Speaker 1: jury that they should consider whether or not there's a

98
00:06:33,720 --> 00:06:37,800
Speaker 1: certain selection of musical elements combined in such a way

99
00:06:37,880 --> 00:06:41,000
Speaker 1: as to make them unique and therefore entitled to copyright protection.

100
00:06:41,520 --> 00:06:44,480
Speaker 1: I'm not sure that there's the sort of clarity here

101
00:06:44,480 --> 00:06:46,760
Speaker 1: in this decision that's going to help the New York Court,

102
00:06:46,839 --> 00:06:50,880
Speaker 1: quite frankly, because I believe that the ruling by the

103
00:06:50,960 --> 00:06:56,120
Speaker 1: Ninth Circuit is very fact specific to the led Zeppelin case. Terry,

104
00:06:56,120 --> 00:06:58,640
Speaker 1: always a pleasure to speak to you. Thanks so much.

105
00:06:58,720 --> 00:07:02,159
Speaker 1: That's Terence Ross. He's a partner at Caton muchen Rosamand

106
00:07:03,640 --> 00:07:06,600
Speaker 1: thanks for listening to the Bloomberg Law Podcast. You can

107
00:07:06,640 --> 00:07:10,400
Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud,

108
00:07:10,440 --> 00:07:14,360
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

109
00:07:14,840 --> 00:07:16,120
Speaker 1: This is Bloomberg