Almost exactly three years ago, we were pleasantly surprised to find that a jury unanimously ruled that Led Zeppelin did not infringe on a song by the band Taurus called “Spirit” with “Stairway to Heaven.” We noted that, similar to the Blurred Lines case, if you just listen to bits and pieces of each song, you can hear a similarity, but that does not, and should not, mean it was infringing. As we’ve pointed out, while Stairway and Taurus can sound similar:
… the same is true of Stairway, Taurus… and J.S. Bach’s Bouree In E Minor, which you’d better believe is in the public domain:
Given all that, we were disappointed last fall when the 9th Circuit suddenly vacated the jury’s decision and ordered a new trial, claiming that the jury instructions in the original were incorrect. However, as copyright lawyer, Rick Sanders explained, there were potentially some positives to come out of this, such as some very good reasons for this decision, including that it might fix the 9th Circuit’s insanely ridiculous legal framework for determining if there is infringement. Also, there were some very real problems with the jury instructions.
However, before the case did go back for a second trial, that decision was appealed, and now the 9th Circuit has agreed to hear the issue en banc (with an 11-judge slate). It looks like there are a number of potentially important issues that the court will get a chance to dig into when it hears the case this fall. The guy who runs the estate of the guy who wrote “Taurus” wants the court to determine whether or not the specific sheet music that is deposited with the copyright lays out the full scope of what is covered (under the 1909 Copyright Act, which applied when the song was written), and also suggests that the court needs to consider the “dire consequences” of its decision “including the seismic disenfranchisement of almost all” musicians of pre-1978 music (which, uh, is quite a bit of hyperbole). Meanwhile, Zeppelin admits that there were some problems with the original jury instructions (though, not as much as the other side claims), but says that it wouldn’t have made a difference and that the plaintiff “invited and waived” the mistake in the first place.
However, as Rick Sanders noted in his pieces, Zeppelin’s lawyers also ask the 9th Circuit to toss out the weird “inverse ratio rule” legal framework that the 9th Circuit uses in determining infringement (to understand that weird rule, go back and read this piece).
Of course, this is the 9th Circuit we’re talking about, and it has a way of getting copyright law completely screwed up all too frequently. So while it has a chance to do something good, it could also muck things up, and this particular court is especially good at mucking up copyright law.